EPA/530-R-95-021   
                                              NTIS:  PB95-208 930

  

                       BACKGROUND DOCUMENT

                             FOR THE

                           CESQG RULE

                            U.S. EPA

                            MAY 1995

                             Outline

I.     Authority

II.    Background
       A. Current Solid Waste Controls Under the Resource         
          Conservation and Recovery Act (RCRA)
                1. Non-Hazardous Waste Management: General
                2. Non-Hazardous Waste Management: Municipal
                   Wastes
       B. Small Quantity Generator Hazardous Waste Controls
       C. Sierra Club Lawsuit
       D. RCRA Section 3001(d)(4) and Conditionally Exempt Small  
          Quantity Generators
       E. Previous Activities to Address Industrial Facilities    
          that Manage Non-Hazardous Industrial Wastes   

III.   Summary of Today's Proposed Regulatory Approach

IV.    Characterization of CESQG Waste, Industrial D Facilities   
       that May Receive CESQG Wastes, and Existing State Programs 
       Related to CESQG Disposal  
       A. CESQG Waste Volumes, Generators and Management
                1. Number of CESQGs
                2. Major CESQG Waste Generating Industries
                3. CESQG Waste Volume
                4. Major CESQG Waste Types
                5. CESQG Management Practices       
       B. Facilities that "May Receive" CESQG Waste 
                1. Manufacturing Industries with On-Site CESQG
                   Disposal
                2. Commercial Off-Site Facilities
                3. Construction and Demolition Landfills 
       C. Existing State Programs  
               1. State Requirements Pertaining to Management of 
                  CESQG Hazardous Wastes 
               2. State Requirements for Construction and         
                  Demolition Facilities

V.     Discussion of Today's Regulatory Proposal 

       A. Non-Municipal Solid Waste Disposal Facilities that      
          Receive CESQG Hazardous Waste  

       B. Decision to Impose or go Beyond the Statutory Minimum   
          Components
             1. Construction and Demolition Waste Facilities 
                  a) Construction and Demolition Leachate     
                  b) Construction and Demolition Damage Case      
                     Analysis
                  c) Construction and Demolition Ground-Water     
                     Monitoring Data  
                  d) Conclusions for Construction and Demolition  
                      Facilities
             2. Off-Site Commercial Landfills 
             3. Request for Additional Data and Comments        
                  Concerning Statutory Minimum or More            
                  Comprehensive Facility Requirements  

       C. Decision to Establish Facility Standards under Part 257 
          and Revisions to Part 261

       D. Request for Comment on the Use of an Alternative        
          Regulatory Approach in Today's Rule

       E. Highlights of Today's Statutory Minimum Requirements
           for Non-Municipal Solid Waste Disposal Facilities that
           May Receive CESQG Hazardous Wastes               
             1. Applicability               
             2. Specific Location Restrictions
                    a. Airport Safety
                    b. Floodplains
                    c. Wetlands
                    d. Fault Areas 
                    e. Seismic Impact Areas 
                    f. Unstable Areas 
             3. Specific Ground-Water Monitoring and Corrective 
                  Action Requirements
                    a. Applicability of Ground-water Monitoring
                    and Corrective Action Requirements
                    b. Overall Performance of the Ground-Water
                    Monitoring System
                    c. Ground-water Sampling and Analysis
                    Requirements
                    d. Detection Monitoring Program
                    e. Assessment Monitoring Program
                    f. Corrective Action Program
             4. Recordkeeping Requirements  

       F. Other Issues Relating to Today's Proposal
             1. Owner/Operator Responsibility and Flexibility in  
                  Approved States
             2. CESQG's Responsibilities Relating to the          
                  Revisions in Section 261.5, Paragraphs (f) and    
                  (g)

VI.  Implementation and Enforcement

       A. State Activities under Subtitle C 
             1. Hazardous and Solid Waste Amendments to RCRA
             2. Effect on State Authorizations

       B. State Activities under Subtitle D

       C. Relationship Between Subtitle C and D        

       D. Enforcement
             1. Hazardous Waste Enforcement
             2. Subtitle D Enforcement

VII.  Executive Order No. 12866 - Regulatory Impact Analysis

       A. Cost Impacts
             1. Cost Impact to CESQGs with On-Site Disposal
             2. Cost Impact to Commercial (Off-Site) Subtitle D 
                Industrial Waste Facilities
             3. Cost Impact to Construction and Demolition
                Waste Generators and Landfills

       B. Benefits

VIII. Regulatory Flexibility Act 

       A. CESQGs with On-Site Disposal in Subtitle D Units

       B. CESQGs with Off-Site Disposal in C&D Landfills
             1. Construction Industry
             2. Wrecking and Demolition Industry - Lower Bound
             3. Wrecking and Demolition Industry - Upper Bound

       C. Construction and Demolition Waste Landfills

IX.   Paperwork Reduction Act 

X.    Environmental Justice

XI.   Unfunded Mandates Reform Act 

XII.  References

I. Authority 

     These regulations are being proposed 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)

1. Non-Hazardous Waste Management: General

     Subtitle D of RCRA establishes a general framework for
Federal, State, and local government cooperation in controlling
the management of non-hazardous solid waste.  The Federal role is
to establish the overall regulatory direction, to provide minimum
national standards for protecting human health and the
environment, and to provide technical assistance to States for
planning and developing environmentally sound waste management
practices.  The actual planning and direct implementation of
solid waste programs under Subtitle D, however, remain State and
local functions.     
     Under the authority of Sections 1008(a)(3) and 4004(a) of
RCRA, EPA promulgated the "Criteria for Classification of Solid
Waste Disposal Facilities and Practices" (40 CFR Part 257) in
September of 1979.  EPA issued minor modifications to the
Criteria in September of 1981.  These Part 257 Criteria establish
minimum national performance standards necessary to ensure that
"no reasonable probability of adverse effects on health or the
environment" will result from solid waste disposal facilities or
practices.  A facility or practice that meets the Criteria is
considered a sanitary landfill; a facility or practice that fails
to meet the Criteria is defined as an "open dump", subject to
upgrading through a compliance schedule or closure implemented by
the State or through a citizen suit under Section 7002.
     The current Part 257 Criteria include general performance
standards addressing eight major areas of potential environmental
concern: floodplains, endangered species, surface water, ground
water, land application, disease, air and safety.
 
2. Non-Hazardous Waste Management: Municipal Wastes

     As added by the Hazardous and Solid Waste Amendments (HSWA)
of 1984, Section 4010(a) of RCRA directs EPA to conduct a study
of the extent to which existing RCRA guidelines and Criteria
applicable to solid non-hazardous waste management and disposal
facilities (i.e., Part 257) are adequate to protect human health
and the environment from ground water contamination.   
     Section 4010(b) also requires that the Administrator submit
a Report to the Congress setting forth the results of the study
together with any recommendations made by the Administrator on
the basis of the study.
     Lastly, 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.
     The Agency issued the "Report to Congress - Solid Waste
Disposal in the United States", in October 1988.  The major
findings were that the Subtitle D universe is large and diverse,
including 11 billion tons of Subtitle D wastes generated each
year and that each different type of waste presents unique
management problems and risks.  The report identified adverse
impacts attributable to municipal solid waste landfills,
including exposure to ground-water contamination.  The report
concluded that the Part 257 Criteria should be revised for
municipal solid waste landfills.
     The Report to Congress failed to draw a conclusion relating
to industrial Subtitle D facilities.  EPA determined that the
limited data on industrial Subtitle D facilities indicated that
there may be reason for concern and that further study was
needed.
     The proposed "Solid Waste Disposal Facility Criteria" (53 FR
33314) were published on August 30, 1988.  The proposed rule was
to apply to all municipal solid waste landfills.  EPA indicated
that a second phase, applying to industrial solid waste
facilities that receive SQG hazardous wastes, would be proposed
at such time as the Agency had adequate data on which to base
regulatory decisions.
     On October 9, 1991, EPA promulgated revised Criteria for
Solid Waste Disposal Facilities (see 56 FR 50978) accepting
household hazardous wastes.  These 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 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. Small Quantity Generator Hazardous Waste Controls

     Today's proposal would amend the special requirements that
have been established for conditionally exempt small quantity
generator (CESQG) hazardous wastes.  Regulations defining CESQG
hazardous wastes were promulgated in 1986 in 40 CFR Part 261.5,
with some minor revisions in 1988.  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. 
CESQGs are exempt from manifesting, reporting, transport, and
treatment and disposal standards applicable to hazardous wastes
under 40 CFR Parts 262 through 266, 268, 270, and 124 and the
notification requirements of Section 3010 of RCRA.  A CESQG may
mix CESQG waste with non-hazardous waste and remain subject to
the reduced requirements of 40 CFR Part 261.5 even though the
resultant mixture exceeds the quantity limitations identified
above, unless the resultant mixture meets any of the
characteristics of a hazardous waste as identified in 40 CFR Part
261 Subpart C.  A CESQG may manage the CESQG hazardous waste at
hazardous waste facilities subject to Subtitle C of RCRA, reuse
or recycling facilities, or Subtitle D facilities that have been
permitted, licensed, or registered by a State to manage municipal
or industrial waste.  CESQGs who do not comply with the reduced
requirements of 40 CFR Part 261.5 become subject to the full set
of hazardous waste regulations. 

C. Sierra Club Lawsuit 
     
     After promulgation of the final Municipal Solid Waste
Disposal Facility Criteria, the Sierra Club filed a petition for
review of the revised Criteria with the United States Court of
Appeals for the District of Columbia Circuit.  Sierra Club vs.
EPA, 992 F. 2d 337 (D.C. Cir.1993).  The Sierra Club contended
that the EPA had not fulfilled the Section 4010 requirement for
revised regulations because the Agency had not promulgated rules
for nonmunicipal facilities that receive hazardous wastes from
small quantity generators.  The Sierra Club, claiming that the
EPA had missed a statutory deadline, asked the Court to place EPA
on a Court-supervised schedule for issuing the rule required. 
The Court essentially agreed with the Sierra Club but directed it
to the U.S. District Court as the Court with jurisdiction to rule
on a missed statutory deadline.
     On October 21, 1993, the Sierra Club filed suit against the
EPA in the United States District Court for the District of
Columbia, once again seeking to compel the EPA to promulgate
revised Criteria for nonmunicipal 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.

D. RCRA Section 3001(d)(4) and Conditionally Exempt Small
   Quantity Generators 

     As discussed above, RCRA Section 4010(c) requires EPA to
promulgate revisions to the Criteria in 40 CFR Part 257 for
facilities that may receive hazardous household waste or
"hazardous waste from small quantity generators under Section
3001(d)..." 42 U.S.C. section 6949a(c).  Congress enacted
sections 3001(d) and 4010(c) with the HSWA Amendments of 1984.
     Prior to enactment of the HSWA Amendments, EPA had
conditionally exempted generators who produced less than 1000
kilograms of hazardous waste per calendar month from Subtitle C
requirements.  45 FR 33103 - 33104 (May 19, 1980).  In enacting
Section 3001(d), however, Congress directed EPA to develop (by
March 31, 1986) a comprehensive set of standards which would
apply to hazardous waste produced by small quantity generators of
between 100 and 1000 kilograms of hazardous waste in each
calendar month ("kg/mo").  42 U.S.C. Section 6921(d)(1).  EPA was
further authorized by Section 3001(d)(4) to promulgate standards
for generators of less than 100 kilograms per month of hazardous
waste if the Administrator determines it is necessary to do so to
protect human health and the environment.
     In response to this mandate, EPA promulgated a rule which
removed the conditional exemption from Subtitle C requirements
for generators of between 100 and 1000 kg/mo of hazardous waste. 
56 FR 10146 (March 24, 1986).  The 100 to 1000 kg/mo small
quantity generators are now subject to a special set of standards
under RCRA Subtitle C hazardous waste requirements (40 CFR Parts
262, 263, 264, 265, 266, and 270).  Id. at 10149.
     However, EPA has not removed the conditional exemption from
RCRA Subtitle C requirements for those generators who produce
hazardous waste in quantities less than 100 kg/mo as discussed
earlier in this preamble.    
     Because EPA has already required those generators who
produce between 100 and 1000 kg/mo of hazardous waste to comply
with Subtitle C standards, there is no need to revise the solid
waste disposal facility Criteria in 40 CFR Part 257 for the
disposal of such small quantity generator waste.  Small quantity
generator hazardous waste from a 100 to 1000 kg/mo generator may
not be disposed of in a solid waste disposal facility covered by
Part 257.  Instead, such waste must be treated and disposed of in
accordance with requirements in Parts 262 through 266 and 270.
     Thus, EPA's only remaining obligation under RCRA Section
4010(c) is to revise the open dumping Criteria for those
facilities which may receive CESQG waste, i.e., hazardous waste
from generators who produce less than 100 kg/mo in a calendar
year.  See 40 CFR 261.5(a).  Today's proposed amendments to 40
CFR Parts 257 and 261 respond directly to the Sierra Club
challenge to EPA's revised Criteria for MSWLFs. 

        
E. Previous Activities to Address Industrial Facilities that
   Manage Non-Hazardous Industrial Wastes

     As referred to above, RCRA Section 4010(d) requires that the
Agency study the extent to which the existing Subtitle D Criteria
in 40 CFR Part 257 are adequate.  The Agency conducted the
"Screening Survey of Industrial Subtitle D Establishments" in
1985.  This Survey was designed to develop national and 
industry-specific estimates of the amount of non-hazardous industrial
waste that was managed in on-site management units along with a
count of the number of on-site management units.   
     The Screening Survey established, at the national level,
that an estimated 72,000 establishments managed Subtitle D
industrial waste in 1985 and an estimated 20% (or approximately
12,000) of those establishments used at least one of the on-site
land-based management units to manage waste.  The Screening
Survey further identified, at the unit level, that in 1985:

 *  2,760 landfills were used to manage 86.2 million tons of
    Subtitle D industrial waste;
 *  15,250 surface impoundments were used to manage 7.4 billion
    tons of Subtitle D industrial waste;
 *  4,300 land application units were used to manage 99.1 million
    tons of Subtitle D industrial waste; and 
 *  5,330 waste piles were used to manage 76.9 million metric
    tons of Subtitle D industrial waste.

     These data that were developed in 1985 continue to be the
most comprehensive national data concerning the generation and
management of Subtitle D industrial wastes.  
     The Agency has over the past several years done evaluations
of State industrial waste programs, evaluated the use of the
Toxics Release Inventory (TRI) to characterize manufacturing
industries, and extrapolated from other existing data to better
understand  industrial solid waste management.  However, the
Agency still must rely on the 1985 data as its most comprehensive
baseline information.  

