34252 Federal Register / Vol. 61, No. 127 / Monday, July 1, 1996 / Rules and Regulations

ENVIRONMENTAL PROTECTION

AGENCY

40 CFR Parts 257, 261, and 271

[FRL–5528–4]

RIN 2050–AE11

Criteria for Classification of Solid

Waste Disposal Facilities and

Practices; Identification and Listing of

Hazardous Waste; Requirements for

Authorization of State Hazardous

Waste Programs

AGENCY: Environmental Protection

Agency.

ACTION: Final rule.

SUMMARY: The Environmental Protection

Agency today is promulgating revisions

to the existing criteria for solid waste

disposal facilities and practices. These

revisions were developed in response to

the 1984 Hazardous and Solid Waste

Amendments to the Resource

Conservation and Recovery Act (RCRA).

Today’s final revisions establish that

only those non-municipal nonhazardous waste disposal units that

meet specific standards may receive

conditionally exempt small quantity

generator (CESQG) hazardous wastes.

Today’s final revisions establish

standards pertaining to location

restrictions, ground-water monitoring

and corrective action.

The EPA is also finalizing revisions to

regulations for hazardous wastes

generated by CESQGs. Today’s final

language will clarify acceptable disposal

options under Subtitle D of RCRA by

specifying that CESQG hazardous waste

may be managed at municipal solid

waste landfills subject to Part 258 and

at nonmunicipal non-hazardous waste

disposal units subject to today’s revised

Criteria.

EFFECTIVE DATES: January 1, 1998, except

§§ 257.21 through 257.28 which are

effective July 1, 1998, and §§ 261.5(f),

261.5(g) and 271.1 which are effective

January 1, 1997, but which have a

compliance date of January 1, 1998. The

information collection requirements

contained in §§ 257.24, 257.25, and

257.27 have not been approved by the

Office of Management and Budget

(OMB) and are not effective until OMB

has approved them.

ADDRESSES: The public docket for this

rulemaking (docket number F–96–

NCEF–FFFFF) is located at the U.S.

Environmental Protection Agency,

Crystal Gateway Building, 1235

Jefferson Davis Highway, First Floor,

Arlington, Virginia. The public docket is

available for viewing from 9 a.m. to 4

p.m., Monday through Friday, excluding

federal holidays. Appointments may be

made by calling (703) 603–9230. Copies

cost $0.15/page.

FOR FURTHER INFORMATION CONTACT: For

specific information on aspects of the

final rule, please contact Paul Cassidy of

the Industrial Solid Waste Branch of the

Office of Solid Waste at 1–703–308–

7281. For a paper copy of the Federal

Register notice or for general

information, please contact the RCRA

Hotline at 1–800–424–9346 or at 1–703–

412–9810.

SUPPLEMENTARY INFORMATION:

Regulated Entities

Entities potentially regulated by this

action are owners/operators of nonmunicipal non-hazardous waste

disposal units that may receive

conditionally exempt small quantity

generator (CESQG) hazardous waste.

Regulated categories and entities

include:

Category Examples of regulated entities

Construction and

demolition waste

disposal firms.

Owners/operators of

construction and

demolition waste

disposal units that

may receive

CESQG hazardous

waste.

Industrial manufacturing plants.Owners/operators of

non-municipal nonhazardous waste

disposal units that

may receive

CESQG hazardous

waste.

This table is not intended to be

exhaustive, but rather provides a guide

for readers regarding entities likely to be

regulated by this action. This table lists

the type of entities that EPA is now

aware could potentially be regulated by

this action. Other types of entities not

listed in the table could also be

regulated. To determine whether your

non-municipal non-hazardous waste

disposal unit is regulated by this action,

you should carefully examine the

applicability section of this final rule

(i.e., section 257.5). If you have any

questions regarding the applicability of

this action to a particular entity, consult

the person listed in the preceding FOR

FURTHER INFORMATION CONTACT section.

This Federal Register notice will be

available in electronic format on the

Internet system through the EPA Public

Access Server @ gopher.epa.gov.

How to Access the Net

1. Through Gopher: Go to:

gopher.epa.gov. From the main menu,

choose ‘‘EPA Offices and Regions’’.

Next, choose ‘‘Office of Solid Waste and

Emergency Response (OSWER)’’. Next,

choose ‘‘Office of Solid Waste’’. Then,

choose ‘‘Non-Hazardous Waste—RCRA

Subtitle D’’. Finally, choose

‘‘Industrial’’.

2. Through FTP: Go to: ftp.epa.gov.

Login: anonymous

Password: Your Internet Address

Files are located in directories/pub/

gopher. All OSW files are in directories

beginning with ‘‘OSW’’.

3. Through MOSAIC: Go to:

http://www.epa.gov. Choose the EPA

Public Access Gopher. From the main

(Gopher) menu, choose ‘‘EPA Offices

and Regions’’. Next, choose ‘‘Office of

Solid Waste and Emergency Response

(OSWER)’’. Next, choose ‘‘Office of

Solid Waste’’. Then, choose ‘‘NonHazardous Waste—RCRA Subtitle D’’.

Finally, choose ‘‘Industrial’’.

4. Through dial-up access: Dial 919–

558–0335. Choose EPA Public Access

Gopher. From the main (Gopher) menu,

choose ‘‘EPA Offices and Regions’’.

Next, choose ‘‘Office of Solid Waste and

Emergency Response (OSWER)’’. Next,

choose ‘‘Office of Solid Waste’’. Then,

choose ‘‘Non-Hazardous Waste—RCRA

Subtitle D’’. Finally, choose

‘‘Industrial’’.

Preamble Outline

I. Authority

II. Background

A. Current Solid Waste Controls under the

Resource Conservation and Recovery Act

(RCRA)—Non-Hazardous Waste

Management: Municipal Wastes

B. Sierra Club Lawsuit

C. Summary of Proposal Rule

III. Summary of Regulatory Approach of

Today’s Final Rule

IV. Major Issues

A. Non-Municipal Non-Hazardous Waste

Disposal Units that May Receive CESQG

Hazardous Wastes

B. Decision to Impose or Go Beyond the

Statutory Minimum Components

C. Decision to Use the Part 258 Criteria

Language or General Performance

Language

V. Summary of Today’s Final Rule

VI. Specifics of Today’s Final Rule

A. Section 257.5—Applicability

B. Sections 257.7–257.13—Location

Restrictions

C. Sections 257.21–257.28—Ground-Water

Monitoring and Corrective Action

D. Section 257.30—Recordkeeping

Requirements

E. Special Requirements for Hazardous

Waste Generated by Conditionally

Exempt Small Quantity Generators

1. Changes to Section 261.5

2. CESQG Wastes

3. Screening Procedures

VII. Implementation of Today’s Final Rule

VIII. Executive Order No. 12866

IX. Regulatory Flexibility Act

X. Submission to Congress and the General

Accounting Office
Federal Register / Vol. 61, No. 127 / Monday, July 1, 1996 / Rules and Regulations 34253

1 Proposed phrase ‘‘Non-municipal solid waste

disposal facility’’ has been replaced in the final rule

with the phrase ‘‘non-municipal non-hazardous

waste disposal unit’’. See Section VI, A2 of today’s

preamble for an explanation.

XI. Paperwork Reduction Act

XII. Environmental Justice

XIII. Unfunded Mandates Reform Act

I. Authority

Today’s rule is being promulgated

under the authority of sections 1008,

2002 (general rulemaking authority),

3001(d)(4), 4004 and 4010 of RCRA, as

amended. Section 3001(d)(4) authorizes

EPA to promulgate standards for

generators who do not generate more

than 100 kilograms per month of

hazardous waste. Section 4010(c) directs

EPA to revise Criteria promulgated

under sections 1008 and 4004 for

facilities that may receive hazardous

household wastes (HHW) or small

quantity generator (SQG) hazardous

waste.

II. Background

A. Current Solid Waste Controls Under

the Resource Conservation and

Recovery Act (RCRA)—Non-Hazardous

Waste Management: Municipal Wastes

As added by the Hazardous and Solid

Waste Amendments (HSWA) of 1984,

section 4010(c) requires that the

Administrator revise the existing Part

257 Subtitle D Criteria used to classify

facilities as sanitary landfills or open

dumps by March 31, 1988, for facilities

that may receive household hazardous

waste or hazardous waste from small

quantity generators. The required

revisions are those necessary to protect

human health and the environment and

which take into account the practicable

capability of such facilities. At a

minimum, the revised Criteria must

include ground-water monitoring as

necessary to detect contamination,

location restrictions, and provide for

corrective action, as appropriate.

On October 9, 1991, EPA promulgated

revised Criteria for Solid Waste Disposal

Facilities accepting household

hazardous wastes. Those revisions

fulfilled the part of the statutory

mandate found in RCRA section 4010

for all facilities that receive household

hazardous wastes. (Any facility

receiving any household waste is

subject to the revised Criteria, which

were relocated at 40 CFR part 258 for

purposes of clarity). Revisions to the

Part 257 Criteria for other Subtitle D

disposal facilities that may receive

conditionally exempt small quantity

generator (CESQG) hazardous wastes

were delayed as the Agency had little

information concerning the potential or

actual impacts that these types of

facilities may have on human health

and the environment.

B. Sierra Club Lawsuit

The Sierra Club, on October 21, 1993,

filed suit against the EPA in the United

States District Court for the District of

Columbia, seeking to compel the EPA to

promulgate revised Criteria for nonmunicipal facilities that may receive

small quantity generator hazardous

waste.

As a result of the October 21, 1993

lawsuit, the EPA and the Sierra Club

reached agreement on a schedule

concerning revised Criteria for nonmunicipal facilities that may receive

CESQG wastes. This schedule requires

that the EPA Administrator sign a

proposal by May 15, 1995 and a final

rule by July 1, 1996. On May 15, 1995,

the Administrator signed proposed

standards for non-municipal nonhazardous waste disposal units that may

receive CESQG hazardous wastes. These

proposed standards were published in

the Federal Register on June 12, 1995

(see 60 FR 30964).

C. Summary of Proposed Regulatory

Approach

The June 12, 1995 proposal stated that

any non-municipal non-hazardous

waste disposal unit 1 that meets the

proposed requirements may receive

CESQG hazardous waste; if such units

do not meet the proposed requirements,

they may not receive CESQG waste.

Sections 257.5 through 257.30 were

proposed to address appropriate facility

standards for owners/operators of nonmunicipal non-hazardous waste

disposal units that receive CESQG

hazardous wastes. The requirements

proposed in §§ 257.5 through 257.30

were substantially the same as 40 CFR

part 258. The location restrictions were

proposed to be effective 18 months after

publication of the final rule, while the

ground-water monitoring and corrective

action requirements were proposed to

be effective 24 months after publication

of the final rule.

The June 12, 1995 proposal also

proposed to amend the existing

language of § 261.5 clarifying acceptable

Subtitle D management options for

CESQGs. The existing language in

§ 261.5, paragraphs (f)(3) and (g)(3)

allows for a CESQG hazardous waste to

be managed at a hazardous waste

facility (either in interim status or

permitted), a reuse or recycling facility,

or a non-hazardous solid waste facility

that is permitted, licensed, or registered

by a State to manage municipal or

industrial waste. The June 12 proposal

proposed to continue to allow CESQG

waste to be managed at a hazardous

waste facility or at a reuse or recycling

facility; however, if CESQG waste is

managed in a Subtitle D disposal

facility, it must be managed in a

MSWLF that is subject to part 258 or a

non-municipal non-hazardous waste

disposal unit that would be subject to

the facility standards in §§ 257.5

through 257.30.

III. Summary of Regulatory Approach

of Today’s Final Rule

Based on comments received on the

proposed regulatory approach, the EPA

is today finalizing a rule that is almost

identical to the proposed requirements

for non-municipal non-hazardous waste

disposal units that receive CESQG

hazardous wastes. Commentors clearly

did not favor imposing additional

requirements, beyond those proposed,

based on the lack of risks presented by

non-municipal non-hazardous waste

disposal units that receive CESQG

hazardous wastes. Furthermore,

commentors were somewhat divided on

whether to use the part 258

requirements or general performance

standards in writing the requirements.

The EPA has elected to use the part 258

requirements.

Elsewhere in today’s final rule, and

again based on comments that agreed

with the EPA’s proposed regulatory

approach for CESQGs, EPA is finalizing

the proposed changes to the special

requirements for CESQGs (i.e., § 261.5)

to clarify the obligation that the

generators of CESQG wastes have to

ensure proper management of such

wastes. CESQGs are those that generate

no more than 100 kilograms of

hazardous waste or no more than one

kilogram of acutely hazardous waste in

a month and who accumulate no more

than 1000 kilograms of hazardous waste

or no more than one kilogram of acutely

hazardous waste at one time.

As previously discussed, today’s final

rule responds to the statutory language

in RCRA section 4010(c). In responding

initially to the statutory language of

section 4010(c), EPA elected to regulate

municipal solid waste landfills first, due

to the comparatively higher risks

presented by these types of facilities. As

discussed in the proposed rule, the

subject of today’s final rule—nonmunicipal non-hazardous waste

disposal units that receive CESQG

waste—present a small risk relative to

risks presented by other environmental

conditions or situations. Given this

lower risk, the Agency would have

elected not to issue this final rule at this

time. In a time of limited resources,
34254 Federal Register / Vol. 61, No. 127 / Monday, July 1, 1996 / Rules and Regulations

common sense dictates that we deal

with higher priorities first, a principle

on which EPA, members of the

regulated community, and the public

can agree. However, given the D.C

Circuit’s reading of RCRA section

4010(c), Sierra Club v. EPA, 992 F.2d

337, 347 (D.C. Cir. 1993), and a schedule

established as a result of litigation, the

Agency must issue this final rule now.

Faced with having to issue this final

rule for a class of facilities that do not

generally pose risks as high as

municipal solid waste landfills, the

Agency is finalizing requirements that

address only the statutory minimum

requirements in an attempt to reduce

the economic burden on the regulated

community.

A complete discussion of the main

issues associated with today’s final rule

is presented in the next section of

today’s preamble while a discussion of

today’s requirements is presented later

in today’s preamble.

IV. Major Issues

A. Non-Municipal Non-Hazardous

Waste Disposal Units That May Receive

CESQG Hazardous Waste

The proposed rule was written to

provide that only those non-municipal

non-hazardous waste disposal units

which meet the requirements in

§§ 257.5 through 257.30 ‘‘may receive’’

CESQG waste, as required by RCRA

section 4010(c). Any non-municipal

non-hazardous waste disposal unit that

did not meet the proposed requirements

may not receive CESQG hazardous

wastes. The proposal was written to

apply to non-municipal non-hazardous

waste disposal units that receive CESQG

waste for storage, treatment, or disposal,

including such units as surface

impoundments, landfills, land

application units and waste piles. The

regulatory definition of the term

‘‘disposal’’ cover all placement of

wastes on the land. See 40 CFR 257.2.

Several commentors addressed the

Agency’s interpretation of the statutory

language ‘‘may receive’’. One

commentor supported the Agency’s

decision to limit the proposed

regulatory requirements to only those

non-municipal non-hazardous waste

disposal units that receive CESQG

wastes. Another commentor, however,

stated that a closer reading of Section

4010(c) reveals that Congress was not

only concerned about modifying the

criteria for ‘‘facilities that may receive

hazardous household wastes or

hazardous wastes from small quantity

generators * * *’’ but also for ‘‘facilities

potentially receiving such wastes.’’

According to the commentor, the ‘‘may

receive’’ clause of the first sentence in

Section 4010(c) merely refers to whether

a facility may legally receive CESQG

waste for disposal. The ‘‘potentially

receiving such wastes’’ clause of the

third sentence of Section 4010(c) refers

to the actual potential for such facilities

to receive CESQG wastes. The potential

for CESQG waste to be disposed of at

many types of industrial D landfills is

high even with the proposed prohibition

under § 261.5. It is the ‘‘potentially

receiving’’ clause that specifically

commands the Agency to promulgate

provisions for all industrial facilities

that could potentially receive CESQG

wastes.

EPA disagrees with the commentor’s

interpretation of the statutory language

in RCRA section 4010(c). More

specifically, for a number of reasons, the

Agency does not believe that the

statutory language cited by the

commentor evidences congressional

intent that the revised criteria being

promulgated today should address

disposal of solid waste in all industrial

disposal facilities. First, EPA believes

that the commentor errs by focusing

only on the ‘‘facilities potentially

receiving’’ language in the last sentence

of section 4010(c). If one reviews this

language together with the statutory

language in RCRA section 4010(a), it is

clear that Congress did not intend for

the revised criteria being promulgated

today to apply to all industrial landfills.

RCRA section 4010(a) required EPA to

conduct a study of the then existing

guidelines and criteria issued under

RCRA sections 1008 and 4004 which

were applicable to ‘‘solid waste

management and disposal facilities,

including, but not limited to landfills

and surface impoundments.’’ 42 U.S.C.

§ 6949a(a). This statutory language does

indeed suggest that EPA was to study a

wide range of solid waste disposal

facilities, including industrial landfills.

(As the commentor stated, because the

information on industrial disposal

facilities was quite limited, EPA’s report

to Congress did focus on municipal

landfills.)

However, the statutory language in

section 4010(c) directing EPA to

promulgate a rule revising the criteria in

40 CFR Part 257 limits the rule’s

applicability only to those facilities

which may receive hazardous

household waste or small quantity

generator waste. 42 U.S.C. 6949a(c). If

Congress had intended the revised

criteria under section 4010(c) to apply

to all solid waste disposal facilities,

including industrial landfills and

surface impoundments, it clearly could

have done so by enacting language

similar to that already used in section

4010(a).

Secondly, the legislative history of

RCRA section 4010 suggests that

Congress expressly rejected a provision

that would have required rules to be

promulgated under section 4010(c) to

apply to the entire universe of RCRA

Subtitle D solid waste disposal facilities.

Indeed, the House version of section

4010 would have required EPA to

promulgate revised guidelines and

criteria such that they would be

applicable to all ‘‘solid waste

management and disposal facilities,

including, but not limited to landfills

and surface impoundments * * *.’’

H.R. 2867, section 30, 98th Cong., 1st

Sess. (as introduced in the Senate on

November 9, 1983). However, the

Conference Committee instead adopted

a Senate amendment which limited the

scope of the revised criteria to those

facilities that may receive hazardous

household waste or small quantity

generator waste. H. Rept. No. 98–1133,

98th Cong., 2d Sess., at 116–117.

Another indication that RCRA section

4010(c) was not intended to cover the

entire universe of solid waste disposal

facilities is the fact that subsequent to

the enactment of section 4010(c) (as part

of the Hazardous and Solid Waste

Amendments in 1984), a number of bills

were introduced in Congress which

would have either authorized or

required EPA to issue additional

regulations that would address all

disposal facilities receiving industrial

waste as opposed to addressing those

which may receive CESQG waste as

stated in Section 4010(c). See, e.g., H.R.

3735, ‘‘Waste Materials Management

Act of 1989,’’ section 324 (would have

required EPA to promulgate standards

for the management of industrial solid

waste) (Luken Bill); S. 1113, ‘‘Waste

Minimization and Control Act of 1989,’’

section 204 (would have required EPA

to promulgate requirements for facilities

that manage different types of industrial

waste) (Baucus Bill). Neither of these

provisions (although neither was

enacted) would have been necessary if

RCRA section 4010(c) required EPA to

promulgate revised criteria for all types

of industrial disposal facilities.

