`[Federal Register Volume 61, Number 127 (Monday, July 1, 1996)]
[Rules and Regulations]
[Pages 34252-34278]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-16585]



[[Page 34251]]


_______________________________________________________________________

Part V





Environmental Protection Agency





_______________________________________________________________________



40 CFR Part 257, et al.



Criteria for Classification of Solid Waste Disposal Facilities and 
Practices; Identification and Listing of Hazardous Waste; Requirements 
for Authorization of State Hazardous Waste Programs; Final Rule

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

[[Page 34252]]



ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 257, 261, and 271

[FRL-5528-4]
RIN 2050-AE11


Criteria for Classification of Solid Waste Disposal Facilities 
and Practices; Identification and Listing of Hazardous Waste; 
Requirements for Authorization of State Hazardous Waste Programs

AGENCY: Environmental Protection Agency.

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: The Environmental Protection Agency today is promulgating 
revisions to the existing criteria for solid waste disposal facilities 
and practices. These revisions were developed in response to the 1984 
Hazardous and Solid Waste Amendments to the Resource Conservation and 
Recovery Act (RCRA). Today's final revisions establish that only those 
non-municipal non-hazardous waste disposal units that meet specific 
standards may receive conditionally exempt small quantity generator 
(CESQG) hazardous wastes. Today's final revisions establish standards 
pertaining to location restrictions, ground-water monitoring and 
corrective action.
    The EPA is also finalizing revisions to regulations for hazardous 
wastes generated by CESQGs. Today's final language will clarify 
acceptable disposal options under Subtitle D of RCRA by specifying that 
CESQG hazardous waste may be managed at municipal solid waste landfills 
subject to Part 258 and at nonmunicipal non-hazardous waste disposal 
units subject to today's revised Criteria.

EFFECTIVE DATES: January 1, 1998, except Secs. 257.21 through 257.28 
which are effective July 1, 1998, and Secs. 261.5(f), 261.5(g) and 
271.1 which are effective January 1, 1997, but which have a compliance 
date of January 1, 1998. The information collection requirements 
contained in Secs. 257.24, 257.25, and 257.27 have not been approved by 
the Office of Management and Budget (OMB) and are not effective until 
OMB has approved them.

ADDRESSES: The public docket for this rulemaking (docket number F-96-
NCEF-FFFFF) is located at the U.S. Environmental Protection Agency, 
Crystal Gateway Building, 1235 Jefferson Davis Highway, First Floor, 
Arlington, Virginia. The public docket is available for viewing from 9 
a.m. to 4 p.m., Monday through Friday, excluding federal holidays. 
Appointments may be made by calling (703) 603-9230. Copies cost $0.15/
page.

FOR FURTHER INFORMATION CONTACT: For specific information on aspects of 
the final rule, please contact Paul Cassidy of the Industrial Solid 
Waste Branch of the Office of Solid Waste at 1-703-308-7281. For a 
paper copy of the Federal Register notice or for general information, 
please contact the RCRA Hotline at 1-800-424-9346 or at 1-703-412-9810.

SUPPLEMENTARY INFORMATION:

Regulated Entities

    Entities potentially regulated by this action are owners/operators 
of non-municipal non-hazardous waste disposal units that may receive 
conditionally exempt small quantity generator (CESQG) hazardous waste. 
Regulated categories and entities include:

------------------------------------------------------------------------
                                                Examples of regulated   
                 Category                             entities          
------------------------------------------------------------------------
Construction and demolition waste disposal  Owners/operators of         
 firms.                                      construction and demolition
                                             waste disposal units that  
                                             may receive CESQG hazardous
                                             waste.                     
Industrial manufacturing plants...........  Owners/operators of non-    
                                             municipal non-hazardous    
                                             waste disposal units that  
                                             may receive CESQG hazardous
                                             waste.                     
------------------------------------------------------------------------

This table is not intended to be exhaustive, but rather provides a 
guide for readers regarding entities likely to be regulated by this 
action. This table lists the type of entities that EPA is now aware 
could potentially be regulated by this action. Other types of entities 
not listed in the table could also be regulated. To determine whether 
your non-municipal non-hazardous waste disposal unit is regulated by 
this action, you should carefully examine the applicability section of 
this final rule (i.e., section 257.5). If you have any questions 
regarding the applicability of this action to a particular entity, 
consult the person listed in the preceding FOR FURTHER INFORMATION 
CONTACT section.
    This Federal Register notice will be available in electronic format 
on the Internet system through the EPA Public Access Server @ 
gopher.epa.gov.

How to Access the Net

    1. Through Gopher: Go to: gopher.epa.gov. From the main menu, 
choose ``EPA Offices and Regions''. Next, choose ``Office of Solid 
Waste and Emergency Response (OSWER)''. Next, choose ``Office of Solid 
Waste''. Then, choose ``Non-Hazardous Waste--RCRA Subtitle D''. 
Finally, choose ``Industrial''.
    2. Through FTP: Go to: ftp.epa.gov.

Login: anonymous
Password: Your Internet Address

Files are located in directories/pub/gopher. All OSW files are in 
directories beginning with ``OSW''.
    3. Through MOSAIC: Go to: http://www.epa.gov. Choose the EPA Public 
Access Gopher. From the main (Gopher) menu, choose ``EPA Offices and 
Regions''. Next, choose ``Office of Solid Waste and Emergency Response 
(OSWER)''. Next, choose ``Office of Solid Waste''. Then, choose ``Non-
Hazardous Waste--RCRA Subtitle D''. Finally, choose ``Industrial''.
    4. Through dial-up access: Dial 919-558-0335. Choose EPA Public 
Access Gopher. From the main (Gopher) menu, choose ``EPA Offices and 
Regions''. Next, choose ``Office of Solid Waste and Emergency Response 
(OSWER)''. Next, choose ``Office of Solid Waste''. Then, choose ``Non-
Hazardous Waste--RCRA Subtitle D''. Finally, choose ``Industrial''.

