Proposal for the Federal Regulation of

Coal Combustion Waste

January 31, 2007
2

PREAMBLE

The following proposal for regulations is submitted jointly to the U.S.

Environmental Protection Agency (EPA) by Earthjustice, Clean Air Task Force,

Environmental Integrity Project, Sierra Club, Natural Resources Defense Council,

Waterkeeper Alliance, Hoosier Environmental Council, Public Citizen, Jefferson Action

Group, Dine CARE, Army for a Clean Environment, Plains Justice, Appalachian Center

for the Economy and the Environment, People in Need of Environmental Safety, Valley

Watch, West Highlands Conservancy, Montana Environmental Information Center, San

Juan Citizens Alliance, Clean Wisconsin, Residents against the Power Plant, Ohio Valley

Environmental Coalition, Neighbors for Neighbors, Delaware Riverkeeper Network,

Healthlink, Wenham Lake Watershed Association, Coal River Mountain Watch, Dakota

Resource Council, S.U.F.F.E.R.

Purpose of the Proposal

This proposal provides a framework for federal regulation of the waste generated

by U.S. coal-fired power plants. Its intent is to address, with nationally consistent,

enforceable minimum standards, the significant risks to human health and the

environment posed by the disposal of coal combustion waste (CCW).

The above-named groups submit this proposal as a starting point for an inclusive

and comprehensive discussion between EPA and environmental stakeholders.1

 We are

submitting this proposal with the hope that it will function as a working template for draft

regulations to be formulated by a committee established pursuant to the Federal Advisory

Committee Act. It is necessary for EPA to formally establish a committee comprised of

interested and affected stakeholders because, to date, EPA has sought almost exclusively

the input of the regulated community and consequently has failed to produce even draft

regulations in the nearly seven years following EPA’s Regulatory Determination.

In 2000, EPA made an explicit commitment to promulgate a rule pursuant to the

Resource Conservation and Recovery Act (RCRA) governing CCW.2

 Since 2000, EPA

has conducted a long standing dialogue with the electric utilities industry and, in fact,

 

1 Due to the very short time period provided by EPA to submit this proposal, we have not attempted to

address all aspects of CCW management nor have all identified issues been fully resolved. For example,

this proposal does not address the various uses of CCW that can cause serious contamination of water

resources, such as the use of coal ash for fill and road base. The absence of provisions addressing this and

other CCW hazards should not be construed as an absence of concern, nor should it be construed to mean

that regulations are not required to address those issues. Given the time and opportunity, we are very

interested in working with EPA to fill all gaps remaining in this proposal.

2 On April 24, 2000, EPA acknowledged in its Regulatory Determination that “coal combustion wastes

could pose risks to human health and the environment if not properly managed” and “national regulations

under subtitle D of RCRA are warranted for coal combustion wastes when they are disposed in landfills or

surface impoundments.” U.S. Environmental Protection Agency. Regulatory Determination on Wastes

from the Combustion of Fossil Fuels, 70 Fed. Reg, 32214 at 33214. Hereinafter this document is referred

to as “EPA 2000 Determination.”
3

invited their consortium, the Utility Solid Waste Activities Group (USWAG)3, to submit

a voluntary plan for CCW management, in lieu of regulations, violating the clear

directive of the 2000 Regulatory Determination. In contrast, EPA did not solicit the

submission of today’s proposal. Rather, environmental stakeholders requested the

opportunity to submit draft regulations after learning that EPA was poised (1) to publish

notice in the federal register of the electric utility industry’s voluntary plan, and (2) to

seek public comment on the option of abandoning federal regulation of CCW. We

greatly appreciate the opportunity to submit this proposal, but its placement in the docket

does not in any way indicate parity with the regulated community in terms of access and

consideration of our viewpoint by EPA.

We thus respectfully ask that EPA seriously and thoughtfully consider this

proposal from environmental groups and communities threatened or harmed by CCW.

To this end, we ask for the immediate establishment of a federal advisory committee

whose charge is to produce comprehensive enforceable federal regulations. To reiterate,

the goal of these proposed regulations is simply to initiate this dialogue. In order to

move forward, the rulemaking process must allow for extensive additional input from a

variety of interested groups including, in addition to environmental groups and affected

communities, engineers, hydrogeologists, and those, inside and outside of government,

who may have creative approaches to achieving environmental protection from CCW

contamination.

Lastly, we cannot lose track of the fact that CCW currently disposed without

adequate safeguards poses an imminent and substantial endangerment to health and the

environment at numerous sites throughout the U.S. In view of this present threat, we ask

that EPA use its authority under Section 7003 of RCRA immediately to abate such

hazards while the federal rulemaking process is underway. EPA has the authority under

Section 7003 to require ground water monitoring, as well as remedial measures, at CCW

disposal sites that threaten human health or water resources. Because of the

acknowledged damage to human populations, drinking water sources and aquatic

ecosystems, it is essential that EPA use this authority to prevent further damage while

developing this national rule.

The Need for This Proposal

In light of the significant risk to human health and the environment posed by

improper management of CCW, we ask that work begin immediately to draft federal

regulations containing adequate safeguards. Several recent EPA reports confirm the

substantial, imminent and growing risk posed by CCW and thus support the urgent need

for federal regulations. Specifically:

 

3 USWAG is a consortium of approximately 80 utility operating companies comprising more than 85% of

total U.S. electric generating capacity
4

• EPA’s draft Revised Risk Assessment for CCW (December 2006)4 found that

people living near CCW surface impoundments assume risks that exceed EPA cancer

thresholds by 1000 times or more. EPA estimates that the excess cancer risk for adults

and children drinking groundwater contaminated with arsenic from CCW surface

impoundments can be as high as 1 in 100 -- 10,000 times higher than EPA’s regulatory

goal for reducing cancer risks.5 Furthermore, this draft Revised Risk Assessment confirms

that “[t]here are ecological risks associated with surface impoundments to terrestrial and

aquatic communities primarily from selenium and boron.”6

• EPA’s 2006 report, entitled Characterization of Mercury-Enriched Coal

Combustion Residues from Electric Utilities Using Enhanced Sorbents for Mercury

Control confirmed that CCW leaches arsenic and selenium at levels of potential concern.7

The report tested both laboratory leachate and field leachate of CCW and found

significant exceedances of MCLs for arsenic and selenium in groundwater in a substantial

percentage of the samples. In fact, the concentrations of some samples approached 100

times the MCL. The report concludes that use of activated carbon injection to capture

mercury at coal-fired power plants substantially increases the arsenic and selenium

content of CCW. The report found, in addition, that CCW commonly leached arsenic and

selenium in excess of 10 times the MCL from both plants that employed sorbent

technologies and those that did not.

Also, according to this report and EPA’s Preamble to the National Emission

Standards for Hazardous Air Pollutants from the Portland Cement Manufacturing

Industry published December 20, 2006, sorbent injection processes significantly increase

the mercury content of fly ash.8 Testing to date reveals that the median increase in

mercury in fly ash is by a factor of 8.5 and, in one case, the mercury content increased by

a factor of 70. Such increased mercury, arsenic and selenium in fly ash also increase

risks to human health via inhalation of fugitive dust.

In the 2000 Determination, EPA committed specifically to “reevaluat[ing] risks

posed by managing coal combustion solid wastes if levels of mercury or other hazardous

constituents change due to any future Clean Air Act air pollution control requirements for

 

4

 In January 2007, EPA denied a FOIA request from Earthjustice for the final Revised Risk Assessment.

The denial is currently under appeal. Earthjustice did receive in a synopsis of the draft Revised Risk

Assessment, and, as of the date of this document, Earthjustice has received no indication from EPA that the

conclusions of the draft Revised Risk Assessment have changed. 5

 EPA summarized the draft Revised Rick Assessment as follows: “The primary risk to groundwater is

from Arsenic. Risk exceedances due to arsenic (groundwater to drinking water pathway) are from 10(-2) to

10(-3) for surface impoundments and 10(-4) for landfills.” From a document entitled, “Coal Combustion

Waste (CCW) Rulemaking Early Guidance Meeting, Briefing: Marcus Peacock, Deputy Administrator,

EPA, July 27, 2006,” (Document undated.)

6 Id.

7

 F. Sanchez, Keeny, R., Kosson, D., Delapp, R., Thorneloe, S. Characterization of Mercury-Enriched Coal

Combustion Residues from Electric Utilities Using Enhanced Sorbents for Mercury Control, EPA/600/R06/008, January 2006.

8

 U.S. Environmental Protection Agency. National Emission Standards for Hazardous Air Pollutants from

the Portland Cement Manufacturing Industry, Federal Register, Vol. 71, No. 244, December 20, 2006.
5

coal burning utilities.”9 It is critical that EPA mandate the use of air pollution control

technologies, including sorbent injection, to reduce hazardous emissions from coal-fired

power plants. In conjunction with their use, nevertheless, EPA must take action to ensure

that the pollution reduction in power plant air emissions is not transferred to land and

water via the coal ash. Consequently, in view of EPA’s own findings and explicit

commitment, the agency must reassess risk to human health and the environment from

CCW enhanced by the use of pollution control devices.

• A 2006 report published by EPA and the U.S. Department of Energy (DOE),

entitled Coal Combustion Waste Management at Landfills and Surface Impoundments,

1994-2004, found that states have not closed significant gaps in their regulation of CCW.

In fact, the report’s survey of surface impoundments and landfills permitted between

1994 and 2004 indicates that the absence of state requirements imposing mandatory

safeguards has resulted in disposal units that lack basic safeguards. The report points out

that 30% of the total coal-fired generating capacity in the U.S. is in states “that

potentially exempt CCW landfills from solid waste permitting requirements and that

exclude certain CCWs from all solid waste regulation.”10 This astounding statement most

certainly underestimates the gap in state regulation of CCW, because it does not account

for the many states that exempt CCW from all solid waste regulation when “beneficially

used,” a term that frequently encompasses potentially dangerous fill projects for roads,

gravel pits, floodplains, floodways, hill sides, valleys and mines.11

In view of EPA’s draft Revised Risk Assessment (cited above) that identifies

significant risk from leaking surface impoundments, the findings related to deficiencies in

state laws governing surface impoundments are particularly troubling. The DOE/EPA

Report found that:

(i) Only one of the states surveyed had regulations requiring groundwater

monitoring at CCW surface impoundments.

(ii) Only 33% of the states surveyed had regulations requiring liners for

surface impoundments.

(iii) Only 14% of the states surveyed had regulations requiring leachate

collection systems for surface impoundments.

(iv) Only 20% of the states surveyed required corrective action and financial

assurance at CCW surface impoundments.

(v) Only 9% of the states surveyed had regulations requiring a solid waste

permit for all CCW surface impoundments.

The DOE/EPA report also found that states lacked regulations requiring many

basic safeguards for CCW landfills:

 

9

 2000 Determination at 32221.

10 United States Environmental Protection Agency and United States Department of Energy. Coal

Combustion Waste Management at Landfills and Surface Impoundments, 1994-2004 (August 2006) at page

46.

11 See, for example, the Indiana statutory provision that explicitly prohibits the Solid Waste Management

Board, the rulemaking body responsible for environmental regulation of solid wastes, from developing any

regulations restricting the use of power plant waste as fill. See IC 13-19-3-3(2)(E).
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(i) 45% of the states surveyed do not require permits for all on-site CCW

landfills. Two states of the states surveyed do not require any solid waste

permits for CCW landfills.

(ii) 44% of the states surveyed did not have regulations requiring liners for

CCW landfills.

(iii) 33% of the states surveyed do not have regulations requiring groundwater

monitoring at CCW landfills.12

(iv) No state surveyed had regulations requiring quarterly groundwater

monitoring for the active life of the disposal unit.13

(v) 71% of the states surveyed did not have regulations requiring leachate

collection systems for landfills.

(vi) No state surveyed passed more stringent regulations pertaining to liners,

groundwater monitoring, leachate collection or financial assurance for

surface impoundments or landfills since 1999.

Lastly, the report’s survey of new and expanded CCW landfills and surface

impoundments permitted between 1994 and 2004 indicates that substantial safeguards are

still not employed at many new or expanded units. The report found:

(i) 89% of the new surface impoundment permits lacked groundwater

protection standards.14

(ii) 89% of the new surface impoundment permits lacked requirements for

closure and post-closure.

(iii) 88% of the new surface impoundment permits lacked requirements for

financial assurance.

(iv) 88% of the new surface impoundments lacked solid waste permits.

(v) 38% of the new surface impoundment permits lacked groundwater

monitoring requirements.

• EPA’s most recent “Damage Case Assessment under RCRA for Fossil Fuel

Combustion Wastes,” dated August 2006, recognizes 24 proven damage cases -- more

than double the number of recognized damage cases cited in the 2000 Determination.

Further, EPA recognizes another 39 “potential” damage cases in the 2006 Assessment.15

Given the serious deficiencies in monitoring systems at most CCW sites, and the

complete lack of monitoring at many CCW sites, damage caused by lax management of

 

12 Texas, the state that generates the largest amount of CCW in the U.S., does not require groundwater

monitoring.

13 The only surveyed state that approached this benchmark was Pennsylvania, which requires “no shorter

than” quarterly groundwater monitoring for indicator parameters but ‘no shorter than” annual monitoring

for metals and volatile organic compounds.

14 Groundwater protection requirements are defined in the report as contaminant concentrations in

groundwater that cannot be exceeded.

15 “Potential damage cases,” by EPA’s definition, constitute sites at which groundwater or surface water is

contaminated by CCW leachate but where the agency has no evidence of migration beyond the property

boundary or where contaminants are not listed as primary contaminants under the Safe Drinking Water Act.

“Potential” does not mean that contamination is not proven.
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CCW is highly likely to be underestimated, as EPA conceded in its 2000

Determination.16 While we believe that EPA’s damage case list represents only a small

fraction of the contaminated sites caused by CCW, the significant increase in the number

of proven and potential damage cases speaks for itself. We believe this sharp increase in

officially recognized, documented damage cases to groundwater and surface water by

mismanaged CCW since 2000 requires an immediate response from EPA.

• DOE and the Energy Information Administration (EIA)’s 2007 Annual Energy

Outlook indicates that electricity production by coal is projected to increase almost 25

percent by 2020 and 64% by 2030.17 The increase in the production of coal ash is roughly

proportional to the increase in the use of coal for electric power. CCW generation will

increase, therefore, at least 25 percent by 2020. Moreover, the increase in CCW volume

is likely to be substantially greater, because both the increased use of scrubbers on coalfired power plants and the building of numerous fluidized bed combustion plants (that

produce up to 10 times more CCW than conventional pulverized coal plants) will

significantly boost the waste volume. According to EPA, 129 million tons of CCW was

produced in 2004. A sharp growth in the volume of this immense waste stream, as well

as its projected increase in toxicity, is a clear basis for immediate regulatory action.

USWAG’s “Voluntary Action Plan”

This proposal stands in stark contrast to USWAG’s “Voluntary Action Plan”

(VAP). USWAG’s VAP contains six pages of loosely worded, wholly unenforceable

voluntary actions that, even if adopted in full today by all U.S. coal-fired power plants,

would guarantee no reduction of risk. While it is outside the scope of this document to

critique the VAP, it is worth noting that the agreement contains no enforceable

conditions, signatories have up to five years before any groundwater monitoring is

required at the majority of landfills and surface impoundments, there is no prohibition on

the most dangerous disposal practice identified by EPA – the dumping of CCW in sand

and gravel pits below the water table, nor is there a prohibition on the construction of

new surface impoundments, and the plan fails entirely to contain any closure, postclosure and financial assurance requirements.

Simply put, USWAG’s VAP fails to address the critical safeguards required for

safe disposal of any solid waste. Thus contamination of drinking water supplies will

likely continue undetected and unabated, if not increase, given the pending construction

of many new power plants and the resulting substantial increase in CCW. Even if the

VAP invited compliance with appropriate safeguards, the fact remains that any voluntary

plan, by definition, fails to provide enforceable requirements and national consistency. In

view of the abominable level of safeguards on existing disposal units quantified in the

2000 Determination, which found that only 57% of all landfills and 26% of all surface

 

16 EPA stated, “ Given the volume of coal combustion wastes generated nationwide (115 million tons) and

the numbers of facilities that currently lack some basic environmental controls, especially groundwater

monitoring, other cases of proven and potential damage are likely to exist.” 2000 Determination at 32216.

17 Annual Energy Outlook, 2007 with Projections to 2030 (Early Release)- Overview. Report No.

DOE/EIA-0383/2007, December 2006.
8

impoundments had liners, there is absolutely no basis for EPA to rely on a voluntary plan

for nationwide compliance. While the DOE/EPA report asserts that some improvement

in the use of safeguards has occurred at CCW units permitted between 1994 and 2004,

the 56 units surveyed by the report represent less than 10% of all U.S. CCW disposal

units. EPA has no data indicating that the use of safeguards has improved whatsoever at

the nation’s 600 existing CCW landfills and surface impoundments, only an official

admission that the damage from these units is more pervasive nationally than the agency

previously recognized (see above-cited 2006 Damage Case Assessment). Thus

acceptance of a voluntary agreement to deal with this management crisis consciously

disregards the enormous risk to human health and the environment posed by these

operating units. It also disregards the increased liability that will result from a major

growth in the volume and toxicity of CCW nationally without any enforceable standards

in place to assure that citizens, their environment, and their water supplies will be

protected from imminent and substantial and endangerment. This protection is required

by RCRA and was promised by EPA in the 2000 Regulatory Determination.