III. Summary of Today's Proposed Regulatory Approach 

     Section 4010 (c) requires that the Administrator revise the
existing Part 257 Criteria for facilities that may receive
household hazardous wastes or CESQG hazardous waste.  At a
minimum, the revised Criteria must include ground-water
monitoring as necessary to detect contamination, location
restrictions, and corrective action, as appropriate.
     Today's proposal would add these statutory minimum
requirements for non-municipal solid waste disposal facilities
that receive CESQG hazardous waste.  Any non-municipal solid
waste disposal facility that does not meet the proposed
requirements may not receive CESQG hazardous waste.  A new
Section 257.5 is being proposed to address the facility standards
for owners/operators of non-municipal solid waste disposal
facilities that receive CESQG hazardous wastes.  The requirements
in Section 257.5 are substantially the same as the statutory
minimum requirements developed for 40 CFR Part 258. The location
restrictions are proposed to be effective 18 months after
promulgation while the ground-water monitoring and corrective
action requirements are proposed to be effective 24 months after
promulgation of this rule.      The Agency decided to use the
previously promulgated MSWLF Criteria in Part 258 as the basis
for today's proposal for a number of reasons.  The Agency
believes that the Part 258 Criteria are being used as mandatory
standards by some States for non-municipal solid waste disposal
facilities.  Furthermore, additional States are incorporating as
mandatory requirements standards that are substantially similar
to the Part 258 Criteria.  The Agency also believes that the Part
258 Criteria, particularly the ground-water monitoring and
corrective action requirements, are an appropriate set of
performance standards and minimum requirements that can be
applied at non-municipal solid waste disposal facilities that
receive CESQG hazardous waste to protect human health and the
environment.  In addition, EPA is requesting comment on an
alternative approach which is solely a performance standard
without the national minimum requirements in Part 258.       
    Today's proposal also amends the existing language of Section
261.5 clarifying acceptable Subtitle D management options for
CESQGs.  The existing language in Section 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), at a reuse or recycling facility, or at a Subtitle
D facility that is permitted, licensed, or registered by a State
to manage municipal or industrial waste.  Today's proposal would
continue to allow CESQG waste to be managed at a hazardous waste
facility or at a reuse or recycling facility.  Today's proposal,
however, will require that 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 solid waste disposal
facility that is subject to the facility standards being proposed
in Section 257.5.
     A complete discussion of the rationale of today's proposed
approach, specifics of the proposed changes, and related issues
is presented in Section V of today's proposal.
     As previously discussed, today's proposal responds to both
the statutory language in RCRA Section 4010(c) and to the Sierra
Club lawsuit.  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 will be discussed later in
today's preamble, the subject of today's proposal -- 
non-municipal solid waste disposal facilities that receive CESQG
waste -- presents 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 proposal at
this time.  In a time of limited resources, 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.  The Agency requests comment from members of the public
and regulated community on whether they agree with the Agency's
position that this rulemaking is a low priority.       
     However, given the D.C Circuit's reading of RCRA section
4010(c), Sierra Club v. EPA, 992 F.2d 3337, 347 (D.C. Cir. 1993),
and the schedule established as a result of the litigation
initiated by Sierra Club in district court, the Agency believes
it must issue this proposal now (although there are higher
priorities within the Agency).  Faced with having to issue this
proposal for a class of facilities that do not generally pose
risks as high as municipal solid waste landfills, the Agency is
proposing alternatives that address only the statutory minimum
requirements in an attempt to reduce the economic burden on the
regulated community.

IV. Characterization of CESQG Waste, Industrial D Facilities that
    May Receive CESQG Waste, and Existing State Programs Related to
    CESQG Disposal

A. CESQG Waste Volumes, Generators and Management 

     In preparation for this rulemaking, EPA sought to
characterize the CESQG universe.  EPA examined several national,
state, and local studies that contained information on CESQGs,
and summarized this information into five categories: (1) number
of establishments, (2) waste volumes, (3) major waste generating
industries, (4) major waste types, and (5) waste management
practices.  
     Although EPA believes that each of the studies reviewed
provides some relevant information, only the EPA "National Small
Quantity Hazardous Waste Generator Survey" (1985) presents a
comprehensive overview of the CESQG universe.  This study was
national in scope and was based on a scientific survey of
approximately 50,000 establishments that were considered
potential generators of small quantities of hazardous waste. 
This study also covered 125 industries in both the manufacturing
and non-manufacturing sectors.  Moreover, this study used survey
data to extrapolate national estimates for the total number of
CESQGs and waste volume, while providing industry-specific detail
on the types of waste generated and methods of managing these
wastes.  
     The National Survey, however, has one major limitation:  it
is based on data collected more than a decade ago.  Since then,
several significant changes may have occurred.  First, changes in
manufacturing processes and the growth of new industries may have
resulted in the generation of new waste types, while other wastes
may no longer be generated.  Second, changes in the methodology
for identifying characteristic wastes (i.e., the revised TCLP)
have resulted in additional waste types entering the hazardous
waste regulatory system.  Third, Superfund liability concerns
have become a significant factor for generators to consider when
determining waste management options.  Finally, new regulatory
activities, such as reporting under the Toxic Release Inventory,
have been catalysts for generators to change their use of toxic
chemicals in the manufacturing process and their management of
resulting wastes.  The result of these changes is that the
generation and management of CESQG waste today may be
substantially different from a decade ago.  The Agency, however,
must continue to rely on the information and conclusions
developed in the "National Small Quantity Hazardous Waste
Generator Survey."   
     Given this limitation, EPA examined several recent state and
local CESQG studies to assess how the findings of the National
Survey may or may not be supported.  The recent studies also
provide valuable insight into the current generation and
management of wastes in several major CESQG industries.  These
studies, however, are different from the National Survey in two
key areas.  First, they are more narrow in scope.  For example,
each study covers only a specific geographic location and not the
nation as a whole, and some focus only on a limited number of
industries or one sector, such as manufacturing.  Second, these
studies do not examine the same waste types as the National
Survey.  Some of these studies examined used motor oil, while the
National Survey did not evaluate this waste type.  In some cases,
these differences hindered a direct comparison between the
National Survey and a state or local study.

1.   Number of CESQGs

     The "National Small Quantity Hazardous Waste Generator
Survey" estimated that there are 455,000 establishments
nationwide that generate hazardous waste in quantities of less
than 100 kilograms per month (i.e., CESQGs).  The study
extrapolated this estimate from survey data collected from
establishments in primary SICs (125 SICs were combined into 22
industry groups) that were believed to include potential
generators of small quantities of hazardous waste. 
     More recent state-specific CESQG estimates, however, suggest
that this national estimate may be low.  For example, the State
of Massachusetts and the State of Washington currently estimate
that there are 13,500 and 43,000 CESQG establishments in these
states, respectively.  Together, these two estimates account for
over ten percent of the national estimate of 455,000.  EPA
recognizes that in comparing these estimates, two important
factors need to be considered.  First, states may use methods
different from the National Survey to calculate the number of
CESQGs.  Second, because the National Survey was conducted nearly
a decade ago, its estimate does not account for growth in the
number of CESQGs due to increased economic activity or new waste
types entering the hazardous waste system.  

2.   Major CESQG Waste Generating Industries

     The "National Small Quantity Hazardous Waste Generator
Survey" combined the surveyed 125 SICs into 22 primary industry
groups for comparison.  Based on these groupings, the study found
that approximately 80 percent of CESQG establishments were in the
non-manufacturing sector, while the remaining 20 percent were in
the manufacturing sector.  In terms of waste volume, the National
Survey found that the non-manufacturing sector generated 88
percent of CESQG waste, while the manufacturing sector generated
the remaining 12 percent.  
     Specifically, the National Survey found that the largest
CESQG non-manufacturing industry was vehicle maintenance, which
accounted for 71 percent of CESQG waste volume and 54 percent of
CESQG establishments for the 22 industry groups.  Other major
non-manufacturing industry groups included:  dry cleaners (five
percent of waste volume and establishments); other services, such
as funeral services and building cleaning and maintenance (four
percent of waste volume and five percent of establishments);
construction (two percent of waste volume and four percent of
establishments); pesticide application services (two percent of
waste volume and three percent of establishments); and
photographic services (two percent of waste volume and three
percent of establishments).  The major manufacturing industries
included:  metals manufacturing (six percent of waste volume and
ten percent of establishments), and printing/ceramics (five
percent of waste volume and eight percent of establishments).
     State and local studies used a variety of methods to
determine major CESQG industries.  Consequently, their findings
are not easily comparable to the National Survey.  Nonetheless,
several state and local studies indicated that the vehicle
maintenance and construction industries are significant CESQG
industries for the areas and industries covered by the studies.

3.   CESQG Waste Volume

     The "National Small Quantity Hazardous Waste Generator
Survey" estimated that CESQGs generated 201,600 tons of hazardous
waste yearly.  Again, this estimate is based on an extrapolation
of data collected from a nationwide survey of 125 SICs combined
into 22 primary industry groups.  At the time of this survey,
this volume estimate represented only 0.07 percent of the total
quantity of hazardous waste generated yearly by all hazardous
waste generators (conditionally-exempt, small quantity, and large
quantity).  
     Based on a review of recent state and local studies, EPA
believes that this national waste volume estimate may be
understated.  For example, in 1989, the State of Washington
estimated that CESQGs generated approximately 52,000 tons of
CESQG hazardous waste in that State alone.  Since this single
state estimate represents nearly one fourth of the national
estimate, EPA expects that the appropriate national amount of
CESQG waste is larger.  
     EPA recognizes that one important distinction between the
"National Small Quantity Hazardous Waste Generator Survey"
estimate and the Washington estimate is that the former study did
not include used motor oil as a CESQG waste type, while
Washington did.  Used motor oil represented approximately one
half of Washington's CESQG waste stream.  Even if the total
amount of used motor oil were excluded from Washington's waste
stream, however, the remaining volume of CESQG waste would be
approximately 25,000 tons.  Even at this amount, EPA believes
that the current national estimate of 201,600 tons for the amount
of CESQG waste is likely to be low.   

4.   Major CESQG Waste Types

     For the industries surveyed, the "National Small Quantity
Hazardous Waste Generator Survey" found that used lead-acid
batteries comprised 61 percent of the CESQG waste stream.  Other
major waste types included:  spent solvents/still bottoms (18
percent of CESQG waste stream), dry cleaning filtration residues
(five percent), photographic wastes (four percent), formaldehyde
(three percent), and acids/alkalides (two percent).  The study
also found that, with the exception of spent solvents/still
bottoms and acids/alkalides, each of the major waste types were
generated primarily by one industry.  For example, the vehicle
maintenance industry was the primary generator of used lead-acid
batteries, dry cleaners generated dry cleaning filtration
residues, photographic services generated photographic wastes,
and funeral services generated formaldehyde.  A variety of
industries, however, generated spent solvents/still bottoms and
acids/alkalides, including photographic services, printers and
publishers, vehicle maintenance, and pesticide application
services.
     Recent state and local studies identified major CESQG waste
types that are comparable to those found by the National Survey. 
For example, several studies found used lead-acid batteries to be
a major CESQG waste type, although only one found batteries to
represent the largest portion of CESQG waste.  The amount of
lead-acid batteries in the CESQG waste stream ranged from less
than one percent to 61 percent.  This wide range of estimates is
likely due to whether a study included used lead-acid batteries
in the vehicle maintenance industry.  Since RCRA regulations
exclude these wastes from generator waste amounts if the
generator recycles or reuses these wastes, some states' studies
did not count lead-acid batteries in their review of the vehicle
maintenance industry, under the assumption that this industry
recycles most batteries.  As a result, the relative significance
of this waste type varied among state and local studies.
     Several state and local studies also supported the National
Survey's finding that spent solvents/still bottoms were a
significant CESQG waste type.  These studies found this waste
type to represent between 15 to 25 percent of the waste stream,
while the National Survey found the portion to be 18 percent. 
Moreover, similar to the National Survey results, these studies
found that a variety of industries generated spent solvents/still
bottoms.  Other studies found photographic wastes to be
significant, ranging from four to ten percent of the CESQG waste
stream (the National Survey estimated four percent).  
     A key difference between the state and local studies and the
National Survey is the significance of used motor oil.   Although
the National Survey did not examine the amount of used motor oil
generated, several state and local studies found this waste to be
significant, if not the largest waste type.  Some studies found
used motor oil to represent one half to two thirds of the CESQG
waste stream.  In these state and local studies, used motor oil
was included in the vehicle maintenance industry.  As is the case
with used lead-acid batteries, RCRA Subtitle C regulations do not
count used motor oil toward generator total amounts if the used
motor oil is recycled or reused.  Used oil that is recycled and
is also hazardous because it exhibits a hazardous characteristic
is regulated under 40 CFR Part 279.  However, state and local
studies that excluded used motor oil from vehicle maintenance
(because it was recycled), still found the waste type to be
significant.  For example, Montgomery County, Maryland, found
that nine percent of the CESQG waste stream was used motor oil,
even after excluding it from the vehicle maintenance industry. 
The County found that photographic services,
woodworkers/painters, general building contractors, and
landscaping/pest control firms all generated used motor oil.  

5.   CESQG Management Practices

     The "National Small Quantity Hazardous Waste Generator
Survey" reported on CESQG waste management practices for each of
the 22 primary industry groups.  Together, these 22 primary
industries generated 121,600 tons of the estimated 201,600 tons
of total CESQG waste generated by all industries nationwide in
the survey year.  The survey found that approximately 80 percent
(95,226 tons/yr) of the waste generated by the 22 industry groups
was managed off-site, while the remainder (26,176 tons/yr) was
managed on-site.  
     The predominant methods of off-site management for the
95,226 tons/yr included recycling (73 percent of waste managed
off-site or 69,000 tons), disposal at a solid waste landfill (ten
percent or 9,300 tons), and disposal at a permitted Subtitle C
landfill (two percent or 2,000 tons).  The survey did not
distinguish between management at a municipal or a nonmunicipal
solid waste landfill (e.g., industrial or construction and
demolition landfills).  This distinction is significant since the
Agency has previously revised criteria for municipal solid waste
landfills and currently requires these facilities to meet more
stringent design and operating criteria than nonmunicipal
facilities.  In addition, the National Survey found that 13
percent of waste managed off-site is managed in an "unknown"
facility, as reported by those firms responding to the survey.
     The National Survey found that disposal in the sewer system
or septic system was the most common method of on-site
management, accounting for nearly 56 percent of CESQG waste
volume managed on-site.  Recycling and treatment of CESQG waste
were other forms of on-site management.  Only two percent (509
tons) of the CESQG waste managed on-site was disposed in a solid
waste landfill.
      With regard to the major CESQG waste industries (vehicle
maintenance, metals manufacturing, laundries, printing/ceramics,
pesticide application services, construction, and photographic
services), the "National Small Quantity Hazardous Waste Generator
Survey" found that all dispose some amount of their CESQG waste
in an off-site solid waste landfill.  Laundries managed the
largest amount of their CESQG waste (45 percent) in an off-site
solid waste landfill.  Only four of the major CESQG industries
(metals manufacturing, laundries, pesticide application services,
and construction) disposed some portion of their CESQG waste in
an on-site solid waste landfill.  Of the industries accounted for
in this survey, the construction industry managed the largest
portion of its CESQG waste (ten percent) in an on-site solid
waste landfill.  In developing these figures, EPA cautions that
the National Survey did not define an off-site or an on-site
solid waste landfill.  
     Like the "National Small Quantity Hazardous Waste Generator
Survey", more recent state and local studies found that
approximately four-fifths of CESQG waste was managed off-site,
while the remainder was managed on-site.  In addition, these
state and local studies found that the predominant off-site
management methods were recycling and disposal in a solid waste
or permitted Subtitle C landfill.  The portion of waste managed
in these facilities, however, varied across the studies and
differed from the findings of the National Survey.  This may be
due to the availability of specific waste management options in
the area covered by the state and local study, but may also be
caused by a better understanding of potential liability posed by
the hazardous wastes.
     In contrast to the National Survey, Montgomery County,
Maryland and the State of Washington found that none of their
CESQGs disposed of their hazardous waste in an on-site solid
waste landfill.  This finding, based on recent data, suggests
that CESQGs have changed their management practices with regard
to on-site disposal in landfills since the 1983-84 National
Survey was conducted.  Specific on-site disposal methods included
in these studies were disposal in sewer, dumping on ground, and
evaporation.
     Only Montgomery County, Maryland, identified specific 
off-site waste management practices associated with the major CESQG
industries.  Similar to the National Survey, the County found
that photographic services and general building contractors
managed a portion of their CESQG waste in an off-site solid waste
landfill.  Unlike the National Survey, however, none of the waste
from the vehicle maintenance industry and laundries was managed
in an off-site solid waste landfill.  CESQG wastes from these
industries were recycled or sent to a permitted Subtitle C
landfill.  
     In presenting information on CESQG waste volumes,
generators, and management practices using its "National Small
Quantity Hazardous Waste Generator Survey" and more recent
studies performed by State and local governments, the Agency is
requesting that commenters submit data on the amount of CESQG
waste that is potentially subject to this rulemaking. 
Furthermore, the Agency is interested in receiving data on the
current management practices for CESQG wastes likely to be
covered by this rulemaking. 