Preamble Outline

I. Authority
II. Background
    A. Current Solid Waste Controls under the Resource Conservation 
and Recovery Act (RCRA)--Non-Hazardous Waste Management: Municipal 
Wastes
    B. Sierra Club Lawsuit
    C. Summary of Proposal Rule
III. Summary of Regulatory Approach of Today's Final Rule
IV. Major Issues
    A. Non-Municipal Non-Hazardous Waste Disposal Units that May 
Receive CESQG Hazardous Wastes
    B. Decision to Impose or Go Beyond the Statutory Minimum 
Components
    C. Decision to Use the Part 258 Criteria Language or General 
Performance Language
V. Summary of Today's Final Rule
VI. Specifics of Today's Final Rule
    A. Section 257.5--Applicability
    B. Sections 257.7-257.13--Location Restrictions
    C. Sections 257.21-257.28--Ground-Water Monitoring and 
Corrective Action
    D. Section 257.30--Recordkeeping Requirements
    E. Special Requirements for Hazardous Waste Generated by 
Conditionally Exempt Small Quantity Generators
    1. Changes to Section 261.5
    2. CESQG Wastes
    3. Screening Procedures
VII. Implementation of Today's Final Rule
VIII. Executive Order No. 12866
IX. Regulatory Flexibility Act
X. Submission to Congress and the General Accounting Office

[[Page 34253]]

XI. Paperwork Reduction Act
XII. Environmental Justice
XIII. Unfunded Mandates Reform Act

I. Authority

    Today's rule is being promulgated under the authority of sections 
1008, 2002 (general rulemaking authority), 3001(d)(4), 4004 and 4010 of 
RCRA, as amended. Section 3001(d)(4) authorizes EPA to promulgate 
standards for generators who do not generate more than 100 kilograms 
per month of hazardous waste. Section 4010(c) directs EPA to revise 
Criteria promulgated under sections 1008 and 4004 for facilities that 
may receive hazardous household wastes (HHW) or small quantity 
generator (SQG) hazardous waste.

II. Background

A. Current Solid Waste Controls Under the Resource Conservation and 
Recovery Act (RCRA)--Non-Hazardous Waste Management: Municipal Wastes

    As added by the Hazardous and Solid Waste Amendments (HSWA) of 
1984, section 4010(c) requires that the Administrator revise the 
existing Part 257 Subtitle D Criteria used to classify facilities as 
sanitary landfills or open dumps by March 31, 1988, for facilities that 
may receive household hazardous waste or hazardous waste from small 
quantity generators. The required revisions are those necessary to 
protect human health and the environment and which take into account 
the practicable capability of such facilities. At a minimum, the 
revised Criteria must include ground-water monitoring as necessary to 
detect contamination, location restrictions, and provide for corrective 
action, as appropriate.
    On October 9, 1991, EPA promulgated revised Criteria for Solid 
Waste Disposal Facilities accepting household hazardous wastes. Those 
revisions fulfilled the part of the statutory mandate found in RCRA 
section 4010 for all facilities that receive household hazardous 
wastes. (Any facility receiving any household waste is subject to the 
revised Criteria, which were relocated at 40 CFR part 258 for purposes 
of clarity). Revisions to the Part 257 Criteria for other Subtitle D 
disposal facilities that may receive conditionally exempt small 
quantity generator (CESQG) hazardous wastes were delayed as the Agency 
had little information concerning the potential or actual impacts that 
these types of facilities may have on human health and the environment.

B. Sierra Club Lawsuit

    The Sierra Club, on October 21, 1993, filed suit against the EPA in 
the United States District Court for the District of Columbia, seeking 
to compel the EPA to promulgate revised Criteria for non-municipal 
facilities that may receive small quantity generator hazardous waste.
    As a result of the October 21, 1993 lawsuit, the EPA and the Sierra 
Club reached agreement on a schedule concerning revised Criteria for 
non-municipal facilities that may receive CESQG wastes. This schedule 
requires that the EPA Administrator sign a proposal by May 15, 1995 and 
a final rule by July 1, 1996. On May 15, 1995, the Administrator signed 
proposed standards for non-municipal non-hazardous waste disposal units 
that may receive CESQG hazardous wastes. These proposed standards were 
published in the Federal Register on June 12, 1995 (see 60 FR 30964).

C. Summary of Proposed Regulatory Approach

    The June 12, 1995 proposal stated that any non-municipal non-
hazardous waste disposal unit 1 that meets the proposed 
requirements may receive CESQG hazardous waste; if such units do not 
meet the proposed requirements, they may not receive CESQG waste. 
Sections 257.5 through 257.30 were proposed to address appropriate 
facility standards for owners/operators of non-municipal non-hazardous 
waste disposal units that receive CESQG hazardous wastes. The 
requirements proposed in Secs. 257.5 through 257.30 were substantially 
the same as 40 CFR part 258. The location restrictions were proposed to 
be effective 18 months after publication of the final rule, while the 
ground-water monitoring and corrective action requirements were 
proposed to be effective 24 months after publication of the final rule.
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    The June 12, 1995 proposal also proposed to amend the existing 
language of Sec. 261.5 clarifying acceptable Subtitle D management 
options for CESQGs. The existing language in Sec. 261.5, paragraphs 
(f)(3) and (g)(3) allows for a CESQG hazardous waste to be managed at a 
hazardous waste facility (either in interim status or permitted), a 
reuse or recycling facility, or a non-hazardous solid waste facility 
that is permitted, licensed, or registered by a State to manage 
municipal or industrial waste. The June 12 proposal proposed to 
continue to allow CESQG waste to be managed at a hazardous waste 
facility or at a reuse or recycling facility; however, if CESQG waste 
is managed in a Subtitle D disposal facility, it must be managed in a 
MSWLF that is subject to part 258 or a non-municipal non-hazardous 
waste disposal unit that would be subject to the facility standards in 
Secs. 257.5 through 257.30.