This same commentor cites to

language in both the Report to Congress

(as provided for in RCRA section

4010(b)) and the MSWLF rulemaking to

suggest that EPA acknowledged that all

industrial landfills, even those not

receiving CESQG waste, should fall

within the scope of today’s rule. EPA

acknowledges that it expressed a

concern about the potential risks that

industrial solid waste disposal facilities

might pose; however, EPA indicated
Federal Register / Vol. 61, No. 127 / Monday, July 1, 1996 / Rules and Regulations 34255

that it did not have the level of

information necessary to conduct a

rulemaking for such disposal facilities.

At the time of issuing the final MSWLF

rule, EPA indicated that it would

attempt to study these facilities to gain

a better understanding of the risks that

they may pose. See 56 FR 51000 (Oct.

9, 1991).

After investigating available

information in more detail, it became

clear that of all industrial solid waste

disposal facilities, only construction

and demolition and off-site commercial

facilities typically receive CESQG waste.

As discussed in the proposed rule,

recent information and discussions with

the relevant industries indicate that onsite industrial disposal facilities (which

make up the vast majority of industrial

disposal facilities) generally do not

receive CESQG waste. However, the

commentor should be aware that EPA

has drafted the rule such that it will

apply to such industrial on-site facilities

if they receive CESQG waste. See

sections 257.5(a) (1) and (3).

B. Decision To Impose or Go Beyond the

Statutory Minimum Components

RCRA section 4010(c) requires that

the revised criteria must at a minimum

include location restrictions, groundwater monitoring as necessary to detect

contamination, and corrective action, as

appropriate. The June 12, 1995,

proposal discussed how the Part 258

Municipal Solid Waste Landfill Criteria

went beyond these requirements. (See

60 FR 30968.) The proposal for nonmunicipal non-hazardous waste

disposal units did not, however, go

beyond these statutory minimum

requirements. The Agency presented

data, in the June 12 proposal, which

showed that the establishment of

additional facility management

requirements, beyond these types of

requirements, for non-municipal nonhazardous waste disposal units that may

receive CESQG waste was not

warranted.

The Agency received comments on

both sides of this issue. Some

commentors felt that the statutory

minimum components were adequate to

address the potential risks from nonmunicipal non-hazardous waste

disposal units that may receive CESQG

wastes. However, other commentors

believed that additional regulatory

controls should have been required.

Commentors stated that the level of

documented releases and environmental

problems do not merit extensive

regulations. Commentors also stated that

the final regulations should be limited

to the proposed requirements as they

felt that those requirements were indeed

adequate given the low risks associated

with the disposal of CESQG waste in

non-municipal non-hazardous waste

disposal units. Some commentors

argued that less stringent requirements,

less than the proposed requirements,

would have been more appropriate.

On the other hand, some commentors

raised the concern that the cumulative

effect of allowing small quantities of

hazardous waste to be disposed of in

non-municipal non-hazardous waste

disposal units would result in a major

source of ground-water pollution.

Commentors further felt that because

MSWLF owners/operators have

upgraded their units to meet the

requirements in Part 258 in order to

minimize the risk associated with the

disposal of household hazardous wastes

and CESQG wastes, non-municipal nonhazardous waste disposal units

disposing of CESQG wastes should be

required to meet the same standards as

in Part 258 (e.g., closure and postclosure care, financial assurance and

operating requirements). In addition,

one commentor believed that the

Agency’s conclusions, concerning the

potential risks associated with nonmunicipal non-hazardous waste

disposal units receiving CESQG wastes,

were based on outdated and limited

data. The commentor felt that the data

cited by EPA failed to justify the

Agency’s conclusion that non-municipal

non-hazardous waste disposal units

pose low risk but rather simply indicate

a lack of information on the subject.

The Agency agrees with those

commentors who believe that the

proposed requirements are adequate to

address the potential risks from nonmunicipal non-hazardous waste

disposal units that receive CESQG

hazardous wastes. In the June 1995

proposal, the Agency took the position

that only the proposed requirements

were necessary because ‘‘construction

and demolition (C&D) waste units, in

general, do not currently pose

significant risks and that individual

damage cases are limited in occurrence’’

and that off-site commercial landfills are

subject to more ‘‘stringent

environmental controls’’. The Agency

requested additional data concerning

C&D units to further assess the potential

risks these types of units may pose as

well as additional data on commercial

industrial solid waste units or other

types of units that may be subject to the

proposal.

The Agency did not receive any new

data concerning the potential risks

associated with C&D units or any other

types of units potentially subject to the

proposal. Thus, EPA has no information

suggesting that the facilities subject to

this rule pose any risks beyond those

limited ones discussed in the proposed

rule. (One commentor submitted

leachate data on bulky waste landfills

but that data was previously considered

by the Agency during the development

of the proposal.) In response to the

commentor that suggested that the

cumulative effects of allowing small

amounts of hazardous waste would

result in a major source of ground-water

pollution the Agency disagrees. The

Agency believes that the limited number

of documented damage cases and cases

of ground-water contamination,

discussed in the proposal to this rule,

do not support the commentor’s concern

about the creation of major sources of

ground-water pollution. As such, the

Agency believes that it should not go

beyond the requirements that were

proposed.

For those commentors who expressed

the need to impose Federal controls on

C&D units beyond the proposed

requirements, in the form of closure/

post-closure standards and/or financial

assurance requirements, the Agency

wishes to point out that these types of

standards are prevalent among State

programs for C&D units. Most States (44)

specify some thickness for a final cover,

34 States require post-closure care for

some period of time while 33 and 32

States require financial assurance for

closure and post-closure care,

respectively, for C&D units. Given the

lack of data suggesting that C&D

facilities pose the same risks as

MSWLFs and the fact that most States

already require additional regulatory

controls, EPA does not believe it is

appropriate to establish requirements

that go beyond the statutory minimum

requirements of Section 4010(c).

C. Decision To Use the Part 258 Criteria

Language or General Performance

Language

The June 12, 1995 proposal identified

two options for writing the proposed

requirements. One was to use the Part

258 criteria as the baseline for these

requirements. Part 258 is a combination

of performance standards and additional

detail to help the owner/operator

achieve compliance with the

performance standards. Part 258 also

establishes minimum national criteria

for municipal solid waste landfills, and

as such, a minimum national level of

protection. The second option was to

use general performance standards that

could be met by facility owners/

operators as they implement the

standards as well as to guide States in

designing new regulatory programs (or

revising existing regulatory programs).
34256 Federal Register / Vol. 61, No. 127 / Monday, July 1, 1996 / Rules and Regulations

Reasons cited in the proposal for

using the Part 258 Criteria included: (1)

Part 258 Criteria provide sufficient

detail so that an individual owner/

operator can self-implement them

without State interaction in those

instances where States do not seek

approval of their permitting program as

required in RCRA Section 4005(c); (2)

EPA believes that the national minimum

requirements are necessary for

collection of reliable and consistent

ground-water monitoring data and to

allow the owner/operator and States to

respond to contamination from the unit;

(3) They contain a substantial amount of

flexibility that allows approved States to

tailor standards to individual and

classes of facilities; (4) Some States

expressed strong support for using 258

standards as the baseline for solid waste

disposal facilities that receive CESQG

hazardous waste; and (5) While some

States have standards for non-municipal

facilities that are not identical to the 258

standards, the Agency believed there

was a strong likelihood that many State

programs would be approvable.

Reasons cited in the preamble in

support of using the general

performance standard approach

included: (1) Although the Part 258

standards contain substantial flexibility

for States to tailor the programs to their

conditions, the Part 258 standards put

certain limits on State flexibility to

design a program tailored to local

conditions; (2) The Part 258 standards

also include certain national minimum

requirements (which States can not

modify) that EPA promulgated because

of the risks posed by MSWLFs; (3) In the

absence of a significant Federal

program, over half of the States have

adopted location standards, groundwater monitoring requirements, and

corrective action requirements that are

significantly less extensive than the Part

258 standards; and (4) a general

performance standard would provide

the maximum flexibility for States and

owners to adopt new methodologies and

technologies (e.g., detecting groundwater contamination using technologies

other than monitoring wells) to meet the

standard at the lowest possible cost.

Comments were received in support

of both approaches. Commentors

supported the use of the Part 258

Criteria because they thought general

performance standards would be

difficult to implement and enforce.

Another commentor stated that Section

4010(c) requires EPA to spell-out the

requirements that facilities must

implement; he argues that by not

specifying how to attain the statutory

minimum requirements, a performancebased approach would fall short of the

statute. The performance-based

approach would spawn endless

uncertainty, requiring the wheel to be

re-invented for each facility. This

uncertainty would fall most heavily on

citizens who are concerned about

individual facilities. Other commentors

argued against promulgating general

performance standards and stated that

the Part 258 rules provide a clear,

flexible, common sense approach. Using

Part 258 provides both the regulated

community and the State Agencies a

familiar, well-thought out scheme that is

easy to administer and implement and

offers sufficient flexibility to address

site-specific conditions in approved

States. The Agency received extensive

comment in the Part 258 rulemaking

indicating why general performance

standards were inappropriate for

landfills; those comments are as

relevant today for landfills receiving

CESQG waste. Finally, developing a

significantly different set of rules from

either Part 257 or Part 258 would also

be confusing to the regulated

community because it would create one

set of rules for household wastes (Part

258), one for sites that accept CESQG

wastes (this rule) and one for all other

non-hazardous wastes (Part 257).

Other commentors supported the use

of general performance standards by

reiterating the reasons provided in the

proposal in support of such an

approach. Other commentors stated that

due to the nature of the demolition

waste stream being landfilled, they

supported the use of general

performance standards vs. all of the Part

258 standards. Commentors supported

maximum State flexibility to address

local conditions and requirements

tailored to the perceived risk, not

automatically adopting the more

restrictive MSWLF regime. Another

commentor stated that the Part 258

ground-water monitoring standards

were developed for MSWLFs and if the

ground-water monitoring program for

non-municipal non-hazardous waste

disposal units is not based on a

performance standard that allows for

site-specific design, certain facilities

will be overregulated. Another

commentor stated that the general

performance standard is preferable as

long as it provides an adequate

description of the performance

objective. Guidance manuals could be

used to implement the general

performance standards.

The Agency agrees with the majority

of commentors who supported the use

of the Part 258 Criteria. The Agency

believes, for all of the reasons discussed

by the commentors, that the use of the

Part 258 criteria is the preferable option

to utilize in the final rule. The Part 258

Criteria are a clear, flexible set of

regulations that can be tailored by

approved States to address site-specific

conditions while protecting human

health and the environment. The

ground-water and corrective action

requirements of today’s final rule offer

owners/operators in approved States

great flexibility in establishing a groundwater monitoring program and in

selecting a corrective measure should

corrective action become necessary.

In a sense, the Part 258 Criteria for

ground-water monitoring and corrective

action are general performance

standards. However, the big difference

between the use of the Part 258 Criteria

and the use of a general performance

standard approach is the detail that is

contained in the Part 258 Criteria, the

same detail would not be a part of a

general performance standard approach.

Both the Part 258 Criteria and the

general performance standard approach

use performance standards; the general

performance standard approach would

provide only general standards to be

followed by the owner/operator, while

the Part 258 Criteria would provide

additional detail and guidance to an

owner/operator in trying to comply with

the performance standards contained in

Part 258. This additional detail in the

Part 258 Criteria is what the Agency

believes commentors were referring to

when they stated that ‘‘using Part 258

provides both the regulated community

and the State Agencies a familiar, wellthought out scheme that is easy to

administer and implement and offers

sufficient flexibility to address sitespecific conditions’’. It is this additional

detail in Part 258 that if not contained

in the general performance standard

approach would create confusion among

the regulated community and ‘‘spawn

endless uncertainty’’.

The Agency believes that the use of

the detail in the Part 258 Criteria for

ground-water monitoring and corrective

action, in the form of factors to consider

vs. design standards, clearly guides an

owner/operator in achieving compliance

with the performance standards in Part

258 while maximizing the owners/

operators ability to take into account

and use site-specific data. Part 258

guides an owner/operator and State

Agencies by specifying (1) what factors

should be considered in determining the

number, depth, and spacing of the wells

in the monitoring system, (2) how wells

should be cased, (3) that any statistical

test comply with basic performance

standards, (4) what factors should be

considered in establishing an initial list

of monitoring parameters and

frequency, (5) what factors should be
Federal Register / Vol. 61, No. 127 / Monday, July 1, 1996 / Rules and Regulations 34257

considered in selecting any potential

remedy under corrective action, and (6)

what factors should be considered in

developing interim measures under a

corrective action program. The Agency

does not believe that the use of the

detail in the Part 258 Criteria will result

in ‘‘facilities being overregulated’’. EPA

also believes that this detail is necessary

to protect human health and the

environment.

V. Summary of Today’s Final Rule

Today’s final rule specifies that nonmunicipal non-hazardous waste

disposal units that do not meet the

requirements (i.e., location restrictions,

ground-water monitoring and corrective

action) in sections 257.5 through 257.30

may not receive CESQG hazardous

waste. The ground-water monitoring

and corrective action requirements

being finalized today are substantially

the same as those that were proposed.

The location restrictions have been

changed from the proposal with the

major change being that in the proposal

6 location restrictions were proposed

but in today’s final rule only 2 location

restrictions are being finalized

(floodplains and wetlands). Differences

between the final requirements and

those that were proposed are discussed

in the appropriate sections of today’s

preamble.

The location restrictions will be

effective 18 months after publication of

the final rule. The location restrictions

being finalized today are the floodplains

and wetlands restrictions. The

floodplains restriction is applicable to

new units, existing units, and lateral

expansions of existing units that receive

CESQG waste. Only new units and

lateral expansions of existing units that

receive CESQG hazardous waste must

comply with the wetlands location

restriction.

The ground-water monitoring and

corrective action requirements will be

effective 24 months after publication of

the final rule. Any existing unit, new

unit, or lateral expansion of an existing

unit that receives CESQG hazardous

waste after the effective date will be

required to comply with the final

ground-water monitoring and corrective

action requirements. The ground-water

monitoring provisions are being

finalized to ensure that units that

receive CESQG hazardous waste will

have monitoring systems in place that

will enable the detection of any

contamination of ground-waters along

with appropriate sampling and analysis

procedures to allow for the statistical

analysis of monitoring results. The

corrective action requirements will

allow for the evaluation, selection, and

implementation of an appropriate

remedial technology to clean-up any

contamination of ground-waters.

Today’s final rule also amends the

existing language of § 261.5 clarifying

acceptable Subtitle D management

options for CESQGs. The language in

§ 261.5, paragraphs (f)(3) and (g)(3)

currently allows a CESQG hazardous

waste to be managed at a hazardous

waste facility (either in interim status or

permitted), a reuse or recycling facility,

or a non-hazardous waste disposal unit

that is permitted, licensed, or registered

by a State to manage municipal or

industrial waste. Today’s final rule

would continue to allow CESQG waste

to be managed at a hazardous waste

facility or at a reuse or recycling facility.

Today’s final rule will require that if

CESQG waste is managed in a Subtitle

D disposal facility, it may be managed

in a MSWLF that is subject to Part 258

or managed in a non-municipal nonhazardous waste disposal unit that is

subject to the standards being finalized

in §§ 257.5 through 257.30.

VI. Specifics of Today’s Final Rule

A. Section 257.5—Applicability

1. Applicability

EPA proposed that any owner/

operator of a non-municipal nonhazardous waste disposal unit that

wanted to receive CESQG hazardous

waste would have to comply with the

proposed requirements in §§ 257.5–

257.30 prior to the actual receipt of the

CESQG waste. The proposal stated that

owners/operators of non-municipal nonhazardous waste disposal units that do

not meet the proposed criteria may not

receive CESQG hazardous waste.

The proposal further stated that

owners/operators of non-municipal nonhazardous waste disposal units that

receive CESQG hazardous waste after

the effective date would have to comply

with the location restrictions (§§ 257.7–

257.12) within 18 months after the date

of publication of the final rule and with

the ground-water monitoring and

corrective action requirements

(§§ 257.21–257.28) within 24 months

after the date of publication of the final

rule.

The Agency is finalizing the

applicability of the final rule as

proposed and retaining the effective

dates as proposed. The Agency received

no specific comments in regard to the

effective dates with the exception of one

comment that stated that the commentor

had no problem with the two-year

effective date for the ground-water

monitoring and corrective action

requirements.

2. Definitions

EPA proposed a number of definitions

for terms in the proposal and received

limited comments. One commentor

thought that the term ‘‘non-municipal

solid waste disposal facility’’ should be

more appropriately called ‘‘nonmunicipal non-hazardous waste

disposal facility’’. The commentor

stated that by discussing only ‘‘solid

waste’’ facilities, hazardous waste

facilities are not excluded because they

are a subset of ‘‘solid waste’’.

Furthermore, this commentor thought

the term ‘‘non-municipal solid waste

landfill’’ should also more appropriately

be called a ‘‘non-municipal nonhazardous waste disposal facility’’. This

same commentor also expressed a

concern that the terms ‘‘facility’’ and

‘‘unit’’ as used in §§ 257.7 through 257.9

were used interchangeably and that

some clarification and/or consistency

was necessary.

The EPA agrees that the term ‘‘nonmunicipal solid waste disposal facility’’

could be confusing and that the term

‘‘non-municipal non-hazardous waste

disposal facility’’ more clearly defines

the types of facilities potentially subject

to today’s final rule. The EPA also

agrees that the terms ‘‘facility’’ and

‘‘unit’’ were used interchangeably and

that the term ‘‘unit’’ is more appropriate

to use in defining what is potentially

subject to today’s final rule. Therefore,

in today’s preamble and in the final rule

language the term non-municipal nonhazardous waste disposal unit is used.

Correspondingly, the terms ‘‘existing

facility’’ and ‘‘new facility’’ have been

changed in the final rule to refer to

‘‘exiting unit’’ and ‘‘new unit’’. Existing

unit refers to any non-municipal nonhazardous waste disposal unit that is

receiving CESQG hazardous waste as of

the effective date (i.e., 18 months after

the final rule is published in the Federal

Register). A new unit is any nonmunicipal non-hazardous waste

disposal unit that has not received

CESQG hazardous waste prior to the

effective date (i.e., 18 months after the

final rule is published in the Federal

Register).

Today’s applicability section (§ 257.5)

has also been changed to clarify the

situation where a non-municipal nonhazardous waste disposal unit decides

to receive CESQG hazardous waste after

the effective date of today’s rule. The

applicability section (section

257.5(a)(5)) has been changed to clarify

that any non-municipal non-hazardous

waste disposal unit that first receives

CESQG hazardous waste after the date

18 months after the date of publication

of this final rule in the Federal Register
34258 Federal Register / Vol. 61, No. 127 / Monday, July 1, 1996 / Rules and Regulations

must be in compliance with all the

requirements prior to the receipt of the

CESQG hazardous waste.

One additional change from the

proposed rule language concerns the

definition of the term State/Tribal

Director. In the proposal the term State/

Tribal Director was defined to mean the

chief administrative of the State/Tribal

agency responsible for implementing

the State/Tribal permit program for

Subtitle D regulated facilities. The

remainder of the proposed rule

language, however, consistently used

the term State Director. This was done

as a means of efficiency and the Agency

did not imply any other substantive

effect on the character, authority, and/

or rights of Tribes. The final rule will

include Indian Tribes in the definition

of the term ‘‘State’’ (as was proposed)

and Tribal Director in the definition of

‘‘State Director’’. This change is being

made to be consistent with the proposed

changes to Part 258 language in the

proposed State/Tribal Permit Program

Determination of Adequacy (See 61 FR

2584, January 26, 1996). The State/

Tribal Permit Program Determination of

Adequacy contains a complete

discussion of the opportunities that are

available to Indian Tribes to apply for

program approval.