Summary of Proposed Regulations

A. Overview

The following proposed regulations constitute a framework for development of

comprehensive CCW regulations. The end goal is to produce regulations for the disposal

of CCW that prevents unacceptable impact to human health and the environment. To

accomplish this goal, the proposal must require that (1) CCW disposal facilities are

located, designed and operated to limit impacts to acceptable levels; (2) CCW disposal

facilities are monitored to demonstrate that they are limiting and will continue to limit

impacts to acceptable levels; and (3) CCW disposal facilities provide the financial means

to remediate unacceptable impacts during and after disposal operations.

To accomplish these objectives, the regulations must require the owners and

operators of all CCW disposal units to:

(1) Characterize the disposal site at and around the facility prior to the

development of new CCW disposal units, during the operation of all

CCW disposal units and after closure of all disposal units.

(2) Characterize the chemical and physical properties of the CCW prior to

disposal, under disposal conditions and as the CCW evolves during

disposal operations and after closure.

(3) Design a facility capable of limiting impacts to acceptable levels

during operation of the unit and after closure.

(4) Monitor the construction, operation and performance of the facility

during operation of the unit and after closure.

(5) Monitor the impacts of the disposal unit, including instantaneous

conditions, historical trends, and future trends during operation of the

unit and after closure.
9

(6) Abate adverse impacts when they occur by setting standards of

performance that trigger intervention both if standards are exceeded

and if standards will be exceeded.

(7) Guarantee financial ability to intervene and remediate impacts during

the operation of the unit and after closure.

In addition, the proposed regulations must also guarantee public participation,

public access to information, and effective enforcement mechanisms, including the right

to bring a citizen suit, to ensure compliance with regulatory standards.

B. Specific Regulatory Provisions

The proposal submitted herein is patterned after EPA’s proposed rule, “Standards

for the Management of Cement Kiln Dust,” published by EPA on August 20, 1999.18

EPA described this rule as a “creative, affordable, and common sense approach for the

management of cement kiln dust (CKD) waste under the Resource Conservation and

Recovery Act.” The 1999 CKD rule set forth numerous design and management

standards, drawing primarily from the municipal solid waste landfill regulations (40 CFR

Part 258). In the CKD rule, EPA also proposed ”contingent” RCRA Subtitle C

(hazardous waste) regulatory standards that would apply to CKD in the event of

substantial noncompliance with the Subtitle D standards. We believe a similar

framework is wholly appropriate for the regulation of CCW, as well. The following

proposal, however, does not contain provisions requiring CCW be subject to Subtitle C

standards in the event of substantial noncompliance with Part 253. We would,

nevertheless, like to discuss the addition of such regulatory provisions in the course of the

CCW rulemaking.

Similarly, we have also deferred a discussion of waste characterization

requirements for CCW. In our view, most state CCW regulatory programs are barely

able to meet the most basic safeguards regarding the characterization, monitoring and

abatement of pollution at CCW disposal sites, much less competently implement major

improvements in waste characterization measures needed beyond the benchmark leach

tests commonly used today. Because the evidence demonstrates that even the most

“benign” CCW, as indicated by standard laboratory leach tests, has caused harm to the

environment, we believe that the provisions in this proposal should apply regardless of

the waste characterization currently employed by state and federal agencies. However,

we do believe that characterization of CCW must be further explored and view

characterization measures as potentially adding an additional degree of safety to the basic

standards of this proposal.

Specifically, our proposal contains the following provisions:

1. Location restrictions: Ban on disposal below the seasonal high groundwater

level.

 

18 Standards for the Management of Cement Kiln Dust: Proposed Rule. Vol. 64, No. 161, Pages 45631-

45697, August 20, 1999.
10

The proposed regulations include a ban on management of CCW in units whose

base is located below the seasonal high groundwater level. The seasonal high

groundwater level is defined as the natural level at which water stands in a shallow well

open along its length and penetrating the surficial deposits just deeply enough to

encounter standing water at the bottom when the aquifer is at its highest seasonal

elevation. This specifically includes perched groundwater. This restriction is necessary

to protect human health and the environment because of the damage caused by

management of CCW at sites located below the natural water table.

2. Additional location restrictions: Prohibition on placement of CCW disposal

units in floodplains, wetlands, fault areas, seismic impact zones, unstable

areas and karst terrain.

 The proposed regulations include a prohibition on locating new CCW units in

floodplains, wetlands, fault areas, seismic impact zones, unstable areas and karst terrain.

For existing units located in these areas, a demonstration must be made that such units are

designed in a way to prevent adverse impacts to the environment. If this demonstration

cannot be made the existing unit would have to close within two years of the effective

date of the final rule.

3. Standards for protection of groundwater

The draft regulations propose that design criteria similar to those for municipal

solid waste landfills (MSWLFs) under the Subtitle D program (Solid Waste Disposal

Facility Criteria, 56 FR 50978, October 9, 1991) be adopted with certain modifications

for groundwater monitoring and remediation. For the protection of groundwater, any

new CCW management unit or expansion of an existing unit must be constructed with a

composite liner and a leachate collection and removal system that is designed and

constructed to maintain less than a 30 cm depth of leachate over the liner. The composite

liner must consist of two components; an upper flexible membrane liner with a minimum

thickness of 30 mil, and a lower component consisting of at least two feet of compacted

clay with a hydraulic conductivity of no more than 1 x 10(-7) cm/sec. All waste

management units must also apply suitable cover over exposed waste in a manner

designed to minimize surface water infiltration, leachate generation and the creation of

fugitive (airborne) releases from waste. Where required, based on site and waste

characteristics, additional requirements may be imposed on a case by case basis.

4. Requirements for groundwater monitoring and corrective action

The regulations propose that groundwater monitoring be required for all new and

existing CCW disposal units to detect the presence of CCW constituents in the

groundwater. The groundwater monitoring system must include at a minimum one

upgradient and three downgradient wells screened in the shallow aquifer immediately

below the waste disposal unit and at least one well located in the waste to gather pore

water quality and allow for rapid identification and response to contamination of
11

underlying groundwater. The downgradient wells must be located not farther than 50

meters from the unit boundary at the relevant point of compliance (POC) specified by the

EPA Regional Administrator. The groundwater monitoring system must be capable of

ascertaining the quality of background groundwater that has not been affected by releases

from the unit and assessing the quality of groundwater passing the relevant POC, as

certified by a qualified groundwater scientist. The groundwater monitoring program

must include consistent procedures that are designed to ensure monitoring results that

provide an accurate representation of groundwater quality at the background and

downgradient wells. Because this proposal requires groundwater monitoring at new and

existing CCW disposal units, the rule effectively prohibits the location of such units in

areas where subsurface conditions prevent characterization and monitoring of subsurface

contaminant migration.

The regulations propose that disposal facilities conduct quarterly monitoring for

"detection" parameters, which include common constituents of CCW. During “detection

monitoring,” groundwater monitoring results are measured against corrective action

“trigger” levels that are based on the highest pre-disposal concentrations of the

constituents, as determined by upgradient background monitoring and baseline

monitoring that establishes background quality at downgradient points prior to placement

of CCW. If these trigger levels are exceeded, a more extensive groundwater monitoring

regime is required, which includes a much larger list of assessment parameters monitored

more frequently and from additional monitoring points.

Corrective action abatement steps must be taken if this ‘assessment monitoring”

determines that there is a statistically significant increase in pollutant

concentrations above background concentrations. The facility operator must complete an

assessment and selection of corrective action remedies within 120 days and begin

abatement of the pollution within 60 days of selecting the remedy. The objective of the

remedy is to halt the spread of contamination and restore background water quality at

affected monitoring points. The remedy is deemed complete when background water

quality has been maintained for a period of three years.

5. Closure and Post Closure Care

The proposed regulations require that new and existing CCW disposal units,

including expansions and inactive units, be closed in accordance with specified standards

and that units be monitored and maintained after closure. Closure and post-closure plans

describing these activities are to be prepared to comply with a minimum set of procedural

requirements.

The proposal requires that post-closure care be conducted for a period of 30 years

after the closure of each CCW disposal unit. Post-closure care consists of maintaining the

effectiveness of the final cap, continuing groundwater monitoring and leachate

management, and if necessary upgrading these activities, to control the formation and

release of leachate into the environment. Routine maintenance of the integrity of the
12

final cap is necessary to prevent liquid from penetrating into the closed landfill and

creating the potential for leachate migration.

6. Financial Assurance

The proposed regulations require a demonstration of financial assurance for the

costs of conducting closure, post-closure care and if applicable, corrective action for

known releases. The proposed financial assurance requirements are patterned after the

financial assurance provisions for municipal solid waste landfills under Subtitle D (see

258.71 to 258.75). The purposes of the financial assurance are to ensure that the owner

or operator of a CCW disposal unit adequately plans for the future costs of closure, postclosure care and corrective action for known releases, and to ensure that adequate funds

will be available when needed to cover the costs if the owner or operator is unwilling or

unable to do so.

To demonstrate to the EPA Regional Administrator that it has planned for future

costs, written cost estimates must be prepared. These cost estimates would serve as the

basis for determining the amount of financial assurance that must be demonstrated. This

proposal states that that persons managing CCW in new and existing CCW disposal units,

including expansions, be required to demonstrate financial responsibility for closure,

post-closure care, and corrective action for known releases in an amount equal to the cost

of a third party conducting these activities. The cost estimates must be based on the cost

of closing the CCW disposal unit at the point of the unit's active life when the extent and

manner of its operation would make closure the most expensive. Similarly, cost estimates

for post-closure care must include estimates for both annual and periodic activities, and

account for the most expensive costs of routine post-closure care.

The proposal does not address the requirement to demonstrate financial assurance

for third party liability to compensate injured third parties. Such liability requirements are

currently required under RCRA Subtitle C for hazardous waste management facilities

(see 40 CFR 264.147). Financial assurance for third-party liability benefits public health

by providing the incentive of lower insurance premiums resulting from improved facility

design and operation. This requirement should be considered and an analysis completed

to determine its feasibility.

7. Implementation

Existing CCW disposal units, including expansions, would be required to be in

compliance with the groundwater monitoring requirements proposed under 253.40 within

one year after the effective date of the final rule. New CCW disposal units, including

expansions, must be in compliance with the groundwater monitoring requirements before

CCW can be placed in the unit. Groundwater monitoring shall be conducted throughout

the active life and post-closure care period of the CCW disposal unit.

8. Notification, Recordkeeping and Reporting
13

The proposed regulations require that information concerning CCW management

be retained in an operating record and be submitted to US EPA or an authorized state. In

addition, the rule proposes that all information contained in the operating record must be

publicly available. These requirements would ensure the public availability of basic

types of information that demonstrate compliance with the requirements of the proposed

regulations.

Record reviews are one of the ways EPA and citizens can ascertain whether a

facility is in compliance. Accordingly, in Sec. 253.23, a recordkeeping requirement

ensures that a historical record of CCW disposal unit performance is maintained at the

facility and submitted to the EPA Regional Administrator. The person managing CCW

would be required to maintain and submit the following records: (1) Any required

demonstration, certification, finding, monitoring, notification, testing, or analytical data

under Subpart E of part 253; (2) required inspection records, training procedures, and

regulatory agency notification procedures; (3) required closure and post-closure care

plans and any monitoring or analytical data proposed under Secs. 253.50 and 253.51; and

(4) any required cost estimates and financial assurance documentation proposed in

subpart G. All information in the operating record must be publicly available, and, as

stated above, EPA or an authorized state would receive copies of the documents. In

addition, documentation of groundwater monitoring that indicates exceedances of trigger

levels must be clearly set forth in notifications that are submitted to EPA (or the

authorized state), the host municipality, adjacent landowners, and the public.

 9. Citizen Suits and Citizen Enforcement of Part 253 Standards

Part 253 provides citizens with the right to bring a citizen suit for the failure of

any CCW disposal unit to comply with Part 253 standards. In contrast, USWAG’s

Voluntary Action Plan provides no right of federal, state, or citizen enforcement of its

provisions. EPA emphasized, in its 2000 Determination, the importance of citizen

enforcement and the inherent advantage of subtitle D standards, which “would be

applicable and enforceable by citizens as soon as the federal rule becomes effective.”19

Part 253 also affirms the right of citizens to bring an action under section 7002 of RCRA,

42 U.S.C. §6972, to abate any pollution generated by CCW that may create the threat of

an imminent and substantial endangerment of health or the environment or seek other

relief related to the abatement of the threat.

In order to ensure the right of EPA to enforce the provisions of Part 253, as well

as to ensure the applicability of federal inspection authority of CCW units, it is necessary

to provide in the regulations that substantial noncompliance with specific Part 253

standards triggers Subtitle C listing of CCW. While the regulation we are proposing

does not propose this step, we reiterate that it is essential to discuss this important

contingency in course of comprehensive CCW rulemaking.

 

19 EPA 2000 Determination at 32232.
14

 10. Prohibition on the construction of new CCW surface impoundments and

closure of existing CCW surface impoundments

The draft regulations provide that after the effective date of the final rule

construction of new surface impoundments and the expansion of existing surface

impoundments for the management, storage or disposal of CCW shall be prohibited.

In addition, the disposal of CCW into existing surface impoundments shall cease within

two years of the final rule. The proposal requires monitoring to be established at existing

surface impoundments within one year of the effective date of the regulations and closure

of CCW surface impoundments within two years, in accordance with all closure and postclosure requirements set forth in Part 253.

Conclusion

This proposal lays the framework for a federal rule addressing the second largest

industrial solid waste stream in the U.S. Such a rule is long past due. The failure of EPA

to provide rules for safe disposal of coal ash has resulted in the poisoning of surface

water and groundwater in 23 states, by EPA’s own admission. As we approach the

greatest increase in coal-fired power plants in the history of this country, this is exactly

the wrong time to acquiesce and accept voluntary standards from an industry with a track

record of poor waste management. EPA must abide by its commitment in its 2000

Regulatory Determination to write a federal rule, and it must bring those to the table with

the will, expertise and commitment to assist in the effort. Through a federal advisory

committee, the process can be fair, open and collaborative.

Finally, because CCW currently disposed in dumps without adequate safeguards

poses an imminent and substantial endangerment to health and the environment at many

sites, it is appropriate that EPA immediately use its authority under Section 308(a) of the

Clean Water Act and Section 7003 of RCRA to require groundwater monitoring and

cleanup at such sites. We recommend that EPA survey its list of CCW damage cases,

including potential and indeterminate cases, and solicit input from stakeholders to

identify disposal sites where monitoring or remedial action is needed to quantify the

threat to health and the environment. Information gathered from this monitoring and

remediation will help guide the federal rulemaking. Initiation of such enforcement actions

will make good on EPA’s explicit promise in its 2000 Determination, wherein EPA

stated, exactly twice, “As we proceed with regulation development, we will also take

enforcement action under RCRA section 7003 when we identify cases of imminent and

substantial endangerment.”20

 

20 EPA 2000 Determination at 32217 (and repeated verbatim at 32233).
15

Respectfully submitted,

Lisa Evans, Attorney, Earthjustice. Earthjustice is located at 426 Seventeenth Street, 6th

Floor, Oakland, CA 94612. Earthjustice is a non-profit public interest law firm dedicated

to protecting the magnificent places, natural resources, and wildlife of this earth and to

defending the right of all people to a healthy environment.

Jeffrey Stant, Director, PPW Project-Safe Disposal Campaign, Clean Air Task Force

(CATF). Clean Air Task Force is located at 77 Summer St, 8th floor Boston, MA 02110.

CATF is a nonprofit organization dedicated to restoring clean air and healthy

environments through scientific research, public education and legal advocacy.

Eric Schaeffer, Director, Environmental Integrity Project (EIP). The Environmental

Integrity Project is located at 919 18th Street, NW, Suite 650, Washington, DC 20006 .

EIP is a nonpartisan, nonprofit organization established in March of 2002 to advocate for

more effective enforcement of environmental laws.

Ed Hopkins, Director Environmental Quality Program, Sierra Club is located at 85

Second Street San Francisco, CA 94105. Sierra Club is a nonprofit environmental

advocacy organization seeking to protect and restore the quality of the natural and human

environment.

Mayra Quirindongo, Natural Resources Defense Council (NRDC). Natural Resources

Defense Council is located at 40 West 20th Street New York, NY 10011. NRDC uses

law, science and the support of more than 1 million members and online activists to

protect the planet's wildlife and wild places and to ensure a safe and healthy environment

for all living things.

Scott Edwards, Senior Attorney, Waterkeeper Alliance. Waterkeeper Alliance is located

at 50 S. Buckhout, Suite 302, Irvington, New York 10533. Waterkeeper Alliance

connects and supports local Waterkeeper programs to provide a voice for waterways and

communities worldwide.

Brian Wright, Coal Policy Director, Hoosier Environmental Council. Hoosier

Environmental Council is located at 1915 W. 18th St. Suite A, Indianapolis, IN 46202.

Through education, advocacy, and citizen empowerment in Indiana, the Hoosier

Environmental Council works to restore and protect the natural systems upon which life

depends.

Lisa Graves Marcucci, President, Jefferson Action Group. Jefferson Action Group is

located at 123 Oakwood Drive Clairton, PA 15025-3042. The mission of the Jefferson

Action Group, Inc. is working to ensure human health is a priority in all environmental

regulations.

 
16

Carrie La Seur, Executive Director, Plains Justice. Plains Justice is located at 319 3rd St.

NW, Mount Vernon, IA 52314. Plains Justice is a public interest environmental law firm

working for environmental justice on the Northern Plains.

Lori Goodman, Treasurer, Dine CARE. Dine CARE is located 10A Town Plaza, Suite

138, Durango, CO 81301. Dine CARE is a membership organization by and for the Diné,

the People. Our members all those Diné who strive to maintain a relationship with

Mother Earth based on balance and harmony.