III. Summary of Regulatory Approach of Today's Final Rule

    Based on comments received on the proposed regulatory approach, the 
EPA is today finalizing a rule that is almost identical to the proposed 
requirements for non-municipal non-hazardous waste disposal units that 
receive CESQG hazardous wastes. Commentors clearly did not favor 
imposing additional requirements, beyond those proposed, based on the 
lack of risks presented by non-municipal non-hazardous waste disposal 
units that receive CESQG hazardous wastes. Furthermore, commentors were 
somewhat divided on whether to use the part 258 requirements or general 
performance standards in writing the requirements. The EPA has elected 
to use the part 258 requirements.
    Elsewhere in today's final rule, and again based on comments that 
agreed with the EPA's proposed regulatory approach for CESQGs, EPA is 
finalizing the proposed changes to the special requirements for CESQGs 
(i.e., Sec. 261.5) to clarify the obligation that the generators of 
CESQG wastes have to ensure proper management of such wastes. CESQGs 
are those that generate no more than 100 kilograms of hazardous waste 
or no more than one kilogram of acutely hazardous waste in a month and 
who accumulate no more than 1000 kilograms of hazardous waste or no 
more than one kilogram of acutely hazardous waste at one time.
    As previously discussed, today's final rule responds to the 
statutory language in RCRA section 4010(c). In responding initially to 
the statutory language of section 4010(c), EPA elected to regulate 
municipal solid waste landfills first, due to the comparatively higher 
risks presented by these types of facilities. As discussed in the 
proposed rule, the subject of today's final rule--non-municipal non-
hazardous waste disposal units that receive CESQG waste--present a 
small risk relative to risks presented by other environmental 
conditions or situations. Given this lower risk, the Agency would have 
elected not to issue this final rule at this time. In a time of limited 
resources,

[[Page 34254]]

common sense dictates that we deal with higher priorities first, a 
principle on which EPA, members of the regulated community, and the 
public can agree. However, given the D.C Circuit's reading of RCRA 
section 4010(c), Sierra Club v. EPA, 992 F.2d 337, 347 (D.C. Cir. 
1993), and a schedule established as a result of litigation, the Agency 
must issue this final rule now. Faced with having to issue this final 
rule for a class of facilities that do not generally pose risks as high 
as municipal solid waste landfills, the Agency is finalizing 
requirements that address only the statutory minimum requirements in an 
attempt to reduce the economic burden on the regulated community.
    A complete discussion of the main issues associated with today's 
final rule is presented in the next section of today's preamble while a 
discussion of today's requirements is presented later in today's 
preamble.