B. Sections 257.7–257.13—Location

Restrictions

EPA proposed a set of location

restrictions for new and existing units

that receive CESQG waste which

mirrored restrictions already established

for MSWLFs. 40 CFR 258.10 to 258.16.

However, in response to comment

received on the proposal, EPA has

modified the proposed location

restrictions in a number of ways.

Because units receiving CESQG waste

pose a smaller risk to human health and

the environment than do MSWLF

facilities and for the reasons discussed

below, EPA believes that the restrictions

being promulgated today satisfy the

statutory standard contained in RCRA

Section 4010(c). 42 U.S.C. § 6949a(c).

1. Airport Safety

EPA proposed that new, existing, and

lateral expansions of existing nonmunicipal non-hazardous waste

disposal units, that receive CESQG

hazardous waste, demonstrate that the

unit does not pose a bird hazard to

aircraft. The proposed airport safety

provision was the same as the current

Part 257 requirement; only the

demonstration requirement to the

affected airport and to the FAA for new

and lateral expansions of existing units

was new.

Several commentors objected to the

airport safety provision in Section 257.7

and requested that the provision be

removed. Commentors stated that units

that accept CESQG wastes will be nonputrescible operations that do not

provide a source of food or nesting for

birds. One commentor stated that actual

observations of over 30 sites across the

country support the conclusion that

birds are virtually nonexistent at C&D

units. Lastly, one commentor referenced

the recent FAA report titled ‘‘Draft

Report to Congress on Potential Hazards

to Aircraft by Locating Waste Disposal

Sites in Vicinity of Airports’’, wherein,

the FAA stated that recent FAA

sponsored research has shown that nonputrescible waste landfills (i.e.,

construction and demolition waste

landfills, . . .) do not attract wildlife

that could create a wildlife/aircraft

strike hazard.

In response to commentors concerns,

the Agency has eliminated the airport

safety provision from today’s final

rulemaking. The Agency’s original

requirement under Part 257 was

designed to regulate units that dispose

of putrescible wastes; based on the fact

that units potentially subject to today’s

final rule do not receive putrescible

wastes (e.g., C&D units), the Agency sees

no reason to have this requirement as

part of today’s final rule.

2. Floodplains

EPA proposed that new, existing, and

lateral expansions of existing nonmunicipal non-hazardous waste

disposal units, that receive CESQG

hazardous wastes, located in the 100-

year floodplain demonstrate that the

unit will not restrict the flow of the 100-

year flood, reduce the temporary water

storage capacity of the floodplain or

result in washout of solid waste so as to

pose a hazard to human health and the

environment.

No comments were received on the

substance of the floodplain provision;

therefore, the Agency is finalizing the

floodplain provision as it was proposed.

3. Wetlands

The Agency proposed that new

facilities and lateral expansions of

existing non-municipal non-hazardous

waste disposal units, that receive

CESQG hazardous wastes, not be

located in a wetland unless specified

demonstrations can be met by the

owner/operator. The demonstrations

were to ensure that if a non-municipal

non-hazardous waste disposal unit

needed to be located in a wetland,

protection of state water quality

standards and protection of the wetland

will be achieved. Furthermore, the

proposal was consistent with the

Agency’s goal of achieving no net loss

of the nation’s wetlands.

No comments were received on the

substance of the wetlands provision,

therefore, the Agency is finalizing the

wetlands provision as it was proposed.

4. Fault Areas

EPA proposed that new and lateral

expansions of existing non-municipal

non-hazardous waste disposal units,

that receive CESQG hazardous waste,

not be located within 200 feet of a fault

that has had displacement in Holocene

time unless the owner/operator

demonstrates that an alternative setback

distance of less than 200 feet will not

affect the structural integrity of the unit

during displacement and will be

protective of human health and the

environment.

One commentor questioned the need

for a fault area restriction because this

location provision is premised on the

fact that if movement along a fault

occurs, the structural integrity of the

engineering features will be disrupted.

Given the low risks imposed by many of

the facilities potentially subject to the

rule and the fact the Agency is not

regulating the design features (i.e.,

liners, leachate collection systems) of

these facilities, imposing siting

restrictions is not warranted.

The Agency agrees that the fault area

restriction is designed to guard against

disruptions to the engineering features

that provide structural integrity to the

unit. Because of the low-risks posed by

non-municipal non-hazardous waste

units that receive CESQG waste, EPA

did not propose any liner requirements

or other provisions bearing on the

structural integrity of the units. Thus,

the Agency agrees that imposing this

restriction is not warranted, and as

such, the fault area restriction is not a

part of today’s final rule.

5. Seismic Impact Zones

EPA proposed that new and lateral

expansions of existing non-municipal

non-hazardous waste disposal units,

that receive CESQG hazardous waste,

not be located in seismic impact zones

unless the owner/operator demonstrates

that all containment structures are

designed to resist the maximum

horizontal acceleration in lithified earth

material for the site.

No specific comments were received

on this provision. However, this

provision like the fault area provision,

was designed to guard against

disruptions to liners, leachate collection

systems, and surface water control

systems, therefore, EPA considers that

the logic of the comments on fault area
Federal Register / Vol. 61, No. 127 / Monday, July 1, 1996 / Rules and Regulations 34259

restrictions applies to this restriction as

well, and as such, the Agency sees no

reason to include this location

restriction as part of today’s final

rulemaking.

6. Unstable Areas

EPA proposed that new, existing and

lateral expansions of existing nonmunicipal non-hazardous waste

disposal units, that receive CESQG

hazardous waste, located in an unstable

area demonstrate that engineering

measures have been incorporated into

the facility design to ensure that the

integrity of the structural components of

the facility will not be disrupted.

As with the seismic impact zone

restriction, no specific comments were

received on this part of the proposal.

However, for the same reasons as

discussed above under the fault area

and seismic impact zone restrictions,

this location restriction is also not part

of today’s final rule.

7. Deadline for Making Demonstrations

EPA proposed that existing nonmunicipal non-hazardous waste

disposal units, that receive CESQG

hazardous wastes, that could not make

the demonstrations pertaining to

airports, floodplains, or unstable areas,

would not be allowed to accept CESQG

hazardous waste for disposal 18 months

after the date of publication of the final

rule.

No specific comments were received

on this provision of the proposal. As the

final rule only applies to existing units

located in floodplains, this provision

has been changed to require that only

existing units in floodplains will not be

allowed to accept CESQG hazardous

waste for disposal 18 months after the

date of publication of the final rule.

C. Sections 257.21–257.28—GroundWater Monitoring and Corrective Action

1. Applicability

The Agency proposed a number of

requirements under the heading

‘‘applicability.’’ The Agency proposed

that the ground-water monitoring

requirements could be suspended by the

Director of an approved State if the

owner/operator could demonstrate that

there was no potential for migration of

hazardous constituents from the facility

to the uppermost aquifer during the

active life plus 30 years.

The Agency also proposed the

existing units had to be in compliance

with the groundwater monitoring

requirements within 2 years after the

date of publication of the final rule in

the Federal Register. EPA proposed that

new facilities meet the ground-water

monitoring requirements when waste is

first placed in the unit. The Director of

an approved State could specify an

alternative schedule for compliance for

existing units. The proposed alternative

schedule called for 50% of existing

units to be in compliance within 2 years

and for all existing units to be in

compliance within 3 years.

The Agency also proposed that

ground-water monitoring be conducted

throughout the active life plus 30 years.

The director of an approved State could

decrease the 30 year period.

Lastly, the Agency proposed to grant

the Director of an approved State the

flexibility to establish and use an

alternative list of indicator parameters

for some or all of the constituents listed

in Appendix I (appendix I to Part 258)

and to allow small, dry, remote nonmunicipal non-hazardous waste

disposal units to use an alternative form

of detecting ground-water

contamination.

The Agency received no adverse

comment on most of these provisions.

The flexibility for small, dry, remote

non-municipal units was considered an

example of increased flexibility by a

commentor. The Agency has slightly

altered the regulatory language for the

proposed flexibility for small, dry,

remote non-municipal non-hazardous

waste disposal units that may be

allowed to use alternative forms of

detecting ground-water contamination.

The proposed language required, in two

places, that an owner or operator had to

submit results or seek approval of

corrective measures within 60 days.

These deadlines have been removed to

allow for increased flexibility. The

deadlines have been replaced with

language that allows the Director of an

approved State to establish a schedule

for the owner or operator for the above

mentioned activities. This change is also

being done to be consistent with the

rule language that was proposed for

MSWLFs, allowing small, dry, remote

MSWLFs to use alternative forms of

detecting ground-water contamination.

See 60 FR 40799, August 10, 1995. The

proposed language allowing for

alternatives to be used for small, dry,

remote MSWLFs was the basis for the

proposed language to allow small, dry,

remote non-municipal, nonhazardous

waste disposal units to also use

alternative forms of detecting groundwater monitoring. See 60 FR 30976,

June 12, 1995.

The length of the ground-water

monitoring period (i.e., active life plus

30 years) generated some disagreement.

In regard to the length of the groundwater monitoring period, two

commentors concurred with the

Agency’s decision to impose the

ground-water monitoring period

through the active life plus 30 years.

The commentors believed that the time

frame was consistent with other similar

rules, and based upon the flexibility in

the rule, was not overly burdensome to

units in comparison to the

environmental protection it affords.

Several commentors requested that

the Agency reduce the ground-water

monitoring period to a shorter time

period or to a time period based on an

individual unit’s performance standard.

In regard to a performance standard, one

commentor argued a performance

standard could be used by an owner/

operator to demonstrate that an

alternative time period is appropriate.

One example suggested was that the

performance standard be based on a

specified number of years without

significant changes in ground-water

quality. No specific number of years was

provided.

In regard to a shorter period of time,

commentors generally agreed that the 30

years was not reflective of the low risks

posed by units that may potentially

receive CESQG wastes. One commentor

requested 10 years for existing and 15

years for new units. Another commentor

stated that a shorter period was

necessary because most States have a

post-closure period that ranges from 5–

10 years. A third commentor stated that

applying an extremely burdensome 30

years period places an economic burden

on operators that is not remotely

balanced by any real environmental

benefit. This commentor suggested a 5-

year period and that the rules could be

extended if problems are discovered

during the 5 years. Lastly, one

commentor questioned what incentive

existed to monitor groundwater for 30

years beyond the final receipt of waste.

This commentor considered it

unreasonable to expect that the

monitoring program will be met after a

disposal unit has no further economic

value.

After a consideration of the

comments, the Agency has elected to

retain the requirement that groundwater monitoring be conducted for 30

years after the active life of the unit for

the same reasons that were discussed in

the proposal. The Agency believes that

there is sufficient flexibility within

§ 257.21(e) for an approved State to

decrease the 30-year period. The final

regulation allows the Director of an

approved State to reduce the length of

the monitoring period if the owner/

operator demonstrates that a shorter

period is adequate to protect human

health and the environment. The

Agency expects that States will reduce
34260 Federal Register / Vol. 61, No. 127 / Monday, July 1, 1996 / Rules and Regulations

the length of the monitoring period if an

owner/operator can demonstrate, for

example, that no adverse changes in

ground-water quality have been

detected for some period of time less

than 30 years. Furthermore, although

some commentors expressed concern

over the length of the 30-year period,

the Agency did not receive any data

supporting any such reduction in the

length of the monitoring period.

Today’s final rule continues to

provide flexibility for an approved State

to suspend the ground-water monitoring

requirements in hydrogeologic settings

that may preclude the migration of

hazardous constituents from the unit to

the ground water.

2. Ground-Water Monitoring Systems

The Agency proposed a number of

requirements under the proposed

section ‘‘ground-water monitoring

systems’’. The Agency proposed that

ground-water monitoring systems

consist of a sufficient number of wells,

installed at appropriate locations and

depths to yield ground-water samples

from the uppermost aquifer that

represent the quality of background

ground water and the quality of ground

water passing the relevant point of

compliance. The downgradient

monitoring system was to be installed at

the relevant point of compliance, as

allowed by the Director of an approved

State, or at the waste management unit

boundary in unapproved States. The

relevant point of compliance specified

by the Director of an approved State was

proposed to be no more than 150 meters

from the waste management unit

boundary and located on land owned by

the owner/operator. Furthermore, the

proposal allowed for multi-unit

monitoring under specific conditions.

The only area to receive comments

was the point of compliance. A number

of commentors expressed concern

regarding the 150 meter limit for the

point of compliance. One commentor

requested EPA to either allow a sitespecific decision regarding the point of

compliance or allow the use of a point

of compliance within the facility

boundary. A second commentor

requested that EPA not specify a

specific distance but rather authorize a

site-specific identification of a

compliance point based on the location

for the potential for exposure. For

example, if a unit is located a

considerable distance from a drinking

water well, having the point of

compliance 150 meters from the unit

boundary may be needlessly stringent.

A third commentor stated that a flexible

approach to establishing the point of

compliance is well suited to low-risk

facilities.

After a consideration of the

comments, the Agency has decided to

retain the proposed language regarding

the point of compliance. The final rule

will require that the downgradient

monitoring wells be installed at the

waste management unit boundary in

unapproved States or at the relevant

point of compliance, as allowed by the

Director of an approved State. The

relevant point of compliance can be up

to 150 meters from the waste

management unit boundary. The

Agency retained the 150 meter limit

because the Agency believes it is

essential to set a maximum distance

limit for the point of compliance that

would limit ground-water

contamination, yet still provide

flexibility to owners/operators of nonmunicipal non-hazardous waste

disposal units that receive CESQG

wastes. A point of compliance set some

distance much farther from the unit

boundary would result in a situation

where ground-water contamination,

when first detected, would be more

wide-spread and result in higher

corrective action costs to remedy the

situation.

The Agency realizes that the point of

compliance can have significant

implications associated with the scope,

magnitude and cost of ground-water

remedial actions. Because of these

implications, the point of compliance

continues to be an area of discussion

and debate. At this point in time, the

Agency is finalizing the point of

compliance language for Subtitle D

units as described in the proposal for

this rule. However, the Agency is

addressing the point of compliance

issue in an Advance Notice of Proposed

Rulemaking (ANPR) (See 61 FR 19432,

May 1, 1996) as part of developing

regulations concerning ‘‘Corrective

Action for Releases from Solid Waste

Management Units at Hazardous Waste

Management Facilities’’ (subpart S of 40

CFR part 264). The Agency intends to

use the ANPR to invite comments on a

number of issues, including the point of

compliance pertaining to corrective

action under Subtitle C of RCRA. It is

possible that future regulations, which

address new point of compliance

approaches for Subtitle C facilities,

could also address Subtitle D units

subject to today’s final rule.

3. Ground-Water Sampling and Analysis

Requirements

The proposal required the use of

consistent sampling and analysis

procedures that would be designed to

ensure monitoring results that provide

an accurate representation of groundwater quality at the background and

downgradient monitoring wells. The

Agency received no substantial

comments on this section of the

proposal; therefore, the sampling and

analysis requirements are being

finalized as proposed. Comments

concerning sampling and analysis

requirements are addressed in the

comment response document associated

with this final rule.

4. Detection Monitoring Program

The proposal addressed numerous

requirements associated with detection

monitoring, the first phase of groundwater monitoring. The majority of the

proposed requirements pertained to

which constituents had to be monitored

for and the required frequency of

monitoring. The proposal required that

those constituents identified in

Appendix I of part 258 were to be

monitored for during the detection

monitoring phase of ground-water

monitoring and that the frequency of

monitoring was to be at least semiannual. The proposal also specified the

areas of flexibility that existed for an

owner/operator during detection

monitoring.

The Agency received no comments on

the frequency of monitoring during the

detection monitoring period, and as

such, the final rule requires at least

semi-annual monitoring during

detection monitoring. The final rule also

continues to allow the Director of an

approved State to specify an alternative

frequency of monitoring during the

active life plus 30 years (no less than

annual during the active life).

The Agency did receive some

comments regarding the constituents to

be monitored for during detection

monitoring. A commentor raised the

issue of developing a new list of groundwater parameters for facilities that

accept CESQG wastes. Another

commentor stated that MSWLFs contain

a much larger portion of waste that is

biodegradable and therefore creates its

own chemical degradation byproducts.

Unless EPA has data that shows that

leachates from non-municipal nonhazardous waste facilities are similar to

municipal solid waste landfills, the

Agency should not be imposing similar

requirements. According to the

commentor, the ground-water

monitoring program should require

testing only for constituents that are

related to the waste accepted at the

facility, not a list of constituents that

could be found at any facility that may

accept CESQG wastes. Lastly, the

commentor stated that the monitoring

parameters should be representative of
Federal Register / Vol. 61, No. 127 / Monday, July 1, 1996 / Rules and Regulations 34261

those constituents that are most mobile

in the ground-water environment so that

early detection is accomplished without

undue cost of over regulation.

After a consideration of the

comments, the Agency has decided to

retain the requirements as proposed in

the detection monitoring section of the

proposal. The Agency believes that

developing a new list of ground-water

constituents for facilities that accept

CESQG wastes would cause undue

confusion for the regulated community.

However, EPA has provided some

flexibility for approved States in regard

to testing for constituents that are

related to the wastes accepted at the

unit. Today’s final rule provides

flexibility to the Director of an approved

State to remove from the detection

monitoring list of constituents, any

constituent that is not reasonably

expected to be in or derived from the

waste contained in the unit.

Furthermore, the Director of an

approved State may establish an

alternative list of indicator parameters

in lieu of some or all of the constituents

in appendix I of part 258, if the

alternative indicator parameter(s)

provides a reliable indication of releases

from the unit to the ground water.

The June 1995 proposal allowed the

Director of an approved State to develop

only an alternative list of inorganic

indicator parameters; the organic

parameters in appendix I of part 258

were to be monitored for and no

substitutions were allowed. However, in

today’s final rule, the Agency has

provided additional flexibility in that

the Director of an approved State can

establish an alternative list of indicator

parameters for some or all of the

constituents in appendix I of part 258

including the organic constituents. The

Agency has provided this area of

increased flexibility because an

alternative list of indicator parameters,

approved by the Director of an approved

State, could be appropriate in specific

circumstances, and the Agency

continues to believe that the risks posed

by non-municipal non-hazardous waste

disposal units that may elect to receive

CESQG wastes is relatively small when

compared to MSWLFs. Non-municipal

non-hazardous waste units that elect to

receive CESQG wastes will be mostly

C&D units. The Agency stated in the

proposal for this rulemaking, that these

types of units, in general, do not pose

a significant risk. As such, the Agency

believes that Directors of approved State

programs can exercise additional

flexibility in establishing the

appropriate list of detection monitoring

constituents or indicator parameters.

This area of increased flexibility can

serve to alleviate commentor’s concerns

regarding the appropriate parameters to

monitor for during detection

monitoring. This area of flexibility will

allow the Director of an approved State

to tailor the detection monitoring list to

those wastes accepted at the facility

and/or those that are expected to be a

concern due to mobility. One

commentor expressed concern that the

detection monitoring list (Appendix I to

Part 258) for today’s final rule should

not be identical to the detection

monitoring list developed for municipal

solid waste landfills. The Agency,

however, believes that leachates from

non-municipal units are somewhat

similar, in that some of same types of

organics and inorganics can appear in

non-municipal leachates but at lesser

concentrations, and as such, saw no

reason to create a separate and new

detection monitoring list.

5. Assessment Monitoring Program

The proposal would have required

that once a statistically significant

increase over background was detected

during detection monitoring, a full

assessment of any impacts on groundwater quality had to be undertaken. The

purpose of assessment monitoring was

to sample for a larger list of constituents

to determine which were present. The

assessment monitoring program also

required the establishment of groundwater protection standards.