Margaret Janes, Senior Policy Analyst, Appalachian Center for the Economy and the

Environment. Appalachian Center for the Economy and the Environment is located at

5640 Howards Lick Rd., Mathias, WV 26812. The Appalachian Center is a regional law

and policy organization working with citizens and grassroots citizens’ groups to clarify,

analyze and act on the environmental and economic issues that affect Appalachian

communities.

Tom Smith, State Director, Public Citizen. Public Citizen is located at 1002 West Avenue

#300 Austin, TX 78701. Public Citizen works to protect health, safety, and democracy.

Bud Prast, President, People in Need of Environmental Safety. People in Need of

Environmental Safety is located at 1621 Colorado Ave. Michigan City, IN 46360. People

In Need of Environmental Safety (P.I.N.E.S.) is dedicated to educating Pine Township

and surrounding area residents about surface and groundwater contamination caused by

coal ash waste.

Dante Picciano, Executive Director, Army for a Clean Environment. Army for a Clean

Environment is located at 2066 Evergreen Drive Tamaqua, PA 18252. Army for a Clean

Environment works to promote a safe environment through education and fostering the

prevention of the dumping of harmful materials in the community and surrounding areas.

John Blair, Executive Director, Valley Watch. Valley Watch is located at 800 Adams Ave

Evansville, IN 47713-2213. Valley Watch, Inc. is an Indiana not-for-profit corporation

established in 1981 to protect the public health and environment of the lower Ohio River

Valley.

Cindy Rank, Mining Committee Chair, West Virginia Highlands Conservancy. West

Virginia Highlands Conservancy can be reached at HC 78 Box 227, Rock Cave, WV 

26234. The West Virginia Highlands Conservancy is one of the state's oldest

environmental activist organizations and has over the past 40 years, be a leader in

protecting the natural environment of West Virginia.

Mike Eisenfeld, New Mexico Staff Organizer, San Juan Citizens Alliance. San Juan

Citizens Alliance is located at 108 N. Behrend, Suite I, Farmington, New Mexico, 87401.

The San Juan Citizens Alliance organizes for the land and people of the San Juan Basin.
17

Travis Brown, Neighbors for Neighbors. Neighbors for Neighbors is located at P.O. Box

661 Elgin, TX 78621. The mission of Neighbors for Neighbors is families working

together to protect the lands, economy, and quality of life of Bastap and Lee counties for

future generations.

Anne Hedges, Program Director, Montana Environmental Information Center (MEIC).

Montana Environmental Information Center is located at P.O. Box 1184 Helena, MT

59624. MEIC is dedicated to the protection and restoration of Montana’s natural

environment. MEIC is a member supported nonprofit organization with over 4,000

members in Montana and across the country.

Cathy Lodge, President, Residents Against the Power Plant (RAPP). RAPP is located at

257 Meinrad Drive, Bulger, PA 15019. RAPP is a citizens organization dedicated to

working for the protection of public health and enforcement of environmental laws.

Vivian Stockman, Project Coordinator, Ohio Valley Environmental Coalition. Ohio

Valley Environmental Coalition is located at P.O. Box 6753 Huntington, WV 25773. The

Coalition’s mission is to organize and maintain a diverse grassroots organization

dedicated to the improvement and preservation of the environment through education,

grassroots organizing and coalition building, leadership development and media

outreach. 

Tracy Carluccio, Deputy Director, Delaware Riverkeeper Network. Delaware

Riverkeeper Network is located at 300 Pond Street, Second Floor, Bristol, PA 19007. The

Delaware Riverkeeper is the voice of the Delaware River and its streams, championing

their rights as living members of our community, and is leader for the Delaware

Riverkeeper Network.

Mark Redsten, Executive Director, Clean Wisconsin. Clean Wisconsin is located at 122

State Street, Suite 200 Madison, WI 53703-2500. Clean Wisconsin, an environmental

advocacy organization, protects Wisconsin's clean water and air and advocates for clean

energy by being an effective voice in the state legislature and by holding elected officials

and corporations accountable.

Vernon Haltom, Co-Director, Coal River Mountain Watch. Coal River Mountain Watch

is located at Box 651 Whitesville, WV 25209. The mission of Coal River Mountain

Watch is to stop the destruction of our communities and environment by mountaintop

removal mining, to improve the quality of life in our area and to help rebuild sustainable

communities.

Mark Trechock, Staff Director, Dakota Resource Council (DRC). Dakota Resource

Council is located at P.O. Box 1095, Dickinson, North Dakota 58602-1095. DRC is

working for preservation of family farms, enforcement of corporate farming laws, soil

and water conservation, regulation of coal mining and oil and gas development,

protection of groundwater and clean air, renewable energy, and sound management of

solid and toxic wastes.
18

Lynn Nadeau, Treasurer, Healthlink. Healthlink is located at 4 Seawall St. Marblehead,

MA 01945. Healthlink’s mission is to protect and improve public health by reducing and

eliminating pollutants and toxic substances from our environment through research,

education and community action.

Jan Schlichtmann, Executive Director, Wenham Lake Watershed Association. Wenham

Lake Watershed Association is located at 6 Quincy Park Beverly, MA 01915. The goal of

the Wenham Lake Watershed Association is to ensure the integrity of the drinking water

for Beverly, Salem and Wenham by promoting the thorough investigation, impartial

evaluation and effective removal of threats to Wenham Lake.

William D. Lockwood, President, Save Us From Future Environmental Risks

(S.U.F.F.E.R.), S.U.F.F.E.R. is located at 497 S. Poplar St, Hazleton, PA 18201.

S.U.F.F.E.R. is a Pennsylvania non-profit corporation dedicated to protecting the

environment in and around the City of Hazleton, Pennsylvania.
19

PART 253--MANAGEMENT STANDARDS FOR COAL COMBUSTION WASTE

Subpart A--General Provisions

Sec.

253.1 Purpose, scope, and applicability.

259.2 Definitions.

259.3 Imminent hazard action

Subpart B--Location Restrictions

253.10 Placement above the seasonal high groundwater level.

253.11 Floodplains.

253.12 Wetlands.

253.13 Fault areas.

253.14 Seismic impact zones.

253.15 Unstable areas.

253.16 Karst terrains.

Subpart C—Additional Criteria

253.20 Air criteria for temporary storage including storage in tanks, containers, or

buildings.

253.21 Criteria for trucks transporting coal combustion waste.

253.22 Air criteria for CCW disposal units.

253.23 Recordkeeping requirements.

253.24 Storage criteria [reserved]

Subpart D--Design Criteria

253.30 Design criteria.

253.31 Prohibition on the construction of new surface impoundments

253.32 Closure of existing coal combustion waste surface impoundments

253.33 Access requirements

253.34 Run-on/run-off control systems

Subpart E--Groundwater Monitoring and Corrective Action

253.40 Applicability.

253.41 Groundwater monitoring systems.

253.42 [Reserved]

253.43 Groundwater sampling and analysis requirements.

253.44 Detection monitoring program.

253.45 Assessment monitoring program.

253.46 Assessment of corrective measures.

253.47 Selection of remedy.
20

253.48 Implementation of the corrective action program.

Subpart F--Closure and Post-Closure Care

253.50 Closure criteria.

253.51 Post-closure care requirements.

253.52 Closure of CCW surface impoundments.

253.53 Post Closure care of CCW surface impoundments.

Subpart G--Financial Assurance Criteria

253.60 Applicability.

253.61 Financial assurance for closure.

253.62 Financial assurance for post-closure care.

253.63 Financial assurance for corrective action.

253.64 Allowable mechanisms.

253.65 Discounting.

Appendix I to Part 253--Constituents for Detection Monitoring

Authority: 42 U.S.C. 6912(a) and 6924(x).

Subpart A--General Provisions

Sec. 253.1 Purpose, scope, and applicability.

(a) The purpose of this part is to establish minimum national criteria for all coal

combustion waste disposal units, including landfills and surface impoundments.

(b) Regulations in this part apply to any coal combustion waste (CCW) actively managed

[after the effective date of the final rule], and as otherwise specifically provided in

paragraph (c) of this section, including CCW managed in new CCW disposal units,

existing CCW disposal units and expansions of CCW disposal units.

(c) Regulations in this part also apply to CCW disposal units that stopped receiving waste

before [the effective date of the final rule], hereinafter “inactive units.” [In view of the

large and diverse universe of inactive units, it will be necessary to tailor the applicability

of the closure and post-closure requirements of Part 253 to these units. Factors that must

be considered include the age and condition of the unit, when CCW was last placed in the

unit, and whether the unit has already undergone closure pursuant to state requirements.

These factors will be considered and tailored requirements generated after further

analysis.]

(d) The compliance date for all requirements of this part 253, unless otherwise specified,

is [one year after the effective date of the final rule].
21

Sec. 253.2 Definitions.

This section contains definitions for terms that appear throughout this part; additional

definitions appear in the specific sections to which they apply.

 Active life means the period of operation beginning with the initial receipt of CCW

and ending at completion of closure activities in accordance with Sec. 253.50.

 Active management means a facility or unit that receives CCW and that has not been

closed in accordance with Sec. 253.50.

 Aquifer means a geological formation, group of formations, or portion of a formation

capable of yielding significant quantities of ground water to wells or springs.

 Beneficial Use of CCW means the substitution of CCW for another commercial

product based on similar properties. Beneficial use of CCW shall not present a greater

harm or threat of harm than the use of the product that the CCW is replacing. Uses that

constitute disposal, including use of CCW as fill, including minefill, unconsolidated road

base, and structural fill are not considered beneficial use of CCW for the purposes of this

part.

 Coal combustion waste (CCW) means the solid and liquid waste generated primarily

by the burning of coal and controlling of resulting emissions including fly ash, bottom

ash, boiler slag, scrubber sludge, waste from fluidized bed combustion and other uniquely

associated wastes often mixed with the above-mentioned ash, sludge and slag.

 Coal combustion waste landfill unit means a discrete area of land or an excavation that

receives CCW waste, and that is not a land application unit, surface impoundment, waste

pile, as those terms are defined under Sec. 257.2 of this chapter, or injection well as

defined by 40 CFR Parts 144 and 146. A CCW disposal unit may receive other types of

non-hazardous industrial wastes, such as construction debris, mining overburden and

other commercial solid waste (as defined in Sec. 258.2 of this chapter). A CCW disposal

unit may be a new CCW disposal unit, an existing CCW disposal unit, an expansion of an

existing CCW disposal unit, or an inactive CCW disposal unit.

 Coal combustion waste surface impoundment means a topographic depression,

excavation, or diked area, primarily formed from earthen materials (lined or unlined) and

designed to hold accumulated liquid wastes, wastes containing free liquids, or sludges

that were not backfilled or otherwise covered during periods of deposition; the depression

may be dry if deposited liquid has evaporated, volatilized or leached, or wet with exposed

liquid; structures that may be more specifically described as lagoon, pond, aeration pit,

settling pond, tailings pond, sludge pit, etc. Also included is a surface impoundment that

has been covered with soil after the final deposition of waste materials (i.e., buried or

backfilled).

 Disposal means the discharge, deposit, injection, dumping spilling, leaking or placing

of any CCW into or on any land or water so that such CCW or any constituent thereof

may enter the environment or be emitted into the air or discharged into any waters,

including ground waters.

 EPA Regional Administrator means the chief administrative officer of the EPA Region

responsible for implementing the Subtitle C solid waste permit program. This reference
22

only applies to a State that has not chosen to create a regulatory program under State law.

In States with an authorized RCRA program, all references to the EPA Regional

Administrator should be read as referring to the State Director, or other State official

responsible for implementing the CCW regulatory program.

 Existing CCW disposal unit means any coal combustion waste disposal unit, including

any CCW landfill or surface impoundment, that is receiving CCW as of 90 days after the

effective date of the final rule. Facility means all contiguous land and structures, other

appurtenances, and improvements on the land used for the disposal of CCW.

 Expansion means a lateral or vertical expansion of the waste boundaries of an existing

CCW disposal unit.

 Groundwater means water below the land surface in a zone of saturation.

 Inactive CCW disposal unit means any coal combustion waste disposal unit, including

any CCW landfill or surface impoundment that has not received waste after [the date of

this final rule].

 Leachate means a liquid that has passed through or emerged from CCW and contains

soluble, suspended, or miscible materials removed from such waste.

 New CCW disposal unit means any coal combustion waste landfill or surface

impoundment or expansion of an existing landfill or surface impoundment that has not

received waste prior to the effective date of the final rule.

 Owner means the person(s) who owns a CCW disposal unit or part of a CCW disposal

unit.

 Operator means the person(s) responsible for the overall operation of a CCW disposal

unit or part of a CCW disposal unit.

 Person(s) managing CCW means any person responsible for transport, storage,

treatment, disposal or sale of any CCW, including owners and operators of CCW waste

disposal units.

 Run-off means any rainwater, leachate, or other liquid that drains over land from any

part of a facility.

 Run-on means any rainwater, leachate, or other liquid that drains over land onto any

part of a facility.

 Saturated zone means that part of the earth's crust in which all voids are filled with

water.

 Storage means the containment of CCW on a temporary basis in such a manner as not

to constitute disposal of such waste.

 Uniquely associated wastes are low volume wastes that are co-managed with coal

combustion waste including coal pile runoff, coal mill rejects/pyrites, air heater and

precipitator washwater, boiler fireside chemical cleaning waste, floor and yard drains and

sumps, and waste treatment sludge.

 Uppermost aquifer means the geologic formation nearest the natural ground surface

that is an aquifer, as well as, lower aquifers that are hydraulically interconnected with this
23

aquifer within the facility's property boundary. This definition specifically includes

discontinuous aquifers, which are perched.

 Waste management unit boundary means a vertical surface located at the hydraulically

downgradient limit of the unit. This vertical surface extends down into the uppermost

aquifer.

 Waste pile or pile means any noncontainerized accumulation of solid, nonflowing

waste that is used for treatment or storage.

Sec. 253.3 Imminent hazard action.

Notwithstanding any other provisions of these regulations, enforcement actions may be

brought pursuant to sections 7002 and 7003 of RCRA.

Subpart B--Location Restrictions

Sec. 253.10 Placement above the seasonal high groundwater level.

(a) Upon the effective date of this rule, all CCW disposal units and expansions of

CCW disposal units must be managed such that the base of the unit is located

above the upper limit of the site-specific seasonal high groundwater level. 

(b) For purposes of this section seasonal high groundwater level means the level at

which water stands in a shallow well open along its length and penetrating the

surficial deposits just deeply enough to encounter standing water at the bottom

when the aquifer is at its highest seasonal elevation. This specifically includes

perched groundwater. 

(c) Owners and operators of all existing CCW disposal units must submit to the EPA

Regional Administrator a demonstration that the base of each CCW disposal unit

is located above the site-specific seasonal high groundwater level. This

demonstration shall be placed in the operating record.

(d) Any existing CCW disposal unit whose base is not located above the site-specific

seasonal high groundwater level must be closed in compliance with the applicable

requirements of this Part within two years of [the effective date of this final rule]. 

Sec. 253.11 Floodplains.

(a) Upon the effective date of this rule, new CCW disposal units or expansions of

CCW disposal units shall not be located within floodplains.

(b) Existing CCW disposal units located in a 100-year floodplain must make a

demonstration to the EPA Regional Administrator within 120 days of [the effective

date of this rule] that the unit will not restrict the flow of the 100-year flood, reduce

the temporary water storage capacity of the floodplain, or result in washout of solid

waste so as to pose a hazard to human health and the environment. The person
24

managing CCW must place the demonstration in the operating record and submit

the demonstration to the EPA Regional Administrator.

(c) The Regional Administrator must approve or disapprove any demonstration made

pursuant to Sec. 253.11(b) within 120 days of its submission. If the Regional

Administrator does not approve the demonstration, the owner or operator of the

existing CCW disposal unit must close the disposal unit in compliance with the

applicable requirements of this Part within two years of that determination. All

approved demonstrations must be maintained in the operating record.

 (d) For purposes of this Section:

(1) Floodplain means the lowland and relatively flat areas adjoining inland and

coastal waters, including flood-prone areas of offshore islands that are inundated by

the 100-year flood.

(2) 100-year flood means a flood that has a 1-percent or greater chance of recurring

in any given year or a flood of a magnitude equaled or exceeded once in 100 years

on the average over a significantly long period.

(3) Washout means the carrying away of solid waste by waters of the base flood.

Sec. 253.12 Wetlands.

(a) Upon the effective date of this rule, CCW disposal units shall not be located in

wetlands.

(b) Existing CCW units that are located in wetlands must make the following

demonstration to the EPA Regional Administrator within 120 days of [the date of the

final rule]:

 (1) The construction and operation of the CCW disposal unit does not:

 (i) Cause or contribute to violations of any applicable State water quality

standard,

 (ii) Violate any applicable toxic effluent standard or prohibition under section

307 of the Clean Water Act,

 (iii) Jeopardize the continued existence of endangered or threatened species or

result in the destruction or adverse modification of a critical habitat, protected

under the Endangered Species Act of 1973, and

 (iv) Violate any requirement under the Marine Protection, Research, and

Sanctuaries Act of 1972 for the protection of a marine sanctuary;

 (2) The CCW disposal unit does not cause or contribute to significant degradation

of wetlands. The integrity of the CCW disposal unit and its ability to protect

ecological resources must be demonstrated by addressing the following factors:

 (i) Erosion, stability, and migration potential of native wetland soils, muds and

deposits used to support the CCW disposal unit;
25

 (ii) Erosion, stability, and migration potential of dredged and fill materials used

to support the CCW disposal unit;

 (iii) The volume and chemical nature of the waste managed in the CCW disposal

unit;

 (iv) Impacts on fish, wildlife, and other aquatic resources and their habitat from

release of the solid waste;

 (v) The potential effects of catastrophic release of waste to the wetland and the

resulting impacts on the environment; and

 (vi) Any additional factors, as necessary, to demonstrate that ecological

resources in the wetland are sufficiently protected.