IV. Major Issues

A. Non-Municipal Non-Hazardous Waste Disposal Units That May Receive 
CESQG Hazardous Waste

    The proposed rule was written to provide that only those non-
municipal non-hazardous waste disposal units which meet the 
requirements in Secs. 257.5 through 257.30 ``may receive'' CESQG waste, 
as required by RCRA section 4010(c). Any non-municipal non-hazardous 
waste disposal unit that did not meet the proposed requirements may not 
receive CESQG hazardous wastes. The proposal was written to apply to 
non-municipal non-hazardous waste disposal units that receive CESQG 
waste for storage, treatment, or disposal, including such units as 
surface impoundments, landfills, land application units and waste 
piles. The regulatory definition of the term ``disposal'' cover all 
placement of wastes on the land. See 40 CFR 257.2.
    Several commentors addressed the Agency's interpretation of the 
statutory language ``may receive''. One commentor supported the 
Agency's decision to limit the proposed regulatory requirements to only 
those non-municipal non-hazardous waste disposal units that receive 
CESQG wastes. Another commentor, however, stated that a closer reading 
of Section 4010(c) reveals that Congress was not only concerned about 
modifying the criteria for ``facilities that may receive hazardous 
household wastes or hazardous wastes from small quantity generators * * 
*'' but also for ``facilities potentially receiving such wastes.'' 
According to the commentor, the ``may receive'' clause of the first 
sentence in Section 4010(c) merely refers to whether a facility may 
legally receive CESQG waste for disposal. The ``potentially receiving 
such wastes'' clause of the third sentence of Section 4010(c) refers to 
the actual potential for such facilities to receive CESQG wastes. The 
potential for CESQG waste to be disposed of at many types of industrial 
D landfills is high even with the proposed prohibition under 
Sec. 261.5. It is the ``potentially receiving'' clause that 
specifically commands the Agency to promulgate provisions for all 
industrial facilities that could potentially receive CESQG wastes.
    EPA disagrees with the commentor's interpretation of the statutory 
language in RCRA section 4010(c). More specifically, for a number of 
reasons, the Agency does not believe that the statutory language cited 
by the commentor evidences congressional intent that the revised 
criteria being promulgated today should address disposal of solid waste 
in all industrial disposal facilities. First, EPA believes that the 
commentor errs by focusing only on the ``facilities potentially 
receiving'' language in the last sentence of section 4010(c). If one 
reviews this language together with the statutory language in RCRA 
section 4010(a), it is clear that Congress did not intend for the 
revised criteria being promulgated today to apply to all industrial 
landfills.
    RCRA section 4010(a) required EPA to conduct a study of the then 
existing guidelines and criteria issued under RCRA sections 1008 and 
4004 which were applicable to ``solid waste management and disposal 
facilities, including, but not limited to landfills and surface 
impoundments.'' 42 U.S.C. Sec. 6949a(a). This statutory language does 
indeed suggest that EPA was to study a wide range of solid waste 
disposal facilities, including industrial landfills. (As the commentor 
stated, because the information on industrial disposal facilities was 
quite limited, EPA's report to Congress did focus on municipal 
landfills.)
    However, the statutory language in section 4010(c) directing EPA to 
promulgate a rule revising the criteria in 40 CFR Part 257 limits the 
rule's applicability only to those facilities which may receive 
hazardous household waste or small quantity generator waste. 42 U.S.C. 
6949a(c). If Congress had intended the revised criteria under section 
4010(c) to apply to all solid waste disposal facilities, including 
industrial landfills and surface impoundments, it clearly could have 
done so by enacting language similar to that already used in section 
4010(a).
    Secondly, the legislative history of RCRA section 4010 suggests 
that Congress expressly rejected a provision that would have required 
rules to be promulgated under section 4010(c) to apply to the entire 
universe of RCRA Subtitle D solid waste disposal facilities. Indeed, 
the House version of section 4010 would have required EPA to promulgate 
revised guidelines and criteria such that they would be applicable to 
all ``solid waste management and disposal facilities, including, but 
not limited to landfills and surface impoundments * * *.'' H.R. 2867, 
section 30, 98th Cong., 1st Sess. (as introduced in the Senate on 
November 9, 1983). However, the Conference Committee instead adopted a 
Senate amendment which limited the scope of the revised criteria to 
those facilities that may receive hazardous household waste or small 
quantity generator waste. H. Rept. No. 98-1133, 98th Cong., 2d Sess., 
at 116-117.
    Another indication that RCRA section 4010(c) was not intended to 
cover the entire universe of solid waste disposal facilities is the 
fact that subsequent to the enactment of section 4010(c) (as part of 
the Hazardous and Solid Waste Amendments in 1984), a number of bills 
were introduced in Congress which would have either authorized or 
required EPA to issue additional regulations that would address all 
disposal facilities receiving industrial waste as opposed to addressing 
those which may receive CESQG waste as stated in Section 4010(c). See, 
e.g., H.R. 3735, ``Waste Materials Management Act of 1989,'' section 
324 (would have required EPA to promulgate standards for the management 
of industrial solid waste) (Luken Bill); S. 1113, ``Waste Minimization 
and Control Act of 1989,'' section 204 (would have required EPA to 
promulgate requirements for facilities that manage different types of 
industrial waste) (Baucus Bill). Neither of these provisions (although 
neither was enacted) would have been necessary if RCRA section 4010(c) 
required EPA to promulgate revised criteria for all types of industrial 
disposal facilities.
    This same commentor cites to language in both the Report to 
Congress (as provided for in RCRA section 4010(b)) and the MSWLF 
rulemaking to suggest that EPA acknowledged that all industrial 
landfills, even those not receiving CESQG waste, should fall within the 
scope of today's rule. EPA acknowledges that it expressed a concern 
about the potential risks that industrial solid waste disposal 
facilities might pose; however, EPA indicated

[[Page 34255]]

that it did not have the level of information necessary to conduct a 
rulemaking for such disposal facilities. At the time of issuing the 
final MSWLF rule, EPA indicated that it would attempt to study these 
facilities to gain a better understanding of the risks that they may 
pose. See 56 FR 51000 (Oct. 9, 1991).
    After investigating available information in more detail, it became 
clear that of all industrial solid waste disposal facilities, only 
construction and demolition and off-site commercial facilities 
typically receive CESQG waste. As discussed in the proposed rule, 
recent information and discussions with the relevant industries 
indicate that on-site industrial disposal facilities (which make up the 
vast majority of industrial disposal facilities) generally do not 
receive CESQG waste. However, the commentor should be aware that EPA 
has drafted the rule such that it will apply to such industrial on-site 
facilities if they receive CESQG waste. See sections 257.5(a) (1) and 
(3).