B. Facilities that May Receive CESQG Waste 

1. Manufacturing Industries with On-Site CESQG Disposal

     The first type of facility that may receive CESQG waste is a
manufacturing facility that co-disposes its industrial 
non-hazardous process waste on-site with its CESQG hazardous wastes.
     As mentioned previously, the Agency used the 1985 "Telephone
Screening Survey" to identify the number of establishments that
operated land-based units for their industrial non-hazardous
waste.  This Screening Survey also captured information on
CESQGs.  The Telephone Screening Survey identified 12,000
establishments that managed industrial non-hazardous waste 
on-site in land-based units.  Of these 12,000 establishments, an
estimated 3,742 establishments generated CESQG waste in 1985.  Of
the 3,742 establishments that were CESQGs, nearly 60% were in the
Stone, Clay, Glass & Concrete and the Food and Kindred Products
Industries.   
     For the 3,742 establishments that generated CESQG wastes in
1985, only 605 establishments managed their CESQG waste on-site
in a land-based unit (605 establishments represents approximately
5% of the total 12,000 establishments that managed industrial
waste on-site in land-based units).  These 605 establishments
used surface impoundments (309), waste piles (135), land
application units (91) and landfills (69).  Five industries were
identified as having a significant number of the total 605
establishments that managed CESQG wastes on-site in land-based
units.  These 5 industries and their percentage of the total 605
establishments were:  

     Stone, Clay, Glass, and Concrete  (26%)
     Food and Kindred Products  (22%)
     Primary Iron and Steel  (8%)
     Textile Manufacturing  (8%)
     Pulp and Paper  (7%)

The Agency has conducted meetings and conference calls with some
of these industries to ascertain the current status of CESQG
hazardous waste generation and management.  
     The Agency held a conference call, on May 5, 1994, with
representatives of the Stone, Clay, Glass and Concrete Industry. 
Representatives of the Glass Packaging Institute, American
Portland Cement Alliance, Marble Institute of America and the
Brick Institute of America were asked to provide recent
information on CESQG waste types and management practices.  The
Glass Packaging Institute stated that typical CESQG hazardous
wastes generated within their segment of the industry were
lubricants that were picked-up by vendors and transported 
off-site for disposal.  The American Portland Cement Alliance stated
that their typical CESQG hazardous wastes (i.e., lubricants or
solvents) were also sent off-site for disposal or burned 
in on-site cement kilns.  The Marble Institute of America stated that
they produce no CESQG hazardous wastes and that non-hazardous
dusts collected are typically sent to a landfill for use as daily
cover.  Lastly, the Brick Institute of America stated that CESQG
hazardous wastes, in the form of cleaning solvents, are collected
by vendors and transported off-site.  The Agency concluded from
this conference call that, while facilities within the Stone,
Clay, Glass, and Concrete Industry may still produce small
amounts of CESQG hazardous wastes, most facilities within the
industry generally appear to no longer manage their CESQG waste
in on-site disposal units.
     The Agency held a separate meeting, on January 11, 1994,
with 20 representatives from the food industry, specifically the
Food Industry Environmental Forum, a working group addressing
environmental issues affecting the food industry.  The views of
the Forum were that the food industry generates little, if any,
CESQG hazardous wastes.  The food industry avoids the use of
hazardous materials since they are manufacturing products for
human consumption.  The industry avoids the use of toxic
solvents; even in their machine shops they use non-toxic
alternatives developed as part of pollution prevention programs. 
Any CESQG hazardous wastes generated might include laboratory
chemicals and solvents associated with maintenance of their
transportation fleet.  Even so, these small amounts of CESQG
hazardous wastes are generally no longer managed in on-site
disposal units; these wastes are sent off-site for management.
     In regard to industrial waste facilities, the Agency
believes that on-site co-disposal of industrial wastes with some
amount of CESQG waste is a very limited practice.  It appears
from the Agency's limited interaction with those industries
likely to have a high percentage of CESQG waste disposal on-site
that many CESQG wastes are no longer being generated or are more
likely to be sent off-site for recycling or treatment. 
Furthermore, the Agency believes that industrial waste disposal
facilities that may still be disposing of CESQG waste on-site
will elect to send their CESQG waste off-site to a municipal
landfill, a hazardous waste landfill or off-site for treatment or
recycling.  These options would be cheaper for industrial waste
facilities vs. continuation of CESQG on-site disposal and
compliance with today's proposed standards (i.e., ground-water
monitoring and corrective action).  
     The Agency wishes to emphasize that this proposal does not
change the manner in which waste is determined to be hazardous. 
Generators of wastes have an obligation to determine through
testing or their knowledge of the waste if a waste is a hazardous
waste (40 CFR 262.11).  The generator must then determine if any
hazardous waste he generates is regulated hazardous waste, or
conditionally exempt small quantity generator hazardous waste (40
CFR 261.5). 
    The Agency is requesting comment on the prevalence of
manufacturing industries that manage CESQG hazardous wastes 
on-site along with volume estimates.  The Agency is also interested
in obtaining comments on the Agency's assumption that on-site
disposal of CESQG hazardous waste at industrial waste facilities
has decreased overall and will not continue in the future.  

2. Commercial Off-Site Facilities

     The second type of facility that in some cases receives
CESQG waste is a commercial off-site facility that disposes of
only industrial non-hazardous wastes with some amount of CESQG
hazardous wastes being co-disposed at the facility.  Based on
information from the groups listed below, the Agency estimates
that there are only 10 - 20 commercial off-site facilities that
receive only non-hazardous industrial wastes.  (Off-site
commercial facilities that receive household hazardous waste are
subject to the Part 258 Criteria.)  However, in meetings with the
Environmental Industry Associations (EIA) (formerly known as the
National Solid Waste Management Association) and Browning Ferris
Industries, the Agency was told that as a general matter CESQG
disposal is prohibited at these 10 -20 facilities as a result of
permitting conditions and due to decisions at the corporate level
of the individual companies not to  accept CESQG waste.     

3. Construction and Demolition Landfills

     The last group of facilities that receive CESQG wastes are
construction and demolition waste landfills.  The Solid Waste
Association of North America (SWANA) published the "Construction
Waste and Demolition Debris Recycling ... A Primer" that
estimated that approximately 1800 construction and demolition
landfills existed in early 1992.  The Agency's list of
construction and demolition waste landfills developed in 1994
estimated approximately 1900 facilities.  These construction and
demolition landfills dispose of construction waste and demolition
debris (which generally refers to waste materials generated as a
result of construction, renovation, or demolition).  Many types
of wastes are disposed of in construction and demolition
landfills, such as metals, wood, concrete, dry wall, asphalt,
rocks, soil, plastics, pipes and glass.  Construction and
demolition landfills may also receive CESQG hazardous waste
materials, which could include things such as paints, adhesives,
and roofing cements. Although the general term "construction and
demolition waste" is used to describe all wastes generated in
construction, renovation, and demolition activities, the specific
types of waste generated are a direct result of the type of
project.  Construction of a new house, demolition of old
buildings as part of a restoration of a downtown area, renovation
of an old office building, and new highway construction all
result in different types of construction and demolition waste
materials being generated. 
     The report entitled "Construction Waste and Demolition
Debris Recycling ... A Primer" divided construction and
demolition waste activities into five categories.  These five
categories and the typical construction and demolition waste
materials associated with each category are presented below:

Roadwork Material:   mostly asphalt, concrete (with or            
                     without reinforcing bar), and dirt

Excavated Material:  Mostly dirt, sand, stones (sometimes         
                     contaminated with site clearance wood
                     waste and buried pipes)

Building Demolition: Mainly mixed rubble, concrete, steel
                     beams, pipes, brick timber and other
                     wastes from fittings and fixtures

Construction/Renovation: Mixed waste including wood,
                         roofing, wall board, insulation
                         materials, pieces of duct work and
                         plumbing

Site Clearance:      Mostly trees and dirt with the
                     potential for some concrete,
                     rubble, sand and steel.

     Some construction and demolition waste facilities may be
subject to the requirements being proposed today.  Construction
and demolition waste facilities that receive wastes that are
CESQG hazardous wastes will have to comply with the proposed
changes to Part 257.5. 
     CESQG hazardous wastes generated in construction,
renovation, and demolition are most likely to be specific
chemicals or products used in these activities.  Listed below are
typical examples of wastes generated by construction and
demolition activities that may be CESQG wastes, if the wastes are
hazardous and are generated under the CESQG limits (<100 kg per
month, or less than 1 kg per month of acute hazardous waste):

 * Excess materials used in construction, and their containers. 
   Examples: adhesives and adhesive containers, leftover paint
   and paint containers, excess roofing cement and roofing cement
   cans;

 * Waste oils, grease, and fluids.  Examples: machinery
   lubricants, brake fluids, engine oils.

 * Waste solvents or other chemicals that would fail a
   characteristic or that are listed as a hazardous waste that
   are removed from a building prior to demolition (e.g.,
   ignitable spent solvents, spent acids or bases, listed spent
   solvents (F001 - F005), or listed unused commercial chemical
   products that are to be discarded).

General construction and demolition debris (e.g., rubble from
building demolition) would typically be hazardous waste only if
it exhibits one of the four characteristics of hazardous waste:
ignitability, corrosivity, reactivity, or toxicity (see Subpart C
of 40 CFR Part 261).  To determine if such debris is hazardous,
the generator should use knowledge of the waste or test to
determine if a representative sample of the waste exhibits any of
the characteristics.  See 40 CFR 262.11.  See also Chapter nine
of "Test Methods for Evaluating Solid Waste, Physical/Chemical
Methods" (SW-846), Third Edition, on how to develop a sampling
program.  As an example, if a building is demolished, the
generator should use his knowledge concerning the building
debris, or test a representative sample of the building debris,
to see if the building debris exhibits a characteristic of 
hazardous waste.   
     Prior to demolishing a building, the owner or the demolition
company may choose to remove components of the building that
contain concentrated constituents of concern such as lead pipe,
lead flashing, mercury containing thermostats and switches, or
mercury-containing lamps (light bulbs).  This may be done for
purposes of avoiding concern that the entire demolition rubble
may exhibit the characteristic of toxicity, for recycling and
resource conservation, or as required by state or local law.  For
purposes of resource conservation, the Agency encourages removal
of items that may be cost-effectively recycled or reused.  It
should be noted that any removed items should be managed in
compliance with applicable requirements, including, if the items
exhibit characteristics, the requirements for CESQGs or the full
hazardous waste regulations.  Also note that some such items may
be, in the future, covered under streamlined "universal waste"
regulations that would minimize the applicable regulatory
requirements.  (See the final "universal waste rule,"   FR      ,
May 11, 1995.)
     Literature that was evaluated by the Agency and summarized
in Chapter 2 of the Agency's report "Construction and Demolition
Waste Landfills" identify a number of wastes that are referred to
using such terms as "hazardous," "excluded," "unacceptable,"
"problem," "potentially toxic," or "illegal."  It is not
necessarily true that all of these wastes meet the definition of
"hazardous" under Subtitle C of RCRA, but they provide an
indication of the types of wastes that may be present in the
construction and demolition waste stream that are considered by
others to be a potential problem.
     A construction and demolition waste generator should contact
their State Solid Waste Program for their guidance or rules
concerning the types of construction and demolition wastes that
the State considers to be hazardous. 

C. Existing State Programs  

1. State Requirements Pertaining to Management of CESQG Hazardous 
Wastes 

      Since the existing controls governing the disposal of CESQG
waste are under the Subtitle C program (i.e., Section 261.5),
State requirements must be at least as stringent as the Federal
requirements.  States may however establish more stringent
controls for CESQGs within their jurisdiction.  Some States
require that CESQGs obtain a hazardous waste ID number while
other States require CESQGs to use a manifest for off-site
transportation.  Some States require that all or some portion
(e.g., those with liquid industrial and ignitable wastes) of
CESQG waste be managed at only permitted Subtitle C facilities. 
States that require that CESQG waste be managed at only Subtitle
C facilities would prohibit CESQG disposal in a municipal, 
non-hazardous industrial, or construction and demolition waste
landfill.     

2. State Requirements for Construction and Demolition Facilities

     EPA conducted a study to determine the current regulatory
standards for construction and demolition facilities that are
applicable on a State level.  State regulatory standards for
construction and demolition facilities vary State-by-State and
are generally not as detailed nor environmentally stringent as
State standards for municipal solid waste landfills. 
Furthermore, States apply standards more frequently to off-site
construction and demolition waste facilities vs. on-site
construction and demolition waste facilities.  In general, the
EPA study focussed on the number of State programs that had
requirements for the statutory minimum components specified in
RCRA Section 4010(c).  The numbers, discussed below, correspond
to the number of States that impose the requirement or standard
on off-site construction and demolition waste facilities. 
Generally, a smaller number of States impose requirements on 
on-site facilities.
     The most common location restrictions that States apply to
C&D facilities relate to airports and bird hazards, wetlands and
floodplains.  A majority of the States (35) have restrictions 
applicable to construction and demolition facilities being
located within the 100-yr. floodplain.  Twenty-five (25) States
have location restrictions pertaining to construction and
demolition disposal facilities in wetlands.  Similarly, 21 States
have location restrictions for some or all construction and
demolition facilities pertaining to airports and bird hazards. 
Fewer States have adopted location restrictions pertaining to
seismic impact zones, fault areas, or unstable areas.
     With regard to ground-water monitoring and corrective
action, 29 States require some or all construction and demolition
facilities to monitor ground-water and 22 States have corrective
action requirements.  For those States that impose ground-water
monitoring requirements, most States have requirements that are
substantially less stringent than the Municipal Solid Waste
Landfill Criteria (Part 258).  With regard to those States that
impose corrective action requirements, States usually require
that either the permit applicant submit a corrective action plan
with the permit or require the facility owner/operator to submit
a plan after a release to ground water is detected.

V. Discussion of Today's Regulatory Proposal 

A. Non-Municipal Solid Waste Disposal Facilities that Receive
   CESQG Hazardous Waste

     This rule applies to non-municipal solid waste disposal
facilities that receive CESQG hazardous waste, and the rule would
provide that only such facilities which meet the requirements in
Section 257.5 "may receive" CESQG waste, as required by RCRA
Section 4010(c).  Any non-municipal solid waste disposal facility
that does not meet the proposed requirements may not receive
CESQG hazardous waste.  The non-municipal units that are subject
to this rule are surface impoundments, landfills, land
application units and waste piles that receive CESQG waste for
storage, treatment, or disposal.  This is based on the existing
applicability of Part 257 to all solid waste disposal facilities
(40 CFR 257.1(c)).  Disposal is defined at 257.2 to mean "the
discharge, deposit, injection, dumping, spilling, leaking, or
placing of any solid waste or hazardous waste into or on any land
or water so that such solid waste or hazardous waste or any
constituent thereof may enter the environment or be emitted into
the air or discharged into any waster, including ground waters." 
This is also the statutory definition of "disposal" in RCRA
Section 1004(3).  The definition covers any placement of waste on
the land whether it is intended to be temporary or permanent.
     The Agency believes that two types of facilities are
potentially subject to this rule.  The first type would be a
facility where a CESQG co-disposes industrial non-hazardous waste
and CESQG hazardous waste on-site.  The Agency believes that only
a very few CESQG facilities currently continue on-site disposal
of CESQG waste.  For purposes of the Regulatory Impact Analysis
(RIA), the Agency assumes these facilities will cease that
practice to avoid the cost of compliance with this proposed rule. 
However, should CESQGs continue to dispose of their hazardous
waste on-site they must comply with these revised facility
standards.  The Agency believes that generators who meet the
conditions of the exemption in 261.5 and choose to send their
waste off-site to an acceptable facility (as specified in
proposed sections 261.5(f)(3) and (g)(3)) would not be subject to
the new 40 CFR 257.5 standards for any continued on-site disposal
of only non-hazardous waste.
     The other type of facility subject to today's rule is a 
non-municipal solid waste disposal facility that receives wastes
generated off-site that includes CESQG hazardous wastes.  Such
facilities include construction and demolition waste disposal
facilities and commercial industrial solid waste disposal
facilities.  
     Some interested parties have suggested that revised facility
standards promulgated under the authority of RCRA section 4010
(c) should be applicable to all on-site and off-site industrial
non-hazardous waste disposal.  This interpretation would impose
standards for CESQG disposal on all industrial solid waste
regardless of whether or not there was any likelihood that CESQG
waste might be present. The Agency believes that this
interpretation is overly broad.  If Congress had intended to
authorize EPA to revise disposal standards for all non-municipal
solid waste, the Agency believes that the statute would have
stated that.  Instead, the language of section 4010(c) clearly
ties revised criteria to solid waste facilities that may receive
small quantity generator waste (CESQG hazardous wastes under
current Subtitle C regulations) and not to those facilities
receiving non-hazardous solid wastes.
     Facilities that are uncertain about their status because of
the restricted nature of the wastes that they accept are
encouraged to consult with their approved State to determine
whether they are subject to the new 257.5 criteria.     
B. Decision to Impose or Go Beyond the Statutory Minimum
Components       RCRA Section 4010(c) requires that these revised
Criteria must at a minimum include location restrictions, 
ground-water monitoring as necessary to detect contamination, and
corrective action, as appropriate.  The Part 258 Municipal Solid
Waste Landfill Criteria went beyond the statutory minimum
requirements (see 56 FR 50977) and included the following
additional requirements:  operational requirements, design
standards, closure and post-closure care requirements and
financial assurance standards.  The Municipal Solid Waste
Landfill Criteria went beyond the statutory minimum components
for a variety of reasons.  Some of these reasons included:

 * 163 case studies that revealed ground-water contamination at
   146 MSWLFs, along with 73 MSWLFs that had documented cases of
   surface water contamination,
 * 29 documented cases of uncontrolled methane releases at MSWLFS
   causing fires and explosions at 20 of the 29 facilities,

 * a high percentage of National Priority List (NPL) sites were
   MSWLFs (184 sites out of 850 as of May 1986), and 
 * a belief, based on risk modelling, that some MSWLFs presented
   unacceptable risks to human health . 