The Agency received no comments on

the proposed assessment monitoring

requirements; therefore, the assessment

monitoring program requirements are

being finalized as proposed.

6. Assessment of Corrective Measures,

Selection of Remedy, and

Implementation of the Corrective Action

Program

The proposal required that once a

statistically significant increase was

detected over the ground-water

protection standard for any constituent

detected during assessment monitoring,

the owner/operator was required to

assess available corrective measures.

Available corrective measures were

those that could meet the performance

standards established under the

proposed selection of remedy

requirements. Lastly, the proposal

would have required that once a

corrective measure was selected, the

owner/operator would be required to

implement the selected remedy.

The Agency received no comments on

the proposed corrective action

requirements; therefore, the corrective

action requirements are being finalized

as proposed.

D. Section 257.30—Recordkeeping

Requirements

EPA proposed that owners/operators

of non-municipal non-hazardous waste

disposal units record and retain various

pieces of information in an operating

record. The operating record was

proposed to be at the facility or at an

alternative location as approved by the

Director of an approved State. The

following type of information was

proposed to be retained: any location

restriction demonstration and any

demonstration, certification, finding,

monitoring, testing, or analytical data

required as part of complying with the

ground-water monitoring and corrective

action requirements.

No comments were received on the

substance of the recordkeeping

requirements; therefore, the Agency is

finalizing the recordkeeping

requirements provision as it was

proposed.

E. Special Requirements for Hazardous

Waste Generated by Conditionally

Exempt Small Quantity Generators

1. Changes to Section 261.5

The proposal would have amended

the existing language of § 261.5 by

establishing acceptable Subtitle D

management options for CESQG waste.

The existing language in § 261.5,

paragraphs (f)(3) and (g)(3), allows for a

CESQG hazardous waste to be managed

at a hazardous waste facility (either in

interim status or permitted), a reuse or

recycling facility, or a non-hazardous

solid waste facility that is permitted,

licensed, or registered by a State to

manage municipal or industrial wastes.

The proposed rule would have

continued to allow CESQG waste to be

managed at a hazardous waste facility,

or at a reuse or recycling facility;

however, the proposal would have

required that if CESQG waste was to be

managed at a Subtitle D disposal

facility, it must be managed in a

MSWLF that is subject to Part 258 or a

non-municipal non-hazardous waste

disposal unit that is subject to the

standards that were proposed for units

receiving CESQG waste.

Commentors supported the proposed

rule changes to paragraphs (f)(3) and

(g)(3) in § 261.5 regarding waste

generated by CESQGs. Commentors

stated that the continuation of the

CESQG rules was very important as

these rules were developed to ease the

burden of small generators. Other

commentors also supported the

proposed generator changes for various

reasons: proposed changes will help

CESQGs ensure that their wastes are

properly managed, CESQGs may
34262 Federal Register / Vol. 61, No. 127 / Monday, July 1, 1996 / Rules and Regulations

investigate the recycling or reuse of

their waste streams, or use of

alternative, less-hazardous materials in

their operations, and the proposed

changes are a wise-policy decision.

Given the agreement that commentors

had with the proposed changes to

§ 261.5, the Agency has decided to

largely finalize the requirements as

proposed.

One small change has been made in

today’s final rule language, however, in

paragraphs (f)(3) and (g)(3). This small

conforming change deals with final

regulatory language that was developed

in the universal waste rule (see 60 FR

25541, May 11, 1995). Universal wastes

are the following hazardous wastes that

are subject to the universal waste rule:

batteries as described in 40 CFR 273.2,

pesticides as described in 40 CFR 273.3,

and thermostats as described in 40 CFR

273.4. The conforming changes are

found in today’s final rule language in

paragraphs (f)(3)(vii) and (g)(3)(vii). The

conforming changes in today’s final rule

allow a CESQG to manage universal

wastes in a facility that is a universal

waste hauler or destination, provided

that facility is subject to the universal

waste requirements in 40 CFR Part 273.

See 60 FR 25492, May 11, 1995. The

possibility that some CESQG waste

could be considered a universal waste

was discussed in the proposal to this

final rule. See 60 FR 30968, June 12,

1996.

RCRA Section 3010(b) states that

regulations respecting requirements

applicable to the generation,

transportation, treatment, or disposal of

hazardous waste that are promulgated

under Subtitle C shall take effect six

months after the date of promulgation.

The Administrator is authorized to

establish a shorter effective date. 42

U.S.C. 6930(b).

The revisions to 40 CFR Section 261.5

and 271.1 are being promulgated, in

part, under RCRA section 3001(d)(4),

and thus, are subject to the six month

effective date provision in section

3010(b). In the proposed rule, EPA

stated that it intended to make these

revisions to the Subtitle C regulations

effective 18 months after their

publication so as to coincide with the

effective dates of the Subtitle D

provisions. See 60 FR 30979. In the final

rule, EPA is making the Subtitle C

provisions effective in six months in

accordance with RCRA section 3010(b).

However, to ensure that there will be

consistency in implementation of both

the Subtitle C and D provisions, as

suggested in the proposal, EPA has

chosen to delay the compliance date for

the Subtitle C provisions until 18

months after today’s date. Thus,

although the Subtitle C revisions go into

effect in six months, those who generate

CESQG waste will have to comply with

the revised disposal standards in section

261.5 (f)) and (g) only when the Subtitle

D revised location restrictions for

CESQG waste go into effect in 18

months. The final rule language for

section 261.5 and 271.1 reflect this

delayed compliance date.

2. CESQG Wastes

Comments were received concerning

various aspects related to the

requirements for CESQGs. Comments

were also received requesting that the

Agency provide a clearer picture of

what constitutes a CESQG waste. Lastly,

other commentors stated that the final

rule needed to have a screening

requirement in place for facilities that

elect not to receive CESQG wastes.

In regard to the comments concerning

the need to better identify what is a

CESQG waste, the proposal identified

examples of CESQG wastes, particularly

for the construction and demolition

waste industry. See 60 FR 30967, June

12, 1995. CESQG hazardous wastes

generated in the construction,

renovation, and demolition waste

industry are more likely to be specific

chemicals or products used in these

activities. Building demolition debris

can be a CESQG waste if based on

generator knowledge or a representative

sample of the entire building debris, the

building debris is determined to be a

hazardous waste (i.e., it exhibits one of

the four characteristics of a hazardous

waste), and if hazardous, is under the

waste quantity cutoff limit for a CESQG

waste (See 60 FR 30967, June 12, 1995).

Commentors requested a

comprehensive listing of C&D wastes

which may be typically hazardous. The

Agency’s supporting document

‘‘Construction and Demolition Waste

Landfills’’ identified a number of wastes

that were considered potentially

‘‘hazardous’’ by various sources. The

Agency continues to believe, as stated in

the proposal, that not all of the wastes

identified in the report are hazardous as

determined under Subtitle C; however,

the listing provided in the supporting

document provides an indication of the

types of wastes that may be present in

the construction and demolition waste

industry that could be a concern. Given

that the Subtitle C and D regulations are

generally implemented by the States,

the Agency believes that owners/

operators should work with their State

Agencies to determine what specific

rules or guidance applies with regard to

the types of wastes that their State

Agency considers to be hazardous.

3. Screening Procedures

Comments were also received

requesting that the Agency acknowledge

the use of existing screening procedures.

With regard to the comments

concerning the need to acknowledge the

use of existing screening procedures and

the need to have a screening procedure

in place for facilities that elect not to

receive CESQG wastes, the proposal did

not require non-municipal nonhazardous waste disposal units to

screen incoming wastes in order to

assure that they were not receiving

CESQG wastes. Rather, it left it up to the

owner/operator to assure, through what

ever means he/she determined, that the

facility was not receiving CESQG waste.

This could include certifications by

waste haulers that their wastes destined

for the facility will not contain CESQG

wastes, written prohibitions in contracts

between waste haulers and the owner/

operator stating that the facility does not

receive CESQG waste for disposal, and/

or random screening procedures at the

facility. Commentors were concerned

that CESQG wastes would find their

way into C&D landfills that elect not to

upgrade and comply with today’s final

requirements, particularly given that the

proposal did not require the use of a

formal screening procedure to prove

that the facility was not receiving

CESQG wastes. Specifically, one

commentor stated that without a

stringent method of restricting wastes

and documenting these efforts, C&D

landfills that do not meet the proposed

requirements may become low-cost

alternatives for the unscrupulous. Two

other commentors stated that the

proposed rule, as written, lacked an

affirmative demonstration on the part of

a facility that elected not to comply with

the proposed requirements, that the

facility was in reality not receiving

CESQG waste for disposal. The

commentor argued that ‘‘without a

screening method at facilities that elect

not to comply, the proposed rule is

insufficient to satisfy the mandate of

RCRA Section 4010(c)’’. Several of these

commentors suggested the use of the

screening procedure specified in the

Part 258 Criteria for municipal solid

waste landfills.

Other commentors acknowledged that

screening exists today for C&D facilities

and that it is successful. Screening is

done at most C&D facilities and, thus,

regulatory criteria made applicable to

such facilities should take into account

screening practices that significantly

reduce the risks that C&D facilities

present to human health and the

environment. These commentors

wanted EPA to expressly acknowledge
Federal Register / Vol. 61, No. 127 / Monday, July 1, 1996 / Rules and Regulations 34263

that screening programs reduce risks at

C&D facilities or to develop a regulatory

approach that allows C&D facilities with

established screening programs to be

exempted from a majority of the

proposed criteria or EPA should

develop relaxed regulatory criteria that

take into account such risk-reduction

operational practices.

The proposal explained that owners/

operators implementing a screening

procedure should contact their State

Agency to determine that the screening

procedure ensures that the facility does

not receive CESQG wastes. Responding

to this statement, one commentor said

that the Agency should not delegate this

obligation to the states because doing so

will lead to unwarranted lawsuits

against owners/operators that do not

want to accept CESQG wastes and

confusion at the state level caused by

widely divergent screening

requirements that may or may not be

acceptable.

In response to the comments about

the need for screening requirements as

part of today’s final rule, the Agency is

concerned that the establishment of

specific and/or detailed screening

standards would limit flexibility that

owners/operators and State Agencies

have in developing an appropriate

screening method, if one is considered

necessary. Under the rule as proposed

and promulgated, if an owner/operator

of a non-municipal non-hazardous

waste disposal unit elects not to receive

CESQG wastes, and therefore, does not

upgrade to meet the requirements in

today’s final rule, he/she is not legally

allowed to accept CESQG wastes. See 40

CFR 257.5(a)(3). If the owner/operator

does accept CESQG wastes, then he/she

would be in violation of today’s final

rule and would be subject to

enforcement actions. See 40 CFR

257.5(a)(1). CESQGs that send their

CESQG waste to landfills that are not

subject to today’s requirements for nonmunicipal units would, likewise, be

subject to enforcement actions.

Owners/operators that elect not to

upgrade and therefore not receive

CESQG hazardous wastes, may on their

own elect to develop a screening

procedure that is effective in screening

out CESQG materials. Owners/operators

who elect to develop a screening

procedure are encouraged to work with

their State Agency to determine what

screening procedures, may at a State

level be required, recommended or in

guidance. The Agency believes that the

adoption of a Federal screening program

as a condition of not receiving CESQG

hazardous waste, will limit the

flexibility that both States and owners/

operators can exercise in developing a

successful screening program. The

Agency does not want to interfere in the

development of acceptable screening

programs that, based on comments

received on this rule, can be developed

and are being used in the field .

VII. Implementation of Today’s Final

Rule

A. State Activities Under Subtitle C

(Regulation of CESQGs of Hazardous

Waste)

1. Hazardous and Solid Waste

Amendments to RCRA

Today’s final rule changes the existing

requirements in § 261.5, paragraphs

(f)(3) and (g)(3) pertaining to the special

requirements for CESQGs. Under

Section 3006 of RCRA, EPA may

authorize qualified States to administer

and enforce the RCRA program within

the State. (See 40 CFR Part 271 for the

standards and requirements for

authorization.) Following authorization,

EPA retains enforcement authority

under Sections 3008, 7003 and 3013 of

RCRA, although authorized States have

primary enforcement responsibilities.

Prior to the Hazardous and Solid

Waste Amendments of 1984 (HSWA), a

State with final authorization

administered its hazardous waste

program entirely in lieu of EPA

administering the Federal program in

that State. The Federal requirements no

longer applied in the authorized State,

and EPA could not issue permits for any

facility which the State was authorized

to permit. When new, more stringent,

Federal requirements were promulgated

or enacted, the State was obliged to

enact equivalent authority within

specified time frames. New Federal

requirements did not take effect in an

authorized State until the State adopted

the requirements as State law.

In contrast, under Section 3006(g) of

RCRA, 42 U.S.C. 6926(g), new

requirements and prohibitions imposed

by HSWA take effect in authorized

States at the same time they take effect

in unauthorized States. EPA is directed

to carry out these requirements and

prohibitions in previously authorized

States, including the issuance of permits

and primary enforcement, until the

State is granted HSWA authorization to

do so. While States must still adopt

HSWA-related provisions as State law to

retain final authorization, the HSWA

provisions apply in authorized States in

the interim.

The amendments to § 261.5,

paragraphs (f)(3) and (g)(3), are finalized

pursuant to section 3001(d)(4) of RCRA,

which is a provision added by HSWA.

Therefore, the Agency has added the

requirements to Table 1 in § 271.1(j)

which identifies the Federal program

requirements that are promulgated

pursuant to HSWA and that take effect

in all States, regardless of their

authorization status. States may apply

for either interim or final authorization

for the HSWA provisions identified in

Table 1.

2. Effect on State Authorizations

As noted above, EPA will implement

today’s rule (i.e., the revision to § 261.5)

in authorized States until they modify

their programs to adopt the Section

261.5 rule change and the modification

is approved by EPA. Because the rule

has been finalized pursuant to HSWA,

a State submitting a program

modification may apply to receive either

interim or final authorization under

Section 3006(g)(2) or 3006(b),

respectively, on the basis of

requirements that are substantially

equivalent or equivalent to EPA’s. The

procedures and schedule for State

program modifications for either interim

or final authorization are described in

40 CFR 271.21. It should be noted that

all HSWA interim authorizations will

expire January 1, 2003. (See § 271.24(c)

and 57 FR 60129 (December 18, 1992)).

40 CFR 271.21(e)(2) provides that

States that have final authorization must

modify their programs to reflect Federal

program changes, and must

subsequently submit the modifications

to EPA for approval. The deadline by

which the State must modify its

program to adopt these regulations and

submit its application for approval is

specified in 40 CFR 271.21(e). These

deadlines can be extended in certain

cases (40 CFR 271.21(e)(3)). Once EPA

approves the modification, the State

requirements act in lieu of Subtitle C

RCRA requirements.

States with authorized RCRA

programs may already have adopted

requirements under State law similar to

those in today’s rule. These State

regulations have not been assessed

against the Federal regulations being

finalized today to determine whether

they meet the tests for authorization.

Thus, a State is not authorized to

implement these requirements in lieu of

EPA until the State program

modification is approved. Although

revisions to 40 CFR Parts 257 and 261

are being finalized, for the purpose of

authorization under Subtitle C, only the

final changes to § 261.5 would be

assessed against the Federal program. Of

course, States with existing standards

may continue to administer and enforce

their standards as a matter of State law.

In implementing the Federal program,

EPA will work with States under

cooperative agreements to minimize
34264 Federal Register / Vol. 61, No. 127 / Monday, July 1, 1996 / Rules and Regulations

duplication of efforts. In many cases

EPA will be able to defer to the States

in their efforts to implement their

programs, rather than take separate

actions under Federal authority.

States that submit their official

applications for final authorization less

than 12 months after the effective date

of these standards are not required to

include standards equivalent to these

standards in their application. However,

the State must modify its program by

the deadlines set forth in § 271.21(e).

States that submit official applications

for final authorization 12 months after

the effective date of these standards

must include standards equivalent to

these standards in their applications. 40

CFR 271.3 sets forth the requirements a

State must meet when submitting its

final authorization application.

3. States With More Stringent Programs

EPA is aware that a number of States

have more stringent requirements for

the disposal of waste generated by

CESQGs. In particular, some States do

not allow the disposal of this waste into

any Subtitle D landfill (i.e., some States

do not allow permitted MSWLFs to

accept CESQG hazardous waste). For

these States, today’s final rule would

clearly be considered less stringent than

the applicable provisions in these

States’ authorized programs. Section

3009 of RCRA allows States to adopt or

retain provisions that are more stringent

than the Federal provisions. Therefore,

regarding today’s final rule, EPA

believes that States which do not allow

the disposal of wastes generated by

CESQGs into Subtitle D landfills under

their existing authorized Subtitle C

program would not be required to revise

their programs and obtain authorization

for today’s proposed rule. Of course this

situation would only apply in those

cases where a State is not changing its

authorized regulatory language. Further,

the authorized State requirements in

such States, since they would be more

stringent than today’s final rule, would

continue to apply in that State, even

though today’s rule is proposed

pursuant to HSWA authority.

For a State to not be required to

submit an authorization revision

application for today’s final rule, the

State must have provisions that are

authorized by EPA and that are more

stringent than the analogous Subtitle C

provisions in today’s rule. For those

States that would not be required to

revise their authorization, EPA

encourages States to inform their EPA

Regional Office by letter that for this

final rule, they are not required to

submit a revision application pursuant

to 40 CFR 271.21(e), because in

accordance with RCRA Section 3009 the

authorized State provision currently in

effect is more stringent than the

requirements contained in today’s final

rule. Otherwise, EPA might conclude

that a revised authorization application

is required.

B. State Activities Under Subtitle D

(Regulation of Receiving Non-Municipal

Non-Hazardous Units)

States are the lead entities in

implementing and enforcing Subtitle D

rules. The Agency intends to maintain

the State’s lead in implementing the

Subtitle D program. RCRA Section 4005

requires States to adopt and implement,

within 18 months of the publication of

a final rule, a permit program or other

system of prior approval and conditions

to ensure that non-municipal nonhazardous waste disposal units

receiving CESQG waste comply with

today’s standards. The statute requires

EPA to determine whether States have

developed adequate permit programs.

States will need to review their existing

programs to determine where their

programs need to be revised and to

complete program changes, if changes

are necessary. The process for

evaluating the adequacy of State

programs has been set forth in a separate

proposal, the State/Tribal Permit

Program Determination of Adequacy.

See 61 FR 2584, January 26, 1996.

For the purpose of determining

adequacy and granting approval under

Subtitle D for today’s rule, only the

proposed technical changes in §§ 257.5

through 257.30 will be evaluated by the

Agency. The State may need to meet

other procedural and administrative

provisions identified in the State/Tribal

Permit Program Determination of

Adequacy. EPA policy on approval of

permit programs for non-municipal nonhazardous waste disposal units

receiving CESQG waste is the same

process that the Agency used for

determining the adequacy of State

programs for the Municipal Solid Waste

Landfill Criteria. In States already

approved for the Part 258 MSWLF

Criteria, changes required by this

rulemaking will constitute a program

revision.

The Agency believes that for many

approved States, changes required by

this rulemaking will affect the technical

Criteria only and should warrant limited

changes to the approved State program.

For example, if non-municipal nonhazardous waste disposal units subject

to this rule are already subject to an

approved State MSWLF program (i.e.,

the non-municipal non-hazardous waste

disposal units receiving CESQG waste

are currently subject to the Part 258

location restrictions, ground-water

monitoring, and corrective action

criteria), the State may only be required

to submit documentation that the nonmunicipal non-hazardous waste

disposal units receiving CESQG waste

are subject to their approved program.