B. Decision To Impose or Go Beyond the Statutory Minimum Components

    RCRA section 4010(c) requires that the revised criteria must at a 
minimum include location restrictions, ground-water monitoring as 
necessary to detect contamination, and corrective action, as 
appropriate. The June 12, 1995, proposal discussed how the Part 258 
Municipal Solid Waste Landfill Criteria went beyond these requirements. 
(See 60 FR 30968.) The proposal for non-municipal non-hazardous waste 
disposal units did not, however, go beyond these statutory minimum 
requirements. The Agency presented data, in the June 12 proposal, which 
showed that the establishment of additional facility management 
requirements, beyond these types of requirements, for non-municipal 
non-hazardous waste disposal units that may receive CESQG waste was not 
warranted.
    The Agency received comments on both sides of this issue. Some 
commentors felt that the statutory minimum components were adequate to 
address the potential risks from non-municipal non-hazardous waste 
disposal units that may receive CESQG wastes. However, other commentors 
believed that additional regulatory controls should have been required.
    Commentors stated that the level of documented releases and 
environmental problems do not merit extensive regulations. Commentors 
also stated that the final regulations should be limited to the 
proposed requirements as they felt that those requirements were indeed 
adequate given the low risks associated with the disposal of CESQG 
waste in non-municipal non-hazardous waste disposal units. Some 
commentors argued that less stringent requirements, less than the 
proposed requirements, would have been more appropriate.
    On the other hand, some commentors raised the concern that the 
cumulative effect of allowing small quantities of hazardous waste to be 
disposed of in non-municipal non-hazardous waste disposal units would 
result in a major source of ground-water pollution. Commentors further 
felt that because MSWLF owners/operators have upgraded their units to 
meet the requirements in Part 258 in order to minimize the risk 
associated with the disposal of household hazardous wastes and CESQG 
wastes, non-municipal non-hazardous waste disposal units disposing of 
CESQG wastes should be required to meet the same standards as in Part 
258 (e.g., closure and post-closure care, financial assurance and 
operating requirements). In addition, one commentor believed that the 
Agency's conclusions, concerning the potential risks associated with 
non-municipal non-hazardous waste disposal units receiving CESQG 
wastes, were based on outdated and limited data. The commentor felt 
that the data cited by EPA failed to justify the Agency's conclusion 
that non-municipal non-hazardous waste disposal units pose low risk but 
rather simply indicate a lack of information on the subject.
    The Agency agrees with those commentors who believe that the 
proposed requirements are adequate to address the potential risks from 
non-municipal non-hazardous waste disposal units that receive CESQG 
hazardous wastes. In the June 1995 proposal, the Agency took the 
position that only the proposed requirements were necessary because 
``construction and demolition (C&D) waste units, in general, do not 
currently pose significant risks and that individual damage cases are 
limited in occurrence'' and that off-site commercial landfills are 
subject to more ``stringent environmental controls''. The Agency 
requested additional data concerning C&D units to further assess the 
potential risks these types of units may pose as well as additional 
data on commercial industrial solid waste units or other types of units 
that may be subject to the proposal.
    The Agency did not receive any new data concerning the potential 
risks associated with C&D units or any other types of units potentially 
subject to the proposal. Thus, EPA has no information suggesting that 
the facilities subject to this rule pose any risks beyond those limited 
ones discussed in the proposed rule. (One commentor submitted leachate 
data on bulky waste landfills but that data was previously considered 
by the Agency during the development of the proposal.) In response to 
the commentor that suggested that the cumulative effects of allowing 
small amounts of hazardous waste would result in a major source of 
ground-water pollution the Agency disagrees. The Agency believes that 
the limited number of documented damage cases and cases of ground-water 
contamination, discussed in the proposal to this rule, do not support 
the commentor's concern about the creation of major sources of ground-
water pollution. As such, the Agency believes that it should not go 
beyond the requirements that were proposed.
    For those commentors who expressed the need to impose Federal 
controls on C&D units beyond the proposed requirements, in the form of 
closure/post-closure standards and/or financial assurance requirements, 
the Agency wishes to point out that these types of standards are 
prevalent among State programs for C&D units. Most States (44) specify 
some thickness for a final cover, 34 States require post-closure care 
for some period of time while 33 and 32 States require financial 
assurance for closure and post-closure care, respectively, for C&D 
units. Given the lack of data suggesting that C&D facilities pose the 
same risks as MSWLFs and the fact that most States already require 
additional regulatory controls, EPA does not believe it is appropriate 
to establish requirements that go beyond the statutory minimum 
requirements of Section 4010(c).

C. Decision To Use the Part 258 Criteria Language or General 
Performance Language

    The June 12, 1995 proposal identified two options for writing the 
proposed requirements. One was to use the Part 258 criteria as the 
baseline for these requirements. Part 258 is a combination of 
performance standards and additional detail to help the owner/operator 
achieve compliance with the performance standards. Part 258 also 
establishes minimum national criteria for municipal solid waste 
landfills, and as such, a minimum national level of protection. The 
second option was to use general performance standards that could be 
met by facility owners/operators as they implement the standards as 
well as to guide States in designing new regulatory programs (or 
revising existing regulatory programs).

[[Page 34256]]