     Taken together, these problems demonstrated a pattern of
recurring problems and potential hazards associated with MSWLFs
best addressed by requiring a comprehensive set of facility
standards. 
     Today's proposal imposes only the statutory minimum
components for non-municipal solid waste disposal facilities that
receive CESQG hazardous wastes.   Based on the data reviewed
below, the Agency believes that these facilities do not pose
risks that would warrant more comprehensive facility standards.   
 
1. Construction and Demolition Waste Facilities

     The Agency analyzed existing leachate and ground-water
monitoring data, and damage cases associated with construction
and demolition waste management to assess potential risks
associated with construction and demolition waste disposal
facilities.  Landfill leachate sampling data and ground-water
monitoring data were collected from states and from general
literature provided to the Agency by the National Association of
Demolition Contractors (NADC).     

a. Construction and Demolition Leachate 

     EPA evaluated representative construction and demolition
waste leachate values ("Construction and Demolition Waste
Landfills").  (This data was complied by NADC).  Leachate
sampling data for 305 parameters sampled for at one or more of 21
construction and demolition landfills were compiled into a
database.  
     Of the 305 parameters sampled for, 93 were detected at least
once.  The highest detected concentrations of these parameters
were compared to regulatory or health-based "benchmarks," or
concern levels, identified for each parameter.  Safe Drinking
Water Act Maximum Contaminant Levels (MCLs) or Secondary Maximum
Contaminant Levels (SMCLs) were used as the benchmarks if
available.  Otherwise, health-based benchmarks for a leachate
ingestion scenario were identified; these were either reference
doses (RfDs) for non-carcinogens, or 10-6 risk-specific doses
(RSDs) for carcinogens.  Benchmarks were unavailable for many
parameters because they have not been studied sufficiently.
     Of the 93 parameters detected in C&D landfill leachate, 25
had at least one measured value above the regulatory or 
health-based benchmark.  For each of these 25 parameters, the median
leachate concentration was calculated and compared to its
benchmark.  The median value was first calculated among the
samples taken at each landfill, and then across all landfills at
which the parameter was detected.  Due to anomalies and
inconsistencies among the sampling equipment used at different
times and at different landfills, non-detects were not considered
in determining median values; i.e., the non-detects were
discarded before calculating both individual landfill
concentration medians and medians across landfills.  Thus, the
median leachate concentrations represent the median among the
detected values, rather than the median among all values.  The
median concentration among all values would in most cases have
been lower than those calculated here.
     Based on (1) the number of landfills at which the benchmark
was exceeded and (2) a comparison between the median detected
concentration and the benchmark, seven parameters emerge as being
potentially problematic.  The Agency identified this list of 7
potentially problematic parameters by eliminating from the
original list of 25 parameters any parameter that was only
detected at one landfill (this was determined to be not
representative) and, furthermore, eliminating any parameter whose
median concentration did not exceed the benchmark value for that
parameter.  The 7 potentially problematic parameters are as
follows: 
               1,2-Dichloroethane  
               Methylene chloride  
               Cadmium
               Iron 
               Lead 
               Manganese 
               Total dissolved solids

     The benchmark values for three of the parameters (total
dissolved solids, iron, and manganese) are secondary MCLs
(SMCLs).  Secondary MCLs are set to protect water supplies for
aesthetic reasons, e.g., taste, rather than for health-based
reasons.  The remaining 4 constituents, their calculated medians,
and health-based benchmark values are as follows:   

Constituent               Median              Health-Based Values 
                       Concentration         Value       Source

1,2-Dichloroethane      19   ug/l          5  ug/l         MCL 
Methylene chloride      15.2 ug/l          5  ug/l       10-6 RSD
Cadmium                 10.5 ug/l          5  ug/l         MCL
Lead                     55  ug/l          15 ug/l   Action Level

     The next step in evaluating the significance of these
constituent concentrations is to apply an exposure model to
develop a relationship between the constituent concentration in
the environment at an assumed exposure point and the constituent
concentration in the waste.  This is because constituents
released from a waste undergo a variety of environmental fate and
transport processes that result in exposure point concentrations
that are lower than levels in the waste stream or in leachate. 
     The Agency assumed a dilution attenuation factor (DAF) of
100 for the fate and transport analysis.  The value of 100 was
selected based on the development of the Toxicity Characteristic
(40 CFR 261.24).  The DAF is an estimate of the factor by which
the concentration is expected to decrease between the waste
management facility and a hypothetical downgradient drinking
water well. 
A multiplier of 100 corresponds to a cumulative frequency close
to the 85th percentile from the EPACML simulations used to
support the TC rule.  In other words, in this exposure scenario,
an estimated 15 percent of the drinking water wells closest to
unlined municipal landfills could have contaminated
concentrations above MCLs.  
Dividing the calculated median concentration by the DAF of 100
and comparing the new concentration allows for an estimate as to
whether the new concentration will exceed the health-based value
at an exposure point.  In using the DAF of 100, the resulting new
concentrations are all below their respective health-based
values. The resulting concentrations as compared to the 
health-based values are presented in the table below.

Constituent            Median Concentration      Health-Based
Value                    Divided by DAF of 100
1,2-Dichloroethane              .19 ug/l                5 ug/l
Methylene chloride             .152 ug/l                5 ug/l
Cadmium                        .105 ug/l                5 ug/l
Lead                            .55 ug/l               15 ug/l    

b. Construction and Demolition Damage Case Analysis 

     EPA conducted a study ("Damage Cases: Construction and
Demolition Waste Landfills") to determine whether the disposal of
C&D debris in C&D landfills has led to the contamination of
ground or surface water or damages to ecological resources.  All
of the damage case information EPA evaluated came from existing
information in State files and literature sources.  EPA was able
to identify only 11 C&D landfills with evidence of ground water
or surface water contamination.  EPA found no documented evidence
of existing human health risks or ecosystem damages at
construction and demolition landfills and little documented
evidence of off-site contamination.  
     When the Agency reviewed existing sources of data for C&D
damage cases, the Agency reviewed existing Superfund databases
(NPL), contacted EPA regional representatives, 32 States, county
environmental Agencies, and existing studies or reports providing
background information on C&D facilities and damages.  
     When EPA searched for C&D damage cases, several criteria
were used to identify where the damages could reasonably be
associated with construction and demolition facilities and
construction and demolition waste disposal.  First and foremost,
the Agency sought to identify C&D facilities that accepted
predominately C&D wastes.  Landfills that had received
significant quantities of municipal waste, non-hazardous
industrial waste, or hazardous waste in the past were excluded
from consideration.  Additionally construction and demolition
sites located near other facilities or leaking underground
storage tanks that could reasonably be the source of
contamination were excluded as possible C&D damage cases. 
Lastly, there needed to be documented evidence of contamination
at the C&D site.  
     The 11 damage cases that the Agency has identified are from
New York, Virginia, and Wisconsin.  Virginia and Wisconsin have
required groundwater monitoring since 1988 at C&D facilities. 
The facilities in New York were among 9 C&D sites investigated
due to public concerns about possible hazardous waste disposal
and potential human health and environmental impacts.
     A study of the 11 C&D sites revealed on-site ground-water
contamination at all of the facilities and surface water
contamination at 6 of the 11 sites, with the main contaminants
being metals and other inorganics.  At 3 of the 11 facilities,
sediment contamination was also detected.  Although most of the
contamination associated with these damage cases occurred 
on-site, 2 of the eleven facilities did have off-site contamination
(both facilities had sediments and surface water contamination
occurring off-site).  
     Although most of the 11 sites were monitored for a wide
range of organic and inorganic constituents, virtually all of the
contamination was associated with inorganics.  Constituents that
exceeded State ground-water protection standards or Federal
drinking water criteria most frequently were manganese (9 sites),
iron (8 sites), total dissolved solids (6 sites), lead (5 sites),
magnesium (4 sites), sodium (4 sites), Ph (3 sites) and sulfate
(3 sites).  The other 8 constituents that were detected in ground
water at these 11 sites were detected at only one or two sites.   
     For the 6 sites that had surface water contamination, the
constituents that exceeded State surface water standards or
Federal Ambient Water Quality Criteria most frequently were iron
(4 sites), zinc (3 sites), lead (2 sites), and copper (2 sites). 
The other 5 constituents that were detected in surface water at
these 6 sites were detected only once.  No fish kills or other
observable impacts on aquatic life were reported in any of the
references that the Agency reviewed. 
     A look at the most frequently detected constituents in
ground water or surface water reveals that of the 10
constituents, 7 are a concern due to SMCLs; only lead, magnesium,
and sodium are not.  Magnesium was found to exceed only an
applicable State standard by a factor of 4 times, while sodium
was found to exceed an applicable State standard by a factor of
14.  Lead was found in ground water to exceed the Federal action
level at the tap (15ug/l) by a factor of 6.  Lead was also found
in surface water to exceed the established Federal Ambient Water
Quality Criteria by a factor of 16 to 300 (although for the
higher factor the reported value of lead in the surface water was
"estimated").  
   
c. Construction and Demolition Ground-Water Monitoring Data

     Limited ground-water monitoring data suggests that a similar
set of parameters that are detected in C&D leachate and that
appear in damage cases associated with C&D facilities are also
detected in ground water.  Based on the limited ground-water
data, only 19 parameters had a maximum value exceeding a 
health-based benchmark. Of these 19 parameters, 8 exceeded a secondary
MCL (TDS, sulfates, Ph, manganese, chlorides, iron, copper, and
aluminum).  For the remaining 11 parameters, 5 are organics
(Bis(2-ethylhexyl) phthalate, methylene chloride,
tetrachloroethene, 1,2,4-trichlorobenzene, and 
1,1,1-trichloroethane), 5 are inorganics (arsenic, cadmium, lead,
mercury, and nickel), and 1 is a conventional parameter
(nitrate).  Only one constituent (cadmium) exceeded its 
health-based value by an order of magnitude.  Some constituents had a
maximum ground-water value just exceeding its health-based value. 
It is important to remember that when looking at the limited
ground-water monitoring data what is being discussed in this
paragraph are maximum levels; additional sampling events for
these constituents resulted in lower levels or non-detects.  

d. Conclusions for Construction and Demolition Facilities

        While the data on construction and demolition waste
landfills are limited, the Agency has reached some conclusions.  
Based on evaluation of the data analyzed above, individual
construction and demolition waste facilities may have caused
limited damage to ground water and surface water and potentially,
may pose a risk to human health and the environment.  Individual
C&D facilities may also affect usability of drinking water due to
aesthetic impacts.  However, the Agency believes that C&D
facilities, in general, do not currently pose significant risks
and that individual damage cases are limited in occurrence.  The
small number of damage cases and the leachate concentration data
reviewed above support these conclusions.  Ground-water
monitoring and corrective action at these facilities will ensure
that any releases and potential risks at individual facilities
will be identified and corrected in a timely fashion to protect
human health and the environment.  Location restrictions will
ensure that non-municipal solid waste disposal facilities that
receive CESQG waste will be located in acceptable areas, thereby,
providing further protection of human health and the environment. 
Because construction and demolition waste facilities, in general,
do not currently pose significant risk, the Agency has concluded
that the statutory minimum requirements will ensure protection of
human health and the environment. 

2. Off-Site Commercial Landfills 

     As for the 10- 20 commercial off-site facilities that accept
only industrial wastes, the Agency understands that corporate
policy has been to subject these types of facilities to stringent
environmental controls.  In addition, State regulations also
apply to these types of facilities.  A facility of this type
generally employs a liner, has closure and post-closure care
requirements and financial assurance standards.  These State and
corporate controls go beyond the statutory minimum controls and
therefore the Agency believes that there is no need, on the
Federal level, to impose additional standards beyond the 
statutory minimum.

3. Request for Additional Data and Comments Concerning Statutory
Minimum or More Comprehensive Facility Requirements

     The Agency solicits comments on the two reports referenced
above "Construction and Demolition Waste Landfills" and "Damage
Cases: Construction and Demolition Landfills"  The leachate and
ground-water monitoring data and the damage cases analyzed above
represent a small number of facilities relative to the
construction and demolition facility universe.  The Agency
solicits any additional data concerning C&D facilities to further
assess the potential risks they may pose, as well as additional
data on commercial industrial solid waste facilities or other
types of facilities that may be subject to today's proposal.
     The Agency also requests comment on whether the requirements
being proposed today should go beyond the statutory minimum
components.  Requirements beyond the statutory minimum components
could include all or any of the following components: 
operational criteria, design standards, closure and post-closure
care requirements, and financial assurance standards.  The Agency
is requesting that commentors document the need to go beyond the
statutory minimum components.  The Agency is also requesting that
commentors be specific as to whether any additional controls
should be identical to the Part 258 Criteria for municipal
landfills or should require a different standard and what that
standard should be.

C. Decision to Establish Facility Standards Under Part 257 and    
   Revisions to Part 261     

     The Agency proposes today to establish facility standards,
in Part 257, for non-municipal solid waste disposal facilities
that receive CESQG hazardous wastes.  Section 4010(c) states that
the Agency should revise the existing Part 257 Criteria for
facilities that "may receive" CESQG waste.  Clearly today's
proposal responds to the statutory language.  The Agency is
proposing to establish facility standards, in a separate section
in Part 257, for non-municipal solid waste disposal facilities
that receive CESQG hazardous waste.  By providing that only those
facilities meeting the new standards "may receive" CESQG waste,
the Agency believes it will satisfy the statutory mandate of RCRA
Section 4010(c). 
     The Agency is also proposing revisions to the language in
Section 261.5 (Special requirements for hazardous waste generated
by conditionally exempt small quantity generators).  These
revisions will clarify the types of acceptable treatment,
storage, or disposal facilities that can be used to manage CESQG
hazardous waste while making it clear that CESQGs are responsible
for ensuring that their CESQG hazardous wastes destined for
storage, treatment, or disposal are sent to acceptable
facilities.  This will help ensure that CESQG waste is not sent
to facilities that do not meet the new Part 257 regulations
(i.e., to facilities that "may not receive" CESQG wastes.
     Acceptable facilities are either interim status or permitted
Subtitle C facilities; municipal facilities permitted, licensed,
or registered by a State and subject to Part 258 or an approved
State program; non-municipal solid waste disposal facilities that
are permitted, licensed, or registered by a State and subject to
Part 257.5 or an approved State program; or solid waste
management facilities that are permitted, licensed, or registered
by a State (i.e., municipal solid waste combustor).  EPA
encourages CESQGs to consult with their State solid waste agency
to determine which facilities are acceptable.  Today's proposed
changes to Section 261.5 make no changes to the provisions
allowing CESQGs to send their hazardous waste for beneficial use,
reuse, legitimate recycling or reclamation.