In most cases, the Agency anticipates

that a streamlined approval process

would be appropriate. States are

encouraged to contact their appropriate

EPA Regional office to determine the

specifics of the approval process.

In the proposed State/Tribal permit

program determination of adequacy, the

Agency originally proposed that a

streamlined approval process would not

be used for permit programs that related

to additional classifications other than

MSWLFs. See 61 FR 2599, January 26,

1996. As suggested above, the Agency is

re-evaluating its proposed position and

a final determination will be made in

the final State/Tribal permit program

determination of adequacy.

In States that have not been approved

for the MSWLF Criteria, these revisions

can be incorporated into an application

for overall program approval of Part 258

and §§ 257.5 through 257.30. For

purposes of today’s rule, States that

currently restrict CESQG disposal to

Subtitle C facilities (and States that may

choose to adopt that restriction) or

approved States which currently restrict

CESQG disposal to Part 258 municipal

solid waste landfills will not need to

seek further EPA approval of their

Subtitle D program. RCRA Section

4005(c)(1)(B) requires States to adopt

and implement permit programs to

ensure that facilities which receive

CESQG waste will comply with the

revised Criteria promulgated under

Section 4010(c). However, the Agency

sees no need for approved States that

already require CESQG waste to be

disposed of in either Subtitle C facilities

or facilities subject to the Part 258

MSWLF Criteria to adopt and

implement a permit program based

upon the standards being finalized

today.

RCRA Section 7004(b)(1) requires the

Administrator and the States to

encourage and provide for public

participation in the development,

revision, implementation, and

enforcement of this regulation and, once

it is promulgated, in the State permit

programs which implement it. EPA

provides for public participation in its

decisions on whether State permit

programs are adequate under RCRA

Section 4005(c)(1)(c). In developing and

implementing permit programs, States

must provide for public participation in

accordance with the provisions of 40

CFR Part 239 (specifically § 239.6).
Federal Register / Vol. 61, No. 127 / Monday, July 1, 1996 / Rules and Regulations 34265

Permit programs have been defined in

the proposed State/Tribal Permit

Program Determination of Adequacy to

include other systems of prior approval

and conditions, including licenses or

registrations.

C. Summary of Comments and EPA

Response

Several commenters supported EPA’s

approach in the proposal toward States

with approved Subtitle D programs that

have CESQG disposal restrictions in

their Subtitle D programs. In particular,

the commenters supported EPA’s

statement that States which require

CESQG waste to be disposed of in either

Subtitle C facilities or facilities subject

to the part 258 MSWLF Criteria do not

need EPA approval for a permit program

based on today’s final (Subtitle D)

standards. However, the commenters

believed that for these States, the

absence of a required EPA approval

should be extended to the Subtitle C

program.

EPA believes that its approach toward

States with programs that are more

stringent than this final rule is the same

for both the Subtitle C and Subtitle D

programs. Those States with approved

Subtitle D or authorized Subtitle C

program that do not allow CESQG waste

to be disposed of in a landfill addressed

by today’s technical standards do not

need approval by EPA for that program.

EPA’s position is detailed in sections

VII.A. and VII.B. above. EPA believes

that since the existing approved State

requirements are more stringent than

the provisions in today’s rule, in such

States, program revisions are not

necessary for the State programs to

remain at least equivalent to the Federal

rules.

Other commenters raised the

possibility of State self-certification for

State authorization for both the RCRA

Subtitle C and D programs, particularly

where the State already has rules that

are equivalent to today’s rule in its

waste management programs. The

commenters argued that this selfcertification will result in significant

resource savings.

Regarding the commenters suggestion

on allowing State self-certification, EPA

is currently examining this issue for

Subtitle C authorization as part of the

HWIR-Media rulemaking (see 61 FR

18780, April 29, 1996). In the proposed

Phase IV LDR rule, EPA proposed an

abbreviated authorization process for

new minor rule changes (see 60 FR

43686, August 22, 1995). Although this

authorization proposal did not address

the rule changes in the June 12, 1995

proposal, EPA is committed to

streamlining the Subtitle C

authorization process.

EPA believes that the authorization

process for the Subtitle C portion of

today’s final rule will be very

straightforward because today’s rule

only added two new provisions to the

hazardous waste regulations. EPA will

work with States and EPA regions to

ensure that the Subtitle C authorization

process for this rule will be completed

swiftly. EPA believes that it can take

such certifications into account to a

large degree, thereby, greatly reducing

review time. Further, EPA believes that

many States will not require revisions to

their authorized programs because their

authorized programs are currently more

stringent than today’s rule.

D. Owner/Operator Responsibilities

1. Owner/Operator Responsibility and

Flexibility in Approved States

The regulatory structure of the Part

258 MSWLF Criteria is based on an

owner/operator achieving compliance

through self-implementation with the

various requirements while allowing

approved States the flexibility to

consider local conditions in setting

appropriate alternative standards that

still achieve compliance with the basic

goal of the Part 258 Criteria. This

flexibility that exists for approved States

under Part 258 has been retained in

today’s final rule and can be used by

approved States in determining facility

specific requirements. Owners/operators

of non-municipal non-hazardous waste

disposal units that are receiving CESQG

wastes as of the effective dates of

today’s final rule, due to the selfimplementing nature of this final rule,

would be required to comply with the

promulgated standards regardless of the

status of the States approval

determination under Subtitle D. If an

owner/operator of a non-municipal nonhazardous waste disposal unit is

receiving CESQG waste and is located in

a State that has not been approved

under Subtitle D for these revised

criteria, then the owner/operator would

have to comply with the promulgated

standards, without the benefit of the

flexibility allowed to be granted by the

Director of an approved State.

Owners/operators of non-municipal

non-hazardous waste disposal units that

receive CESQG waste and are located in

approved States may be subject to

alternate requirements based on the

approved State standards.

2. CESQG’s Responsibilities Relating to

the Revisions in § 261.5, Paragraphs (f)

and (g)

Today’s final rule allows that CESQG

waste go to either a hazardous waste

facility, a reuse or recycling facility, a

municipal solid waste landfill subject to

Part 258, a non-municipal solid waste

disposal facility that is subject to the

requirements being proposed in §§ 257.5

through 257.30 or a solid waste

management facility (i.e., incinerator)

that is permitted, licensed, or registered

by a State to manage municipal or nonmunicipal waste. Today’s final rule does

not mandate that CESQG waste go to a

MSWLF or to a non-municipal nonhazardous waste disposal unit subject to

today’s final requirements. These are

just two of the options as to where

CESQG hazardous waste can be send for

management.

The Agency does not believe that

today’s final rule amendment to § 261.5

will result in a larger obligation for any

CESQG. The Agency knows that the

majority of CESQG waste is managed

off-site. For the CESQG waste managed

off-site, recycling is the predominant

form of management. The Agency

assumes that for the small amount of

CESQG waste that is currently being

sent off-site to a MSWLF, this practice

can continue to occur, as long as

allowed under State regulations, as all

MSWLFs where CESQG waste could be

sent are subject to Part 258. Hazardous

waste regulations applicable to CESQGs

require that CESQG hazardous waste be

managed in a unit permitted, licensed,

or registered by the State to manage

municipal or industrial waste. Those

CESQGs, including construction and

demolition waste generators, who wish

to send their CESQG waste to a nonmunicipal non-hazardous waste

disposal unit and are uncertain whether

the unit has the appropriate permit,

license, or registration should contact

his/her State Agency to ascertain if the

non-municipal non-hazardous waste

disposal unit in question can legally

accept CESQG waste.

A CESQG may elect to screen-out or

segregate out the CESQG hazardous

wastes from his non-hazardous waste

and then manage the CESQG hazardous

portion in compliance with today’s final

amendments to § 261.5(f)(3) and (g)(3).

The remaining non-hazardous waste

would not be subject to the final

requirements in § 261.5; however, it

must be managed in a facility that

complies with either the Part 258

Criteria or the existing Criteria in

§§ 257.1–257.4. On the other hand, a

CESQG may elect not to screen-out or

segregate the CESQG hazardous waste
34266 Federal Register / Vol. 61, No. 127 / Monday, July 1, 1996 / Rules and Regulations

preferring instead to leave it mixed with

the mass of non-hazardous waste. If the

CESQG elects this option, the entire

mass of material must be managed in a

Subtitle C or Subtitle D facility as per

today’s final language in § 261.5.

E. Enforcement

1. Hazardous Waste Enforcement

Today’s final rule amends § 261.5,

paragraphs (f)(3) and (g)(3), and as such

any CESQG who mismanages their

CESQG hazardous waste on-site or

delivers the CESQG hazardous waste to

an inappropriate Subtitle D facility

becomes subject to enforcement actions

which could include loss of CESQG

status for any CESQG waste that is

improperly disposed of.

2. Subtitle D Enforcement

States that adopt programs meeting

the standards in §§ 257.5 through 257.30

may enforce them in accordance with

State authorities. Under RCRA Section

7002, citizens may seek enforcement of

the standards in §§ 257.5 through 257.30

independent of any State enforcement

program. Section 7002 provides that any

person may commence a civil action on

his/her own behalf against any person

who is alleged to be in violation of any

permit, standard, regulation, condition,

requirement, prohibition, or order that

has become effective pursuant to RCRA.

Once the self-implementing provisions

in §§ 257.5 through 257.30 become

effective, they constitute the basis for

citizen enforcement. Federal

enforcement by EPA can be done only

in States that EPA has determined have

inadequate programs. EPA has no

enforcement authorities under Section

4005 in approved States. EPA does,

however, retain enforcement authority

under Section 7003 to protect against

imminent and substantial endangerment

to health and the environment in all

States.

VIII. Executive Order 12866

Under Executive Order No. 12866,

EPA must determine whether a new

regulation is significant. A significant

regulatory action is defined as an action

likely to result in a rule that may:

1. Have an annual effect on the

economy of $100 million or more or

adversely affect in a material way the

economy, a sector of the economy,

productivity, competition, jobs, the

environment, public health or safety, or

state, local, or tribal governments or

communities;

2. Create a serious inconsistency or

otherwise interfere with an action taken

or planned by another agency;

3. Materially alter the budgetary

impact of entitlements, grants, user fees,

or loan programs or the rights and

obligations of recipients thereof; or

4. Raise novel legal or policy issues

arising out of legal mandates, the

President’s priorities, or the principles

set forth in Executive Order 12866.

Pursuant to the terms of the Executive

Order 12866, it has been determined

that this rule is a ‘‘significant regulatory

action’’ because it raises novel legal or

policy issues arising out of legal

mandates, the President’s priorities, or

the principles set forth in the Executive

Order. Changes made in response to

OMB suggestions or recommendations

will be documented in the public

record.

A. Cost Impacts

In the Cost and Economic Impact

Analysis (May, 1995) accompanying the

proposed rule, the Agency estimated the

total annual costs to the economy

resulting from the proposed rule ranged

from $10.0 million to $47.0 million.

The national low-end cost assumes

that all CESQG hazardous waste is

separated at the point of generation for

the construction industry. It assumes

there will be no CESQG waste generated

by the demolition industry. The CESQG

portion is disposed of at hazardous

waste facilities while the remaining

non-hazardous waste portion is

disposed of in non-upgraded

construction and demolition waste

facilities. The costs include the

separation costs at the point of

generation, costs of transporting/

disposing the hazardous portion at a

Subtitle C facility, and the costs of

screening incoming wastes at all of the

construction and demolition waste

facilities.

The national annual high-end cost

assumes that generators will not

separate out CESQG waste from 30% of

construction and demolition wastes and

that this fraction will be sent to

upgraded construction and demolition

waste facilities that elect to comply with

today’s proposed requirements. Under

this scenario, the Agency assumed that

most medium to large size construction

and demolition waste facilities (162)

will upgrade. The costs include

separation costs at the point of

generation for waste not going to an

upgraded landfill, costs of screening

incoming wastes at 80% of the affected

construction and demolition waste

facilities which do not upgrade and

costs for 20% of the affected

construction and demolition wastes

facilities to upgrade. Upgrade costs

include ground-water monitoring and

corrective action.

Upon receipt and incorporation of

public comments, the Agency prepared

a revised Cost and Economic Impact

Analysis (June, 1996). In the revised

analysis, the Agency estimates the total

annual costs to the economy for today’s

final rule will range from $12.65 to

$51.0 million dollars. These costs fall

upon approximately three types of

facilities: 600 manufacturing-sector

CESQGs, at an average annual cost of

$280 per facility; 10,000 constructionsector CESQGs, at an average cost of

$930 per facility; and 700 construction/

demolition waste landfills, at an average

cost of $4500 per facility.

One commentor suggested that EPA

had understated the costs of compliance

with the new regulation. The

commentor supported this conclusion

based on several contentions:

(1) The commentor maintained that

EPA’s estimates of total construction

and demolition wastes were flawed

because some data sources were

inappropriate, including European data.

Although EPA agrees that U.S. data

would be preferable, the European

information provided an important and

relevant insight for our analysis. EPA

believes that many aspects of

construction technology are similar

from one developed western country to

another. EPA also notes that the costing

methodology used in the analysis rests

mostly on costs per facility, rather than

costs per ton.

(2) The commentor suggested that

EPA underestimated the labor required

for screening hazardous waste at

construction/demolition waste landfills.

Data that EPA has collected from

construction/demolition landfill owner/

operators, however, indicates that

screening programs are already in affect

at most of these facilities. EPA has

collected information on the number of

hours required for screening wastes per

year per landfill, and believes that the

nationwide estimate of one additional

hour of labor per day per landfill is

reasonable.

(3) The commentor also suggested that

EPA had underestimated the amount of

labor which would be required to

separate wastes at construction sites.

The Cost and Economic Impact Analysis

estimated one labor hour per week per

company for separating hazardous

wastes. Since a company can have

multiple job-sites operating

simultaneously, the commentor

indicated that it would be more

reasonable to estimate one hour per jobsite, rather than per company. EPA

agrees, and notes that the wording in the

original analysis was incorrect; the

estimate was actually labor hours per

establishment, where each

establishment represents a group of job

sites. Therefore, EPA has used the
Federal Register / Vol. 61, No. 127 / Monday, July 1, 1996 / Rules and Regulations 34267

costing methodology that the

commentor recommends.

(4) Finally, the commentor disputes

EPA’s estimate of the hourly labor cost

for screening wastes at the landfill and

separating wastes at the generator site.

EPA re-examined the labor costs,

consulting with the Bureau of Labor

Statistics and a standard construction

industry costing guide. As a result, EPA

agrees with this comment and has

adjusted the labor figure by 27% (from

$13.60 per hour to $17.32 per hour).

Further discussion of the cost analysis

can be found in Cost and Economic

Impact Analysis of the CESQG Rule,

June 1996, available in the docket.

B. Benefits

The Agency believes that the

requirements being proposed for nonmunicipal solid waste disposal facilities

will result in more Subtitle D facilities

providing protection against groundwater contamination from the disposal

of small amounts of hazardous waste.

Today’s action will force some nonmunicipal solid waste disposal facilities

to either upgrade and install groundwater monitoring and perform

corrective action if contamination is

detected, or stop accepting hazardous

waste. Today’s action will also cause

some generators of CESQG wastes to

separate out these small quantities of

hazardous waste and send them to more

heavily regulated facilities (i.e., Subtitle

C facilities or MSWLFs). These are the

direct benefits of today’s proposal,

however, additional benefits will be

realized due to this proposal.

Today’s final rule will require that

any ground-water contamination that is

occurring at units that continue to

receive CESQG hazardous waste will be

quickly detected, and therefore,

corrective action can be initiated sooner

avoiding a more costly corrective action.

To the extent that existing nonmunicipal non-hazardous waste

disposal units that receive CESQG

hazardous waste upgrade their units to

include ground-water monitoring, and

to the extent that new facilities will be

located outside of floodplains and

wetlands, public confidence in these

types of units will be increased. Having

a higher level of confidence should

result in these types of units being

easier to site in the future.

Finally, to the extent that CESQGs

separate out the small volumes of

hazardous waste, the resulting mass of

clean non-hazardous waste would have

a better potential to be recycled.

IX. Regulatory Flexibility Act

Pursuant to the Regulatory Flexibility

Act (5 U.S.C. 601 et seq., Pub. L. 96–

354), as amended by the Small Business

Regulatory Enforcement Fairness Act of

1996 (‘‘SBREFA’’), EPA must consider

whether a regulatory action will have a

significant adverse impact on small

entities. For a rule promulgated after

June 27, 1996, EPA must either certify

that the regulation will not have a

significant impact on a substantial

number of small entities or prepare a

final regulatory flexibility analysis that

contains an evaluation of five factors. 5

U.S.C. 604(a). Because EPA promulgated

this rule prior to June 28, 1996, the

revised requirements of SBREFA for an

expanded regulatory flexibility analysis

if a certification is not made do not

apply. At the same time, however, EPA

has conducted an analysis to determine

whether the rule will have a significant

impact on small entities. On the basis of

that analysis, EPA certifies that this rule

will not have a significant impact on a

substantial number of small entities.

The factual basis for this certification is

as follows.

EPA anticipates that this rule will

increase costs for two classes of

facilities. CESQG generators that still

handle their CESQG waste on site are

expected to send their CESQG waste to

Subtitle C facilities, at a maximum perfacility cost of $570 per year.

Construction waste generators will incur

maximum additional per-firm costs of

$1,469 per year, for separation,

transportation, and disposal of

hazardous wastes. In each case, EPA’s

analysis shows that the impacts are less

than one percent of annual revenues, for

all sizes and types of companies.

This determination is based on EPA’s

projection of the response of CESQG

waste generators and disposal facilities

to today’s rule. EPA performed a high

end analysis, predicated on an

assumption that C&D landfills upgrade

to meet these standards. In this scenario,

cost impacts would be higher. EPA does

not expect C&D landfills to upgrade,

however, since they would be unlikely

to recover the high costs of upgrading.

The analysis of effects on small entities

is predicated on an assumption that the

owners of C&D landfills act rationally,

i.e., they choose not to upgrade but

rather choose to stop accepting CESQG

wastes.

Moreover, EPA has modified the

proposed rule in a number of ways so

that cost to small entities may be

decreased. For example, EPA has

included a provision which authorizes

Directors of approved state programs to

establish an alternative list of indicator

parameters not only for the inorganic

constituents but also for the organic

constituents to be monitored for in the

detection monitoring phase of ground

water monitoring. Thus, owner/

operators of non-municipal, nonhazardous waste disposal units in

approved states may have lower ground

water monitoring costs.

In addition, EPA has removed four

location restrictions (airports, fault

areas, seismic impact zone, and unstable

areas) from the final rule for the reasons

set forth in Section VI.B of today’s

preamble. Costs for small entities that

own non-municipal, non-hazardous

waste disposal units that must comply

with this rule would thus be reduced

because no demonstrations to establish

that these location restrictions have

been met would need to be made.

X. Submission to Congress and the

General Accounting Office

Under section 801(a)(1)(A) of the

Administrative Procedure Act (APA) as

amended by the Small Business

Regulatory Enforcement Fairness Act of

1996, EPA submitted a report containing

this rule and other required information

to the U.S. Senate, the U.S. House of

Representatives and the Comptroller

General of the General Accounting

Office prior to publication of the rule in

today’s Federal Register. This rule is

not a ‘‘major rule’’ as defined by section

804(2) of the APA as amended.

XI. Paperwork Reduction Act

The information collection

requirements in this rule have been

submitted for approval to the Office of

Management and Budget (OMB) under

the Paperwork Reduction Act, 44 U.S.C.