    Reasons cited in the proposal for using the Part 258 Criteria 
included: (1) Part 258 Criteria provide sufficient detail so that an 
individual owner/operator can self-implement them without State 
interaction in those instances where States do not seek approval of 
their permitting program as required in RCRA Section 4005(c); (2) EPA 
believes that the national minimum requirements are necessary for 
collection of reliable and consistent ground-water monitoring data and 
to allow the owner/operator and States to respond to contamination from 
the unit; (3) They contain a substantial amount of flexibility that 
allows approved States to tailor standards to individual and classes of 
facilities; (4) Some States expressed strong support for using 258 
standards as the baseline for solid waste disposal facilities that 
receive CESQG hazardous waste; and (5) While some States have standards 
for non-municipal facilities that are not identical to the 258 
standards, the Agency believed there was a strong likelihood that many 
State programs would be approvable.
    Reasons cited in the preamble in support of using the general 
performance standard approach included: (1) Although the Part 258 
standards contain substantial flexibility for States to tailor the 
programs to their conditions, the Part 258 standards put certain limits 
on State flexibility to design a program tailored to local conditions; 
(2) The Part 258 standards also include certain national minimum 
requirements (which States can not modify) that EPA promulgated because 
of the risks posed by MSWLFs; (3) In the absence of a significant 
Federal program, over half of the States have adopted location 
standards, ground-water monitoring requirements, and corrective action 
requirements that are significantly less extensive than the Part 258 
standards; and (4) a general performance standard would provide the 
maximum flexibility for States and owners to adopt new methodologies 
and technologies (e.g., detecting ground-water contamination using 
technologies other than monitoring wells) to meet the standard at the 
lowest possible cost.
    Comments were received in support of both approaches. Commentors 
supported the use of the Part 258 Criteria because they thought general 
performance standards would be difficult to implement and enforce. 
Another commentor stated that Section 4010(c) requires EPA to spell-out 
the requirements that facilities must implement; he argues that by not 
specifying how to attain the statutory minimum requirements, a 
performance-based approach would fall short of the statute. The 
performance-based approach would spawn endless uncertainty, requiring 
the wheel to be re-invented for each facility. This uncertainty would 
fall most heavily on citizens who are concerned about individual 
facilities. Other commentors argued against promulgating general 
performance standards and stated that the Part 258 rules provide a 
clear, flexible, common sense approach. Using Part 258 provides both 
the regulated community and the State Agencies a familiar, well-thought 
out scheme that is easy to administer and implement and offers 
sufficient flexibility to address site-specific conditions in approved 
States. The Agency received extensive comment in the Part 258 
rulemaking indicating why general performance standards were 
inappropriate for landfills; those comments are as relevant today for 
landfills receiving CESQG waste. Finally, developing a significantly 
different set of rules from either Part 257 or Part 258 would also be 
confusing to the regulated community because it would create one set of 
rules for household wastes (Part 258), one for sites that accept CESQG 
wastes (this rule) and one for all other non-hazardous wastes (Part 
257).
    Other commentors supported the use of general performance standards 
by reiterating the reasons provided in the proposal in support of such 
an approach. Other commentors stated that due to the nature of the 
demolition waste stream being landfilled, they supported the use of 
general performance standards vs. all of the Part 258 standards. 
Commentors supported maximum State flexibility to address local 
conditions and requirements tailored to the perceived risk, not 
automatically adopting the more restrictive MSWLF regime. Another 
commentor stated that the Part 258 ground-water monitoring standards 
were developed for MSWLFs and if the ground-water monitoring program 
for non-municipal non-hazardous waste disposal units is not based on a 
performance standard that allows for site-specific design, certain 
facilities will be overregulated. Another commentor stated that the 
general performance standard is preferable as long as it provides an 
adequate description of the performance objective. Guidance manuals 
could be used to implement the general performance standards.
    The Agency agrees with the majority of commentors who supported the 
use of the Part 258 Criteria. The Agency believes, for all of the 
reasons discussed by the commentors, that the use of the Part 258 
criteria is the preferable option to utilize in the final rule. The 
Part 258 Criteria are a clear, flexible set of regulations that can be 
tailored by approved States to address site-specific conditions while 
protecting human health and the environment. The ground-water and 
corrective action requirements of today's final rule offer owners/
operators in approved States great flexibility in establishing a 
ground-water monitoring program and in selecting a corrective measure 
should corrective action become necessary.
    In a sense, the Part 258 Criteria for ground-water monitoring and 
corrective action are general performance standards. However, the big 
difference between the use of the Part 258 Criteria and the use of a 
general performance standard approach is the detail that is contained 
in the Part 258 Criteria, the same detail would not be a part of a 
general performance standard approach. Both the Part 258 Criteria and 
the general performance standard approach use performance standards; 
the general performance standard approach would provide only general 
standards to be followed by the owner/operator, while the Part 258 
Criteria would provide additional detail and guidance to an owner/
operator in trying to comply with the performance standards contained 
in Part 258. This additional detail in the Part 258 Criteria is what 
the Agency believes commentors were referring to when they stated that 
``using Part 258 provides both the regulated community and the State 
Agencies a familiar, well-thought out scheme that is easy to administer 
and implement and offers sufficient flexibility to address site-
specific conditions''. It is this additional detail in Part 258 that if 
not contained in the general performance standard approach would create 
confusion among the regulated community and ``spawn endless 
uncertainty''.
    The Agency believes that the use of the detail in the Part 258 
Criteria for ground-water monitoring and corrective action, in the form 
of factors to consider vs. design standards, clearly guides an owner/
operator in achieving compliance with the performance standards in Part 
258 while maximizing the owners/operators ability to take into account 
and use site-specific data. Part 258 guides an owner/operator and State 
Agencies by specifying (1) what factors should be considered in 
determining the number, depth, and spacing of the wells in the 
monitoring system, (2) how wells should be cased, (3) that any 
statistical test comply with basic performance standards, (4) what 
factors should be considered in establishing an initial list of 
monitoring parameters and frequency, (5) what factors should be

[[Page 34257]]

considered in selecting any potential remedy under corrective action, 
and (6) what factors should be considered in developing interim 
measures under a corrective action program. The Agency does not believe 
that the use of the detail in the Part 258 Criteria will result in 
``facilities being overregulated''. EPA also believes that this detail 
is necessary to protect human health and the environment.