(c) The Regional Administrator must approve or disapprove any demonstration

made pursuant to Sec. 253.12(b) within 120 days of its submission. If the Regional

Administrator does not approve the demonstration, the owner or operator of the

existing CCW disposal unit located in a wetland must close the disposal unit in

compliance with the applicable requirements of this Part within two years of that

determination. All approved demonstrations must be maintained in the operating

record.

 (d) For purposes of this section, wetlands means those areas that are defined in 40

CFR 232.2(r).

 (e) Nothing in this section affects the applicability of any other statute or regulation

affecting management of CCW in wetlands, including the permitting requirements

under section 404 of the Clean Water Act.

Sec. 253.13 Fault areas.

(a) Upon the effective date of this rule, CCW disposal units shall not be located within

200 feet (60 meters) of a fault that has had displacement in Holocene time.

(b) Existing CCW disposal units located within 200 feet (60 meters) of a fault that has

had displacement in Holocene time must make a demonstration to the EPA

Regional Administrator within 120 days of [the effective date of this rule] that an

alternative setback distance of less than 200 feet (60 meters) will prevent damage

to the structural integrity of the CCW disposal unit and will be protective of human

health and the environment, except as specified in paragraph (c) of this section.

(c) The Regional Administrator must approve or disapprove any demonstration made

pursuant to Sec. 253.13(b) within 120 days of its submission. If the Regional

Administrator does not approve the demonstration, the owner or operator of the

existing CCW disposal unit must close the disposal unit in compliance with the

applicable requirements of this Part within two years of that determination. All

approved demonstrations must be maintained in the operating record.

 (d) For the purposes of this section:

 (1) Fault means a fracture or a zone of fractures in any material along which strata
26

on one side have been displaced with respect to that on the other side.

 (2) Displacement means the relative movement of any two sides of a fault

measured in any direction.

 (3) Holocene means the most recent epoch of the Quaternary period, extending from

the end of the Pleistocene Epoch to the present.

Sec. 253.14 Seismic impact zones.

(a) Upon the effective date of this rule, CCW shall not be managed in a CCW disposal

unit located in a seismic impact zone, unless a demonstration is made to the EPA

Regional Administrator, within 120 days [of this final rule] for existing units and prior to

construction of any new CCW disposal unit, 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 for the site. The

person managing CCW waste must place the demonstration in the operating record.

(b) The Regional Administrator must approve or disapprove any demonstration made

pursuant to Sec. 253.14(a) within 120 days of its submission. If the Regional

Administrator does not approve the demonstration, the owner or operator of the existing

CCW disposal unit located in a seismic impact zone must close the disposal unit in

compliance with the applicable requirements of this Part within two years of that

determination. All approved demonstrations must be maintained in the operating record.

(c) For the purposes of this Section:

(1) Seismic impact zone means an area with a ten percent or greater probability that

the maximum horizontal acceleration in lithified earth material, expressed as a

percentage of the earth's gravitational pull (g), will exceed 0.10g (i.e., 98.0 centimeters

per second per second) in 250 years.

(2) Maximum horizontal acceleration in lithified earth material means the maximum

expected horizontal acceleration depicted on a seismic hazard map, with a 90 percent

or greater probability that the acceleration will not be exceeded in 250 years, or the

maximum expected horizontal acceleration based on a site-specific seismic risk

assessment.

(3) Lithified earth material means all rock, including all naturally occurring and

naturally formed aggregates or masses of minerals or small particles of older rock that

formed by crystallization of magma or by induration of loose sediments. This term

does not include man-made materials, such as fill, concrete, and asphalt, or

unconsolidated earth materials, soil, or regolith lying at or near the earth surface.

Sec. 253.15 Unstable areas.

(a) CCW shall not be managed in disposal units located in unstable areas.

(b) Existing CCW disposal units located in an unstable area must make a demonstration

to the EPA Regional Administrator within 120 days [of this final rule] that engineering

measures have been incorporated into the CCW disposal unit’s design to ensure the

integrity of the structural components of the CCW disposal unit will not be disrupted.
27

The following factors, at a minimum, must be considered when determining whether an

area is unstable:

(1) On site or local soil conditions that may result in significant differential settling;

(2) On site or local geologic or geomorphologic features; and

(3) Onsite or local human made features or events (both surface and subsurface).

(c) The Regional Administrator must approve or disapprove any demonstration made

pursuant to Sec. 253.15(b) within 120 days of its submission. If the Regional

Administrator does not approve the demonstration, the owner or operator of the existing

CCW disposal unit located in an unstable area must close the disposal unit in compliance

with the applicable requirements of this Part within two years of that determination. All

approved demonstrations must be maintained in the operating record.

(d) For purposes of this Section:

(1)Unstable area means a location that is susceptible to natural or human-induced

events or forces capable of impairing the integrity of some or all of the landfill

structural components responsible for preventing releases from a landfill. Unstable

areas can include poor foundation conditions, areas susceptible to mass movements,

and karst terrains.

(2) Structural components means liners, leachate collection systems, final covers, runon/run-off systems, and any other component used in the construction and operation of

the CCW disposal that is necessary for protection of human health and the

environment.

(3) Poor foundation conditions means those areas where features exist which indicate

that a natural or human-induced event may result in inadequate foundation support for

the structural components of a CCW disposal unit.

(4) Areas susceptible to mass movement means those areas of influence (i.e., areas

characterized as having an active or substantial possibility of mass movement) where

the movement of earth material at, beneath, or adjacent to the CCW disposal unit,

because of natural or human-induced events, results in the downslope transport of soil

and rock material by means of gravitational influence. Areas of mass movement

include, but are not limited to, landslides, avalanches, debris slides and flows, soil

fluction, block sliding, and rock fall.

Sec. 253.16 Karst terrains.

(a) Upon the effective date of this rule, new CCW disposal units and expansions of CCW

disposal units shall not be located in karst terrain.

(b) A person managing an existing CCW disposal unit located in karst terrain must make

a demonstration to the EPA Regional Administrator within 120 days [of this final rule]

that engineering measures have been incorporated into the CCW disposal unit’s design to

ensure the integrity of the structural components of the CCW disposal unit will not be

disrupted. The following factors, at a minimum, must be considered when determining

whether a terrain is karstic:
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(1) On-site or local geologic or geomorphologic features;

(2) On-site or local soil conditions that may result in significant differential settling,

collapse, or puncture of a landfill liner;

(3) On-site hydrology, including the character and direction of ground-water flow and

points of discharge for the karst ground-water basin the facility may affect; and

(4) On-site or local human-made features or events (both surface and subsurface).

(c) The Regional Administrator must approve or disapprove any demonstration made

pursuant to Sec. 253.16(b) within 120 days of its submission. If the Regional

Administrator does not approve the demonstration, the owner or operator of the existing

CCW disposal unit located in karst terrain must close the disposal unit in compliance

with the applicable requirements of this Part within two years of that determination. All

approved demonstrations must be maintained in the operating record.

(d) For purposes of this Section:

(1) Karst terrains mean areas where karst landscape, with its characteristic

hydrogeology and/or landforms are developed. In karst terrain, ground-water flow

generally occurs through an open system with both diffuse and conduit flow end

member components, and typically has rapid ground-water flow velocities that

exceed Darcian flow velocities. Composed of limestone, dolomite, gypsum and other

soluble rock, karst terrain typically has well developed secondary porosity enhanced

by dissolution. Landforms found in karst terrain include, but are not limited to,

sinkholes, sinking streams, caves, springs and blind valleys. Karst terrains always

include one or more springs for each ground-water basin, and underground streams

except where groundwater flow is diffuse or the host rock has megaporosity.

(2) Structural components means liners, leachate collection systems, final covers, runon/run-off systems, and any other component used in the construction and operation of

the CCW disposal unit that is necessary for protection of human health and the

environment.

(3) Conduit flow means nonlinear to turbulent groundwater flow through an integrated

system of conduits that behave hydraulically as a system of pipes. Conduit flow is

typical of ground-water flow through thick, massive soluble rock such as limestone,

where ground water is concentrated, flow is rapid and specific discharges are high.

Turbulent conduit flow can be initiated in fractures as thin as 5 to 10 millimeters.

(4) Darcian flow means groundwater flow which follows Darcy's law, where the

specific discharge is proportional to the hydraulic gradient. Darcian ground-water flow

is typically linear and laminar, travels from 1 x 10-11 to 1 x 10-12 centimeters per

second, and is characteristic of ground-water flow through granular porous media.

(5) Diffuse flow means groundwater flow that is laminar and slow (within the range

of Darcian flow velocities) through a system of joints and bedding planes that have

had minimal solution enlargement.
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Subpart C--Additional Criteria

Sec. 253.20 Air criteria for temporary storage including storage in tanks,

containers, or buildings.

 (a) This section applies to coal combustion waste placed in temporary storage. Such

CCW must be covered or otherwise managed to control wind dispersal of dusts, or stored

in tanks, containers or buildings that meet the following minimum standards:

 (1) The tank, container, or building should be an engineered structure with a humanmade floor, walls, and a roof all of which prevent water from reaching the stored

CCW and are made of non-earthen materials providing structural support.

(2) The tank, container, or building must be free standing and not a surface

impoundment (as defined in 40 CFR 257.2), be manufactured of a material suitable

for storage of its contents, and meet appropriate specifications such as those

established by either ASTM, API, or UL standards.

(b) For purposes of this section, temporary storage means interim storage of CCW

designated for recycling, sale or final disposal.

(c) Alternative measures for fugitive dust control may be approved by the EPA Regional

Administrator if a demonstration is made to the EPA Regional Administrator that the

alternative measures are at least as effective in controlling wind dispersal of CCW as the

minimum standards defined in paragraph (a) of this section. The person managing CCW

must place the demonstration in the operating record and provide the EPA Regional

Administrator with a copy of the demonstration.

Sec. 253.21 Criteria for trucks transporting coal combustion waste.

(a) CCW transported in trucks or other vehicles must be covered or otherwise managed

to control wind dispersal of dust.

(b) All trucks transporting CCW must comply with the applicable DOT standards

pertaining to the transportation of hazardous materials.

Sec. 253.22 Air criteria for CCW disposal units.

(a) CCW disposed in CCW disposal units must be managed in a manner that does not

violate any applicable requirements developed under a State Implementation Plan (SIP)

approved or promulgated by the Administrator pursuant to section 110 of the Clean Air

Act, as amended.

(b) CCW must be disposed in CCW disposal unit constructed so that such CCW is:

(1) Covered or otherwise managed to control wind dispersal of dust, or

(2) Emplaced as conditioned CCW to control wind dispersal, and

(3) Covered with a sufficient thickness of earthen material at the end of each

operating day, or at more frequent intervals if necessary, except as provided in

paragraph (d) of this section, to control blowing dust.
30

(c) For purposes of this section conditioned CCW means coal combustion waste that has

been compacted in the field at appropriate moisture content using moderate to heavy

equipment to attain 95% of the standard Proctor maximum dry density value according to

ASTM D 698 or D 1557 test methods.

(d) Alternative measures for fugitive dust control may be approved by the EPA Regional

Administrator if a demonstration is made to the EPA Regional Administrator that the

alternative measures are at least as effective in controlling wind dispersal of CCW as the

minimum standards defined in paragraphs (a), (b), and (c) of this section. The person

managing CCW must place the demonstration in the operating record and provide a copy

of the demonstration to the EPA Regional Administrator.

Sec. 253.23 Recordkeeping requirements.

 (a) An operating record of a CCW disposal unit must be retained at the facility. The

following information must be recorded in the operating record as it becomes available:

 (1) Any notification of violation required under paragraph (c) of this section;

 (2) Any certification of compliance required under paragraph (d) of this section;

 (3) Any location restriction demonstration required under Subpart B;

 (4) Any CCW disposal unit design documentation;

 (5) Any demonstration, certification, finding, monitoring, testing, or analytical data

required by Subpart E;

 (6) Any demonstration, certification, testing, or analytical data required by Sec.

253.17(d);

 (7) Any plans for selected remedies as required by Sec. 253.47;

 (8) Closure and post-closure care plans and any monitoring, testing, or analytical

data as required by Secs. 253.50 and 253.51; and

 (9) Any cost estimates and financial assurance documentation required by Subpart

G of this part.

(b) The person managing CCW must submit copies of documents, including changes and

updates to all documents specified in paragraph (a)(3), (a)(4), (a)(5), (a)(6), (a)(7), (a)(8)

and (a)(9), to the EPA Regional Administrator. All information contained in the

operating record must be made available for inspection and copying by the public at all

reasonable times.

(c) The person managing CCW must notify the EPA Regional Administrator, in a letter

signed by the owner or operator of the facility, whenever any standard of this rule is

violated.

(d) The person managing CCW must submit a certification to the EPA Regional

Administrator, signed by the owner or operator of the facility, once each year: throughout

the active life and post-closure care period that a new or existing CCW disposal unit is in

compliance with the additional criteria, groundwater monitoring, and corrective action

provisions of subparts C and E of this part and with the closure and post-closure and
31

financial assurance provisions of subparts F and G; and throughout the active life of the

facility that all CCW managed on-site or sent off-site for beneficial use is disposed in

compliance with all applicable provisions of this part. The certification must also certify

that all records from paragraph (a) of this section are properly maintained, submitted as

required to the EPA Regional Administrator, and available to the public in accordance

with the provisions of paragraph (b) of this section.

Sec. 253.24 Storage criteria [To be inserted]

Subpart D--Design Criteria

Sec. 253.30 Design criteria.

(a) Prior to construction of a CCW disposal unit in carbonate terrain, a karst groundwater investigation must be conducted to verify that the site does not contain features

characteristic of karst terrain, as described In Sec. 253.16. The karst investigation must

define the direction of groundwater flow and points of discharge for the karst groundwater basin(s) the facility may affect. The karst groundwater investigation shall also

include, but not be limited to, a karst inventory and a dye tracer study to identify springs

that are hydrologically related to the CCW disposal unit. The investigation must be

certified by a qualified groundwater scientist and approved by the EPA Regional

Administrator.

(b) CCW must be managed in CCW disposal units and expansions constructed:

(1) In accordance with a design and operating practices that, together with location

characteristics, will prevent the migration of any hazardous constituents into the

groundwater or surface water at any future time, and

(2) With a composite liner, as defined in paragraph (c) of this section and a leachate

detection, collection, and removal system that is designed, constructed, and

operated to maintain less than a 30 cm depth of leachate over the liner. The owner

or operator shall collect and remove pumpable liquids to minimize the head on the

liner.

(c) For purposes of this Section, composite liner means a system consisting of two

components; the upper component must consist of a minimum 30 mil flexible membrane

liner (FML), and the lower component must consist of at least a two foot layer of

compacted soil with a hydraulic conductivity of no more than 1x10-7 cm/sec. FML

components consisting of high density polyethylene (HDPE) shall be at least 60 mil

thick. The FML component must be installed in direct and uniform contact with the

compacted soil component.

(d) For purposes of this Section the leachate detection, collection, and removal system

must be capable of detecting, collecting, and removing leachate during the active life and

post-closure care period. The requirements for a leak detection system in this paragraph

are satisfied by installation of a system that is, at a minimum:

(1) Constructed with a bottom slope of one percent or more;
32

(2) Constructed of granular drainage materials with a hydraulic conductivity of 1×10−2

cm/sec or more and a thickness of 12 inches (30.5 cm) or more; or constructed of

synthetic or geonet drainage materials with a transmissivity of 3×10−5 m

2

/sec or more;

(3) Constructed of materials that are chemically resistant to the waste managed in the

unit and the leachate expected to be generated, and of sufficient strength and thickness

to prevent collapse under the pressures exerted by overlying wastes and any waste

cover materials or equipment used;

(4) Designed and operated to minimize clogging during the active life and post-closure

care period; and

(5) Constructed with sumps and liquid removal methods (e.g., pumps) of sufficient

size to collect and remove liquids from the sump and prevent liquids from backing up

into the waste. Each unit must have its own sump(s). The design of each sump and

removal system must provide a method for measuring and recording the volume of

liquids present in the sump and of liquids removed.

(6) The owner or operator shall collect and remove pumpable liquids in the sumps to

minimize the head on the liner.

(e) When designing a CCW disposal unit that complies with paragraph (b)(1) of this

section, the following factors, at a minimum, must be considered:

(1) The hydrologic characteristics of the facility and surrounding land;

(2) The climatic factors of the area; and

(3) The volume and physical and chemical characteristics of the leachate.

(f) The relevant POC shall be no more than 50 meters from the waste management unit

boundary and shall be located on land owned by the owner of the CCW disposal. In

determining the relevant POC, the following factors shall be considered:

(1) The hydrogeologic characteristics of the facility and surrounding land including

the locations of nearest connections of groundwater to surface waters and all

groundwater recharge and discharge points in the surrounding land;

(2) The volume and physical and chemical characteristics of the leachate;

(3) The quantity, quality, and direction of flow of groundwater;

(4) The anticipated travel time for potentially impacted groundwater to reach the

monitoring system;

(5) The proximity and withdrawal rate of the groundwater users;

(6) The availability of alternative drinking water supplies;

(7) The existing quality of the groundwater, including other sources of contamination

and their cumulative impacts on the groundwater, and whether the groundwater is

currently used or reasonably expected to be used for drinking water; and

(8) Public health, safety, and welfare effects.
33

(g) The person managing CCW must submit to the EPA Regional Administrator copies

of documents required in paragraph (a) of this section within ten (10) days of the date

these documents have been placed in the operating record, and all information contained

in the operating record must be made available for inspection and copying by the public.