D. Request for Comment on the Use of an Alternative Regulatory
Approach in Today's Rule

     The Agency previously discussed its proposed approach to
impose only the statutory minimum requirements on non-municipal
solid waste facilities that receive CESQG hazardous waste.  The
Agency has identified two options for writing the statutory
minimum components.  One option is to use the Part 258 Criteria
as the baseline for these requirements.  The second option would
be to specify general performance standards to 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).  
     There are several reasons why the Agency is considering
using the Part 258 Criteria.  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 to collect reliable
and consistent ground-water monitoring data and 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.  Also, EPA and
State success in accomplishing 42  State program approvals
demonstrates that a variety of State approaches are consistent
with the Part 258 Criteria.  As an example, States have
established different design standards based on State-specific or
site-specific factors that comply with the Part 258 criteria. 
The Agency expects States to likewise use this same flexibility
in tailoring their ground-water monitoring programs.  4) Some
States have expressed strong support for using 258 standards as
the baseline for solid waste disposal facilities that receive
CESQG hazardous waste.  5) While some States have standards for
non-municipal facilities that are not identical to the 258
standards, the Agency believes there is a strong likelihood that
many state programs would be approvable. 
     Reasons cited in support of using the general performance
standard approach include: 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.  However,
since EPA has found that facilities that receive CESQG waste may
pose substantially less risk than MSWLFs, these national minimum
standards may be overly stringent at certain facilities; 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.  If a
State believes that its existing program satisfies the general
RCRA performance standard -- protects human health and the
environment, taking into account the practicable capability of
these facilities -- it could seek approval of their existing
programs and avoid substantial regulatory or legislative changes;
and 4) a general performance standard would provide the maximum
flexibility for States and owners to adopt new methodologies and
technologies (e.g., detecting groundwater contamination from the
surface, not from wells) to meet the standard at the lowest
possible cost.     
     In order to give the regulated community a better idea of
how the ground-water monitoring and corrective action
requirements could be written using a general performance
standard approach, the Agency has developed the following
examples of general performance language for each of the main
elements of a ground-water and corrective action program.      
     For section 257.5-2.2, ground-water monitoring systems, the
regulatory language for the general performance approach could
require that the owner/operator install a ground-water monitoring
system capable of detecting contamination that would consist of a
sufficient number of wells, installed at appropriate locations
and depths, to yield ground-water monitoring samples from the
uppermost aquifer that represent both the quality of background
ground-water and the quality of ground-water passing the point of
compliance.  However, this section would not specify how the
monitoring wells should be cased or the proper depth and spacing
of the wells.  
The Part 258 approach establishes the point of compliance for
units under today's proposed rulemaking to no more than 150
meters from the edge of a unit boundary.  However, a general
performance standard could be written to allow states to set the
point of compliance at other protective locations.  The Agency
specifically requests comment on whether a flexible approach to
establishing the point of compliance is particularly well suited
to low-risk facilities such as those addressed by this
rulemaking, and if so, which factors should be considered in
making a determination at these facilities.
     The Agency also is currently evaluating a performance-based
approach to locating the point of compliance for clean-up of
releases in the hazardous waste program as part of the corrective
action rule development in subpart S of 40 CFR part 264.  The
states are participating in the subpart S rulemaking as 
co-regulators.  Point of compliance options under consideration
include: the unit boundary, the facility boundary, use of a
buffer zone and anywhere in the plume of contamination beyond the
unit boundary.  We are contemplating that the subpart S approach
could provide a basis for flexible, site-specific decision making
for  waste management facilities covered by today's rule.  
       For section 257.5-2.3, ground-water sampling and analysis
requirements, the regulatory language for the general performance
language could require that the owner/operator establish a
ground-water monitoring program that includes consistent sampling
and analysis procedures that ensure monitoring results that
provide an accurate representation of background ground-water
quality and down-gradient ground-water quality.  The Agency would
also state that the sampling and analysis procedures should also
ensure that appropriate sampling and analytical methods are used
and that ground-water quality data is based on appropriate
statistical procedures.  However, the regulatory language would
not require that any specific statistical test be used nor would
the regulatory language require that general performance
standards be met as a condition of using an alternative
statistical test.  
     For section 257.5-2.4, detection monitoring program, the
regulatory language for the general performance language could
require that the owner/operator establish a list of indicator or
detection parameters that are monitored for and that enable the
owner/operator to detect contamination.  The Agency would also
state that the monitoring frequency should be determined based on
site specific factors and that the owner/operator must also
establish a process for assessing any potential contamination,
based on the statistical procedures established in section
257.5-2.3.  However, EPA's regulatory language would not specify
any factors that an owner/operator should consider in selecting
his/her indicator/detection monitoring parameters nor would the
regulatory language specify the site-specific factors that would
need to be evaluated by the owner/operator in determining the
frequency of monitoring.  
      For section 257.5-2.5, assessment monitoring program, the
regulatory language for the general performance standard approach
could require that the owner/operator establish a process for
assessing any potential contamination based on 1) additional
monitoring for hazardous constituents that are expected to be
present at the facility and 2) the establishment of background
standards and health-based standards for the constituents that
are monitored.  The Agency would also state that the process must
allow for a comparison, based on the statistical procedures
established in section 257.5-2.3, of those background and 
health-based standards in order to determine when a health-based
standard has been exceeded and to allow for the assessment of
corrective measures when it is determined that an exceedance has
occurred.  However, the regulatory language would not specify any
steps that must be complied with as part of the process in
assessing the monitoring program.
     For section 257.5-2.6, assessment of corrective action, the
regulatory language for the general performance standard approach
could require that the owner/operator assess the potential range
of corrective measures that could be used to meet the performance
standard established in section 257.5-2.7.  However, the
regulatory language would not list any factors that should be
considered by the owner/operator in assessing any potential
remedy.  It may allow the States flexibility to use different
risk assumptions than those in Part 258 to establish triggers for
corrective action.
     For section 257.5-2.7, selection of remedy, the regulatory
language for the general performance standard approach could
require that the owner/operator select the most appropriate
remedy that 1) controls the source of releases to the maximum
extent possible, 2) attains the health-based standard(s)
developed in the assessment monitoring program, and 3) protects
human health and the environment.  The Agency would also state
that the owner/operator would also need to establish a time
period for initiating and completing the selected remedy. 
However, the regulatory language would not list any factors that
an owner/operator should consider in selecting the remedy, in
establishing a schedule for initiating and completing the remedy,
or in deciding that remediation is not necessary.  
     For section 257.5-2.8, implementation of the corrective
action program, the regulatory language for the general
performance standard approach could require that the
owner/operator implement the selected remedy, based on the
schedule established in section 257.5-2.7, and attain compliance
with the health-based standards established in section 257.5-2-5.
The Agency would also state that the implementation of the
corrective action program should include a consideration of
interim measures that may need to be considered during corrective
action and a consideration of alternative corrective measures if,
after implementation of the selected remedy, the health-based
standards in section 257.5-2.5 are not being achieved.  However,
the regulatory language would not list any factors that an
owner/operator should consider in developing interim measures or
in the selection of an alternative remedy.
     The Agency believes that the general performance standard
approach has some advantages.  The approach would offer more
flexibility to States to determine how best to run their State
program for non-municipal solid waste facilities that receive
CESQG hazardous waste, while allowing States to tailor
regulations based on anticipated risks.  In the absence of a
State program, owners/operators would have to determine how to
comply based on risk.  However, the Agency is concerned that such
a performance standard approach may result in greater uncertainty
for owners/operators.  
     While the Agency has not proposed the general performance
standard approach in today's proposal, the Agency believes that
the performance standard approach provides some interesting
options/advantages for owners/operators and State agencies. 
Therefore, the Agency is requesting comments on the use of
general performance standards in lieu of the approach used in
today's proposal. 
    
E. Highlights of Today's Statutory Minimum Requirements for 
   Non-Municipal Solid Waste Disposal Facilities that Receive 
   CESQG Hazardous Waste

     For today's proposed regulatory language, the Agency has
used the Part 258 Criteria as a baseline.  The highlights of the
Part 258 requirements are presented in the next section of
today's preamble.  The flexibility that was developed for the
Part 258 Criteria has been incorporated into today's proposal for
the location restrictions and the ground-water monitoring and
corrective action requirements.  The Agency solicits comments
from the regulated community on whether these standards would
provide sufficient flexibility for construction and demolition
waste facilities.  Commentors are requested to review the
proposal with an eye towards identifying those areas in the
proposal that they believe do not contain sufficient flexibility
and would unduly hinder or place unnecessary burdens on
construction and demolition waste facilities or other facilities
potentially affected by the rule.  The Agency requests that if
commentors identify a provision that is lacking in flexibility,
that the commentors clearly identify alternative rule language
that provides the necessary flexibility.
     Today's proposal requires that non-municipal solid waste
disposal facilities that receive CESQG hazardous waste are
subject to the requirements being proposed in Section 257.5.  Any
non-municipal solid waste disposal facility that does not meet
the proposed requirements may not receive CESQG hazardous waste. 
Section 257.5 specifies location restrictions, ground-water
monitoring and corrective action standards that are substantially
the same as the statutory minimum standards that were developed
under 40 CFR Part 258.  A complete summary of the statutory
minimum standards developed under Part 258 can be found in the
MSWLF Criteria.  See 56 FR 50977.  A general discussion of the
requirements being proposed under Section 257.5 is provided
below.  A discussion is also provided in those instances where a
requirement being proposed in Section 257.5 has been slightly
modified from the requirement in Part 258.

 1. Applicability 

     Today's proposal establishes a separate section in Part 257
(i.e., Section 257.5) that applies to any non-municipal solid
waste disposal facility that receives CESQG hazardous wastes. 
Owners/operators of non-municipal solid waste disposal facilities
that receive CESQG hazardous waste after the effective date
(i.e., 18 months after the date of promulgation in the FEDERAL
REGISTER) must comply with the requirements in Section 257.5. 
Today's proposal does not apply to municipal solid waste
landfills subject to Part 258 or hazardous waste facilities
subject to regulations under Subtitle C of RCRA.
     Owners/operators of non-municipal solid waste disposal
facilities whose facilities do not meet the proposed requirements 
may not receive CESQG hazardous waste.  Owners/operators of such
facilities would continue to be subject to the requirements in
Sections 257.1 - 257.4.     
     Owners/operators of non-municipal solid waste disposal
facilities that receive CESQG hazardous waste and become subject
to the separate requirements in Section 257.5 continue to be
subject to several existing requirements in Sections 257.1 -
257.4.  The existing requirements in Sections 257.1 - 257.4 that
continue to be applicable include: Sections 257.3-2 (Endangered
Species), 257.3-3 (Surface Water), 257.3-5 (Application to 
food-chain crops), 257.3-6 (Disease), 257.3-7 (Air), and 257.3-8 (a),
(b), and (d) (Safety).  A non-municipal solid waste disposal
facility that becomes subject to the CESQG requirements in
Section 257.5 would no longer be subject to the following
existing requirement in Section 257.1 - 257.4:  Sections 257.3-1
(Floodplains), 257.3-4 (Ground water), and 257.3-8(c) (bird
hazards to aircraft) because Section 257.5 would contain separate
standards in each of the areas.  Today's proposal establishes new
requirements pertaining to ground-water monitoring, corrective
action, and location restrictions (airports and floodplains) for
non-municipal solid waste disposal facilities that receive CESQG
hazardous waste.
     Certain facilities may implement screening procedures to
effectively eliminate the receipt of CESQG hazardous wastes. If
an owner/operator has a question concerning applicability of the
rule, he/she is encouraged to contact his/her State Agency to
determine that the screening procedure ensures that the facility
does not receive CESQG hazardous waste.  
  
2. Specific Location Restrictions

     The requirements in Section 257.5-1 will establish location
restrictions for any non-municipal solid waste disposal facility
that receives CESQG hazardous wastes.  The location restrictions
are for airport safety, floodplains, wetlands, fault areas,
seismic impact zones, and unstable areas.  The location
restrictions being proposed today for non-municipal solid waste
disposal facilities that receive CESQG hazardous wastes are based
on the location restrictions that were promulgated under Part 258
for municipal solid waste landfills.  A detailed discussion of
these location restrictions can be found in the MSWLF Criteria
(See 56 FR 51042 - 51049).  A summary of each location
restriction is presented below.

a. Airport Safety

Existing Criteria under Part 257 

     Non-municipal solid waste disposal facilities are currently
subject to an airport safety provision in the existing Part 257
Criteria (i.e, Section 257.3-8(c)).  Section 257.3-8(c) requires
that a facility disposing of putrescible wastes that may attract
birds and which occurs within 10,000 feet of any airport runway
used by turbojet aircraft or within 5000 feet of any airport
runway used by only piston-type aircraft shall not pose a bird
hazard to aircraft.       

MSWLF Criteria under Part 258 (Section 258.10)

     The Criteria apply to new, existing, and lateral expansions
of existing MSWLFs and establish that MSWLF owners/operators
located within the same distance specifications as in Part 257
place a demonstration in the operating record that the facility
does not pose a bird hazard to aircraft.   New MSWLFs and lateral
expansions of existing MSWLFs located within a five-mile radius
of any runway must notify the affected airport and the Federal
Aviation Administration (FAA).

Today's Proposed Language Regarding Airport Safety (Section
257.5-1.1)

     Today's proposal uses the identical airport safety language
that was established for MSWLFs.  Today's proposal will require
that new, existing, and lateral expansions of non-municipal solid
waste disposal facilities that receive CESQG hazardous waste
demonstrate that the facility does not pose a bird hazard to
aircraft.  For existing facilities that become subject to today's
rule only the demonstration requirement is different from the
current airport safety standard in Section 257.3-8(c).  The
demonstration requirement is being proposed because today's
airport safety requirement is written to be self-implementing and
the demonstration documents compliance and may protect the
owner/operator from a citizen suit.  For new and lateral
expansions of non-municipal solid waste disposal facilities, the
notification to the FAA and affected airport is a new provision. 
This provision is being proposed in order for the Agency to be
consistent with existing FAA Order #5200.5A.  This FAA Order
establishes that any disposal site that attracts or sustains
hazardous bird movements from feeding, watering or roosting areas
may be incompatible with airport operations.

b. Flood plains Existing Criteria under Part 257

     Non-municipal solid waste disposal facilities are currently
subject to a floodplain provision in the existing Part 257 (i.e.,
Section 257.3-1).  Section 257.3-1 requires that facilities not
restrict the flow of the base 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 life, wildlife, or land or
water resources. 

MSWLF Criteria Under Part 258 (Section 258.11)  

     The Criteria apply to new, existing, and lateral expansions
of MSWLFs and establish that MSWLF owners/operators located
within the 100-year floodplain demonstrate that the MSWLF 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. 

Today's Proposed Language Regarding Floodplains (Section 257.5-1.2)

     Today's proposal uses the identical language from the MSWLF
Criteria.  The demonstration requirement for new, existing, and
lateral expansions of non-municipal solid waste disposal
facilities is the only change to the existing Part 257 language
and as stated above the demonstration requirement is being
proposed due to the self-implementing nature of today's proposal
and to document compliance on the part of the owner/operator.  

c. Wetlands

Existing Criteria under Part 257

     Non-municipal solid waste disposal facilities currently are
not subject to any provisions regarding wetland protection.

MSWLF Criteria Under Part 258 (Section 258.12)

     The Criteria apply to new and lateral expansions of MSWLFs
and establish that MSWLFs locating in a wetland ensure that if
the MSWLF must be constructed in a wetland location, the MSWLF
will not cause or contribute to violations of any applicable
State water quality standards, will not cause or contribute to
the degradation of a wetland, and lastly that steps have been
taken to offset any unavoidable impacts on the wetland.  Siting
of a MSWLF in a wetland location is only allowed to be approved
by the Director of an approved State program after a successful
demonstration by an owner/operator.  
   