3501 et seq. An Information Collection

Request (ICR) document has been

prepared by EPA (ICR No. 1745.01) and

a copy may be obtained from Sandy

Farmer, OPPE Regulatory Information

Division, U.S. Environmental Protection

Agency (2136), 401 M St., S.W.

Washington, DC 20460 or by calling

(202) 260–2740. The information

requirements are not effective until

OMB approves them.

The information to be collected under

this rulemaking would be used

primarily by the States to regulate and

ensure that non-municipal nonhazardous waste disposal units that may

receive CESQG wastes are complying

with the final requirements. The

information collected would be used by

the State Director to confirm compliance

on the part of the owner/operator with

the final requirements. All information

will be reported to the States or kept in

an operating record at the facility. EPA

will not collect information from any of

the facilities subject to today’s

requirements, except in any potential

enforcement case.
34268 Federal Register / Vol. 61, No. 127 / Monday, July 1, 1996 / Rules and Regulations

The total annual public recordkeeping

and reporting burden is estimated to be

12,100 hours with an average of 67

hours per respondent. Burden means

the total time, effort, or financial

resources expended by persons to

generate, maintain, retain, or disclose or

provide information to or for a Federal

agency. This includes the time needed

to review instructions; develop, acquire,

install and utilize technology and

systems for the purposes of collecting,

validating, and verifying information,

processing and maintaining

information, and disclosing and

providing information; adjust the

existing ways to comply with any

previously applicable instructions and

requirements; train personnel to be able

to respond to a collection of

information; search data sources;

complete and review collection of

information; and transmit or otherwise

disclose the information.

An Agency may not conduct or

sponsor, and a person is not required to

respond to a collection of information

unless it displays a currently valid OMB

control number. The OMB control

numbers for EPA’s regulations are listed

in 40 CFR Part 9 and 48 CFR Chapter

15.

Send comments on the Agency’s need

for this information, the accuracy of the

provided burden estimates, and any

suggested methods for minimizing

respondent burden, including through

the use of automated collection

techniques to the Director, OPPE

Regulatory Information Division, U.S.

Environmental Protection Agency

(2136), 401 M St., S.W., Washington, DC

20460 or to the Office of Information

and Regulatory Affairs, Office of

Management and Budget, 725 17th St.,

N.W., Washington, DC 20503, marked

‘‘Attention: Desk Officer for EPA.’’

Include the ICR number in any

correspondence.

XII. Environmental Justice

Executive Order 12898 requires

Federal Agencies, to the greatest extent

practicable, to identify and address

disproportionately high adverse human

health or environmental effects of its

activities on minority and low-income

populations.

The Agency does not currently have

data on the demographics of

populations surrounding the facilities

affected by today’s final rule (i.e.,

construction and demolition landfills).

The Agency does not believe, however,

that today’s final rule will adversely

impact minority or low-income

populations. The facilities affected by

the final rule pose limited risk to

surrounding populations. In addition,

today’s final rule would further reduce

this risk by requiring the affected

facilities to either stop accepting CESQG

hazardous waste or to begin groundwater monitoring and, if applicable,

corrective action.

Thus, today’s final rule will further

reduce the already low risk for

populations surrounding construction

and demolition landfills, regardless of

the population’s ethnicity or income

level. Minority and low-income

populations will not be adversely

affected.

XIII. Unfunded Mandates Reform Act

Under section 202 of the Unfunded

Mandates Reform Act of 1995 (the Act),

Public Law 104–4, which was signed

into law on March 22, 1995, EPA

generally must prepare a written

statement for rules with Federal

mandates that may result in estimated

costs to State, local, and tribal

governments in the aggregate, or to the

private sector, of $100 million or more

in any one year. When such a statement

is required for EPA rules, under section

205 of the Act EPA must identify and

consider alternatives, including the least

costly, most cost-effective or least

burdensome alternative that achieves

the objectives of the rule. EPA must

select that alternative, unless the

Administrator explains in the final rule

why it was not selected or it is

inconsistent with law. Before EPA

establishes regulatory requirements that

may significantly or uniquely affect

small governments, including tribal

governments, it must develop under

section 203 of the Act a small

government agency plan. The plan must

provide for notifying potentially

affected small governments, giving them

meaningful and timely input in the

development of EPA regulatory

proposals with significant Federal

intergovernmental mandates, and

informing, educating, and advising them

on compliance with the regulatory

requirements.

EPA has determined that today’s final

rule does not include a Federal mandate

that may result in estimated costs of

$100 million or more to State, local, or

tribal governments in the aggregate, or

to the private sector, in any one year.

EPA has estimated that the annual costs

of today’s final rule on generators of

CESQG wastes and those entities which

own or operate CESQG disposal

facilities, including the private sector,

States, local or tribal governments, range

from $12.65–48.9M.

In addition to compliance costs for

those who own or operate CESQG

facilities, States will have a cost of

developing permit programs or other

systems of prior approval to ensure that

CESQG units comply with the final rule.

Adoption and implementation of such

State permit programs is required under

RCRA section 4005(c)(1)(B). 42 USC

6945(c)(1)(B). The Agency has estimated

that the costs for a state to develop an

application for approval of an MSWLF

permit program to be approximately

$15,000. Because these state permit

programs already contain ground water

monitoring, corrective action, and

location standards for MSWLFs that are

quite similar to those in this final rule,

EPA believes that the additional costs

for states to revise their permit programs

to reflect the CESQG requirements are

not expected to be significant. Also,

because of the reduced level of

regulatory requirements contained in

this CESQG final rule as compared to

the MSWLF Part 258 criteria, state costs

for preparing applications for approval

of a CESQG permit program should be

considerably less than that $15,000

figure.

Indian tribes are not required to

develop permit programs for approval

by EPA, but the Agency believes tribal

governments are authorized to

development such permit programs and

have them approved by EPA. This issue

is discussed in the proposal STIR. See

61 FR 2584, January 26, 1996. EPA has

estimated that it will cost a tribal

government approximately $7,000 to

prepare an application for approval of a

MSWLF program. Because of the

reduced regulatory provisions of the

CESQG final rule, EPA expects that the

costs which a tribal government might

face in developing a permit program for

CESQG units should be less than

$7,000.

EPA has also finalized amendments to

the requirements for generators of

CESQG hazardous waste. These

amendments to 40 CFR 261.5 (f)(3) and

(g)(3) are finalized pursuant to RCRA

Section 3001 (d)(4), which is a provision

added by HSWA. The § 261.5

amendments are also more stringent

than current Federal hazardous waste

regulations. Subtitle C regulatory

changes carried out under HSWA

authority become effective in all states

at the same time and are implemented

by EPA until states revise their

programs. States are obligated to revise

their hazardous waste programs and

seek EPA authorization of these program

revisions, unless their programs already

incorporate more stringent provisions.

The Agency believes approximately 24

states already have more stringent

CESQG hazardous waste provisions and

would not have to take action because

of these regulatory changes. About 26

states would have to revise their
Federal Register / Vol. 61, No. 127 / Monday, July 1, 1996 / Rules and Regulations 34269

hazardous waste programs and seek

authorization. States generally

incorporate a number of hazardous

waste program revisions and seek

authorization for them at one time. The

Agency estimates the State costs

associated with Subtitle C program

revision/authorization activity are

approximately $7,320 per state. Since

this estimate covers several separate

program components at one time, the

cost for revisions only to Section 261.5

in the remaining 26 States would be

substantially less.

As to section 203 of the Act, EPA has

determined that the requirements being

finalized today will not significantly or

uniquely affect small governments,

including tribal governments. EPA

recognizes that small governments may

own or operate waste disposal units that

receive CESQG waste. However, EPA

continues to estimate that the majority

of construction and demolition landfills,

which are the primary facilities to be

subject to this final rule, are owned by

the private sector. Moreover, EPA is

aware that a number of states already

require owners/operators of C&D

landfills to meet regulatory standards

that are similar to those being finalized

today. Thus, EPA believes that today’s

final rule contains no regulatory

requirements that significantly or

uniquely affect small governments.

EPA has, however, sought meaningful

and timely input from the private sector,

states, and small governments on the

development of this final rule by

seeking comments on the proposed

CESQG rule and by attempting to

adequately address issues and concerns

expressed by these entities in their

comments. Furthermore, the Agency

highlighted, in the June 12, 1995

proposal, those actions that it took to get

meaningful and timely input from these

entities prior to proposal.

List of Subjects

40 CFR Part 257

Environmental protection, Reporting

and recordkeeping requirements, Waste

disposal.

40 CFR Part 261

Hazardous materials, Recycling,

Waste treatment and disposal.

40 CFR Part 271

Administrative practice and

procedure, Hazardous materials

transportation, Hazardous waste,

Indian-lands, Intergovernmental

relations, Penalties, Reporting and

recordkeeping requirements, Water

pollution control, Water supply.

Dated: June 21, 1996.

Carol M. Browner,

Administrator.

For reasons set out in the preamble,

title 40, Chapter I of the Code of Federal

Regulations is amended as set forth

below:

PART 257—CRITERIA FOR

CLASSIFICATION OF SOLID WASTE

DISPOSAL FACILITIES AND

PRACTICES

1. The authority citation for part 257

is revised to read as follows:

Authority: 42 U.S.C. 6907(a)(3), 6912(a)(1),

6944(a) and 6949(c), 33 U.S.C. 1345 (d) and

(e).

§§ 257.1 through 257.4 [Redesignated as

Subpart A]

2. Sections 257.1 through 257.4 are

designated as Subpart A—Classification

of Solid Waste Disposal Facilities and

Practices.

3. Section 257.1(a) is revised to read

as follows:

§ 257.1 Scope and purpose.

(a) Unless otherwise provided, the

criteria in §§ 257.1 through 257.4 are

adopted for determining which solid

waste disposal facilities and practices

pose a reasonable probability of adverse

effects on health or the environment

under sections 1008(a)(3) and 4004(a) of

the Resource Conservation and

Recovery Act (The Act). Unless

otherwise provided, the criteria in

§§ 257.5 through 257.30 are adopted for

purposes of ensuring that nonmunicipal non-hazardous waste

disposal units that receive conditionally

exempt small quantity generator

(CESQG) waste do not present risks to

human health and the environment

taking into account the practicable

capability of such units in accordance

with Section 4010(c) of the Act.

(1) Facilities failing to satisfy either

the criteria in §§ 257.1 through 257.4 or

§§ 257.5 though 257.30 are considered

open dumps, which are prohibited

under section 4005 of the Act.

(2) Practices failing to satisfy either

the criteria in §§ 257.1 through 257.4 or

§§ 257.5 through 257.30 constitute open

dumping, which is prohibited under

section 4005 of the Act.

* * * * *

4. Part 257 is amended by adding a

new Subpart B to read as follows:

Subpart B—Disposal Standards for the

Receipt of Conditionally Exempt Small

Quantity Generator (CESQG) Wastes at

Non-Municipal Non-Hazardous Waste

Disposal Units

Sec.

257.5 Disposal standards for owners/

operators of non-municipal nonhazardous waste disposal units that

receive Conditionally Exempt Small

Quantity Generator (CESQG) waste

Location Restrictions

257.7 Reserved

257.8 Floodplains.

257.9 Wetlands

257.10 Reserved

257.11 Reserved

257.12 Reserved

257.13 Deadline for making

demonstrations.

Ground-Water Monitoring and Corrective

Action

257.21 Applicability.

257.22 Ground-water monitoring systems.

257.23 Ground-water sampling and analysis

requirements.

257.24 Detection monitoring program.

257.25 Assessment monitoring program.

257.26 Assessment of corrective measures.

257.27 Selection of remedy.

257.28 Implementation of the corrective

action program.

Recordkeeping Requirement

257.30 Recordkeeping requirements.

Subpart B—Disposal Standards for the

Receipt of Conditionally Exempt Small

Quantity Generator (CESQG) Wastes at

Non-Municipal Non-Hazardous Waste

Disposal Units

§ 257.5 Disposal standards for owners/

operators of non-municipal non-hazardous

waste disposal units that receive

Conditionally Exempt Small Quantity

Generator (CESQG) waste.

(a) Applicability. (1) The requirements

in this section apply to owners/

operators of any non-municipal nonhazardous waste disposal unit that

receives CESQG hazardous waste, as

defined in 40 CFR 261.5. Non-municipal

non-hazardous waste disposal units that

meet the requirements of this section

may receive CESQG wastes. Any owner/

operator of a non-municipal nonhazardous waste disposal unit that

receives CESQG hazardous waste

continues to be subject to the

requirements in §§ 257.3–2, 257.3–3,

257.3–5, 257.3–6, 257.3–7, and 257.3–8

(a), (b), and (d).

(2) Any non-municipal non-hazardous

waste disposal unit that is receiving

CESQG hazardous waste as of January 1,

1998, must be in compliance with the

requirements in §§ 257.7 through 257.13

and § 257.30 by January 1, 1998, and the

requirements in §§ 257.21 through

257.28 by July 1, 1998.
34270 Federal Register / Vol. 61, No. 127 / Monday, July 1, 1996 / Rules and Regulations

(3) Any non-municipal non-hazardous

waste disposal unit that does not meet

the requirements in this section may not

receive CESQG wastes.

(4) Any non-municipal non-hazardous

waste disposal unit that is not receiving

CESQG Hazardous waste as of January

1, 1998, continues to be subject to the

requirements in §§ 257.1 through 257.4.

(5) Any non-municipal non-hazardous

waste disposal unit that first receives

CESQG hazardous waste after January 1,

1998, must be in compliance with

§§ 257.7 through 257.30 prior to the

receipt of CESQG hazardous waste.

(b) Definitions.

Active life means the period of

operation beginning with the initial

receipt of solid waste and ending at the

final receipt of solid waste.

Existing unit means any nonmunicipal non-hazardous waste

disposal unit that is receiving CESQG

hazardous waste as of January 1, 1998.

Facility means all contiguous land

and structures, other appurtenances,

and improvements on the land used for

the disposal of non-municipal nonhazardous waste.

Lateral expansion means a horizontal

expansion of the waste boundaries of an

existing non-municipal non-hazardous

waste disposal unit.

New unit means any non-municipal

non-hazardous waste disposal unit that

has not received CESQG hazardous

waste prior to January 1, 1998.

State means any of the several States,

the District of Columbia, the

Commonwealth of Puerto Rico, the

Virgin Islands, Guam, American Samoa,

and the Commonwealth of the Northern

Mariana Islands, and Indian Tribes.

State Director means the chief

administrative officer of the lead State/

Tribal agency responsible for

implementing the State/Tribal permit

program for Subtitle D regulated

facilities.

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 aquifer within

the facility’s property boundary.

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.

Location Restrictions

§ 257.7 [Reserved]

§ 257.8 Floodplains.

(a) Owners or operators of new units,

existing units, and lateral expansions

located in 100-year floodplains must

demonstrate that the unit will not

restrict the flow of the 100-year flood,

reduce the temporary water storage

capacity of the floodplain, or result in

washout of solid waste so as to pose a

hazard to human health and the

environment. The owner or operator

must place the demonstration in the

operating record and notify the State

Director that it has been placed in the

operating record.

(b) For purposes of this section:

(1) ‘‘Floodplain’’ means the lowland

and relatively flat areas adjoining inland

and coastal waters, including floodprone 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 equalled or exceeded once

in 100 years on the average over a

significantly long period.

(3) ‘‘Washout’’ means the carrying

away of solid waste by waters of the

base flood.

§ 257.9 Wetlands.

(a) Owners or operators of new units

and lateral expansions shall not locate

such units in wetlands, unless the

owner or operator can make the

following demonstrations to the Director

of an approved State:

(1) Where applicable under section

404 of the Clean Water Act or applicable

State wetlands laws, the presumption

that a practicable alternative to the

proposed landfill is available which

does not involved wetlands is clearly

rebutted:

(2) The construction and operation of

the unit will not:

(i) Cause or contribute to violations of

any applicable State water quality

standard;

(ii) Violate any applicable toxic

effluent standard or prohibition under

Section 307 of the Clean Water Act;

(iii) Jeopardize the continued

existence of endangered or threatened

species or result in the destruction or

adverse modification of a critical

habitat, protected under the Endangered

Species Act of 1973; and

(iv) Violate any requirement under the

Marine Protection, Research, and

Sanctuaries Act of 1972 for the

protection of a marine sanctuary;

(3) The unit will not cause or

contribute to significant degradation of

wetlands. The owner/operator must

demonstrate the integrity of the unit and

its ability to protect ecological resources

by addressing the following factors:

(i) Erosion, stability, and migration

potential of native wetland soils, muds

and deposits used to support the unit;

(ii) Erosion, stability, and migration

potential of dredged and fill materials

used to support the unit;

(iii) The volume and chemical nature

of the waste managed in the unit;

(iv) Impacts on fish, wildlife, and

other aquatic resources and their habitat

from release of the waste;

(v) The potential effects of

catastrophic release of waste to the

wetland and the resulting impacts on

the environment; and

(vi) Any additional factors, as

necessary, to demonstrate that

ecological resources in the wetland are

sufficiently protected.

(4) To the extent required under

section 404 of the Clean Water Act or

applicable State wetlands laws, steps

have been taken to attempt to achieve

no net loss of wetlands (as defined by

acreage and function) by first avoiding

impacts to wetlands to the maximum

extent practicable as required by

paragraph (a)(1) of this section, then

minimizing unavoidable impacts to the

maximum extent practicable, and finally

offsetting remaining unavoidable

wetland impacts through all appropriate

and practicable compensatory

mitigation actions (e.g., restoration of

existing degraded wetlands or creation

of man-made wetlands); and

(5) Sufficient information is available

to make a reasonable determination

with respect to these demonstrations.

(b) For purposes of this section,

wetlands means those areas that are

defined in 40 CFR 232.2(r).

§ 257.10 [Reserved]

§ 257.11 [Reserved]

§ 257.12 [Reserved]

§ 257.13 Deadline for making

demonstrations.

Existing units that cannot make the

demonstration specified in § 257.8(a)

pertaining to floodplains by January 1,

1998, must not accept CESQG

hazardous waste for disposal.

Ground-water monitoring and

corrective action.

§ 257.21 Applicability.

(a) The requirements in this section

apply to units identified in § 257.5(a),

except as provided in paragraph (b) of

this section.

(b) Ground-water monitoring

requirements under §§ 257.22 through

257.25 may be suspended by the

Director of an approved State for a unit

identified in § 257.5(a) if the owner or

operator can demonstrate that there is

no potential for migration of hazardous

constituents from that unit to the

uppermost aquifer during the active life

of the unit plus 30 years. This

demonstration must be certified by a

qualified ground-water scientist and
Federal Register / Vol. 61, No. 127 / Monday, July 1, 1996 / Rules and Regulations 34271

approved by the Director of an approved

State, and must be based upon:

(1) Site-specific field collected

measurements, sampling, and analysis

of physical, chemical, and biological

processes affecting contaminant fate and

transport; and

(2) Contaminant fate and transport

predictions that maximize contaminant

migration and consider impacts on

human health and environment.

(c) Owners and operators of facilities

identified in § 257.5(a) must comply

with the ground-water monitoring

requirements of this section according

to the following schedule unless an

alternative schedule is specified under

paragraph (d) of this section:

(1) Existing units and lateral

expansions must be in compliance with

the ground-water monitoring

requirements specified in §§ 257.22

through 257.25 by July 1, 1998.

(2) New units identified in § 257.5(a)

must be in compliance with the groundwater monitoring requirements

specified in §§ 257.22 through 257.25

before waste can be placed in the unit.