Sec. 253.31 Prohibition on construction of new coal combustion waste surface

impoundments

Upon [the effective date of this final rule], construction of new surface impoundments

and the expansion of existing surface impoundments for the management, storage or

disposal of CCW shall be prohibited.

Sec. 253.32 Closure of existing coal combustion waste surface impoundments

Existing CCW surface impoundments shall close within two years of [the effective date

of this final rule]. Closure of CCW surface impoundments shall be in accordance with all

closure and post-closure requirements in set forth in this Part 253. [Note: additional

requirements regarding the closure of existing surface impoundments will be added.]

Sec. 253.33 Access requirements.

Owners or operators of all CCW disposal units must control public access and prevent

unauthorized vehicular traffic and illegal dumping of wastes by using artificial barriers,

natural barriers, or both, as appropriate to protect human health and the environment.

Sec. 253.34 Run-on/run-off control systems.

(a) Owners or operators of all CCW disposal units must design, construct, and maintain:

(1) A run-on control system to prevent flow onto the active portion of the landfill

during the peak discharge from a 25-year storm;

(2) A run-off control system from the active portion of the landfill to collect and

control at least the water volume resulting from a 24-hour, 25-year storm.

(b) Run-off from the active portion of the landfill unit must not cause a discharge of

pollutants into waters of the United States, including wetlands, that violates any

requirements of the Clean Water Act, including, but not limited to, the National Pollutant

Discharge Elimination System (NPDES) requirements, pursuant to section 402.

Subpart E--Groundwater Monitoring and Corrective Action

Sec. 253.40 Applicability.

(a) The requirements in this part apply to all new and existing CCW disposal units,

except as provided in paragraph (b) of this section.

(b) Persons managing CCW in CCW disposal units must comply with the groundwater

monitoring requirements of this part according to the following schedule:
34

(1) Existing CCW disposal units must be in compliance with the groundwater

monitoring requirements specified in Secs. 253.41 through 253.45 by one year after

the effective date of the rule;

(2) Upon the effective date of this rule, new CCW disposal units and expansions of

existing CCW disposal units must be in compliance with the groundwater monitoring

requirements specified in Secs. 253.41 through 253.45 before CCW can be placed in

the unit.

(c) The owner or operator of the CCW disposal unit(s) must notify the EPA Regional

Administrator once each year throughout the active life and post-closure care period that

a new or existing CCW disposal unit is in compliance with the groundwater monitoring

and corrective action provisions of this Subpart.

(d) Once established at a CCW disposal unit, groundwater monitoring shall be conducted

throughout the active life and post-closure care period of that CCW disposal unit as

specified in Sec. 253.51.

(e) For the purposes of this subpart, a qualified ground-water scientist is a scientist or

engineer who has received a baccalaureate or post-graduate degree in the natural sciences

or engineering and has sufficient training and experience in groundwater hydrology and

related fields as may be demonstrated by State registration, professional certifications, or

completion of accredited university programs that enable that individual to make sound

professional judgments regarding groundwater monitoring, contaminant fate and

transport, and corrective action.

Sec. 253.41 Groundwater monitoring systems.

(a) A groundwater monitoring system must be installed that consists of a sufficient

number of wells and/or springs, installed at appropriate locations and depths, to yield

groundwater samples from the uppermost aquifer (as defined in Sec. 253.2) and any other

aquifer that is hydrologically connected to the uppermost aquifer or is otherwise

vulnerable to contamination by the waste unit based on the hydrologic characterization of

the site. The groundwater monitoring system must consist of sufficient monitoring points

to detect degradation of groundwater quality that originates from any point within the

unit. The system must include, at a minimum, one upgradient and three downgradient

wells. Groundwater samples must:

(1) Represent the seasonal variation of head elevation and water quality of upgradient

groundwater that has not been affected by leakage from the unit being monitored.

(2) Represent the elevation and quality of leachate contained within the disposal unit

throughout the operation and post closure monitoring of the unit;

(3) Represent the quality of groundwater passing the relevant POC. The downgradient

monitoring system must be installed at the relevant POC (or at the waste management

unit boundary if deemed necessary by the EPA Regional Administrator to prevent

offsite migration of contaminants) that ensures timely detection of groundwater

contamination in the uppermost and any other affected aquifer.

(b) A groundwater monitoring system must be designed, installed, and operated to assure
35

the ability to detect changes in groundwater quality considering projected changes to the

hydrogeologic system at the facility during the construction, operation, and post-closure

periods.

 (c) A multi-unit groundwater monitoring system may be installed instead of separate

groundwater monitoring systems for each CCW disposal unit when the facility has

several units, provided the multi-unit groundwater monitoring system meets the

requirement of paragraph (a) of this section and will be as protective of human health and

the environment as individual monitoring systems for each CCW disposal unit, based on

the following factors:

(1) Number, spacing, and orientation of the CCW disposal units;

(2) Hydrogeologic setting that exists during the construction, operation, and postclosure periods; and

(3) Site history.

(d) Monitoring wells must be cased in a manner that maintains the integrity of the

monitoring well bore hole. This casing must be screened or perforated and packed with

gravel or sand, where necessary, to enable collection of ground-water samples. The

annular space (i.e., the space between the bore hole and well casing) above the sampling

depth must be sealed to prevent contamination of samples and the groundwater.

(1) The person managing CCW must notify the EPA Regional Administrator that the

documentation of design, installation, development, and decommission of any

monitoring wells, piezometers and other measurement, sampling, and analytical

devices has been placed in the operating record; and

(2) The monitoring wells, springs, piezometers, and other measurement, sampling,

and analytical devices must be operated and maintained so that they perform to

design specifications throughout the life of the monitoring program.

 (e) The number, spacing, and depths of monitoring systems shall be:

(1) Determined based upon site-specific hydrogeologic information that must include

thorough characterization of:

(i) Aquifer thickness(es), ground-water flow rate(s), groundwater flow direction(s)

including seasonal and temporal fluctuations in groundwater flow, and flow

through fractures or other pathways between aquifers; and

(ii) Saturated and unsaturated geologic units, disposed wastes, and fill materials

overlying the uppermost aquifer, materials comprising each potentially affected

aquifer, and materials comprising the confining unit defining the lower boundary of

the uppermost aquifer; including, but not limited to: thicknesses, stratigraphy,

lithology, hydraulic conductivities, porosities and effective porosities.

(2) Certified by a qualified groundwater scientist and approved by the EPA Regional

Administrator. Within 14 days of this certification, the person managing CCW must

notify the EPA Regional Administrator that the certification has been placed in the

operating record.
36

Sec. 253.43 Groundwater sampling and analysis requirements.

(a) The groundwater monitoring program must include consistent sampling and analysis

procedures that are designed to ensure monitoring results that provide an accurate

representation of groundwater quality at the upgradient and downgradient wells (and at

springs respective to site hydrogeology) installed in compliance with Sec. 253.41(a). The

person managing CCW must submit to the EPA Regional Administrator the sampling and

analysis program documentation and place this documentation in the operating record.

The program must include procedures and techniques for:

(1) Sample collection;

(2) Sample preservation and shipment;

(3) Analytical procedures;

(4) Chain of custody control; and

(5) Quality assurance and quality control.

(b) The monitoring program must include sampling and analytical methods that are

appropriate for groundwater sampling and that accurately measure hazardous

constituents, ph, temperature, specific conductivity and other monitoring parameters in

groundwater and leachate samples. Analyses shall be reported at detection limits at least

50 percent below the lower of health-based or drinking water standards where such exist.

Groundwater samples shall not be field-filtered prior to laboratory analysis.

(c) The sampling procedures and frequency must ensure protection of human health and

the environment with an adequate margin of safety and be designed to reliably detect

changes in water quality and contamination from the waste disposal unit(s) before such

contamination has migrated beyond the property boundary of the waste disposal unit.

(d) Groundwater and leachate elevations must be measured in each well immediately

prior to purging, each time ground water is sampled. The rate and direction of

groundwater flow must be determined each time ground water is sampled. Groundwater

elevations in wells that monitor the same waste management area must be measured

within a period of time short enough to account for temporal variations in groundwater

flow that could otherwise preclude accurate determination of groundwater flow rate and

direction.

(e) Baseline groundwater quality must be established in upgradient and downgradient

well(s) (and spring(s) if appropriate) for each of the monitoring parameters or

constituents required in the particular groundwater monitoring program that applies to the

CCW disposal unit, as determined under Sec. 253.44(a) or Sec. 253.45(a). Baseline

monitoring must be sufficient to track seasonal variability and consist of not less than

quarterly sampling for a period of one year.

(f) The person managing CCW must determine whether or not there is an increase

(increase or decrease for pH) over baseline values for each parameter or constituent

required in the particular groundwater monitoring program that applies to the CCW

disposal unit, as determined under Sec. 253.44(a).

(g) In determining whether an increase (increase or decrease for pH) has occurred, the
37

person managing CCW must compare the groundwater quality of each parameter or

constituent at each monitoring well (and spring if appropriate) to the highest (highest and

lowest for pH) recorded baseline value of that constituent.

(h) Within 14 days after completing sampling and analysis, the person managing CCW

must determine whether there has been an increase (increase or decrease for pH) over

baseline at each monitoring well and spring.

Sec. 253.44 Detection monitoring program.

(a) Detection monitoring is required at CCW disposal units at all groundwater monitoring

wells (and springs if appropriate) defined under Sec. 253.41 (a). At a minimum, a

detection monitoring program must include the monitoring for the constituents listed in

Appendix I to this part.

(1) The EPA Regional Administrator may establish an expanded list of indicator

parameters for a CCW disposal unit, in addition to the constituents listed in Appendix

I to this part. In determining additional parameters, the EPA Regional Administrator

shall consider the following factors:

 (i) The types, quantities, and concentrations of constituents in wastes and

leachate managed at the CCW disposal unit;

 (ii) The mobility, stability, and persistence of waste constituents or their reaction

products in any unsaturated zone(s) beneath the CCW disposal unit;

 (iii) The detectability of indicator parameters, waste constituents, and reaction

products in the ground water; and

 (iv) The concentration or values and coefficients of variation of monitoring

parameters or constituents in the ground-water baseline.

(b) The monitoring frequency for all constituents listed in Appendix I to this part, or in

the alternative list approved in accordance with paragraph (a)(1) of this section, shall be

sufficient to track seasonal variability and not less than quarterly during the active life of

the facility (including closure) and the post-closure period.

(c) At least one sample from a leachate collection sump, and each upgradient and

downgradient well (and spring if appropriate) must be collected and analyzed during

subsequent sampling events.

(d) If the person managing CCW determines that the concentration of one or more of the

constituents listed in Appendix I to this part is higher (outside the range for pH) than the

highest (outside the range for pH) baseline value for that parameter at the POC, the

person managing CCW:

(1) Must, within 14 days of this finding, place a notice in the operating record

indicating which constituents have increased (outside the range for pH) over baseline

levels, and notify the EPA Regional Administrator of this finding. The

documentation shall clearly indicate all constituents that have increased over baseline

and define the baseline for each identified constituent;
38

(2) If the person managing CCW determines that there has been an increase above the

highest baseline value for any parameter (outside the range for pH), in any two

sampling events, he must establish an assessment monitoring program meeting the

requirements of Sec. 253.45 within 90 days, except as provided for in paragraph

(d)(3) of this section.

(3) The owner/operator may demonstrate that the increase (outside the range for pH)

resulted from error in sampling or analysis. A report documenting this demonstration

must be certified by a qualified groundwater scientist and submitted to the EPA

Regional Administrator, as well as placed in the operating record. If the

demonstration is approved by the EPA Regional Administrator, the person managing

CCW may continue detection monitoring as specified in this Section. If, after 90

days, a successful demonstration is not made, the person managing CCW must

initiate an assessment monitoring program as required in Sec. 253.45.

Sec. 253.45 Assessment monitoring program.

(a) Assessment monitoring is required whenever an increase over the highest (outside

the range for pH) baseline value has been detected for one or more of the

constituents listed in the Appendix I of this part during any two sampling events.

(b) Within 90 days of triggering an assessment monitoring program, and at least

bimonthly (every other month) thereafter, the person managing CCW must

sample and analyze the groundwater for constituents identified in Appendix VIII

of Part 261 of this chapter as well as aluminum, boron, chloride, chromium

(hexavalent), copper, molybdenum, sulfate, and zinc. A minimum of one sample

from each downgradient well (and spring if appropriate) must be collected and

analyzed during each sampling event. The initial sampling event for assessment

monitoring will consist of the collection and analysis of four independent samples

for all constituents in Appendix VIII of Part 261 as well as aluminum, boron,

chloride, chromium (hexavalent), copper, molybdenum, sulfate and zinc from

each upgradient and downgradient well (and spring if appropriate) to establish

existing concentrations for the constituents. 

(c) The EPA Regional Administrator may increase the frequency for repeated

sampling and analysis for the set of constituents required by paragraph (b) of this

Section, during the active life (including closure) and post-closure care of the unit

considering the following factors:

(1) Lithology of the aquifer(s) and unsaturated zone(s);

(2) Hydraulic conductivity(ies) of the aquifer(s) and unsaturated zone(s);

(3) Ground-water flow rates;

(4) Minimum distance between upgradient edge of the CCW disposal unit and

downgradient monitoring well screen (minimum distance of travel);

(5) Hydrograph of springs if appropriate;

(6) Resource value of the aquifer; and
39

(7) Nature (fate and transport) of any constituents detected in response to this Section.

(d) After obtaining the results from the initial or subsequent sampling events required in

paragraph (b) of this Section, the person managing CCW must:

(1) Within 14 days, place documentation in the operating record identifying the

constituents that have been detected and their concentrations and submit such

documentation to the EPA Regional Administrator and to the host municipality in

which the CCW disposal unit is located. The documentation shall clearly specify each

detected constituent along with the baseline values for all detected constituents;

(2) Within 90 days, resample all wells (and springs if appropriate) specified by Sec.

253.41(a), conduct analyses for those constituents required by paragraph (b) of this

Section, and submit all analyses to the EPA Regional Administrator and host

municipality as well as record all concentrations in the facility operating record. At

least one sample from each upgradient and downgradient well (and spring if

appropriate) must be collected and analyzed during these sampling events.

(3) Establish upgradient concentrations for any constituents detected pursuant to

paragraph (b) or (d)(2) of this Section; and

(4) Determine whether or not there is a statistically significant increase over

upgradient or baseline values for each parameter or constituent required in the

particular groundwater monitoring program that applies to the CCW disposal unit, as

determined under Sec. 253.44(a) or Sec. 253.45(a).

(e) The number of samples collected to establish groundwater quality data must be

consistent with the appropriate statistical procedures determined pursuant to paragraph (f)

of this section. The sampling procedures shall be those specified under Sec. 253.44 for

detection monitoring, Sec. 253.45 for assessment monitoring.

(f) One of the following statistical methods to be used in evaluating groundwater

monitoring data must be specified in the operating record and submitted to the EPA

Regional Administrator for each hazardous constituent in addition to an evaluation of

trend analysis that is sufficient to account for seasonal or other temporal variations in the

data. The statistical test chosen shall be conducted separately for each hazardous

constituent in each well (and spring if appropriate).

(1) A parametric analysis of variance (ANOVA) followed by multiple comparisons

procedures to identify statistically significant evidence of contamination. The method

must include estimation and testing of the contrasts between each compliance well's

mean and the upgradient mean levels for each constituent.

(2) An analysis of variance (ANOVA) based on ranks followed by multiple

comparisons procedures to identify statistically significant evidence of contamination.

The method must include estimation and testing of the contrasts between each

compliance well's median and the upgradient median levels for each constituent.

(3) A tolerance or prediction interval procedure in which an interval for each

constituent is established from the distribution of the upgradient data, and the level of

each constituent in each compliance well is compared to the upper tolerance or

prediction limit.
40

(4) A control chart approach that gives control limits for each constituent.

(5) Another statistical test method that meets the performance standards of paragraph

(h) of this section. The person managing CCW must place a justification for this

alternative in the operating record and submit the justification to the EPA Regional

Administrator of the use of this alternative test. The justification must demonstrate that

the alternative method meets the performance standards of paragraph (h) of this

section.

(g) Any statistical method chosen shall comply with the following performance

standards, as appropriate:

(1) The statistical method used to evaluate groundwater monitoring data shall be

appropriate for the distribution of chemical parameters or hazardous constituents. If

the distribution of the chemical parameters or hazardous constituents is shown by the

person managing CCW to be inappropriate for a normal theory test, then the data

should be transformed or a distribution-free theory test should be used. If the

distributions for the constituents differ, more than one statistical method may be

needed.

(2) If an individual well comparison procedure is used to compare an individual

compliance well constituent concentration with upgradient constituent concentrations

or a groundwater protection standard, the test shall be done at a Type I error level no

less than 0.01 for each testing period. If a multiple comparisons procedure is used, the

Type I experimental error rate for each testing period shall be no less than 0.05;

however, the Type I error of no less than 0.01 for individual well comparisons must be

maintained. This performance standard does not apply to tolerance intervals,

prediction intervals, or control charts.

(3) If a control chart approach is used to evaluate groundwater monitoring data, the

specific type of control chart and its associated parameter values shall be protective of

human health and the environment. The parameters shall be determined after

considering the number of samples in the baseline data base, the data distribution, and

the range of the concentration values for each constituent of concern.