Today's Proposed Language Regarding Wetlands (Section 257.5-1.3)

     Today's proposal establishes requirements applicable for new
and lateral expansions of non-municipal solid waste disposal
facilities regarding the siting in wetland locations.  These
requirements are identical to the requirements established for
MSWLFs.  The Agency has determined that new and lateral
expansions of non-municipal solid waste disposal facilities,
similar to MSWLFs, may be sited in wetlands only under very
certain  conditions.  Therefore, the comprehensive demonstration
requirements that are in the MSWLF Criteria are being proposed
today.  These demonstration requirements will ensure that if a
non-municipal solid waste disposal facility needs to be located
in a wetland, protection of State water quality standards and
protection of the wetland will be achieved.  Furthermore, today's
proposal is consistent with the Agency's goal of achieving no net
loss of the nation's wetlands.  
     

d. Fault Areas

Existing Criteria under Part 257

     Non-municipal solid waste disposal facilities currently are
not subject to any provision regarding fault areas.
MSWLF Criteria Under Part 258 (Section 258.13)
     The Criteria established for MSWLFs locating in a fault area 
apply only to new or lateral expansions of existing MSWLFs.  The
intent of the MSWLF Criteria is to prohibit siting within 200
feet of an active fault.  The 200 foot limit was chosen because
it is generally believed that the structural integrity of a MSWLF
cannot be unconditionally guaranteed when they are built within
200 feet of a fault that is likely to move.  Flexibility is
provided for owners/operators in an approved State to be located
within 200 feet of a fault area if the owner/operator makes the
necessary demonstration.      

Today's Proposed Language Regarding Fault Areas

     Today's proposal for non-municipal solid waste disposal
facilities that receive CESQG hazardous waste contains a location
restriction regarding fault areas.  Today's proposal bans the
siting of new non-municipal solid waste disposal facilities or
lateral expansions of these facilities in areas that are
susceptible to faulting (i.e., areas located within 200 feet of a
fault that has had displacement in recent times).  The Agency
believes that locating a new facility or lateral expansion in a
location that has experienced faulting has inherent dangers.  If
a facility is located near a fault and displacement occurs,
release of solid waste and hazardous constituents will occur. 
The Agency, however, believes that some flexibility should be
incorporated into the proposal for approved States and, as such,
today's proposal allows approved States to site a new
non-municipal solid waste disposal facility or lateral expansion
within 200 feet of an active fault if the owner/operator
demonstrates that such an action will be protective of human
health and the environment.  Existing non-municipal solid waste
disposal facilities that receive CESQG hazardous wastes would not
be subject to today's proposed fault area restriction. 
     The Agency requests comments on the necessity of requiring a
fault area restriction for new non-municipal solid waste disposal
facilities or lateral expansions of these types of facilities
that receive CESQG hazardous waste.       
    

e. Seismic Impact Zones

Existing Criteria under Part 257

     Non-municipal solid waste disposal facilities currently are
not subject to any provision regarding seismic impact zones.
MSWLF Criteria Under Part 258 (Section 258.14)
     The Criteria established for MSWLFs locating in a seismic 
impact zone apply only to new or lateral expansions of existing
MSWLFs.  The intent of the MSWLF Criteria is to prohibit the
siting of new MSWLFs or lateral expansions of these types of
facilities in seismic impact zones.  If, however, the
owner/operator demonstrates to the Director of an approved State
that all containment structures, including liners, leachate
collection systems, and surface water control systems are
designed to resist the maximum horizontal acceleration in
lithified earth material, a new MSWLF or lateral expansion may be
located within a seismic impact zone.  

Today's Proposed Language Regarding Seismic Impact Zones

     Today's proposal for non-municipal solid waste disposal
facilities that receive CESQG hazardous waste contains a location
restriction regarding seismic impact zones.  Today's proposal
bans the siting of new non-municipal solid waste disposal
facilities or lateral expansions of these facilities in seismic
impact zones.  Existing non-municipal solid waste disposal
facilities that  receive CESQG hazardous wastes would not be
subject to today's proposed seismic zone restriction.  Seismic
activity manifests itself in the form of ground shaking and
fracturing.  These activities can, like faulting, result in the
release of solid waste and hazardous constituents.  The Agency
has incorporated the flexibility found in the MSWLF Criteria in
today's proposal.  As such, if owners/operators of new 
non-municipal solid waste disposal facilities that receive CESQG
hazardous waste or lateral expansions of such facilities can
demonstrate to the Director of an approved State that the
facility and any containment devices used in the construction of
the facility are designed to withstand the effects of seismic
activity, then such a facility may be located in a seismic impact
zone. 

f. Unstable Areas

Existing Criteria under Part 257

     Non-municipal solid waste disposal facilities currently are
not subject to any provision regarding unstable areas. 

MSWLF Criteria Under Part 258 (Section 258.15)

     The Criteria established for MSWLFs locating in an unstable
area apply to new MSWLFs, lateral expansions of existing MSWLFs,
and existing MSWLFs.  The intent of the MSWLF Criteria again
focuses on the ability of engineering measures to compensate for
unstable location conditions and a demonstration that these
engineering measures will ensure the integrity of the structural
components of the MSWLF.  

Today's Proposed Language Regarding Unstable Areas 

     Today's proposal for non-municipal solid waste disposal
facilities that receive CESQG hazardous waste contains a location
restriction regarding unstable areas.  Today's proposal applies
to existing non-municipal solid waste facilities, new 
non-municipal solid waste facilities, and lateral expansions of these
types of facilities.  These facilities that receive CESQG waste
must demonstrate that engineering measures have been incorporated
into the facility design to ensure that the integrity of the
structural components will not be disrupted.  The rationale for
requiring this location restriction is the same as that provided
for fault areas and seismic activity zones:  waste placed in
locations susceptible to mass movement or placed in areas with
poor foundation conditions can result in the release of solid
waste and hazardous constituents.  The Agency, therefore,
believes that these unstable areas should be avoided and locating
in an unstable area should only be allowed after a successful
demonstration by the owner/operator that the structural integrity
of the facility will not be disrupted.   
     In summary, six location restrictions are being proposed:
airport safety, floodplains, wetlands, fault areas, seismic
impact zones, and unstable areas.  Existing non-municipal solid
waste disposal facilities that receive CESQG hazardous wastes are
only required to comply with the airport safety, floodplain, and
unstable area location restrictions.  New or lateral expansions
of non-municipal solid waste disposal facilities that receive
CESQG hazardous wastes must comply with all six location
restrictions prior to accepting waste for disposal.  
     EPA is proposing that existing non-municipal solid waste
disposal facilities that cannot make the required demonstrations
pertaining to airports, floodplains, or unstable areas by 18
months  after the final rule is promulgated must stop receiving
CESQG hazardous wastes.  This 18-month period is much shorter
than the 5-year period that was given to MSWLFs under 40 CFR
258.16.  EPA provided five years to MSWLFs because there was
concern about capacity shortages if existing owners/operators of
MSWLFs had to close in the short term.  For this proposal,
existing non-municipal solid waste disposal facilities only have
to comply with three location restrictions: airport safety,
floodplains, and unstable areas.  Two of these three restrictions
being proposed are technically identical to the existing Part 257
standards that existing non-municipal solid waste disposal
facilities have been subject to since 1979 (i.e., airport safety
and floodplains).  The new requirements for these two location
restrictions are the demonstrations documenting compliance with
these provisions and a notification to the FAA if a new or
lateral expansion of an existing non-municipal solid waste
disposal facility wants to site within a five-mile radius of an
airport runway end.  The last location restriction applicable to
existing facilities is the unstable area restriction.  The Agency
believes that 18 months is sufficient time for a owner/operator
to demonstrate that the integrity of the facility will not be
disrupted.  Furthermore, the Agency does not believe that
capacity concerns apply to the types of facilities that may
potentially become subject to today's proposal.  
     With the effective date 18 months after the date of
promulgation, existing non-municipal solid waste disposal
facilities that receive CESQG hazardous waste will need to make
the necessary demonstrations prior to this 18-month period.  In
the event that an existing non-municipal solid waste facility can
not make the demonstrations, the existing facility may not
receive CESQG hazardous wastes after this 18-month period.  If
the existing non-municipal solid waste disposal facility fails to
make the necessary demonstrations within 18 months and thereafter
stops receiving CESQG hazardous waste, it can continue to stay
open and operate; however, it must comply with the existing
standards in Sections 257.1 - 257.4 vs. the requirements being
proposed today under Section 257.5.

3. Specific Ground-Water Monitoring and Corrective Action       
Requirements

     The requirements in Sections 257.5-2.1 - 257.5-2.8 will
establish ground-water monitoring and corrective action
requirements for any non-municipal solid waste disposal facility
that receives CESQG hazardous wastes.  Section 257.5-2
establishes the criteria for determining an acceptable 
ground-water monitoring system, the procedures for sampling and
analyzing ground-water samples, the steps and factors to be used
in proceeding from an initial detection monitoring phase, up to,
and including corrective action for clean-up of contaminated
ground water.  
     The ground-water monitoring and corrective action
requirements being proposed today for non-municipal solid waste
disposal facilities that receive CESQG hazardous wastes are based
on the ground-water monitoring and corrective action requirements
that were promulgated under Part 258 for municipal solid waste
landfills.  As such the areas of flexibility that exist within
the MSWLF Criteria will also apply to non-municipal solid waste
disposal facilities that receive CESQG hazardous waste.  A
detailed discussion of the MSWLF Criteria regarding ground-water
monitoring and corrective action requirements can be found at 56
FR 51061 - 51093 and has been made part of this rulemaking
record.  
     Today's proposal is substantively identical to the Part 258
MSWLF Criteria.  The two areas of difference concern when the
ground-water and corrective action requirements become effective
and the time period during which ground-water monitoring must be
conducted after the active life of the facility.  A summary of
the applicability of the ground-water monitoring and corrective
action requirements and each provision is presented below.
     The Agency has two reasons for adopting the ground-water
monitoring and corrective action provisions from the MSWLF
Criteria.  First, the MSWLF Criteria provides sufficient
specificity for owners/operators to develop an acceptable 
ground-water monitoring and corrective action program.  Secondly, 
State solid waste program implementers have expressed strong 
support for adopting the MSWLF requirements with the flexibility
available in the MSWLF Criteria.  Defining a ground-water
standard with different language and substantially different
requirements would unnecessarily complicate and confuse
implementation of the ground-water monitoring requirements.  The
flexibility available to approved States will allow the States to
tailor requirements to a particular facility subject to today's
proposed requirements. 

a. Applicability of Ground-water and Corrective Action
Requirements

Existing Criteria Under Part 257

     Part 257 currently states that any facility or practice
shall not contaminate an underground drinking water source beyond
the solid waste boundary or beyond an alternative boundary as
determined based on a series of factors (40 CFR 257.3-4).  No
procedural steps or components of the ground-water monitoring
program are required.   Contamination of an underground drinking
water source is defined to be an exceedance of an MCL as
currently in Appendix I of Part 257 or any additional increase in
concentration for a constituent that has a concentration already
in exceedance of its MCL.  No procedural requirements are
specified for corrective action.

MSWLF Criteria Under Part 258 (Subpart E)  

     The Criteria establish ground-water monitoring and
corrective action requirements for MSWLFs that receive only
household wastes or household waste together with other types of
wastes, including industrial and CESQG wastes.  Existing MSWLFs
are required to have ground-water monitoring in place 3 to 5
years after the date of promulgation of the MSWLF Criteria based
on proximity to the nearest drinking water intake.  The Director
of an approved State has the discretion to establish an
alternative schedule for when existing MSWLFs must have 
ground-water monitoring in place. The ground-water monitoring
requirements for MSWLFs must be conducted through the active life
plus post-closure which is 30 years.  The Director of an approved
State can reduce the length of the post-closure-care period.  The
MSWLF Criteria also allow the Director of an approved State
program to suspend the ground-water monitoring requirements if
the owner/operator can demonstrate that there is no potential for
migration of hazardous constituents from the unit to the
uppermost aquifer during the active life.  Hazardous constituents
can be found in Appendix VIII to Part 261. 

Today's Proposed Language Regarding Applicability of the 
Ground-Water Monitoring and Corrective Action Requirements 

     Today's proposal establishes ground-water monitoring and
corrective action requirements (discussed separately below) for
non-municipal solid waste disposal facilities that receive CESQG
hazardous wastes.  Existing non-municipal solid waste disposal
facilities subject to this rule must be in compliance with the
ground-water monitoring requirements within 2 years after the
date of promulgation of this rule.  The Agency is proposing a
shorter effective date for today's proposal than for the MSWLF
Criteria because these ground-water requirements can be phased-in
over a much shorter time frame.  
     The MSWLF Criteria were phased in over a three to five year
period based on a lack of qualified well drillers.  The Agency
has decided on a two year effective date for a variety of
reasons.  First, 24 States prohibit hazardous waste from being
managed in a construction/demolition waste facility (see Chapter
4 of the EPA reference Construction and Demolition Waste
Landfills).  Construction and demolition waste disposal
facilities in these 24 States will not be impacted because they,
under State law, cannot receive hazardous waste.  These 24 States
account for 1060 of the approximate total of 1900 construction
and demolition waste landfills.  Further, 8 States require
ground-water monitoring and corrective action that is similar to
Part 258.  These 8 States account for an additional 111
construction and demolition facilities.  Therefore, a total of
1,171 construction and demolition waste facilities in 32 States
will not be affected by this proposal.  A total of 718
construction and demolition waste landfills in 17 States (New
Hampshire has no construction and demolition landfills) will be
affected after this proposal is finalized.  Some States from the
remaining 17 States have existing State regulations that allow
them to impose ground-water monitoring requirements on a 
case-by-case basis.  There are a total of 5 States that may impose
ground-water monitoring requirements at their construction and
demolition waste landfills (a total of 84 construction and
demolition landfills exist in these 5 States).  If only 718
construction and demolition waste owners/operators may have to
have ground-water monitoring wells installed, the Agency believes
that there are a sufficient number of firms that are qualified to
install wells within 2 years.    
     The Agency is concerned that some States (3 States have a
total of 491 construction and demolition waste landfills out of
the 718 total that may be affected) may have difficulty in
ensuring that all existing non-municipal solid waste disposal
facilities that may receive CESQG waste have ground-water
monitoring in place within 2 years and has allowed a one-year
extension for an approved State.  In an approved State, the
Director can establish an alternative schedule that allows 50% of
existing non-municipal solid waste disposal facilities to be in
compliance within 2 years and all land-based non-municipal solid
waste facilities that  receive CESQG waste to be in compliance
with the ground-water monitoring requirements within 3 years. 
Similar to the MSWLF Criteria, today's proposal list a series of
factors that the Director of an approved State should consider in
establishing an alternative schedule.      
     Today's proposal establishes that the ground-water
monitoring program must be conducted through the active life of
the facility plus 30 years.  Today's proposal does not contain
provisions beyond the statutory minimum components and,
therefore, no closure or post-closure care standards are being
proposed.  The Agency believes, however, that ground-water
contamination resulting from the operation of a facility may not
appear until after the active life of the facility.  The Agency
is therefore concerned that ground-water monitoring be conducted
for some period of time after the active life of the facility. 
As such, today's proposal establishes the requirement that
ground-water monitoring be conducted for 30 years after the
active life.  The term active life has also been changed from the
definition in the MSWLF Criteria.  Today's proposal defines
active life to be the period of operation beginning with the
initial receipt of solid waste and ending at the final receipt of
solid waste.  In the MSWLF Criteria the term active life was
defined to mean the period of operation beginning with the
initial receipt of solid waste and ending at completion of
closure activities in accordance with Section 258.60 (i.e.,
closure and post-closure care activities).  The change in the
definition of the term active life was necessary to reflect the
fact that today's proposal does not contain closure or 
post-closure care requirements. 
     The Agency selected the 30 year continuance of ground-water
monitoring after the final receipt of waste because 30 years is
consistent with the period of time that ground-water monitoring
is done after the final receipt of waste at MSWLFs.   Following
the approach that was selected for MSWLFs, the Agency has allowed
the Director of an approved State to decrease or increase the 30
year period of time that ground-water monitoring must be done
after the final receipt of waste.  Any reduction in the period of
time may be granted only after a demonstration by the
owner/operator that a shorter period of time is sufficient to
protect human health and the environment and the Director of an
approved State approves such a demonstration. 
     The Agency requests comments on the 2-year effective date
and the 30-year period of time after the active life that 
ground-water monitoring must be conducted.  Commentors should submit
data that supports a shorter or longer effective date and data
concerning the necessity of the 30-year ground-water monitoring
period.        
     The flexibility that an approved State/Tribal Director has
in suspending the ground-water monitoring requirements for MSWLFs
has been provided for non-municipal solid waste disposal
facilities that receive CESQG hazardous waste in today's
proposal.  The provision is proposed for the same reason that it
was finalized in the MSWLF Criteria.  The Agency believes that
certain  hydrogeologic settings may preclude the migration of
hazardous constituents from the non-municipal solid waste
disposal facility to the ground-water.  This provision is in the
applicability section of today's ground-water monitoring
requirements.
     The Agency is also proposing to provide to approved States
the flexibility to determine alternative ground-water monitoring
requirements for small, dry non-municipal solid waste disposal
facilities that receive CESQG waste.  The Agency had previously
issued an exemption to small, dry municipal solid waste landfills
from some of the requirements in the MSWLF Criteria.  (See 56 FR
50978, October 9, 1991).  Although the D.C. Circuit vacated this
exemption in the Sierra Club v. EPA opinion, 992 f.2d at 345, the
Court left it to the Agency's discretion to allow for alternative
types of ground-water monitoring based upon factors such as size,
location, and climate.  Concurrent with this proposal, the Agency
is proposing that approved States be allowed to determine
alternative ground-water monitoring requirements for small, dry
MSWLFs.  The Agency sees no reason to limit this flexibility to
MSWLFs and, therefore, is proposing that approved States may
allow alternative monitoring requirements for small, dry 
non-municipal solid waste disposal facilities that are receiving
CESQG waste if the facilities meet the definition of small and
dry proposed in Section 257.5-2.1(i).  Additional information
concerning the alternative ground-water monitoring requirements
for MSWLFs will be published soon in a FR notice.   
     In order to be considered small, the non-municipal solid
waste disposal facility must dispose of less than 20 tons of 
non-municipal waste daily.  The 20 tons per day is proposed in order
to be consistent with the small landfill exemption under the
municipal solid waste landfill Criteria.  However, the Agency
recognizes that the size distribution, potential risks, practical
capability, and other factors differ for these facilities.  The
Agency is accepting comments on whether this number should be
different for non-municipal solid waste facilities.  

b. Overall Performance of the Ground-Water Monitoring System

Existing Criteria in Part 257

     The existing Criteria in Part 257 do not specify any
particular technical components of the monitoring system.