(d) The Director of an approved State

may specify an alternative schedule for

the owners or operators of existing units

and lateral expansions to comply with

the ground-water monitoring

requirements specified in §§ 257.22

through 257.25. This schedule must

ensure that 50 percent of all existing

units are in compliance by July 1, 1998,

and all existing units are in compliance

by July 1, 1999. In setting the

compliance schedule, the Director of an

approved State must consider potential

risks posed by the unit to human health

and the environment. The following

factors should be considered in

determining potential risk:

(1) Proximity of human and

environmental receptors;

(2) Design of the unit;

(3) Age of the unit;

(4) The size of the unit; and

(5) Resource value of the underlying

aquifer, including:

(i) Current and future uses;

(ii) Proximity and withdrawal rate of

users; and

(iii) Ground-water quality and

quantity.

(e) Once established at a unit, groundwater monitoring shall be conducted

throughout the active life plus 30 years.

The Director of an approved State may

decrease the 30 year period if the

owner/operator demonstrates that a

shorter period of time is adequate to

protect human health and the

environment and the Director approves

the demonstration.

(f) For the purposes of this section, 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

ground-water 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 ground-water monitoring,

contaminant fate and transport, and

corrective-action.

(g) The Director of an approved State

may establish alternative schedules for

demonstrating compliance with

§ 257.22(d)(2), pertaining to notification

of placement of certification in

operating record; § 257.24(c)(1),

pertaining to notification that

statistically significant increase (SSI)

notice is in operating record; § 257.24(c)

(2) and (3), pertaining to an assessment

monitoring program; § 257.25(b),

pertaining to sampling and analyzing

appendix II of Part 258 constituents;

§ 257.25(d)(1), pertaining to placement

of notice (appendix II of 40 CFR part

258 constituents detected) in record and

notification of notice in record;

§ 257.25(d)(2), pertaining to sampling

for appendix I and II of 40 CFR Part 258;

§ 257.25(g), pertaining to notification

(and placement of notice in record) of

SSI above ground-water protection

standard; §§ 257.25(g)(1)(iv) and

257.26(a), pertaining to assessment of

corrective measures; § 257.27(a),

pertaining to selection of remedy and

notification of placement in record;

§ 257.28(c)(4), pertaining to notification

of placement in record (alternative

corrective action measures); and

§ 257.28(f), pertaining to notification of

placement in record (certification of

remedy completed).

(h) Directors of approved States can

use the flexibility in paragraph (i) of this

section for any non-municipal nonhazardous waste disposal unit that

receives CESQG waste, if the nonmunicipal non-hazardous waste

disposal unit:

(1) Disposes of less than 20 tons of

non-municipal waste daily, based on an

annual average; and

(2) Has no evidence of ground-water

contamination; and either

(3) Serves a community that

experiences an annual interruption of at

least three consecutive months of

surface transportation that prevents

access to a regional waste management

facility; or

(4) Serves a community that has no

practicable waste management

alternative and the non-municipal solid

waste disposal facility is located in an

area that annually receives less than or

equal to 25 inches of precipitation.

(5) Owners/operators of any nonmunicipal non-hazardous waste

disposal unit that meets the criteria in

paragraph (h) of this section must place

in the operating record information

demonstrating this.

(i) Directors of approved States may

allow any non-municipal nonhazardous waste disposal unit meeting

the criteria in paragraph (h) of this

section to:

(1) Use alternatives to the groundwater monitoring system prescribed in

§§ 257.22 through 257.25 so long as the

alternatives will detect and, if

necessary, assess the nature or extent of

contamination from the non-municipal

non-hazardous waste disposal unit on a

site-specific basis; or establish and use,

on a site-specific basis, an alternative

list of indicator parameters for some or

all of the constituents listed in

Appendix I (Appendix I of 40 CFR Part

258. Alternative indicator parameters

approved by the Director of an approved

State under this section must ensure

detection of contamination from the

non-municipal non-hazardous waste

disposal unit.

(2) If contamination is detected

through the use of any alternative to the

ground-water monitoring system

prescribed in §§ 257.22 through 257.25,

the non-municipal non-hazardous waste

disposal unit owner or operator must

perform expanded monitoring to

determine whether the detected

contamination is an actual release from

the non-municipal solid waste disposal

unit and, if so, to determine the nature

and extent of the contamination. The

Director of the approved State shall

establish a schedule for the nonmunicipal non-hazardous waste

disposal unit owner or operator to

submit results from expanded

monitoring in a manner that ensures

protection of human health and the

environment.

(i) If expanded monitoring indicates

that contamination from the nonmunicipal non-hazardous waste

disposal unit has reached the saturated

zone, the owner or operator must install

ground-water monitoring wells and

sample these wells in accordance with

§§ 257.22 through 257.25.

(ii) If expanded monitoring indicates

that contamination from the nonmunicipal non-hazardous waste

disposal unit is present in the

unsaturated zone or on the surface, the

Director of an approved State shall

establish a schedule for the owner or

operator to submit a description of any

necessary corrective measures. The

schedule shall ensure corrective
34272 Federal Register / Vol. 61, No. 127 / Monday, July 1, 1996 / Rules and Regulations

measures, where necessary, are

undertaken in a timely manner that

protects human health and the

environment. The proposed corrective

measures are subject to revision and

approval by the Director of the approved

State. The owner or operator must

implement the corrective measures

according to a schedule established by

the Director of the approved State.

(3) When considering whether to

allow alternatives to a ground-water

monitoring system prescribed in

§§ 257.22 through 257.25, including

alternative indicator parameters, the

Director of an approved State shall

consider at least the following factors:

(i) The geological and hydrogeological

characteristics of the site;

(ii) The impact of manmade and

natural features on the effectiveness of

an alternative technology;

(iii) Climatic factors that may

influence the selection, use, and

reliability of alternative ground-water

monitoring procedures; and

(iv) The effectiveness of indicator

parameters in detecting a release.

(4) The Director of an approved State

can require an owner or operator to

comply with the requirements of

§§ 257.22 through 257.25, where it is

determined by the Director that using

alternatives to ground-water monitoring

approved under this paragraph are

inadequate to detect contamination and,

if necessary, to assess the nature and

extent of contamination.

§ 257.22 Ground-water monitoring

systems.

(a) A ground-water monitoring system

must be installed that consists of a

sufficient number of wells, installed at

appropriate locations and depths, to

yield ground-water samples from the

uppermost aquifer (as defined in

§ 257.5(b)) that:

(1) Represent the quality of

background ground water that has not

been affected by leakage from a unit. A

determination of background quality

may include sampling of wells that are

not hydraulically upgradient of the

waste management area where:

(i) Hydrogeologic conditions do not

allow the owner or operator to

determine what wells are hydraulically

upgradient; or

(ii) Sampling at other wells will

provide an indication of background

ground-water quality that is as

representative or more representative

than that provided by the upgradient

wells; and

(2) Represent the quality of ground

water passing the relevant point of

compliance specified by the Director of

an approved State or at the waste

management unit boundary in an

unapproved State. The downgradient

monitoring system must be installed at

the relevant point of compliance

specified by the Director of an approved

State or at the waste management unit

boundary in an unapproved State that

ensures detection of ground-water

contamination in the uppermost aquifer.

The relevant point of compliance

specified by the Director of an approved

State shall be no more than 150 meters

from the waste management unit

boundary and shall be located on land

owned by the owner of the facility. In

determining the relevant point of

compliance the State Director shall

consider at least the following factors:

the hydrogeologic characteristics of the

unit and surrounding land, the volume

and physical and chemical

characteristics of the leachate, the

quantity, quality and direction of flow

of ground water, the proximity and

withdrawal rate of the ground-water

users, the availability of alternative

drinking water supplies, the existing

quality of the ground water, including

other sources of contamination and their

cumulative impacts on the ground

water, and whether the ground water is

currently used or reasonably expected to

be used for drinking water, public

health, safety, and welfare effects, and

practicable capability of the owner or

operator. When physical obstacles

preclude installation of ground-water

monitoring wells at the relevant point of

compliance at existing units, the downgradient monitoring system may be

installed at the closest practicable

distance hydraulically down-gradient

from the relevant point of compliance

specified by the Director of an approved

State that ensures detection of

groundwater contamination in the

uppermost aquifer.

(b) The Director of an approved State

may approve a multi-unit ground-water

monitoring system instead of separate

ground-water monitoring systems for

each unit when the facility has several

units, provided the multi-unit groundwater monitoring system meets the

requirement of § 257.22(a) and will be as

protective of human health and the

environment as individual monitoring

systems for each unit, based on the

following factors:

(1) Number, spacing, and orientation

of the units;

(2) Hydrogeologic setting;

(3) Site history;

(4) Engineering design of the units;

and

(5) Type of waste accepted at the

units.

(c) 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 ground water.

(1) The owner or operator must notify

the State Director that the design,

installation, development, and

decommission of any monitoring wells,

piezometers and other measurement,

sampling, and analytical devices

documentation has been placed in the

operating record; and

(2) The monitoring wells,

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.

(d) The number, spacing, and depths

of monitoring systems shall be:

(1) Determined based upon sitespecific technical information that must

include thorough characterization of:

(i) Aquifer thickness, ground-water

flow rate, ground-water flow direction

including seasonal and temporal

fluctuations in ground-water flow; and

(ii) Saturated and unsaturated

geologic units and fill materials

overlying the uppermost aquifer,

materials comprising the uppermost

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 or approved by the

Director of an approved State. Within 14

days of this certification, the owner or

operator must notify the State Director

that the certification has been placed in

the operating record.

§ 257.23 Ground-water sampling and

analysis requirements.

(a) The ground-water monitoring

program must include consistent

sampling and analysis procedures that

are designed to ensure monitoring

results that provide an accurate

representation of ground-water quality

at the background and downgradient

wells installed in compliance with

§ 257.22(a). The owner or operator must

notify the State Director that the

sampling and analysis program

documentation has been placed in the

operating record and the program must

include procedures and techniques for:
Federal Register / Vol. 61, No. 127 / Monday, July 1, 1996 / Rules and Regulations 34273

(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 ground-water monitoring

program must include sampling and

analytical methods that are appropriate

for ground-water sampling and that

accurately measure hazardous

constituents and other monitoring

parameters in ground-water samples.

Ground-water samples shall not be

field-filtered prior to laboratory

analysis.

(c) The sampling procedures and

frequency must be protective of human

health and the environment.

(d) Ground-water elevations must be

measured in each well immediately

prior to purging, each time ground water

is sampled. The owner or operator must

determine the rate and direction of

ground-water flow each time ground

water is sampled. Ground-water

elevations in wells which monitor the

same waste management area must be

measured within a period of time short

enough to avoid temporal variations in

ground-water flow which could

preclude accurate determination of

ground-water flow rate and direction.

(e) The owner or operator must

establish background ground-water

quality in a hydraulically upgradient or

background well(s) for each of the

monitoring parameters or constituents

required in the particular ground-water

monitoring program that applies to the

unit, as determined under § 257.24(a), or

§ 257.25(a). Background ground-water

quality may be established at wells that

are not located hydraulically upgradient

from the unit if it meets the

requirements of § 257.22(a)(1).

(f) The number of samples collected to

establish ground-water quality data

must be consistent with the appropriate

statistical procedures determined

pursuant to paragraph (g) of this section.

The sampling procedures shall be those

specified under § 257.24(b) for detection

monitoring, § 257.25 (b) and (d) for

assessment monitoring, and § 257.26(b)

for corrective action.

(g) The owner or operator must

specify in the operating record one of

the following statistical methods to be

used in evaluating ground-water

monitoring data for each hazardous

constituent. The statistical test chosen

shall be conducted separately for each

hazardous constituent in each well.

(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 background 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 background

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 background data, and

the level of each constituent in each

compliance well is compared to the

upper tolerance or prediction limit.

(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 owner

or operator must place a justification for

this alternative in the operating record

and notify the State Director 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.

(h) Any statistical method chosen

under paragraph (g) of this section shall

comply with the following performance

standards, as appropriate:

(1) The statistical method used to

evaluate ground-water 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 owner or

operator 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 background

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 experiment wise 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 ground-water 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 background

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 background 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 quantitation 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) If necessary, the statistical method

shall include procedures to control or

correct for seasonal and spatial

variability as well as temporal

correlation in the data.

(i) The owner or operator must

determine whether or not there is a

statistically significant increase over

background values for each parameter or

constituent required in the particular

ground-water monitoring program that

applies to the unit, as determined under

§§ 257.24(a) or 257.25(a).

(1) In determining whether a

statistically significant increase has

occurred, the owner or operator must

compare the ground-water quality of

each parameter or constituent at each

monitoring well designated pursuant to

§ 257.22(a)(2) to the background value of

that constituent, according to the

statistical procedures and performance

standards specified under paragraphs (g)

and (h) of this section.

(2) Within a reasonable period of time

after completing sampling and analysis,

the owner or operator must determine

whether there has been a statistically

significant increase over background at

each monitoring well.
34274 Federal Register / Vol. 61, No. 127 / Monday, July 1, 1996 / Rules and Regulations

§ 257.24 Detection monitoring program.

(a) Detection monitoring is required at

facilities identified in § 257.5(a) at all

ground-water monitoring wells defined

under §§ 257.22 (a)(1) and (a)(2). At a

minimum, a detection monitoring

program must include the monitoring

for the constituents listed in appendix I

of 40 CFR Part 258.

(1) The Director of an approved State

may delete any of the appendix I

(Appendix I of 40 CFR Part 258)

monitoring parameters for a unit if it

can be shown that the removed

constituents are not reasonably expected

to be contained in or derived from the

waste contained in the unit.

(2) The Director of an approved State

may establish an alternative list of

indicator parameters for a unit, in lieu

of some or all of the constituents in

appendix I to 40 CFR Part 258, if the

alternative parameters provide a reliable

indication of releases from the unit to

the ground water. In determining

alternative parameters, the Director

shall consider the following factors:

(i) The types, quantities, and

concentrations of constituents in waste

managed at the unit;

(ii) The mobility, stability, and

persistence of waste constituents or

their reaction products in the

unsaturated zone beneath the 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

groundwater background.

(b) The monitoring frequency for all

constituents listed in appendix I to 40

CFR Part 258, or in the alternative list

approved in accordance with paragraph

(a)(2) of this section, shall be at least

semiannual during the active life of the

unit plus 30 years. A minimum of four

independent samples from each well

(background and downgradient) must be

collected and analyzed for the appendix

I (Appendix I of 40 CFR, Part 258)

constituents, or the alternative list

approved in accordance with paragraph

(a)(2) of this section, during the first

semiannual sampling event. At least one

sample from each well (background and

downgradient) must be collected and

analyzed during subsequent semiannual

sampling events. The Director of an

approved State may specify an

appropriate alternative frequency for

repeated sampling and analysis for

appendix I (Appendix I of 40 CFR Part

258) constituents, or the alternative list

approved in accordance with paragraph

(a)(2) of this section, during the active

life plus 30 years. The alternative

frequency during the active life shall be

no less than annual. The alternative

frequency shall be based on

consideration of the following factors:

(1) Lithology of the aquifer and

unsaturated zone;

(2) Hydraulic conductivity of the

aquifer and unsaturated zone;

(3) Ground-water flow rates;

(4) Minimum distance between

upgradient edge of the unit and

downgradient monitoring well screen

(minimum distance of travel); and

(5) Resource value of the aquifer.

(c) If the owner or operator

determines, pursuant to § 257.23(g), that

there is a statistically significant

increase over background for one or

more of the constituents listed in

appendix I to 40 CFR Part 258, or in the

alternative list approved in accordance

with paragraph (a)(2) of this section, at

any monitoring well at the boundary

specified under § 257.22(a)(2), the

owner or operator:

(1) Must, within 14 days of this

finding, place a notice in the operating

record indicating which constituents

have shown statistically significant

changes from background levels, and

notify the State Director that this notice

was placed in the operating record; and

(2) Must establish an assessment

monitoring program meeting the

requirements of § 257.25 within 90 days

except as provided for in paragraph

(c)(3) of this section.

(3) The owner/operator may

demonstrate that a source other than the

unit caused the contamination or that

the statistically significant increase

resulted from error in sampling,

analysis, statistical evaluation, or

natural variation in ground-water

quality. A report documenting this

demonstration must be certified by a

qualified ground-water scientist or

approved by the Director of an approved

State and be placed in the operating

record. If a successful demonstration is

made and documented, the owner or

operator may continue detection

monitoring as specified in this section.

If, after 90 days, a successful

demonstration is not made, the owner or

operator must initiate an assessment

monitoring program as required in

§ 257.25.

§ 257.25 Assessment monitoring program.

(a) Assessment monitoring is required

whenever a statistically significant

increase over background has been

detected for one or more of the

constituents listed in appendix I of 40

CFR Part 258 or in the alternative list

approved in accordance with

§ 257.24(a)(2).

(b) Within 90 days of triggering an

assessment monitoring program, and

annually thereafter, the owner or

operator must sample and analyze the

ground water for all constituents

identified in appendix II of 40 CFR Part

258. A minimum of one sample from

each downgradient well must be

collected and analyzed during each

sampling event. For any constituent

detected in the downgradient wells as

the result of the complete appendix II

(Appendix II of 40 CFR Part 258)

analysis, a minimum of four

independent samples from each well

(background and downgradient) must be

collected and analyzed to establish

background for the new constituents.

The Director of an approved State may

specify an appropriate subset of wells to

be sampled and analyzed for appendix

II (Appendix II of 40 CFR Part 258)

constituents during assessment

monitoring. The Director of an approved

State may delete any of the appendix II

(Appendix II of 40 CFR Part 258)

monitoring parameters for a unit if it

can be shown that the removed

constituents are not reasonably expected

to be in or derived from the waste

contained in the unit.

(c) The Director of an approved State

may specify an appropriate alternate

frequency for repeated sampling and

analysis for the full set of appendix II

(Appendix II of 40 CFR part 258)

constituents, or the alternative list

approved in accordance with paragraph

(b) of this section, during the active life

plus 30 years considering the following

factors:

(1) Lithology of the aquifer and

unsaturated zone;

(2) Hydraulic conductivity of the

aquifer and unsaturated zone;

(3) Ground-water flow rates;

(4) Minimum distance between

upgradient edge of the unit and

downgradient monitoring well screen

(minimum distance of travel);

(5) Resource value of the aquifer; and

(6) 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 owner or operator must:

(1) Within 14 days, place a notice in

the operating record identifying the

appendix II (appendix II of 40 CFR part

258) constituents that have been

detected and notify the State Director

that this notice has been placed in the

operating record;

(2) Within 90 days, and on at least a

semiannual basis thereafter, resample

all wells specified by § 257.22(a) to this

section, conduct analyses for all
Federal Register / Vol. 61, No. 127 / Monday, July 1, 1996 / Rules and Regulations 34275

constituents in appendix I (Appendix I

of 40 CFR part 258) to this part or in the

alternative list approved in accordance

with § 257.24(a)(2), and for those

constituents in appendix II to 40 CFR

part 258 that are detected in response to

paragraph (b) of this section, and record

their concentrations in the facility

operating record. At least one sample

from each well (background and

downgradient) must be collected and

analyzed during these sampling events.

The Director of an approved State may

specify an alternative monitoring

frequency during the active life plus 30

years for the constituents referred to in

this paragraph. The alternative

frequency for appendix I (Appendix I of

40 CFR part 258) constituents, or the

alternative list approved in accordance

with § 257.24(a)(2), during the active life

shall be no less than annual. The

alternative frequency shall be based on

consideration of the factors specified in

paragraph (c) of this section;

(3) Establish background

concentrations for any constituents

detected pursuant to paragraphs (b) or

(d)(2) of this section; and

(4) Establish ground-water protection

standards for all constituents detected

pursuant to paragraph (b) or (d) of this

section. The ground-water protection

standards shall be established in

accordance with paragraphs (h) or (i) of

this section.