(4) If a tolerance interval or a predictional interval is used to evaluate ground-water

monitoring data, the levels of confidence and, for tolerance intervals, the percentage of

the population that the interval must contain shall be protective of human health and

the environment. These parameters shall be determined after considering the number

of samples in the baseline data base, the data distribution, and the range of the

concentration values for each constituent of concern.

(5) The statistical method shall account for data below the limit of detection with one

or more statistical procedures that are protective of human health and the environment.

Any practical quantification limit (pql) that is used in the statistical method shall be

the lowest concentration level that can be reliably achieved within specified limits of

precision and accuracy during routine laboratory operating conditions that are

available to the facility.

(6) The statistical method shall include procedures to control or correct for seasonal

and spatial variability as well as temporal correlation in the data.
41

(h) In determining whether a statistically significant increase has occurred, the person

managing CCW must compare the groundwater quality of each parameter or constituent

at each monitoring well (and spring if appropriate) designated pursuant to Sec.

253.41(a)(3) to the baseline value of that constituent at that well (spring, if appropriate)

and upgradient value of that constituent, according to the statistical procedures and

performance standards specified under paragraphs (f) and (g) of this section.

(i) If the concentrations of all constituents listed in paragraph (b) are shown to be at or

below baseline values and upgradient values, using the statistical procedures in Sec.

253.45, for consecutive sampling events spanning an entire hydrologic cycle, the person

managing CCW must notify the EPA Regional Administrator of this finding prior to

returning to detection monitoring.

 (j) If one or more constituents listed in paragraph (b) are detected at statistically

significant levels above the baseline or upgradient concentrations established under

paragraph (h) of this section in any sampling event, the person managing CCW must,

within 14 days of this finding, place a notice entitled “Statistically Significant

Contaminant Detection” in the operating record identifying the constituents that have

exceeded baseline or upgradient concentrations and the extent of those exceedances, and

submit such documentation, including the extent of the exceedances to the EPA Regional

Administrator, the host municipality, adjacent landowners and to the public through a

public notice in a major local newspaper of general circulation. The person managing

CCW must also:

(1) Characterize the nature and extent of the release by installing additional

monitoring wells as necessary;

(2) Install at least one additional monitoring well at the facility boundary in the

direction of contaminant migration and sample this well in accordance with paragraph

(d)(2) of this Section;

 (3) Notify all persons who own the land or reside on the land that directly overlies any

part of the plume of contamination if contaminants have migrated off-site if indicated

by sampling of wells (and springs if appropriate) in accordance with paragraph (g) of

this section; and

 (4) Initiate an assessment of corrective measures as required by Sec. 253.46 within 30

days; or

 (5) Demonstrate that a source other than a CCW disposal unit caused the

contamination, or that the SSI increase resulted from error in sampling, analysis,

statistical evaluation, or natural variation in groundwater quality. A report

documenting this demonstration must be certified by a qualified groundwater scientist

and submitted to the EPA Regional Administrator and placed in the operating record.

If the EPA Regional Administrator approves the demonstration, the person managing

CCW must continue monitoring in accordance with the assessment monitoring

program pursuant to this section, and may return to detection monitoring if the

constituents listed in paragraph (b) are at or below baseline and upgradient

concentrations as specified in paragraph (i) of this section in subsequent sampling.

Until a successful demonstration is made, the person managing CCW must comply
42

with paragraph (j) of this section including initiating an assessment of corrective

measures. Approval of a demonstration by the EPA Regional Administrator shall be

placed in the operating record, sent to the local municipality and adjacent landowners,

and published in a local newspaper of general circulation.

Sec. 253.46 Assessment of corrective measures.

(a) Within 30 days of finding that any of the constituents listed in Section 253.45 of this

chapter have been detected at a statistically significant level exceeding baseline or

upgradient concentrations, the person managing CCW must initiate an assessment of

corrective measures. Such an assessment must be completed within 90 days, or such

shorter period of time decided by the EPA Regional Administrator.

(b) The person managing CCW must continue to monitor in accordance with the

assessment monitoring program as specified in Sec. 253.45.

(c) The assessment shall include an analysis of the effectiveness of potential corrective

measures in halting the spread of the contamination and restoring baseline water quality

as well as meeting all of the other requirements and objectives of the remedy as described

under Sec. 253.47, addressing at least the following:

(1) The performance, reliability, ease of implementation, and potential impacts of

appropriate potential remedies, including safety impacts, cross-media impacts, and

control of exposure to any residual contamination;

(2) The time required to begin and complete the remedy;

(3) The costs of remedy implementation; and

(4) The institutional requirements such as State or local permit requirements or other

environmental or public health requirements that may substantially affect

implementation of the remedies.

(d) The owner or operator of the CCW disposal unit must provide the public with

information regarding the corrective measures assessment, as well as the opportunity to

comment on the corrective measures assessment, prior to the selection of remedy, in a

public meeting with interested and affected parties. The owner or operator of the CCW

disposal unit shall publish a notice of availability and brief analysis of the corrective

measures assessment and proposed corrective action remedy in a major local newspaper

of general circulation. The owner or operator shall make the assessment and proposed

remedy, as well as the operating record, available for public viewing at a public

information repository, as required by section [to be determined] of this part.

(e) The owner or operator shall provide a reasonable opportunity, not less than 30

calendar days, for submission of written and oral comments on the proposed remedy.

Upon timely request, the EPA Regional Administrator will extend the public comment

period by a minimum of 30 additional days. The EPA Regional Administrator shall

provide the opportunity for a public meeting to be held during the public comment period

at or near the facility regarding the proposed remedy.

Sec. 253.47 Selection of remedy.
43

(a) Within 30 days of completing an assessment of corrective measures conducted under

Sec. 253.46, the person managing CCW must select a remedy that, at a minimum, meets

the standards listed in paragraph (b) of this section. Within 14 days of selecting a remedy,

the person managing CCW must submit to the EPA Regional Administrator a report

describing the selected remedy which demonstrates how the remedy meets the standards

in paragraph (b) of this section. The report must include a notification that the owner and

operator have placed a copy of the report in the operating record.

 (b) Remedies must:

(1) Be protective of human health and the environment;

(2) Control the source(s) of releases so as to reduce or eliminate, to the maximum

extent practicable, further releases of constituents listed in Section 253.45 of this

chapter into the environment that may pose a threat to human health or the

environment; and

(3) Comply with standards for management of wastes as specified in Sec. 253.48(d).

(c) In selecting a remedy that meets the standards of paragraph (b) of this section, the

person managing CCW shall consider the following evaluation factors:

(1) The long- and short-term effectiveness and protectiveness of the potential

remedies.

(2) The effectiveness of the remedy in controlling the source to reduce further

releases.

(3) The ease or difficulty of implementing a potential remedy(s).

 (4) The degree to which community concerns are addressed by a potential remedy(s).

(d) The person managing CCW shall specify as part of the selected remedy a schedule(s)

for initiating and completing remedial activities. Such a schedule must require the

initiation of remedial activities within 60 days taking into consideration the factors set

forth in paragraphs (d) (1) through (5) of this section. The person managing CCW must

consider the following factors in determining the schedule of remedial activities:

 (1) Extent and nature of contamination;

 (2) Practical capabilities of remedial technologies;

(3) Availability of treatment or disposal capacity for wastes managed during

implementation of the remedy;

 (4) Potential risks to human health and the environment from exposure to

contamination prior to completion of the remedy;

 (5) Other relevant factors.

(e) The EPA Regional Administrator shall approve or amend the selected remedy, taking

into consideration the comments received during the public comment period as well as

the factors enumerated in this section. The EPA Regional Administrator may approve a

remedy with amendments to conform to the requirements of this section or public

comments received. The EPA Regional Administrator may determine an alternative

period of time for the person managing CCW to initiate or complete remedial activities
44

pursuant to paragraph (d) of this section.

(f) The owner or operator of the CCW disposal unit shall publish a notice of the

corrective action remedy approved and the initiation of the implementation of the

corrective action program in a local paper of general circulation.

Sec. 253.48 Implementation of the corrective action program.

(a) Based on the schedule established under Sec. 253.47 for initiation and completion of

remedial activities, the owner/operator must:

 (1) Establish and implement a corrective action groundwater monitoring program that:

 (i) At a minimum, meets the requirements of an assessment monitoring program

under Sec. 253.45;

 (ii) Indicates the effectiveness of the corrective action remedy; and

 (iii) Demonstrates compliance with groundwater protection standards pursuant to

paragraph (e) of this section.

(2) Implement the corrective action remedy selected under Sec. 253.47; and

(3) Take any interim measures necessary to ensure the protection of human health and

the environment. Interim measures should, to the greatest extent practicable, be

consistent with the objectives of and contribute to the performance of any remedy that

may be required pursuant to Sec. 253.47. The following factors must be considered by

a person managing CCW in determining whether interim measures are necessary:

(i) Time required to develop and implement a final remedy;

(ii) Actual or potential exposure of nearby populations or environmental receptors

to hazardous constituents;

(iii) Actual or potential contamination of drinking water supplies or sensitive

ecosystems;

(iv) Further degradation of the groundwater that may occur if remedial action is not

initiated expeditiously;

(v) Weather conditions that may cause hazardous constituents to migrate or be

released;

(vi) Potential for exposure to hazardous constituents as a result of an accident or

failure of a container or handling system; and

(vii) Other situations that may pose threats to human health and the environment.

(b) A person managing CCW may determine, based on information developed after

implementation of the remedy has begun or other information, that compliance with

requirements of Sec. 253.47 are not being achieved through the remedy selected. In such

cases, the person managing CCW must implement other methods or techniques that could

practicably achieve compliance with the requirements, unless the person managing CCW

makes the determination under paragraph (c) of this section.

(c) If the person managing CCW determines that compliance with requirements under
45

Sec. 253.47 cannot be practically achieved with any currently available methods, the

person managing CCW must:

(1) Obtain certification of a qualified groundwater scientist and approval by the EPA

Regional Administrator that compliance with requirements under Sec. 253.47(b)

cannot be practically achieved with any currently available methods;

(2) Implement alternate measures approved by the EPA Regional Administrator to

control exposure of humans or the environment to residual contamination, as

necessary to protect human health and the environment; and

(3) Implement alternate measures approved by the EPA Regional Administrator for

control of the sources of contamination, or for removal or decontamination of

equipment, units, devices, or structures that are:

 (i) Technically practicable; and

 (ii) Consistent with the overall objective of the remedy.

(4) Submit to the EPA Regional Administrator within 14 days a report justifying the

alternative measures prior to implementing the alternative measures and place the

report in the operating record.

(d) All solid wastes that are managed pursuant to a remedy required under Sec. 253.47, or

an interim measure required under paragraph (a)(3) of this section, shall be managed in a

manner:

 (1) That is protective of human health and the environment; and

 (2) That complies with applicable RCRA requirements.

(e) Remedies selected pursuant to Sec. 253.47 shall be considered complete when:

(1) Compliance with the groundwater protection standards established under Sec.

253.45(h) has been achieved by demonstrating that concentrations of constituents

listed in section 253.45(b) of this chapter have not exceeded baseline concentrations

for a period of three consecutive years.

(2) All actions required to complete the remedy have been satisfied.

(f) Upon completion of the remedy, the person managing CCW must submit to the EPA

Regional Administrator within 14 days a certification that the remedy has been completed

in compliance with the requirements of paragraph (e) of this section, and he must place

the certification in the operating record. The certification must be signed by the owner or

operator of the CCW disposal unit and by a qualified groundwater scientist, and approved

by the EPA Regional Administrator.

Subpart F--Closure And Post-Closure Care

Sec. 253.50 Closure criteria for CCW landfills.

(a) A final cap system must be installed at all CCW disposal units that is designed to

minimize infiltration and erosion. The cap system must be designed and constructed to:
46

(1) Have a saturated hydraulic conductivity less than or equal to the saturated

hydraulic conductivity of any bottom liner system or natural subsoils present, or a

saturated hydraulic conductivity no greater than 1x10-5 cm/sec, whichever is less, and

(2) Minimize infiltration through the closed CCW disposal unit by the use of an

infiltration layer that contains a minimum 18-inches of earthen material, and

(3) Minimize erosion of the cap by the use of an erosion layer that contains a sufficient

thickness of earthen material that is capable of sustaining native plant growth, and

(4) Minimize the disruption of the cap through a design that accommodates settling

and subsidence.

(b) The EPA Regional Administrator may approve an alternative cap design that

includes:

(1) An infiltration layer that achieves an equivalent reduction in infiltration as the

infiltration layer specified in paragraphs (a)(1) and (a)(2) of this section, and

(2) An erosion layer that provides equivalent protection from wind and water erosion

as the erosion layer specified in paragraph (a)(3) of this section.

(c) The person managing CCW must prepare a written closure plan that describes the

steps necessary to close all CCW disposal units at any point during their active life in

accordance with the design requirements in paragraphs (a) or (b) of this section, as

applicable. The closure plan, at a minimum, must include the following information:

(1) A description of the cap, designed in accordance with paragraph (a) of this section

and the methods and procedures to be used to install the cap;

(2) An estimate of the largest area of the CCW disposal unit ever requiring a cap as

required under paragraph (a) of this section at any time during the active life;

(3) An estimate of the maximum inventory of wastes ever on-site over the active life

of the landfill facility. The plan should include drawings and cross sections depicting

the information in (c)(1), (c)(2) and (c)(3); and

(4) A schedule for completing all activities necessary to satisfy the closure criteria in

this section.

(d) The person managing CCW must submit the closure plan to the EPA Regional

Administrator and place such plan in the operating record no later than one year after the

effective date of this rule for existing units or by the date of the initial receipt of waste for

new units. [Rules regarding approval of closure plans by the EPA Regional

Administrator to be inserted.]

(e) Prior to beginning closure of each CCW disposal unit as specified in paragraph (f) of

this section, the person managing CCW must submit a notice of intent to close the unit to

the EPA Regional Administrator and place that notice in the operating record.

(f) The closure activities of each CCW disposal unit (except inactive units) must begin no

later than 30 days after the date on which the CCW disposal unit receives the known final

receipt of wastes or, if the CCW disposal unit has remaining capacity and there is a

reasonable likelihood that the CCW disposal unit will receive additional wastes, no later
47

than one year after the most recent receipt of wastes. Extensions beyond the one-year

deadline for beginning closure may be granted by the EPA Regional Administrator if the

person managing CCW demonstrates that the CCW disposal unit has the capacity to

receive additional wastes and the person managing CCW has taken and will continue to

take all steps necessary to prevent threats to human health and the environmental from

the unclosed CCW disposal unit.

(g) The closure activities of all CCW disposal units must be completed in accordance

with the closure plan within 180 days following the beginning of closure as specified in

paragraph (f) of this Section. Extensions of the closure period may be granted by the EPA

Regional Administrator if the person managing CCW demonstrates that closure will, of

necessity, take longer than 180 days and he or she has taken and will continue to take all

steps to prevent threats to human health and the environment from the unclosed CCW

disposal unit.

(h) Within 14 days following closure of each CCW disposal unit, the owner or operator

of the CCW disposal unit must submit to the EPA Regional Administrator a certification,

signed by an independent registered professional engineer, facility management, and

approved by the EPA Regional Administrator, verifying that closure has been completed

in accordance with the closure plan and such certification shall be placed in the operating

record.

(1) Within 14 days following closure of all CCW disposal units, the owner of

operator of the CCW disposal unit must record a notation on the deed to the facility

property, or some other instrument that is normally examined during title search, and

notify the EPA Regional Administrator that the notation has been recorded and a

copy has been placed in the operating record.

(2) The notation on the deed must in perpetuity notify any potential purchaser of the

property that the land has been used for disposal of CCW.

(j) The person managing CCW may request permission from the EPA Regional

Administrator to remove the notation from the deed if all CCW has been removed from

the facility. Such removal must be verified by the EPA Regional Administrator and must

include the removal or decontamination of all waste residues, contaminated containment

system components (including but not limited to liners, leachate collection and pipes),

contaminated subsoils and site materials, and structures and equipment contaminated

with waste and leachate. The notation cannot be removed from the deed if the waste

disposal unit is the subject of any ongoing corrective action requirement in Subpart E.

Sec. 253.51 Post-closure care requirements.

(a) Following closure of each CCW disposal unit, the person managing CCW must

conduct post-closure care. Post-closure care must be conducted for 30 years, except as

provided under paragraph (b) of this Section, and consist of at least the following:

(1) Maintaining the integrity and effectiveness of any final cap, including making

repairs to the cap as necessary to correct the effects of settlement, subsidence, erosion,

or other events, and preventing run-on and run-off from eroding or otherwise

damaging the final cap;
48

(2) Maintaining and operating the leachate collection system in accordance with the

requirements in Sec. 253.30; and

(3) Monitoring the groundwater and undertaking corrective actions in accordance with

the requirements of Subpart E of this part and maintaining the groundwater monitoring

system.

(b) The length of the post-closure care period may be increased by the EPA Regional

Administrator, if the EPA Regional Administrator determines that the lengthened period

is necessary to protect human health and the environment.

(c) For all CCW disposal units, including inactive units, the person managing CCW must

prepare a written post-closure care plan that includes, at a minimum, the following

information [Rules regarding approval of post-closure plans by the EPA Regional

Administrator to be inserted.]:

(1) A description of the monitoring and maintenance activities and requirement for

corrective action required in paragraph (a) of this Section for each CCW disposal

unit, and the frequency at which these activities will be performed;

(2) Name, address, and telephone number of the person or office to contact about the

facility during the post-closure period; and

(3) A description of the planned uses of the property during the post-closure period.