V. Summary of Today's Final Rule

    Today's final rule specifies that non-municipal non-hazardous waste 
disposal units that do not meet the requirements (i.e., location 
restrictions, ground-water monitoring and corrective action) in 
sections 257.5 through 257.30 may not receive CESQG hazardous waste. 
The ground-water monitoring and corrective action requirements being 
finalized today are substantially the same as those that were proposed. 
The location restrictions have been changed from the proposal with the 
major change being that in the proposal 6 location restrictions were 
proposed but in today's final rule only 2 location restrictions are 
being finalized (floodplains and wetlands). Differences between the 
final requirements and those that were proposed are discussed in the 
appropriate sections of today's preamble.
    The location restrictions will be effective 18 months after 
publication of the final rule. The location restrictions being 
finalized today are the floodplains and wetlands restrictions. The 
floodplains restriction is applicable to new units, existing units, and 
lateral expansions of existing units that receive CESQG waste. Only new 
units and lateral expansions of existing units that receive CESQG 
hazardous waste must comply with the wetlands location restriction.
    The ground-water monitoring and corrective action requirements will 
be effective 24 months after publication of the final rule. Any 
existing unit, new unit, or lateral expansion of an existing unit that 
receives CESQG hazardous waste after the effective date will be 
required to comply with the final ground-water monitoring and 
corrective action requirements. The ground-water monitoring provisions 
are being finalized to ensure that units that receive CESQG hazardous 
waste will have monitoring systems in place that will enable the 
detection of any contamination of ground-waters along with appropriate 
sampling and analysis procedures to allow for the statistical analysis 
of monitoring results. The corrective action requirements will allow 
for the evaluation, selection, and implementation of an appropriate 
remedial technology to clean-up any contamination of ground-waters.
    Today's final rule also amends the existing language of Sec. 261.5 
clarifying acceptable Subtitle D management options for CESQGs. The 
language in Sec. 261.5, paragraphs (f)(3) and (g)(3) currently allows a 
CESQG hazardous waste to be managed at a hazardous waste facility 
(either in interim status or permitted), a reuse or recycling facility, 
or a non-hazardous waste disposal unit that is permitted, licensed, or 
registered by a State to manage municipal or industrial waste. Today's 
final rule would continue to allow CESQG waste to be managed at a 
hazardous waste facility or at a reuse or recycling facility. Today's 
final rule will require that if CESQG waste is managed in a Subtitle D 
disposal facility, it may be managed in a MSWLF that is subject to Part 
258 or managed in a non-municipal non-hazardous waste disposal unit 
that is subject to the standards being finalized in Secs. 257.5 through 
257.30.

VI. Specifics of Today's Final Rule

A. Section 257.5--Applicability

1. Applicability
    EPA proposed that any owner/operator of a non-municipal non-
hazardous waste disposal unit that wanted to receive CESQG hazardous 
waste would have to comply with the proposed requirements in 
Secs. 257.5-257.30 prior to the actual receipt of the CESQG waste. The 
proposal stated that owners/operators of non-municipal non-hazardous 
waste disposal units that do not meet the proposed criteria may not 
receive CESQG hazardous waste.
    The proposal further stated that owners/operators of non-municipal 
non-hazardous waste disposal units that receive CESQG hazardous waste 
after the effective date would have to comply with the location 
restrictions (Secs. 257.7-257.12) within 18 months after the date of 
publication of the final rule and with the ground-water monitoring and 
corrective action requirements (Secs. 257.21-257.28) within 24 months 
after the date of publication of the final rule.
    The Agency is finalizing the applicability of the final rule as 
proposed and retaining the effective dates as proposed. The Agency 
received no specific comments in regard to the effective dates with the 
exception of one comment that stated that the commentor had no problem 
with the two-year effective date for the ground-water monitoring and 
corrective action requirements.
2. Definitions
    EPA proposed a number of definitions for terms in the proposal and 
received limited comments. One commentor thought that the term ``non-
municipal solid waste disposal facility'' should be more appropriately 
called ``non-municipal non-hazardous waste disposal facility''. The 
commentor stated that by discussing only ``solid waste'' facilities, 
hazardous waste facilities are not excluded because they are a subset 
of ``solid waste''. Furthermore, this commentor thought the term ``non-
municipal solid waste landfill'' should also more appropriately be 
called a ``non-municipal non-hazardous waste disposal facility''. This 
same commentor also expressed a concern that the terms ``facility'' and 
``unit'' as used in Secs. 257.7 through 257.9 were used interchangeably 
and that some clarification and/or consistency was necessary.
    The EPA agrees that the term ``non-municipal solid waste disposal 
facility'' could be confusing and that the term ``non-municipal non-
hazardous waste disposal facility'' more clearly defines the types of 
facilities potentially subject to today's final rule. The EPA also 
agrees that the terms ``facility'' and ``unit'' were used 
interchangeably and that the term ``unit'' is more appropriate to use 
in defining what is potentially subject to today's final rule. 
Therefore, in today's preamble and in the final rule language the term 
non-municipal non-hazardous waste disposal unit is used. 
Correspondingly, the terms ``existing facility'' and ``new facility'' 
have been changed in the final rule to refer to ``exiting unit'' and 
``new unit''. Existing unit refers to any non-municipal non-hazardous 
waste disposal unit that is receiving CESQG hazardous waste as of the 
effective date (i.e., 18 months after the final rule is published in 
the Federal Register). A new unit is any non-municipal non-hazardous 
waste disposal unit that has not received CESQG hazardous waste prior 
to the effective date (i.e., 18 months after the final rule is 
published in the Federal Register).
    Today's applicability section (Sec. 257.5) has also been changed to 
clarify the situation where a non-municipal non-hazardous waste 
disposal unit decides to receive CESQG hazardous waste after the 
effective date of today's rule. The applicability section (section 
257.5(a)(5)) has been changed to clarify that any non-municipal non-
hazardous waste disposal unit that first receives CESQG hazardous waste 
after the date 18 months after the date of publication of this final 
rule in the Federal Register

[[Page 34258]]

must be in compliance with all the requirements prior to the receipt of 
the CESQG hazardous waste.
    One additional change from the proposed rule language concerns the 
definition of the term State/Tribal Director. In the proposal the term 
State/Tribal Director was defined to mean the chief administrative of 
the State/Tribal agency responsible for implementing the State/Tribal 
permit program for Subtitle D regulated facilities. The remainder of 
the proposed rule language, however, consistently used the term State 
Director. This was done as a means of efficiency and the Agency did not 
imply any other substantive effect on the character, authority, and/or 
rights of Tribes. The final rule will include Indian Tribes in the 
definition of the term ``State'' (as was proposed) and Tribal Director 
in the definition of ``State Director''. This change is being made to 
be consistent with the proposed changes to Part 258 language in the 
proposed State/Tribal Permit Program Determination of Adequacy (See 61 
FR 2584, January 26, 1996). The State/Tribal Permit Program 
Determination of Adequacy contains a complete discussion of the 
opportunities that are available to Indian Tribes to apply for program 
approval.