(e) If the concentrations of all

appendix II (Appendix II of 40 CFR part

258) constituents are shown to be at or

below background values, using the

statistical procedures in § 257.23(g), for

two consecutive sampling events, the

owner or operator must notify the State

Director of this finding and may return

to detection monitoring.

(f) If the concentrations of any

appendix II (Appendix II of part 258)

constituents are above background

values, but all concentrations are below

the ground-water protection standard

established under paragraphs (h) or (i)

of this section, using the statistical

procedures in § 257.23(g), the owner or

operator must continue assessment

monitoring in accordance with this

section.

(g) If one or more appendix II

(Appendix II of CFR part 258)

constituents are detected at statistically

significant levels above the groundwater protection standard established

under paragraphs (h) or (i) of this

section in any sampling event, the

owner or operator must, within 14 days

of this finding, place a notice in the

operating record identifying the

appendix II (Appendix II of 40 CFR part

258) constituents that have exceeded the

ground-water protection standard and

notify the State Director and all

appropriate local government officials

that the notice has been placed in the

operating record. The owner or operator

also:

(1)(i) Must characterize the nature and

extent of the release by installing

additional monitoring wells as

necessary;

(ii) Must install at least one additional

monitoring well at the facility boundary

in the direction of contaminant

migration and sample this well in

accordance with paragraph (d)(2) of this

section;

(iii) Must 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 in accordance

paragraph (g)(1) of this section; and

(iv) Must initiate an assessment of

corrective measures as required by

§ 257.26 within 90 days; or

(2) May demonstrate that a source

other than the non-municipal nonhazardous waste disposal unit caused

the contamination, or that the

statistically significant increase resulted

from error in sampling, analysis,

statistical evaluation, or natural

variation in ground-water quality. A

report documenting this demonstration

must be certified by a qualified groundwater scientist or approved by the

Director of an approved State and

placed in the operating record. If a

successful demonstration is made the

owner or operator must continue

monitoring in accordance with the

assessment monitoring program

pursuant to this § 257.25, and may

return to detection monitoring if the

appendix II (Appendix II of 40 CFR part

258) constituents are at or below

background as specified in paragraph (e)

of this section. Until a successful

demonstration is made, the owner or

operator must comply with § 257.25(g)

including initiating an assessment of

corrective measures.

(h) The owner or operator must

establish a ground-water protection

standard for each appendix II

(Appendix II of 40 CFR part 258)

constituent detected in the groundwater. The ground-water protection

standard shall be:

(1) For constituents for which a

maximum contaminant level (MCL) has

been promulgated under section 1412 of

the Safe Drinking Water Act (codified)

under 40 CFR part 141, the MCL for that

constituent;

(2) For constituents for which MCLs

have not been promulgated, the

background concentration for the

constituent established from wells in

accordance with § 257.22(a)(1); or

(3) For constituents for which the

background level is higher than the

MCL identified under subparagraph

(h)(1) of this section or health based

levels identified under paragraph (i)(1)

of this section, the background

concentration.

(i) The Director of an approved State

may establish an alternative groundwater protection standard for

constituents for which MCLs have not

been established. These ground-water

protection standards shall be

appropriate health based levels that

satisfy the following criteria:

(1) The level is derived in a manner

consistent with Agency guidelines for

assessing the health risks of

environmental pollutants (51 FR 33992,

34006, 34014, 34028, September 24,

1986);

(2) The level is based on scientifically

valid studies conducted in accordance

with the Toxic Substances Control Act

Good Laboratory Practice Standards (40

CFR part 792) or equivalent;

(3) For carcinogens, the level

represents a concentration associated

with an excess lifetime cancer risk level

(due to continuous lifetime exposure)

within the 1×10¥4 to 1×10¥6 range; and

(4) For systemic toxicants, the level

represents a concentration to which the

human population (including sensitive

subgroups) could be exposed to on a

daily basis that is likely to be without

appreciable risk of deleterious effects

during a lifetime. For purposes of this

subpart, systemic toxicants include

toxic chemicals that cause effects other

than cancer or mutation.

(j) In establishing ground-water

protection standards under paragraph (i)

of this section, the Director of an

approved State may consider the

following:

(1) Multiple contaminants in the

ground water;

(2) Exposure threats to sensitive

environmental receptors; and

(3) Other site-specific exposure or

potential exposure to ground water.

§ 257.26 Assessment of corrective

measures.

(a) Within 90 days of finding that any

of the constituents listed in appendix II

(Appendix II of 40 CFR Part 258) have

been detected at a statistically

significant level exceeding the groundwater protection standards defined

under § 257.25 (h) or (i), the owner or

operator must initiate an assessment of

corrective measures. Such an

assessment must be completed within a

reasonable period of time.

(b) The owner or operator must

continue to monitor in accordance with
34276 Federal Register / Vol. 61, No. 127 / Monday, July 1, 1996 / Rules and Regulations

the assessment monitoring program as

specified in § 257.25.

(c) The assessment shall include an

analysis of the effectiveness of potential

corrective measures in meeting all of the

requirements and objectives of the

remedy as described under § 257.27,

addressing at least the following:

(1) The performance, reliability, ease

of implementation, and potential

impacts of appropriate potential

remedies, including safety impacts,

cross-media impacts, and control of

exposure to any residual contamination;

(2) The time required to begin and

complete the remedy;

(3) The costs of remedy

implementation; and

(4) The institutional requirements

such as State or local permit

requirements or other environmental or

public health requirements that may

substantially affect implementation of

the remedy(s).

(d) The owner or operator must

discuss the results of the corrective

measures assessment, prior to the

selection of remedy, in a public meeting

with interested and affected parties.

§ 257.27 Selection of remedy.

(a) Based on the results of the

corrective measures assessment

conducted under § 257.26, the owner or

operator must select a remedy that, at a

minimum, meets the standards listed in

paragraph (b) of this section. The owner

or operator must notify the State

Director, within 14 days of selecting a

remedy, that a report describing the

selected remedy has been placed in the

operating record and how it meets the

standards in paragraph (b) of this

section.

(b) Remedies must:

(1) Be protective of human health and

the environment;

(2) Attain the ground-water protection

standard as specified pursuant to

§§ 257.25 (h) or (i);

(3) Control the source(s) of releases so

as to reduce or eliminate, to the

maximum extent practicable, further

releases of appendix II (Appendix II of

40 CFR part 258) constituents into the

environment that may pose a threat to

human health or the environment; and

(4) Comply with standards for

management of wastes as specified in

§ 257.28(d).

(c) In selecting a remedy that meets

the standards of § 257.27(b), the owner

or operator shall consider the following

evaluation factors:

(1) The long- and short-term

effectiveness and protectiveness of the

potential remedy(s), along with the

degree of certainty that the remedy will

prove successful based on consideration

of the following:

(i) Magnitude of reduction of existing

risks;

(ii) Magnitude of residual risks in

terms of likelihood of further releases

due to waste remaining following

implementation of a remedy;

(iii) The type and degree of long-term

management required, including

monitoring, operation, and

maintenance;

(iv) Short-term risks that might be

posed to the community, workers, or the

environment during implementation of

such a remedy, including potential

threats to human health and the

environment associated with

excavation, transportation, and redisposal or containment;

(v) Time until full protection is

achieved;

(vi) Potential for exposure of humans

and environmental receptors to

remaining wastes, considering the

potential threat to human health and the

environment associated with

excavation, transportation, re-disposal,

or containment;

(vii) Long-term reliability of the

engineering and institutional controls;

and

(viii) Potential need for replacement

of the remedy.

(2) The effectiveness of the remedy in

controlling the source to reduce further

releases based on consideration of the

following factors:

(i) The extent to which containment

practices will reduce further releases;

(ii) The extent to which treatment

technologies may be used.

(3) The ease or difficulty of

implementing a potential remedy(s)

based on consideration of the following

types of factors:

(i) Degree of difficulty associated with

constructing the technology;

(ii) Expected operational reliability of

the technologies;

(iii) Need to coordinate with and

obtain necessary approvals and permits

from other agencies;

(iv) Availability of necessary

equipment and specialists; and

(v) Available capacity and location of

needed treatment, storage, and disposal

services.

(4) Practicable capability of the owner

or operator, including a consideration of

the technical and economic capability.

(5) The degree to which community

concerns are addressed by a potential

remedy(s).

(d) The owner or operator shall

specify as part of the selected remedy a

schedule(s) for initiating and

completing remedial activities. Such a

schedule must require the initiation of

remedial activities within a reasonable

period of time taking into consideration

the factors set forth in paragraphs (d)(1)

through (d)(8) of this section. The owner

or operator must consider the following

factors in determining the schedule of

remedial activities:

(1) Extent and nature of

contamination;

(2) Practical capabilities of remedial

technologies in achieving compliance

with ground-water protection standards

established under §§ 257.25 (g) or (h)

and other objectives of the remedy;

(3) Availability of treatment or

disposal capacity for wastes managed

during implementation of the remedy;

(4) Desirability of utilizing

technologies that are not currently

available, but which may offer

significant advantages over already

available technologies in terms of

effectiveness, reliability, safety, or

ability to achieve remedial objectives;

(5) Potential risks to human health

and the environment from exposure to

contamination prior to completion of

the remedy;

(6) Resource value of the aquifer

including:

(i) Current and future uses;

(ii) Proximity and withdrawal rate of

users;

(iii) Ground-water quantity and

quality;

(iv) The potential damage to wildlife,

crops, vegetation, and physical

structures caused by exposure to waste

constituent;

(v) The hydrogeologic characteristic of

the unit and surrounding land;

(vi) Ground-water removal and

treatment costs; and

(vii) The cost and availability of

alternative water supplies.

(7) Practicable capability of the owner

or operator.

(8) Other relevant factors.

(e) The Director of an approved State

may determine that remediation of a

release of an appendix II (Appendix II

of 40 CFR part 258) constituent from the

unit is not necessary if the owner or

operator demonstrates to the Director of

the approved state that:

(1) The ground-water is additionally

contaminated by substances that have

originated from a source other than the

unit and those substances are present in

concentrations such that cleanup of the

release from the unit would provide no

significant reduction in risk to actual or

potential receptors; or

(2) The constituent(s) is present in

ground water that:

(i) Is not currently or reasonably

expected to be a source of drinking

water; and

(ii) Is not hydraulically connected

with waters to which the hazardous

constituents are migrating or are likely
Federal Register / Vol. 61, No. 127 / Monday, July 1, 1996 / Rules and Regulations 34277

to migrate in a concentration(s) that

would exceed the ground-water

protection standards established under

§ 257.25 (h) or (i); or

(3) Remediation of the release(s) is

technically impracticable; or

(4) Remediation results in

unacceptable cross-media impacts.

(f) A determination by the Director of

an approved State pursuant to

paragraph (e) of this section shall not

affect the authority of the State to

require the owner or operator to

undertake source control measures or

other measures that may be necessary to

eliminate or minimize further releases

to the ground-water, to prevent

exposure to the ground-water, or to

remediate the ground-water to

concentrations that are technically

practicable and significantly reduce

threats to human health or the

environment.

§ 257.28 Implementation of the corrective

action program.

(a) Based on the schedule established

under § 257.27(d) for initiation and

completion of remedial activities the

owner/operator must:

(1) Establish and implement a

corrective action ground-water

monitoring program that:

(i) At a minimum, meets the

requirements of an assessment

monitoring program under § 257.25;

(ii) Indicates the effectiveness of the

corrective action remedy; and

(iii) Demonstrates compliance with

ground-water protection standard

pursuant to paragraph (e) of this section.

(2) Implement the corrective action

remedy selected under § 257.27; 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 § 257.27. The

following factors must be considered by

an owner or operator 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

ground-water that may occur if remedial

action is not initiated expeditiously;

(v) Weather conditions that may cause

hazardous constituents to migrate or be

released;

(vi) Risks of fire or explosion, or

potential for exposure to hazardous

constituents as a result of an accident or

failure of a container or handling

system; and

(vii) Other situations that may pose

threats to human health and the

environment.

(b) An owner or operator may

determine, based on information

developed after implementation of the

remedy has begun or other information,

that compliance with requirements of

§ 257.27(b) are not being achieved

through the remedy selected. In such

cases, the owner or operator must

implement other methods or techniques

that could practicably achieve

compliance with the requirements,

unless the owner or operator makes the

determination under § 257.28(c).

(c) If the owner or operator

determines that compliance with

requirements under § 257.27(b) cannot

be practically achieved with any

currently available methods, the owner

or operator must:

(1) Obtain certification of a qualified

ground-water scientist or approval by

the Director of an approved State that

compliance with requirements under

§ 257.27(b) cannot be practically

achieved with any currently available

methods;

(2) Implement alternate measures to

control exposure of humans or the

environment to residual contamination,

as necessary to protect human health

and the environment; and

(3) Implement alternate measures for

control of the sources of contamination,

or for removal or decontamination of

equipment, units, devices, or structures

that are:

(i) Technically practicable; and

(ii) Consistent with the overall

objective of the remedy.

(4) Notify the State Director within 14

days that a report justifying the

alternative measures prior to

implementing the alternative measures

has been placed in the operating record.

(d) All solid wastes that are managed

pursuant to a remedy required under

§ 257.27, or an interim measure required

under § 257.28(a)(3), 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

§ 257.27 shall be considered complete

when:

(1) The owner or operator complies

with the ground-water protection

standards established under §§ 257.25

(h) or (i) at all points within the plume

of contamination that lie beyond the

ground-water monitoring well system

established under § 257.22(a).

(2) Compliance with the ground-water

protection standards established under

§§ 257.25 (h) or (i) has been achieved by

demonstrating that concentrations of

appendix II (Appendix II of Part 258)

constituents have not exceeded the

ground-water protection standard(s) for

a period of three consecutive years

using the statistical procedures and

performance standards in § 257.23 (g)

and (h). The Director of an approved

State may specify an alternative length

of time during which the owner or

operator must demonstrate that

concentrations of appendix II

(Appendix II of 40 CFR part 258)

constituents have not exceeded the

ground-water protection standard(s)

taking into consideration:

(i) Extent and concentration of the

release(s);

(ii) Behavior characteristics of the

hazardous constituents in the groundwater;

(iii) Accuracy of monitoring or

modeling techniques, including any

seasonal, meteorological, or other

environmental variabilities that may

affect the accuracy; and

(iv) Characteristics of the groundwater.

(3) All actions required to complete

the remedy have been satisfied.

(f) Upon completion of the remedy,

the owner or operator must notify the

State Director within 14 days that a

certification that the remedy has been

completed in compliance with the

requirements of § 257.28(e) has been

placed in the operating record. The

certification must be signed by the

owner or operator and by a qualified

ground-water scientist or approved by

the Director of an approved State.

Recordkeeping Requirements

§ 257.30 Recordkeeping requirements.

(a) The owner/operator of a nonmunicipal non-hazardous waste

disposal unit must record and retain

near the facility in an operating record

or in an alternative location approved

by the Director of an approved State the

following information as it becomes

available:

(1) Any location restriction

demonstration required under §§ 257.7

through 257.12; and

(2) Any demonstration, certification,

finding, monitoring, testing, or

analytical data required in §§ 257.21

through 257.28.

(b) The owner/operator must notify

the State Director when the documents

from paragraph (a) of this section have

been placed or added to the operating

record, and all information contained in

the operating record must be furnished
34278 Federal Register / Vol. 61, No. 127 / Monday, July 1, 1996 / Rules and Regulations

upon request to the State Director or be

made available at all reasonable times

for inspection by the State Director.

(c) The Director of an approved State

can set alternative schedules for

recordkeeping and notification

requirements as specified in paragraphs

(a) and (b) of this section, except for the

notification requirements in

§ 257.25(g)(1)(iii).

PART 261—IDENTIFICATION AND

LISTING OF HAZARDOUS WASTES

5. The authority citation for Part 261

continues to read as follows:

Authority: 42 U.S.C. 6905, 6912(a), 6921,

6922, and 6938.

Subpart A—General

6. Section 261.5 is amended by

revising paragraphs (f)(3) and (g)(3) to

read as follows:

§ 261.5 Special requirements for

hazardous waste generated by conditionally

exempt small quantity generators.

* * * * *

(f) * * *

(3) A conditionally exempt small

quantity generator may either treat or

dispose of his acute hazardous waste in

an on-site facility or ensure delivery to

an off-site treatment, storage, or disposal

facility, either of which, if located in the

U.S., is:

(i) Permitted under part 270 of this

chapter;

(ii) In interim status under parts 270

and 265 of this chapter;

(iii) Authorized to manage hazardous

waste by a State with a hazardous waste

management program approved under

part 271 of this chapter;

(iv) Permitted, licensed, or registered

by a State to manage municipal solid

waste and, if managed in a municipal

solid waste landfill is subject to Part 258

of this chapter;

(v) Permitted, licensed, or registered

by a State to manage non-municipal

non-hazardous waste and, if managed in

a non-municipal non-hazardous waste

disposal unit after January 1, 1998, is

subject to the requirements in §§ 257.5

through 257.30 of this chapter; or

(vi) A facility which:

(A) Beneficially uses or reuses, or

legitimately recycles or reclaims its

waste; or

(B) Treats its waste prior to beneficial

use or reuse, or legitimate recycling or

reclamation; or

(vii) For universal waste managed

under part 273 of this chapter, a

universal waste handler or destination

facility subject to the requirements of

part 273 of this chapter.

(g) * * *

(3) A conditionally exempt small

quantity generator may either treat or

dispose of his hazardous waste in an onsite facility or ensure delivery to an offsite treatment, storage or disposal

facility, either of which, if located in the

U.S., is:

(i) Permitted under part 270 of this

chapter;

(ii) In interim status under parts 270

and 265 of this chapter;

(iii) Authorized to manage hazardous

waste by a State with a hazardous waste

management program approved under

part 271 of this chapter;

(iv) Permitted, licensed, or registered

by a State to manage municipal solid

waste and, if managed in a municipal

solid waste landfill is subject to Part 258

of this chapter;

(v) Permitted, licensed, or registered

by a State to manage non-municipal

non-hazardous waste and, if managed in

a non-municipal non-hazardous waste

disposal unit after January 1, 1998, is

subject to the requirements in §§ 257.5

through 257.30 of this chapter; or

(vi) A facility which:

(A) Beneficially uses or reuses, or

legitimately recycles or reclaims its

waste; or

(B) Treats its waste prior to beneficial

use or reuse, or legitimate recycling or

reclamation; or

(vii) For universal waste managed

under part 273 of this chapter, a

universal waste handler or destination

facility subject to the requirements of

part 273 of this chapter.

* * * * *

PART 271—REQUIREMENTS FOR

AUTHORIZATION OF STATE

HAZARDOUS WASTE PROGRAMS

7. The authority citation for part 271

continues to read as follows:

Authority: 42 U.S.C. 6905, 6912(a), and

6926.

8. In § 271.1, paragraph (j), Table 1 is

amended by adding the following entry

in chronological order by publication

date:

§ 271.1 Purpose and scope.

* * * * *

(j) * * *

TABLE 1.—REGULATIONS IMPLEMENTING THE HAZARDOUS AND SOLID WASTE AMENDMENTS OF 1984

Promulgation

date Title of regulation Federal Register reference Effective date

* * * * * * *

July 1, 1996 Revisions to Criteria applicable to solid waste facilities that may accept CESQG

hazardous wastes, excluding MSWLFs.

61 FR 34278 ........... January 1, 1998.

[FR Doc. 96–16585 Filed 6–26–96; 11:51 am]

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