Post-closure use of the property shall not disturb the integrity of the final cover,

liner(s), or any other components of the containment system, or the function of the

monitoring systems unless necessary to comply with the requirements in this part. The

EPA Regional Administrator may approve any other disturbance if the person

managing CCW demonstrates that disturbance of the final cover, liner or other

component of the containment system, including any removal of waste, will not

increase the potential threat to human health or the environment.

(d) The person managing CCW must submit a post-closure plan to the EPA Regional

Administrator and place such a plan in the operating record no later than one year after

the effective date of this rule for existing units or by the initial receipt of waste for new

units.

(e) Within 14 days following completion of the post-closure care period for each CCW

disposal unit, the owner or operator of the CCW disposal unit shall submit to the EPA

Regional Administrator a certification, signed by an independent, registered professional

engineer and approved by the EPA Regional Administrator, verifying that post-closure

care has been completed in accordance with the post-closure plan and shall place such

certification in the operating record.

(f) [Rules regarding certification of completion of post-closure requirements by the EPA

Regional Administrator to be inserted.]

§ 253.52 Closure and post-closure care of CCW surface impoundments.

(a) At closure, the owner or operator of a CCW surface impoundment must:
49

(1) Remove or decontaminate all waste residues, contaminated containment system

components (liners, etc.), contaminated subsoils, and structures and equipment

contaminated with waste and leachate and dispose of the resulting waste according to

applicable RCRA requirements; or

(2) Eliminate free liquids by removing liquid wastes and leachate, or solidifying the

remaining wastes and waste residues;

(3) Stabilize remaining wastes to a bearing capacity sufficient to support final cover;

and,

(4) Cap the surface impoundment with a cap designed and constructed to:

(A) Provide long-term minimization of the migration of liquids through the

closed impoundment;

(B) Function with minimum maintenance;

(C) Promote drainage and minimize erosion or abrasion of the cap;

(D) Accommodate settling and subsidence so that the cap's integrity is

maintained; and

(E) Have a permeability less than or equal to the permeability of any bottom

liner system or natural subsoils present.

(b) If some waste residues or contaminated materials are left in place at final closure, the

owner or operator must comply with all post-closure requirements contained in §253.53,

including maintenance and monitoring throughout the post- closure care period. The

owner or operator must:

(1) Maintain the integrity and effectiveness of the cap, including making repairs to the

cap as necessary to correct the effects of settling, subsidence, erosion, or other events;

(2) Maintain and monitor the leachate detection, collection and removal system and

comply with all other applicable leachate detection system requirements of this part;

(3) Perform a one-year hydrologic study prior to closing the impoundment that

defines baseline surface water and groundwater quality;

(4) Monitor all surface water discharges (including permitted NPDES discharges,

flows from the top of the filled impoundment, and breakouts from dikes) shall be

monitored. Any exceedance of Clean Water Act standards will require corrective

action responses to permanently halt the exceedances. [Note: requirements for

monitoring and maintenance of surface water monitoring systems will be added at

a later date];

(5) Maintain and monitor the groundwater monitoring system and comply with all

other applicable requirements of Section 253.53 of this part;

(6) Prevent run-on and run-off from eroding or otherwise damaging the final cap; and

(7) Prevent the erosion or structural compromise of dikes, berms, any other earthen or

manmade structures that contain the waste on site; and

(8) Present a plan that will accomplish these steps and maintain the site for at least a
50

30-year period, certified by an independent professional engineer, to the EPA

Regional Administrator for approval. The plan must be approved by the EPA

Regional Administrator prior to initiation of any closure activities including the

performance of the hydrologic study in (b)(3).

(c) If an owner or operator plans to close a surface impoundment in accordance with

paragraph (a)(1) of this section, and the impoundment does not comply with the liner

requirements of Section 253.30 (c), then:

(1) The closure plan for the impoundment must include both a plan for complying

with paragraph (a)(1) of this section and a contingent plan for complying with

paragraphs (a)(2) – (a)(4) of this section in case not all contaminated subsoils can be

practicably removed at closure; and

(2) The owner or operator must comply with paragraph (b) of this section in case not

all contaminated subsoils can be practicably removed at closure.

(d) The cost estimates calculated for closure and post-closure care of an impoundment

subject to this paragraph must include the cost of complying with the contingent closure

plan and the contingent post-closure plan.

Sec. 253.53 Post-closure care for CCW surface impoundments

[Additional requirements to be added pending further analysis.]

Subpart G--Financial Assurance Criteria

Sec. 253.60 Applicability.

(a) The requirements of this section apply to owners and operators of all CCW disposal

units, except owners or operators who are State or Federal Government entities whose

debts and liabilities are the debts and liabilities of a State or the United States.

(b) In this part, Owner means the person(s) who owns a CCW disposal unit or part of a

CCW disposal unit.

(c) Operator means the person(s) responsible for the overall operation of a CCW disposal

unit or part of a CCW disposal unit.

Sec. 253.61 Financial assurance for closure.

(a) The owner or operator must have a detailed written estimate, in current dollars,

approved by the EPA Regional Administrator of the cost of hiring a third party to close

the largest area of all CCW disposal units ever requiring a final cap as required under

Sec. 253.50 at any time during the active life in accordance with the closure plan. The

owner or operator must notify the EPA Regional Administrator that the estimate has been

placed in the operating record.

(1) The cost estimate must equal the cost of closing the largest area of all portions of

the CCW disposal unit ever requiring a final cap at any time during the active life

when the extent and manner of its operation would make closure the most expensive,

as indicated by its closure plan (see Sec. 253.50(c)(2)).
51

(2) During the active life of the CCW disposal unit, the owner or operator must

annually adjust the closure cost estimate for inflation.

(3) The owner or operator must increase the closure cost estimate and the amount of

financial assurance provided under paragraph (b) of this Section if changes to the

closure plan or CCW disposal unit conditions increase the maximum cost of closure at

any time during the remaining active life.

(4) The owner or operator may reduce the closure cost estimate and the amount of

financial assurance provided under paragraph (b) of this Section if the cost estimate

exceeds the maximum cost of closure at any time during the remaining life of the

CCW disposal unit. Within 14 days of this finding, the person managing CCW must

notify the EPA Regional Administrator that the justification for the reduction of the

closure cost estimate and the amount of financial assurance has been placed in the

operating record. The existing amount of financial assurance may not be reduced to

the amount estimated for the reduced closure cost until the reduction in cost is

approved by the EPA Regional Administrator.

(b) For each CCW disposal unit receiving CCW after the effective date of the rule, the

owner or operator must establish financial assurance for closure in compliance with Sec.

253.64. The owner or operator must provide continuous coverage for closure until

released from financial assurance requirements by demonstrating compliance with Sec.

253.50 (h) and (i). [At Sec. 253(h), I assume you want the Reg. Admin. to approve the

certified closure completion statement that is submitted to him/her.]

Sec. 253.62 Financial assurance for post-closure care.

(a) The owner or operator must have a detailed written estimate, in current dollars,

approved by the EPA Regional Administrator of the cost of hiring a third party to

conduct post-closure care for the CCW disposal unit in compliance with the post-closure

care plan developed under Sec. 253.51. The post-closure care cost estimate used to

demonstrate financial assurance in paragraph (b) of this Section must account for the total

costs of conducting post-closure care, including annual and periodic costs as described in

the post-closure care plan over the entire post-closure care period. The owner or operator

must notify the EPA Regional Administrator that the estimate has been placed in the

operating record.

(1) The cost estimate for post-closure care must be based on the most expensive costs

of post-closure care during the entire post-closure care period.

(2) During the active life of the CCW disposal unit and during the post-closure care

period, the owner or operator must annually adjust the post-closure cost estimate for

inflation.

(3) The owner or operator must increase the post-closure care cost estimate and the

amount of financial assurance provided under paragraph (b) of this section if changes

in the post-closure plan or CCW disposal unit conditions increase the maximum costs

of post-closure care.

(4) The owner or operator may reduce the post-closure care cost estimate and the
52

amount of financial assurance provided under paragraph (b) of this section if the cost

estimate exceeds the maximum costs of post-closure care remaining over the postclosure care period. Within 14 days of this finding, the owner or operator must notify

the EPA Regional Administrator that the justification for the reduction of the postclosure cost estimate and the amount of financial assurance has been placed in the

operating record. The existing amount of financial assurance may not be reduced to

the amount estimated for the reduced post-closure cost until the reduction in cost is

approved by the EPA Regional Administrator.

(b) The owner or operator of each CCW disposal unit must establish, in a manner in

accordance with Sec. 253.64, financial assurance for the costs of post-closure care as

required under Sec. 253.51. The owner or operator must provide continuous coverage for

post-closure care until released from financial assurance requirements for post-closure

care by demonstrating compliance with Sec. 253.51(e).

Sec. 253.63 Financial assurance for corrective action.

(a) An owner or operator in a CCW disposal unit required to undertake a corrective

action program under Sec. 253.48 must have a detailed written estimate, in current

dollars, approved by the EPA Regional Administrator of the cost of hiring a third party to

perform the corrective action in accordance with the program required under Sec. 253.48.

The corrective action cost estimate must account for the total costs of corrective action

activities as described in the corrective action plan for the entire corrective action period.

Prior to undertaking corrective action under Sec. 253.48, the owner or operator must

notify the EPA Regional Administrator that the estimate has been placed in the operating

record.

(1) The owner or operator must annually adjust the estimate for inflation until the

corrective action program is completed in accordance with Sec. 253.48(f).

(2) The owner or operator must increase the corrective action cost estimate and the

amount of financial assurance provided under paragraph (b) of this section if changes

in the corrective action program or CCW disposal unit conditions increase the

maximum costs of corrective action.

(3) The owner or operator may reduce the amount of the corrective action cost

estimate and the amount of financial assurance provided under paragraph (b) of this

section if the cost estimate exceeds the maximum remaining costs of corrective action.

Within 14 days of making an annual adjustment under paragraph (a)(1) of this section,

the owner or operator must notify the EPA Regional Administrator that the

justification for the reduction or increase of the corrective action cost estimate and the

amount of financial assurance has been placed in the operating record. The existing

amount of financial assurance may not be reduced to a lesser amount estimated for a

reduced cost for corrective action until the reduction in cost is approved by the EPA

Regional Administrator.

(b) An owner or operator in a CCW disposal unit, if required to undertake a corrective

action program under Sec. 253.48 must establish financial assurance using the allowable

mechanisms defined under Sec. 253.64. An owner or operator in a CCW disposal unit

must establish financial assurance for all corrective action programs initiated during the
53

active life of the unit, closure, and post-closure care periods. The owner or operator must

provide continuous coverage for corrective action.

Sec. 253.64 Allowable mechanisms.

 The mechanisms used to demonstrate financial assurance under this Section must

ensure that the funds necessary to meet the costs of closure, post-closure care, and

corrective action for known releases will be available whenever they are needed. Persons

managing CCW must choose from the options specified in paragraphs (a) through (j) of

this section.

(a) Trust Fund.

(1) The owner or operator may satisfy the requirements of this section by establishing

a trust fund that conforms to the requirements of this paragraph. The trustee must be

an entity which has the authority to act as a trustee and whose trust operations are

regulated and examined by a Federal or State agency. A copy of the trust agreement

must be placed in the facility's operating record.

(2) Payments into the trust fund must be made annually by the owner or operator over

the term of the initial control mechanism or over the remaining life of the CCW

disposal unit, whichever is shorter, in the case of a trust fund for closure or postclosure care, or over one-half of the estimated length of the corrective action program

in the case of corrective action for known releases. This period is referred to as the

pay-in period.

(3) For a trust fund used to demonstrate financial assurance for closure and postclosure care, the first payment into the fund must be at least equal to the current cost

estimate for closure or post-closure care, except as provided in paragraph (k) of this

section, divided by the number of years in the pay-in period as defined in paragraph

(a)(2) of this section. The amount of subsequent payments must be determined by the

following formula:

Next Payment = [CE-CV]/Y

Where: CE is the current cost estimate for closure or post-closure care (updated for

inflation or other changes), CV is the current value of the trust fund, and Y is the

number of years remaining in the pay-in period.

(4) For a trust fund used to demonstrate financial assurance for corrective action, the

first payment into the trust fund must be at least equal to one-half of the current cost

estimate for corrective action, except as provided in paragraph (k) of this section,

divided by the number of years in the corrective action pay-in period as defined in

paragraph (a)(2) of this Section. The amount of subsequent payments must be

determined by the following formula:

Next Payment = [RB-CV]/Y

Where: RB is the most recent estimate of the required trust fund balance for

corrective action (i.e., the total costs that will be incurred during the second half of the

corrective action period), CV is the current value of the trust fund, and Y is the
54

number of years remaining in the pay-in period.

 (5) The initial payment into the trust fund must be made before the initial receipt of

waste or before two years elapse after the effective date of this rule, whichever is later;

in the case of closure and post-closure care, or no later than 120 days after the

corrective action remedy has been selected in accordance with the requirements of

Sec. 253.48.

(6) If the owner or operator establishes a trust fund after having used one or more

alternate mechanisms specified in this Section, the initial payment into the trust fund

must be at least the amount that the fund would contain if the trust fund were

established initially and annual payments made according to the specifications of this

paragraph and paragraph (a) of this section, as applicable.

(7) The owner or operator, or other person authorized to conduct closure, post-closure

care, or corrective action activities may request reimbursement from the trustee for

these expenditures. Requests for reimbursement will be granted by the trustee only if

sufficient funds are remaining in the trust fund to cover the remaining costs of closure,

post-closure care, or corrective action, and if justification and documentation of the

cost is placed in the operating record. Prior to reimbursement, the owner or operator

must notify the EPA Regional Administrator that the documentation of the

justification for reimbursement has been placed in the operating record and that

reimbursement has been received.

(8) The trust fund may be terminated by the owner or operator only if the owner or

operator substitutes alternate financial assurance as specified in this Section or if he is

no longer required to demonstrate financial responsibility in accordance with the

requirements of Sec. 253.61(b), Sec. 253.62(b), or Sec. 253.63(b).

(b) Surety Bond Guaranteeing Payment or Performance.

 (1) The owner or operator may demonstrate financial assurance for closure or postclosure care by obtaining a payment or performance surety bond that conforms to the

requirements of this paragraph. The owner or operator may demonstrate financial

assurance for corrective action by obtaining a performance bond that conforms to the

requirements of this paragraph. The bond must be effective before the initial receipt

of waste or before two years elapse after [the effective date of this rule], whichever is

later; in the case of closure and post-closure care, the bond must be effective no later

than 120 days after the corrective action remedy has been selected in accordance with

the requirements of Sec. 253.48. Within 14 days after demonstrating financial

assurance according to this section, the owner or operator must notify the EPA

Regional Administrator that a copy of the bond has been placed in the operating

record. The surety company issuing the bond must, at a minimum, be among those

listed as acceptable sureties on Federal bonds in Circular 570 of the U.S. Department

of the Treasury.

 (2) The penal sum of the bond must be in an amount at least equal to the current

closure, post-closure care or corrective action cost estimate, whichever is applicable,

except as provided in paragraph (k) of this section.

 (3) Under the terms of the bond, the surety will become liable on the bond
55

obligation when the owner or operator fails to perform as guaranteed by the bond.

 (4) The owner or operator must establish a standby trust fund. The standby trust

fund must meet the requirements of paragraph (a) of this Section except the

requirements for initial payment and subsequent annual payments specified in

paragraphs (a)(2), (3), (4) and (5) of this section.

 (5) Payments made under the terms of the bond will be deposited by the surety

directly into the standby trust fund. Payments from the trust fund must be approved by

the trustee.

 (6) Under the terms of the bond, the surety may cancel the bond by sending notice

of cancellation by certified mail to the owner and operator and to the EPA Regional

Administrator 120 days in advance of cancellation. If the surety cancels the bond, the

owner or operator must obtain alternate financial assurance as specified in this section.

 (7) The owner or operator may cancel the bond only if alternate financial assurance

is substituted as specified in this Section or if the owner or operator is no longer

required to demonstrate financial responsibility in accordance with Sec. 253.61(b),

Sec. 253.62(b) or Sec. 253.63(b).

(c) Letter of Credit.

(1) The owner or operator may satisfy the requirements of this Section by obtaining

an irrevocable standby letter of credit that conforms to the requirements of this

paragraph. The letter of credit must be effective before the initial receipt of waste or

before two years elapse after the effective date of this rule, whichever is later; in the

case of closure and post-closure care, the letter of credit must be effective no later

than 120 days after the corrective action remedy has been selected in accordance with

the requirements of Sec. 253.48. Within 14 days after obtaining a letter of credit, the

owner or operator must notify the EPA Regional Administrator that a copy of the

letter of credit has been placed in the operating record. The issuing institution must be

an entity which has the authority to issue letters of credit and whose letter-of-credit

operations are regulated and examined by a Federal or State agency.

(2) A letter from the owner or operator referring to the letter of credit by number,

issuing institution, and date, and providing the following information: Name, and

address of the facility, and the amount of funds assured, must be included with the

letter of credit in the operating record.

(3) The letter of credit must be irrevocable and issued for a period of at least one year

in an amount at least equal to the current cost estimate for closure, post-closure care or

corrective action, whichever is applicable, except as provided in paragraph (k) of this

Section. The letter of credit must provide that the expiration date will be automatically

extended for a period of at least one year unless the issuing institution has canceled the

letter of credit by sending notice of cancellation by certified mail to the owner and

operator and to the EPA Regional Administrator 120 days in advance of cancellation.