MSWLF Criteria Under Part 258 (Section 258.51) 

     The MSWLF Criteria states that the ground-water monitoring 
system must consist of a sufficient number of wells at
appropriate locations and depths to yield ground-water samples
that represent background quality and the quality of the ground
water passing the relevant point of compliance.  The Criteria
contain requirements pertaining to the casing of the monitoring
wells.  The Criteria also allow flexibility in that the Director
of an Approved Sate program may allow for an alternative 
ground-water monitoring boundary (point of compliance) as opposed to the
waste management boundary and for multi-unit ground-water
monitoring.

Today's Proposed Language Regarding Ground-Water Monitoring
Systems     

  The level of specificity concerning the ground-water monitoring
system requirements in the Part 258 Criteria are incorporated
into today's proposal to give affected owners/operators the
requirements to develop an acceptable ground-water monitoring
program.  Today's proposal contains the same performance language
in the MSWLF Criteria and, as such, will provide owners and
operators a performance-based approach to establishment of a
monitoring system that will ensure detection of contamination.
     Today's proposal continues to allow State Directors the
discretion to establish an alternative monitoring boundary and
multi-unit monitoring.  The establishment of an alternative
boundary provides flexibility to owners/operators and in some
cases can serve to reduce corrective action costs by allowing the
owner/operator the advantage of a limited dilution and
attenuation zone.  The establishment of multi-unit monitoring
allows for local conditions to be taken into account where
individual monitoring systems cannot be established.
    

c. Ground-Water Sampling and Analysis Requirements

Existing Requirements in Part 257  

     The existing Criteria in Part 257 do not specify any
sampling or analysis procedures. 

MSWLF Criteria Under Part 258 (Section 258.53) 

     The MSWLF Criteria provide procedures for sampling
monitoring wells and methods of statistical analysis designed to
ensure consistent monitoring results and accurate representation
of ground-water quality.    

Today's Proposed Language Regarding Sampling and Analysis

     Today's proposal contains the same sampling and analysis
procedures that are in the MSWLF Criteria.  The Agency believes
that the sampling and analysis procedures in the MSWLF Criteria
are necessary for today's proposal.  The sampling and analysis
requirements ensure accurate ground-water monitoring results and
allow for an accurate representation of both the background
ground-water quality and the quality of ground water at the
monitoring wells placed downgradient from the facility. 
Owners/operators need to ensure that consistent sampling and
analysis procedures are in place in order to determine if a
statistically significant increase in the level of a constituent
has occurred indicating the possibility of ground-water
contamination.
     In the promulgated Criteria for municipal solid waste
landfills, the Agency required that ground-water samples not be
field-filtered prior to laboratory analysis.  (See Section
258.53(b)). The preamble discussion for this requirement can be
found at 56 FR 51074, October 9, 1991.  The Agency has been
actively working on the issue of sample filtration due to
concerns expressed by some members of the scientific community. 
The Agency expects to issue, in the near future, a proposal
addressing additional flexibility on this issue.  This proposal
would include any potential revision to the prohibition on field
filtering as specified in proposed section 257.5-2.3.  Thus, any
rule language change to the Part 258 Criteria on this issue will
be addressed in the final rule language for non-municipal solid
waste facilities that receive CESQG wastes.

 
d. Detection Monitoring Program

Existing Requirements in Part 257  

     The existing Criteria in Part 257 do not specify any phases
of the ground-water monitoring program. 

MSWLF Criteria Under Part 258 (Section 258.54)

     The MSWLF Criteria establish an initial phase of 
ground-water monitoring called detection monitoring.  The purpose of
detection monitoring is to obtain an early warning that
contamination is possibly occurring prior to doing an assessment
of the situation. The MSWLF Criteria establish, that as a first
step, background concentrations and semi-annual monitoring for a
set of detection monitoring indicator parameters be performed. 
These indicator parameters include 47 volatile organic compounds
and 15 metals.  The Director of an approved State may delete any
of these indicator parameters if it can be shown that the
parameter is not reasonably expected to be in the waste or
derived from the waste in the unit.  This flexibility allows an
approved State to potentially waive the organic constituents
(some or all) and some of the metal constituents for a 
non-municipal solid waste disposal facility that receives CESQG
wastes if the State believes that those parameters are not
expected to be in the waste.  Furthermore, the Director of an
approved State can establish an alternative list of parameters
(i.e., geochemical parameters) for some or all of the metals. 
The Director of an approved State program can also specify an
alternative frequency for repeat ground-water monitoring during
the detection monitoring phase. 

Today's Proposed Language Regarding Detection Monitoring
Requirements

     Today's proposal establishes the same series of steps for
ground-water monitoring.  The Agency believes that monitoring for
a limited set of parameters and determining if there is a
statistically significant increase for any of these parameters is
an essential first step in evaluating the possibility of a
release from a non-municipal solid waste disposal facility that
receives CESQG wastes.  Today's proposed detection monitoring
program contains the same areas of flexibility that exist within
the MSWLF Criteria.  This flexibility can be used by the Director
of an approved State to delete any parameter from Appendix I
(Appendix I of Part 258) where the Director believes that the
constituent is not expected to be in or derived from the waste in
the unit.  Furthermore, the Director of an approved State can
establish an alternative list of inorganic indicator parameters
for the metals in Appendix I of Part 258.  Also, today's proposal
allows the Director of an approved State to allow for annual
ground-water monitoring vs. semiannual based on a series of
factors  spelled-out in the proposal.  

e. Assessment Monitoring Program

Existing Requirements in Part 257  

     The existing Criteria in Part 257 do not specify any phases
of the ground-water monitoring program. 

MSWLF Criteria Under Part 258 (Section 258.55) 

     The MSWLF Criteria establish a secondary phase of 
ground-water monitoring called assessment monitoring.  Assessment
monitoring is designed to determine the extent of any suspected
ground-water contamination that has been detected during
detection monitoring.  Assessment monitoring includes a more
complete sampling program designed to capture constituents from
Appendix II that were not previously monitored for in detection
monitoring.  Assessment monitoring also includes the
establishment of ground-water protection standards.  The 
ground-water protection standard is established for Appendix II
constituents that have been shown to have a statistically
significant increase in their concentration levels.  The 
ground-water protection standard represents the acceptable 
constituent concentration that remedies are to achieve and are 
based on health-based concerns.
     Assessment monitoring has the same areas of flexibility that
exist with detection monitoring.  The Director of an approved
State may modify the list of constituents (Appendix II) that are
monitored for during assessment monitoring, the frequency of
monitoring and the number of ground-water monitoring wells that
are sampled for during assessment monitoring.  The Director of an
approved State program may also approve an alternative 
ground-water protection standard.

Today's Proposed Language Regarding Assessment Monitoring
Requirements

     Today's proposal establishes the same assessment monitoring
program as in the MSWLF Criteria.  The assessment monitoring
program is essential in that an owner/operator must determine
what constituents have entered the ground water and understand
the extent of the contaminated plume to develop an efficient and
effective corrective action program.  The purpose of assessment
monitoring is to evaluate, rather than detect, contamination. 
The Agency  believes that a second phase of monitoring is
essential for evaluating the nature and extent of contamination. 
The Agency also believes that the flexibility that exists in the
MSWLF Criteria is sufficient to deal with the types of 
non-municipal facilities that receive CESQG hazardous waste and has,
therefore, retained all of the flexibility in today's proposal.   
 

f. Corrective Action Program 

Existing Requirements in Part 257  

     The existing Criteria in Part 257 do not specify any
corrective action requirements.  

MSWLF Criteria Under Part 258 (Sections 258.56 - 258.58)

     The MSWLF Criteria establish a third and final phase of
monitoring called corrective action.  Corrective action is
designed  to evaluate, select an appropriate remedy, and lastly,
implement the corrective action remedy that was selected.  The
first step in the corrective action program includes an
evaluation of the  effectiveness of any potential remedy.  The
next step includes a selection of a remedy based on a series of
factors that are specified in the MSWLF Criteria.  Lastly, there
is the implementation of the selected remedy.  The selected
remedy must be protective of human health and the environment and
reduce the concentration of constituents in the ground-water back
to acceptable health-based levels.  After reducing the levels in
the ground-water to an acceptable level over a three year period,
implementation of the corrective measure is considered complete. 
As with detection and assessment monitoring, areas of flexibility
exist within the corrective action program.  Owners/operators are
allowed to select an alternative corrective action remedy if the
first remedy selected does not achieve compliance with the
health-based standards.  Furthermore, the Director of an approved
State may select an alternative to the three year period of time
before the corrective measure is considered complete. 

Today's Proposed Language Regarding Corrective Action Program   

        Today's proposal establishes the same corrective action
steps as in the MSWLF Criteria.  The steps that have been
proposed today are those that are necessary for a successful
corrective action program.  Today's proposal allows the
owner/operator to successfully remediate a ground-water
contamination problem in a swift manner yet provides flexibility
for selecting and implementing the corrective remedy.  The
proposed language contains performance objectives that must be
considered in the evaluation, selection, and implementation of a
remedy.  The Agency also believes that the flexibility that
exists in the MSWLF Criteria is sufficient to deal with the types
of non-municipal facilities that receive CESQG hazardous waste
and has, therefore, retained all of the flexibility in today's
proposal.

4. Recordkeeping requirements

     Similar to the recordkeeping requirement contained in the
MSWLF Criteria, today's proposal requires that owners/operators
of non-municipal solid waste disposal facilities that receive
CESQG waste maintain a historical record of the facility.  EPA is
proposing this requirement to ensure the availability of basic
information that will demonstrate compliance with the remainder
of  today's proposed requirements.  Owners/operators would be
required to maintain location restriction demonstrations and
ground-water monitoring demonstrations, certifications, findings,
reports, test results and analytical data in today's proposed
operating record.
     The goal of today's proposal is to have the owner/operator
maintain such demonstrations in a single location that is easily
accessible.  The Director of an approved State has the
flexibility to establish alternative locations for recordkeeping
and alternative schedules for recordkeeping and notification
requirements. 

F. Other Issues Relating to Today's Proposal

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 proposal and can be used by approved
States in determining facility specific requirements.  Individual
areas of flexibility have been discussed in the previous section
detailing today's ground-water monitoring and corrective action
requirements.       Owners/operators, due to the 
self-implementing nature of this proposal, would be required to 
comply with the promulgated standards, as of the appropriate 
effective date, regardless of the status of the States approval
determination.  If an owner/operator is located in a State that
has not been approved under Subtitle D, 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 solid
waste disposal facilities located in approved States, that become
subject to today's proposed requirements when finalized, may be
subject to alternate requirements based on the approved State
standards.  

2. CESQG's Responsibilities Relating to the Revisions in Section
261.5, Paragraphs (f) and (g)

     As stated previously, the Agency is proposing revisions to
Section 261.5, paragraphs (f)(3) and (g)(3) clarifying acceptable
Subtitle D disposal options for CESQGs.  Today's proposal would
require that CESQG waste go to either a hazardous waste 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 Section 257.5, or a solid waste
management facility that is permitted, licensed, or registered by
a State to manage municipal or non-municipal waste.  The Agency
believes that it is appropriate to establish facility standards
for non-municipal solid waste disposal facilities that receive
CESQG waste while at the same time specifying acceptable disposal
options that are available to CESQGs in order to ensure that
their waste is properly managed.  The Agency believes that
proposing both regulatory changes together clarifies the
obligations of both CESQGs and owners/operators of disposal
facilities to ensure proper management of CESQG hazardous waste
and will lead to better management of these wastes.  By
regulating the generators, as well as the receiving facilities,
today's proposal also helps to fulfill the statutory mandate that
only facilities meeting the location, ground-water monitoring,
and corrective action requirements (i.e., the Part 257.5
standards) "may receive" CESQG waste.  (See RCRA Section
4010(c)).  
     The Agency does not believe that today's proposed change to
Section 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, no additional obligation would be imposed on a CESQG
by today's proposal because the MSWLF where the CESQG waste is
being sent is subject to Part 258.  For construction and
demolition waste generators who wish to send their CESQG waste to
a non-municipal solid waste disposal facility subject to the
proposed requirements in Section 257.5, the only additional
obligation would be that associated with a phone call to the
appropriate State Agency to determine if the non-municipal solid
waste disposal facility is subject to the Part 257.5 standards
and thus could legally accept CESQG waste.  Furthermore, as
stated previously, some States require that disposal of CESQG
waste occur only at permitted Subtitle C facilities and CESQGs in
these States would not face any burden as an result of this rule
due to the more stringent State standard that the CESQG is
currently subject to.  Today's proposal does not change the
generator's obligation to first determine if the waste is
hazardous and, secondly, to determine if the waste is below the
quantity levels established for a CESQG.  If a generator is a
CESQG, today's proposal continues an existing obligation on the
generator to ensure that acceptable management of the CESQG
hazardous waste occurs.  
     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 a facility meeting the requirements of
proposed Section 261.5(f)(3) and (g)(3).  The remaining 
non-hazardous waste is not subject to today's proposed Section 257.5;
however, it must be managed in a facility that complies with
either the Part 258 Criteria or the existing Criteria in Part
257.1- 257.4.    
     On the other hand, a CESQG may elect not to screen-out or
segregate the CESQG hazardous waste 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 facility or a Subtitle D facility that is subject
to Part 258 or the proposed requirements in Section 257.5.

VI. Implementation and Enforcement 

A. State Activities Under Subtitle C 

1. Hazardous and Solid Waste Amendments to RCRA  

     Today's proposal changes the existing requirements in
Section 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 Section 261.5, paragraphs (f)(3) and
(g)(3), are proposed pursuant to Section 3001(d)(4) of RCRA,
which is a provision added by HSWA.  Therefore, the Agency is
proposing to add the requirement to Table 1 in Section 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, as discussed in the following section of
the preamble.  