If the letter of credit is canceled by the issuing institution, the owner or operator must

obtain alternate financial assurance.

(4) The owner or operator may cancel the letter of credit only if alternate financial

assurance is substituted as specified in this Section or if the owner or operator is
56

released from the requirements of this Section in accordance with Sec. 253.61(b), Sec.

253.62(b) or Sec. 253.63(b).

(d) Insurance.

(1) The owner or operator may demonstrate financial assurance for closure and postclosure care by obtaining insurance that conforms to the requirements of this

paragraph. The insurance must be effective before the initial receipt of waste or before

two years elapse after the effective date of the requirements of this rule, whichever is

later; in the case of closure and post-closure care, the insurance must be effective no

later than 120 days after the corrective action remedy has been selected in accordance

with the requirements of Sec. 253.48. At a minimum, the insurer must be licensed to

transact the business of insurance, or eligible to provide insurance as an excess or

surplus lines insurer, in one or more States. Within 14 days after obtaining insurance,

the owner or operator must notify the EPA Regional Administrator that a copy of the

insurance policy has been placed in the operating record.

(2) The closure or post-closure care insurance policy must guarantee that funds will be

available to close the CCW disposal unit whenever final closure occurs and/or to

provide post-closure care for the CCW disposal unit whenever the post-closure care

period begins, whichever is applicable. The policy must also guarantee that once

closure or post-closure care begins, the insurer will be responsible for the paying out

of funds to the owner or operator or other person authorized to conduct closure or

post-closure care, up to an amount equal to the face amount of the policy.

(3) The insurance policy must be issued for a face amount at least equal to the current

cost estimate for closure or post-closure care, whichever is applicable. The term face

amount means the total amount the insurer is obligated to pay under the policy.

Actual payments by the insurer will not change the face amount, although the

insurer's future liability will be lowered by the amount of the payments.

(4) A owner or operator, or any other person authorized to conduct closure or postclosure care, may receive reimbursements for closure or post-closure expenditures,

whichever is applicable. Requests for reimbursement will be granted by the insurer

only if the remaining value of the policy is sufficient to cover the remaining costs of

closure or post-closure care, and if justification and documentation of the cost is

placed in the operating record. Within 14 days after reimbursement, the owner or

operator must notify the EPA Regional Administrator that the documentation of the

justification for reimbursement has been placed in the operating record and that

reimbursement has been received.

(5) Each policy must contain a provision allowing assignment of the policy to a

successor owner or operator. Such assignment may be conditional upon consent of the

insurer, provided that such consent is not unreasonably refused.

(6) The insurance policy must provide that the insurer may not cancel, terminate or fail

to renew the policy except for failure of payment of premium. The automatic renewal

of the policy must, at a minimum, provide the insured with the option of renewal at the

face amount of the expiring policy. If there is a failure to pay the premium, the insurer

may cancel the policy by sending notice of cancellation by certified mail to the owner
57

and operator and to the EPA Regional Administrator 120 days in advance of

cancellation. If the insurer cancels the policy, the owner or operator must obtain

alternate financial assurance as specified in this section.

(7) For insurance policies providing coverage for post-closure care, commencing on

the date that liability to make payments pursuant to the policy accrues, the insurer will

thereafter annually increase the face amount of the policy. Such increase must be

equivalent to the face amount of the policy, less any payments made, multiplied by an

amount equivalent to 85 percent of the most recent investment rate or of the equivalent

coupon-issue yield announced by the U.S. Treasury for 26-week Treasury securities.

(8) The owner or operator may cancel the insurance policy only if alternate financial

assurance is substituted as specified in this Section or if the owner or operator is no

longer required to demonstrate financial responsibility in accordance with the

requirements of Sec. 253.61(b), Sec. 253.62(b) or Sec. 253.63(b).

(e) Corporate Financial Test. The owner or operator that satisfies the requirements of this

paragraph may demonstrate financial assurance up to the amount specified herein:

 (1) Financial Component.

 (i) The owner or operator must satisfy one of the following three conditions:

(A) A current rating for its senior unsecured debt of AAA, AA, A, or BBB as

issued by Standard and Poor's or Aaa, Aa, A or Baa as issued by Moody's; or

(B) A ratio of less than 1.5 comparing total liabilities to net worth; or

(C) A ratio of greater than 0.10 comparing the sum of net income plus

depreciation, depletion and amortization, minus $10 million, to total liabilities.

 (ii) The tangible net worth of the owner or operator must be greater than:

(A) The sum of the current closure, post-closure care, corrective action cost

estimates and any other environmental obligations, including guarantees,

covered by a financial test plus $10 million except as provided in paragraph

(e)(1)(ii)(B) of this section.

(B) $10 million in net worth plus the amount of any guarantees that have not

been recognized as liabilities on the financial statements, provided all of the

current closure, post-closure care, and corrective action costs and any other

environmental obligations covered by a financial test are recognized as liabilities

on the owner's or operator's audited financial statements, and subject to the

approval of the EPA Regional Administrator.

(iii) The owner or operator must have assets located in the United States amounting

to at least the sum of current closure, post-closure care, corrective action cost

estimates and any other environmental obligations covered by a financial test as

described in paragraph (e)(3) of this Section.

(2) Recordkeeping and reporting requirements.

(i) As they become available, the owner or operator must place the following items

into the facility's operating record:
58

(A) A letter signed by the owner's or operator's chief financial officer that:

(1) Lists all the current cost estimates covered by a financial test, including, but

not limited to, cost estimates required for municipal solid waste management

facilities under 40 CFR Part 258, cost estimates required for UIC facilities under

40 CFR Part 144, if applicable, cost estimates required for petroleum

underground storage tank facilities under 40 CFR Part 280, if applicable, cost

estimates required for PCB storage facilities under 40 CFR Part 261, if

applicable, and cost estimates required for hazardous waste treatment, storage,

and disposal facilities under 40 CFR Parts 264 and 265, if applicable; and

(2) Provides evidence demonstrating that the firm meets the conditions of either

paragraph (e)(1)(i)(A) or (e)(1)(i)(B) or (e)(1)(i)(C) and paragraphs (e)(1)(ii) and

(e)(1)(iii) of this Section.

(B) A copy of the independent certified public accountant's unqualified opinion

of the owner's or operator's financial statements for the latest completed fiscal

year. To be eligible to use the financial test, the owner's or operator's financial

statements must receive an unqualified opinion from the independent certified

public accountant. An adverse opinion, disclaimer of opinion, or other qualified

opinion will be cause for disallowance, with the potential exception for qualified

opinions provided in the next sentence. The EPA Regional Administrator may

evaluate qualified opinions on a case-by-case basis and allow use of the

financial test in cases where the EPA Regional Administrator deems that the

matters which form the basis for the qualification are insufficient to warrant

disallowance of the test. If the EPA Regional Administrator does not allow use

of the test, the owner or operator must provide alternate financial assurance that

meets the requirements of this Section.

(C) If the chief financial officer's letter providing evidence of financial

assurance includes financial data showing that owner or operator satisfies

paragraphs (e)(1)(i)(B) or (e)(1)(i)(C) of this section that are different from data

in the audited financial statements referred to in paragraph (e)(2)(i)(B) of this

Section or any other audited financial statement or data filed with the Securities

and Exchange Commission (SEC) then a special report from the owner's or

operator's independent certified public accountant to the owner or operator is

required. The special report shall be based upon an agreed upon procedures

engagement in accordance with professional auditing standards and shall

describe the procedures performed in comparing the data in the chief financial

officer's letter derived from the independently audited, year-end financial

statements for the latest fiscal year with the amounts in such financial

statements, the findings of that comparison, and the reasons for any differences.

(D) If the chief financial officer's letter provides a demonstration that the firm

has assured for environmental obligations as provided in paragraph (e)(1)(ii)(B)

of this section, then the letter shall include a report from the independent

certified public accountant that verifies that all of the environmental obligations

covered by a financial test have been recognized as liabilities on the audited

financial statements, how these obligations have been measured and reported,
59

and that the tangible net worth of the firm is at least $10 million plus the amount

of any guarantees provided.

(ii) The owner or operator must place the items specified in paragraph (e)(2)(i) of

this section in the operating record and notify the EPA Regional Administrator that

these items have been placed in the operating record before the initial receipt of

waste or before two years elapse after the effective date of this rule, whichever is

later; in the case of closure, and post-closure care, items specified in paragraph

(e)(2)(i) of this section must have been placed in the operating record no later than

120 days after the corrective action remedy has been selected in accordance with

the requirements of Sec. 253.48.

(iii) After the initial placement of items specified in paragraph (e)(2)(i) of this

section in the operating record, the owner or operator must annually update the

information and place updated information in the operating record within 90 days

following the close of the owner or operator's fiscal year. The EPA Regional

Administrator may provide up to an additional 45 days for a owner or operator who

can demonstrate that 90 days is insufficient time to acquire audited financial

statements. The updated information must consist of all items specified in

paragraph (e)(2)(i) of this section.

(iv) The owner or operator is no longer required to submit the items specified in

paragraph (e)(2) of this section or comply with the requirements of this paragraph

when:

 (A) The person substitutes alternate financial assurance as specified in this

section that is not subject to these recordkeeping and reporting requirements; or

 (B) The person is released from the requirements of this section in accordance

with Sec. 253.61(b), Sec. 253.62(b), or Sec. 253.63(b).

(v) If the owner or operator no longer meets the requirements of paragraph (e)(1) of

this section, the owner or operator must, within 120 days following the close of the

owner or operator's fiscal year, obtain alternative financial assurance that meets the

requirements of this section, place the required submissions for that assurance in

the operating record, and notify the EPA Regional Administrator that the owner or

operator no longer meets the criteria of the financial test and that alternate

assurance has been obtained.

(vi) The EPA Regional Administrator may, based on a reasonable belief that the

owner or operator may no longer meet the requirements of paragraph (e)(1) of this

section, require at any time the owner or operator to provide reports of its financial

condition in addition to or including current financial test documentation as

specified in paragraph (e)(2) of this section. If the EPA Regional Administrator

finds that the owner or operator no longer meets the requirements of paragraph

(e)(1) of this section, within 120 days of this finding the owner or operator must

provide alternate financial assurance that meets the requirements of this section.

(vii) Calculation of costs to be assured. When calculating the current cost estimates

for closure, post-closure care, corrective action, or the sum of the combination of

such costs to be covered, and any other environmental obligations assured by a
60

financial test referred to in paragraph (e) of this section, the owner or operator must

include cost estimates required for coal combustion waste management facilities

under this part, as well as cost estimates required for the following environmental

obligations, if the person assures them through a financial test: obligations

associated with UIC facilities under 40 CFR Part 144, petroleum underground

storage tank facilities under 40 CFR Part 280, PCB storage facilities under 40 CFR

Part 261, and hazardous waste treatment, storage, and disposal facilities under 40

CFR Parts 264 and 265.

(f) Corporate Guarantee.

(1) The owner or operator may meet the requirements of this section by obtaining a

written guarantee. The guarantor must be the direct or higher-tier parent

corporation of the owner or operator, a firm whose parent corporation is also the

parent corporation of the owner or operator, or a firm with a ``substantial business

relationship'' with the owner or operator. The guarantor must meet the requirements

for owners or operators in paragraph (e) of this section and must comply with the

terms of the guarantee. A certified copy of the guarantee must be placed in the

facility's operating record along with copies of the letter from the guarantor's chief

financial officer and accountants' opinions. If the guarantor's parent corporation is

also the parent corporation of the owner or operator, the letter from the guarantor's

chief financial officer must describe the value received in consideration of the

guarantee. If the guarantor is a firm with a ``substantial business relationship'' with

the owner or operator, this letter must describe this ``substantial business

relationship'' and the value received in consideration of the guarantee.

(2) The guarantee must be effective and all required submissions placed in the

operating record before the initial receipt of waste or before the effective date of the

requirements of this section, whichever is later, in the case of closure and postclosure care, or in the case of corrective action no later than 120 days after the

corrective action remedy has been selected in accordance with the requirements of

Sec. 253.48.

(3) The terms of the guarantee must provide that:

 (i) If the owner or operator fails to perform closure, post-closure care, and/or

corrective action of a facility covered by the guarantee, the guarantor will:

 (A) Perform, or pay a third party to perform, closure, post-closure care, and/or

corrective action as required (performance guarantee); or

 (B) Establish a fully funded trust fund as specified in paragraph (a) of this

section in the name of the owner or operator (payment guarantee).

 (ii) The guarantee will remain in force for as long as the owner or operator must

comply with the applicable financial assurance requirements of this Subpart unless

the guarantor sends prior notice of cancellation by certified mail to the owner or

operator and to the EPA Regional Administrator. Cancellation may not occur,

however, during the 120 days beginning on the date of receipt of the notice of

cancellation by both the owner or operator and the EPA Regional Administrator, as

evidenced by the return receipts.
61

 (iii) If notice of cancellation is given, the owner or operator must, within 90 days

following receipt of the cancellation notice by the owner or operator and the EPA

Regional Administrator, obtain alternate financial assurance, place evidence of that

alternate financial assurance in the facility operating record, and notify the EPA

Regional Administrator. If the owner or operator fails to provide alternate financial

assurance within the 90-day period, the guarantor must provide that alternate

assurance within 120 days of the cancellation notice, obtain alternative assurance,

place evidence of the alternate assurance in the facility operating record, and notify

the EPA Regional Administrator.

(4) If a corporate guarantor no longer meets the requirements of paragraph (e)(1) of

this section, the owner or operator must, within 90 days, obtain alternative assurance,

place evidence of the alternate assurance in the facility operating record, and notify

the EPA Regional Administrator. If the owner or operator fails to provide alternate

financial assurance within the 90-day period, the guarantor must provide that alternate

assurance within the next 30 days.

 (5) The owner or operator is no longer required to meet the requirements of

paragraph (g) of this section when:

 (i) The owner or operator substitutes alternate financial assurance as specified in

this section; or

 (ii) The owner or operator is released from the requirements of this section in

accordance with Sec. 253.61(b), Sec. 253.62(b), or Sec. 253.63(b).

(g) State-Approved Mechanism. In an authorized State, the owner or operator may satisfy

the requirements of this section by obtaining any other mechanism that meets the criteria

specified in paragraph (j)(1) Of this section, and that is approved by the State Director.

(h) State Assumption of Responsibility. If the State Director either assumes legal

responsibility for the person's compliance with the closure, post-closure care and/or

corrective action requirements of this part, or assures that the funds will be available from

State sources to cover the requirements, the owner or operator will be in compliance with

the requirements of this section. Any State assumption of responsibility must meet the

criteria specified in paragraph (j)(1) of this section.

(i) Use of multiple mechanisms. The owner or operator may demonstrate financial

assurance for closure, post-closure, and corrective action, as required by Sec. 253.61,

Sec. 253.62, and Sec. 253.63 by establishing more than one mechanism per facility,

except that mechanisms guaranteeing performance rather than payment, may not be

combined with other instruments. The mechanisms must be as specified in paragraphs

(a), (b), (c), (d), (e), (f), (g), (h), and (i) of this section, except that financial assurance for

an amount at least equal to the current cost estimate for closure, post-closure care, and/or

corrective action may be provided by a combination of mechanisms rather than a single

mechanism.

(j) The language of the mechanisms listed in paragraphs (a), (b), (c), (d), (e), (f), (g), (h),

and (i) of this section must ensure that the instruments satisfy the following criteria:
62

(1) The financial assurance mechanisms must ensure that the amount of funds assured

is sufficient to cover the costs of closure, post-closure care, and corrective action for

known releases when needed;

(2) The financial assurance mechanisms must ensure that funds will be available in a

timely fashion when needed;

(3) The financial assurance mechanisms must be obtained by the owner or operator by

the effective date of these requirements or prior to the initial receipt of solid waste,

whichever is later, in the case of closure and post-closure care, and no later than 120

days after the corrective action remedy has been selected in accordance with the

requirements of Sec. 253.48, until the owner or operator is released from the financial

assurance requirements under Secs. 253.61, 253.62 and 253.63.

(4) The financial assurance mechanisms must be legally valid, binding, and

enforceable under State and Federal law.

Sec. 253.65 Discounting.

The EPA Regional Administrator may allow discounting of closure cost estimates in Sec.

253.61(a), post-closure cost estimates in Sec. 253.62(a), and/or corrective action costs in

Sec. 253.63(a) up to the rate of return for essentially risk free investments, net of

inflation, under the following conditions:

(a) The EPA Regional Administrator determines that cost estimates are complete and

accurate and the owner or operator has submitted a statement from a Registered

Professional Engineer so stating;

(b) The EPA Regional Administrator finds the facility in compliance with applicable and

appropriate permit conditions;

(c) The EPA Regional Administrator determines that the closure date is certain and the

owner or operator certifies that there are no foreseeable factors that will change the

estimate of site life; and

(c) Discounted cost estimates must be adjusted annually to reflect inflation and years

of remaining life.
63

 Appendix I to Part 253--Constituents for Detection Monitoring

------------------------------------------------------------------------

 Common Name 1

-------------------------------------------------------------------------

pH

Conductivity

Total Dissolved Solids

Aluminum

Antimony

Arsenic

Barium

Beryllium

Boron

Cadmium

Calcium

Chloride

Chromium (Total)

Chromium (hexavalent)

Copper

Fluoride

Iron

Lead

Mercury

Nickel

Magnesium

Manganese

Molybdenum

Potassium

Selenium

Silver

Sodium

Sulfate

Thallium

Zinc

------------------------------------------------------------------------ 1

 Common names are those used widely in government regulations, scientific

publications, and commerce; synonyms exist for many chemicals.