2. Effect on State Authorizations

     As noted above, EPA will implement today's rule 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 is proposed 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 Section 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 submit
its application for approval for this proposed regulation will be
determined by the date of promulgation of the final rule in
accordance with Section 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 become Subtitle
C RCRA requirements.
     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.  For these States, today's proposed
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 proposed 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 regulatory language.  Further, the authorized State
requirements in such States, since they would be more stringent
than today's proposed 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 proposed rule, the State must
have provisions that are authorized by EPA and that are more
stringent than all the provisions in the new Federal rule.  For
those States that would not be required to revise their
authorization, EPA  strongly encourages the State to inform their
EPA Regional Office by letter that for this proposed rule, it is
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 requirement contained in today's proposed rule. 
Otherwise, EPA would conclude that a revised authorization
application is required.
     Other States with authorized RCRA programs may already have
adopted requirements under State law similar to those in today's
proposal.  These State regulations have not been assessed against
the Federal regulations being proposed 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 257 and 261 are being proposed, for the purpose of
authorization under Subtitle C, only the proposed changes to
Section 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 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 Section
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. 
B. State Activities Under Subtitle D 
     States are the lead Agencies in implementing Subtitle D
rules.  The Agency intends to maintain the State's lead in
implementing the Subtitle D program.  RCRA requires States to
adopt and implement, within 18 months of the promulgation of a
final rule, a permit program or other system of prior approval
and conditions to ensure that non-municipal solid waste disposal
facilities comply with  today's standards.  EPA is required to
determine whether States have developed adequate programs. 
States will need to review their existing programs to determine
where their programs need to be upgraded and to complete program
changes, if changes are necessary.  The process that the Agency
will use in evaluating the adequacy of State programs will be set
forth in a separate rulemaking, the State/Tribal Permit Program
Determination of Adequacy.  For the purpose of determining
adequacy and granting approval under Subtitle D, only the
proposed technical changes in Section 257.5 will be evaluated by
the Agency.  The State will need to meet other procedural and
administrative requirements identified in the State/Tribal Permit
Program Determination of Adequacy.  The approval process to be
used for non-municipal solid waste disposal facilities 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
application.  For example, if non-municipal solid waste disposal
facilities subject to this rule are already subject to an
approved State MSWLF program (i.e., the non-municipal solid waste
disposal facilities are currently subject to the Part 258
location restrictions, ground-water monitoring, and corrective
action), the State may only be required to submit documentation
that the non-municipal solid waste disposal facilities are
subject to their approved program.  States are encouraged to
contact their appropriate EPA Regional office to determine the
specifics of the approval process.
     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 Section 257.5. 
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 proposed 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, the State programs
implemented to enforce it.  EPA provides for public participation
by seeking public comment on this proposal and its decisions on
whether State 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 256, Subpart G.      

C. Relationship Between Subtitle C and D 

     Today's proposal has an effective date of 18 months for the
location restrictions with the ground-water monitoring and
corrective action requirements becoming effective 2 years after
the date of promulgation.  The Agency is proposing that the
revisions to Section 261.5(f)(3) and (g)(3) have the same
effective date as the proposed changes in Section 257.5 (i.e., 18
months after the date of promulgation).  Owners/operators of
facilities that receive CESQG hazardous waste will be subject to
the requirements in Section 257.5.  CESQGs will be subject to the
proposed requirements in Section 261.5.  Today's proposed 
18-month effective date coincides with the period of time that
States have, under Subtitle D, to adopt and implement a program
to ensure that owners/operators are in compliance with the
proposed changes to Section 257.5.  

D. Enforcement 

1. Hazardous Waste Enforcement 

     Today's proposal amends Section 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 the full
set of Subtitle C hazardous waste regulations. 
     
2. Subtitle D Enforcement 

     States that adopt programs meeting the standards in Section
257.5 may enforce them in accordance with State authorities. 
Under RCRA Section 7002, citizens may seek enforcement of the
standards in section 257.5 independent of any State enforcement
program. Section 7002 provides that any person may commence a
civil action on his own behalf against any person who is alleged
to be in violation of any permit, standard, regulation,
condition, requirement, prohibition, or order that has become
effective pursuant to RCRA.  Once the self-implementing
provisions in Section 257.5 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.  A more complete discussion of the Subtitle D enforcement
issue can be found in the MSWLF Criteria (56 FR 50994- 50995).

VII. Executive Order No. 12866 - Regulatory Impacts Analysis

     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.

A. Cost Impacts 

     The Agency has estimated the total annual costs to the
economy resulting from today's rule and because of the estimated
annual costs has determined that today's rule is not a
significant regulatory action.
     The Agency estimates that of the total 1900 construction and
demolition waste facilities, 718 would be potentially affected. 
The national annual low-end cost is estimated to be $10.0M.  This
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.  There are hundreds of thousands of construction and
demolition sites active in the U.S. each year.  EPA assumes that
demolition rubble will not be CESQG waste and affected by this
rule.  Therefore, separation costs are likely to occur only at
construction sites and the 3,742 industrial facilities with 
on-site non-hazardous waste landfills.  The Agency requests comment
on the labor and capital necessary to conduct separation at these
facilities.  The Agency also requests comment on how frequently
CESQG hazardous waste is currently being separated at
construction sites at these industrial facilities.  In addition,
the Agency requests comment on the transportation costs to bring
small amounts of hazardous wastes from construction sites to a
treatment and disposal facility.
     The national annual high-end cost is estimated to be $47.0M. 
This 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.
     This rule allows States and individual owners/operators to
choose among compliance options.  States and owners/operators may
determine that facility screening is a successful method to
prevent the receipt of CESQG hazardous wastes.  Other States and
owners/operators may determine that upgrading is necessary or
there is a market for upgraded landfill capacity for generators
and, as such, some facilities may upgrade.  If more States and
owners/operators elect to use screening then the estimated cost
of this proposal would be closer to the lower-bound estimate.  
     The full analysis that was used to determine the range of
costs for this rulemaking is presented in the Cost and Economic
Impact Analysis of the CESQG Rule.     

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 proposal will ensure that any ground-water
contamination that is occurring at facilities that continue to
accept small quantities of hazardous waste will be quickly
detected and corrective action can be initiated sooner.           
                To the extent that existing non-municipal
facilities that receive CESQG hazardous waste upgrade their
facilities to include ground-water monitoring and to the extent
that new facilities will be sited in acceptable areas with
ground-water monitoring, public confidence in these types of
facilities will be increased.  Having public confidence increased
would result in these types of facilities being easier to site in
the future.                     

VIII.     Regulatory Flexibility Act

     The Regulatory Flexibility Act (RFA) of 1980 requires
Federal agencies to consider "small entities" throughout the
regulatory process.  Section 603 of the RFA requires an initial
screening analysis to be performed to determine whether small
entities will be adversely affected by the regulation.  If
affected small entities are identified, regulatory alternatives
must be considered to mitigate the potential impacts.  The Agency
believes that it is unlikely that any industry will face
significant impacts under the low-end scenario.  
     To help mitigate these impacts, EPA is proposing the minimum
regulatory requirements allowed under the statute (which are
still protective of human health and the environment).  As a
result, EPA believes that the lower-bound scenario, where
demolition firms separate-out their CESQG waste and continue to
send the non-hazardous portion to landfills not subject to the
revised Part 257 standards, is the most likely scenario and that
small entities will not be significantly impacted.    
     The Agency's full analysis of the impacts on small entities
can be found in the Cost and Economic Impact Analysis of the
CESQG Rule.  

IX. Paperwork Reduction Act 

     The information collection requirements in today's proposed
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.  Submit comments on these requirements to the Office
of Information and Regulatory Affairs, OMB, 726 Jackson Place,
NW, Washington, D.C. 20503, marked "Attention: Desk Officer for
EPA."  The final rule will respond to any OMB comments or public
comments on the information collection requirements. 

X. Environmental Justice Issues

     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 activities on minority and low-income populations.
     The Agency does not currently have data on the demographics
of populations surrounding the facilities affected by today's
proposal (i.e., construction and demolition landfills).  The
Agency does not believe, however, that today's proposed rule will
adversely impact minority or low-income populations.  The
facilities affected by the proposal currently pose limited risk
to surrounding populations
(see section V.B.1.d of today's preamble).  In addition, today's
proposal would further reduce this risk by requiring the affected
facilities to either stop accepting CESQG hazardous waste or to
begin ground-water monitoring and, if applicable, corrective
action.
     Thus, today's proposal would further reduce the already low
risk for populations surrounding construction and demolition
landfills, regardless of the population's ethnicity or income
level.  Minority and low-income populations would not be
adversely affected.

XI. Unfunded Mandates Reform Act

     Under section 202 of the Unfunded Mandates Reform Act of
1995 (the Act), P.L. 104-4, which was signed into law on March
22, 1995, EPA generally must prepare a written statement for
rules with Federal mandates that may result in estimated costs to
State, local, and tribal governments in the aggregate, or to the
private sector, of $100 million or more in any one year.  When
such a statement is required for EPA rules, under section 205 of
the Act EPA must identify and consider alternatives, including
the least costly, most cost-effective or least burdensome
alternative that achieves the objectives of the rule.  EPA must
select that alternative, unless the Administrator explains in the
final rule why it was not selected or it is inconsistent with
law.  Before EPA establishes regulatory requirements that may
significantly or uniquely affect small governments, including
tribal governments, it must develop under section 203 of the Act
a small government agency plan.  The plan must provide for
notifying potentially affected small governments, giving them
meaningful and timely input in the development of EPA regulatory
proposals with significant Federal intergovernmental mandates,
and informing, educating, and advising them on compliance with
the regulatory requirements. 
     EPA has determined that the proposal discussed in this
notice does not include a Federal mandate that may result in
estimated costs of $100 million or more to State, local, or
tribal governments in the aggregate, or to the private sector, in
any one year.  EPA has estimated that the annual costs of the
proposed rule on generators of CESQG wastes and those entities
which own or operate CESQG disposal facilities, including the
private sector, States, local or tribal governments, range from
$10.0M to $47.0M.   In addition to compliance costs for those who
own or operate CESQG facilities, States will have a cost of
developing permit programs or other systems of prior approval to
ensure that CESQG facilities comply with the proposal, once it is
promulgated.  Adoption and implementation of such State permit
programs is required under RCRA section 4005(c)(1)(B).  42 USC
6945(c)(1)(B).  Forty-two states already have adopted and
implemented permit programs to ensure compliance with the MSWLF
rule (40 CFR Part 258) which EPA has approved as "adequate."  The
Agency has estimated that the costs for a state to develop an
application for approval of an MSWLF permit program to be
approximately $15,000.  Because these state permit programs
already contain ground water monitoring, corrective action, and
location standards for MSWLFs that are quite similar to those in
this proposal, EPA believes that the additional costs for states
to revise their permit programs to reflect the CESQG requirements
are not expected to be significant.  Also, because of the reduced
level of regulatory requirements contained in this CESQG proposal
as compared to the MSWLF Part 258 criteria, state costs for
preparing applications for approval of a CESQG permit program
should be considerably less than that $15,000 figure.  
     Indian tribes are not required to develop permit programs
for approval by EPA, but the Agency believes tribal governments
are authorized to development such permit programs and have them
approved by EPA.  EPA has estimated that it will cost a tribal
government approximately $7,000 to prepare an application for
approval of a MSWLF program.  Because of the reduced regulatory
provisions of the CESQG proposal, EPA expects that the costs
which a tribal government might face in developing a permit
program for CESQG facilities should be less than $7,000.    
     EPA is also proposing to revise the requirements for
generators of CESQG hazardous waste.  These amendments to 40 CFR
Part 261.5 (f)(3) and (g)(3) are proposed pursuant to RCRA
Section 3001 (d)(4), which is a provision added by HSWA.  The
261.5 amendments are also more stringent than current Federal
hazardous waste regulations.  Subtitle C regulatory changes
carried out under HSWA authority become effective in all states
at the same time and are implemented by EPA until states revise
their programs.  States are obligated to revise their hazardous
waste programs and seek EPA authorization of these program
revisions, unless their programs already incorporate more
stringent provisions.  The Agency believes approximately 24
states already have more stringent CESQG hazardous waste
provisions and would not have to take action because of these
regulatory changes.  About 26 states would have to revise their
hazardous waste programs and seek authorization.  States
generally incorporate a number of hazardous waste program
revisions and seek authorization for them at one time.  The
Agency estimates the State costs associated with Subtitle C
program revision/authorization activity are approximately $7,320
per state.  Since this estimate covers several separate program
components at one time, the cost for revisions only to Section
261.5 in the remaining 26 States would be substantially lower.   
     As to section 203 of the Act, EPA has determined that the
requirements being proposed today will not significantly or
uniquely affect small governments, including tribal governments. 
EPA recognizes that small governments may own or operate solid
waste disposal facilities that receive CESQG waste.  However, EPA
currently estimates that the majority of construction and
demolition landfills, which are the primary facilities likely to
be subject to any final rule, are owned by the private sector. 
Moreover, EPA is aware that a number of States already require
owners/operators of C&D landfills to meet regulatory standards
that are similar to those being proposed today.  Thus, EPA
believes that the proposed rule contains no regulatory
requirements that significantly or uniquely affect small
governments.   
     EPA has, however, sought meaningful and timely input from
the private sector, states, and small governments on the
development of this notice.  Prior to issuing this proposed rule,
EPA met with members of the private sector as discussed earlier
in the preamble.  In addition, EPA met twice with an "Industrial
D" Steering Committee of the Association of State and Territorial
Solid Waste Management Officials (ASTSWMO) to discuss the
contents of today's proposal.  The Agency provided a draft of the
proposed rule to the ASTSWMO Steering Committee and incorporated
comments that were received.  
     Finally, included in this proposal is a provision that would
allow certain small CESQG landfills which are located in either
arid or remote locations and which service small communities to
utilize alternative methods of ground water monitoring.  Prior to
developing this provision, which is also being proposed in a
separate notice applicable to small MSWLF facilities that are in
arid or remote locations, EPA held a series of public meetings. 
These meetings were held in June 1994 in Texas, Utah, Alaska, and
Washington, D.C.  EPA received comment from a variety of parties,
including States and small governments.  Through these meetings
and publication of this notice, EPA expects that any applicable
requirements of section 203 of the Act will have been satisfied
prior to promulgating a final rule.

XII.  References

     1) Screening Survey of Industrial Subtitle D Establishments,
     Draft Final Report, U.S. EPA, Office of Solid Waste, OSW (renamed Office of Resource Conservation and Recovery, ORCR, on January 18, 2009),
     Prepared by Westat, December 29, 1987. 

     2) National Small Quantity Hazardous Waste Generator Survey,
     U.S. EPA, Office of Solid Waste, OSW (renamed Office of Resource Conservation and Recovery, ORCR, on January 18, 2009), Prepared by Abt Associates,
     Inc., February 1985.      

     3) Damage Cases: Construction and Demolition Waste
     Landfills,  U.S. EPA, Office of Solid Waste, OSW (renamed Office of Resource Conservation and Recovery, ORCR, on January 18, 2009), Prepared by
     ICF, XXXXX 1995.

     4) Construction and Demolition Waste Landfills, U.S. EPA,
     Office of Solid Waste, OSW (renamed Office of Resource Conservation and Recovery, ORCR, on January 18, 2009), Prepared by ICF, XXXXX, 1995.

     5) List of Industrial Waste Landfills and Construction and   
     Demolition Waste Landfills, U.S. EPA, Office of Solid Waste, OSW (renamed Office of Resource Conservation and Recovery, ORCR, on January 18, 2009),
     Prepared by Eastern Research Group, September 30, 1994.

     6) Generation and Management of CESQG Waste, U.S. EPA,
     Office of Solid Waste, OSW (renamed Office of Resource Conservation and Recovery, ORCR, on January 18, 2009), Prepared by ICF, July 1994.

     7) Construction Waste and Demolition Debris Recycling... A   
     Primer, The Solid Waste Association of North America(SWANA), 
     October 1993, Publication #: GR-REC 300             

     8) Solid Waste Disposal Facility Criteria, 56 FR 50977,      
     October 9, 1991 

     9) Cost and Economic Impact Analysis of the CESQG Rule,      
     Prepared by ICF, May 1995                  
   

                       BACKGROUND DOCUMENT
                            FOR THE 
                           CESQG RULE

                            U.S. EPA
                            MAY 1995