B. Sections 257.7-257.13--Location Restrictions

    EPA proposed a set of location restrictions for new and existing 
units that receive CESQG waste which mirrored restrictions already 
established for MSWLFs. 40 CFR 258.10 to 258.16. However, in response 
to comment received on the proposal, EPA has modified the proposed 
location restrictions in a number of ways. Because units receiving 
CESQG waste pose a smaller risk to human health and the environment 
than do MSWLF facilities and for the reasons discussed below, EPA 
believes that the restrictions being promulgated today satisfy the 
statutory standard contained in RCRA Section 4010(c). 42 U.S.C. 
Sec. 6949a(c).
1. Airport Safety
    EPA proposed that new, existing, and lateral expansions of existing 
non-municipal non-hazardous waste disposal units, that receive CESQG 
hazardous waste, demonstrate that the unit does not pose a bird hazard 
to aircraft. The proposed airport safety provision was the same as the 
current Part 257 requirement; only the demonstration requirement to the 
affected airport and to the FAA for new and lateral expansions of 
existing units was new.
    Several commentors objected to the airport safety provision in 
Section 257.7 and requested that the provision be removed. Commentors 
stated that units that accept CESQG wastes will be non-putrescible 
operations that do not provide a source of food or nesting for birds. 
One commentor stated that actual observations of over 30 sites across 
the country support the conclusion that birds are virtually nonexistent 
at C&D units. Lastly, one commentor referenced the recent FAA report 
titled ``Draft Report to Congress on Potential Hazards to Aircraft by 
Locating Waste Disposal Sites in Vicinity of Airports'', wherein, the 
FAA stated that recent FAA sponsored research has shown that non-
putrescible waste landfills (i.e., construction and demolition waste 
landfills, . . .) do not attract wildlife that could create a wildlife/
aircraft strike hazard.
    In response to commentors concerns, the Agency has eliminated the 
airport safety provision from today's final rulemaking. The Agency's 
original requirement under Part 257 was designed to regulate units that 
dispose of putrescible wastes; based on the fact that units potentially 
subject to today's final rule do not receive putrescible wastes (e.g., 
C&D units), the Agency sees no reason to have this requirement as part 
of today's final rule.
2. Floodplains
    EPA proposed that new, existing, and lateral expansions of existing 
non-municipal non-hazardous waste disposal units, that receive CESQG 
hazardous wastes, located in the 100-year floodplain demonstrate that 
the unit will not restrict the flow of the 100-year flood, reduce the 
temporary water storage capacity of the floodplain or result in washout 
of solid waste so as to pose a hazard to human health and the 
environment.
    No comments were received on the substance of the floodplain 
provision; therefore, the Agency is finalizing the floodplain provision 
as it was proposed.
3. Wetlands
    The Agency proposed that new facilities and lateral expansions of 
existing non-municipal non-hazardous waste disposal units, that receive 
CESQG hazardous wastes, not be located in a wetland unless specified 
demonstrations can be met by the owner/operator. The demonstrations 
were to ensure that if a non-municipal non-hazardous waste disposal 
unit needed to be located in a wetland, protection of state water 
quality standards and protection of the wetland will be achieved. 
Furthermore, the proposal was consistent with the Agency's goal of 
achieving no net loss of the nation's wetlands.
    No comments were received on the substance of the wetlands 
provision, therefore, the Agency is finalizing the wetlands provision 
as it was proposed.
4. Fault Areas
    EPA proposed that new and lateral expansions of existing non-
municipal non-hazardous waste disposal units, that receive CESQG 
hazardous waste, not be located within 200 feet of a fault that has had 
displacement in Holocene time unless the owner/operator demonstrates 
that an alternative setback distance of less than 200 feet will not 
affect the structural integrity of the unit during displacement and 
will be protective of human health and the environment.
    One commentor questioned the need for a fault area restriction 
because this location provision is premised on the fact that if 
movement along a fault occurs, the structural integrity of the 
engineering features will be disrupted. Given the low risks imposed by 
many of the facilities potentially subject to the rule and the fact the 
Agency is not regulating the design features (i.e., liners, leachate 
collection systems) of these facilities, imposing siting restrictions 
is not warranted.
    The Agency agrees that the fault area restriction is designed to 
guard against disruptions to the engineering features that provide 
structural integrity to the unit. Because of the low-risks posed by 
non-municipal non-hazardous waste units that receive CESQG waste, EPA 
did not propose any liner requirements or other provisions bearing on 
the structural integrity of the units. Thus, the Agency agrees that 
imposing this restriction is not warranted, and as such, the fault area 
restriction is not a part of today's final rule.
5. Seismic Impact Zones
    EPA proposed that new and lateral expansions of existing non-
municipal non-hazardous waste disposal units, that receive CESQG 
hazardous waste, not be located in seismic impact zones unless the 
owner/operator demonstrates that all containment structures are 
designed to resist the maximum horizontal acceleration in lithified 
earth material for the site.
    No specific comments were received on this provision. However, this 
provision like the fault area provision, was designed to guard against 
disruptions to liners, leachate collection systems, and surface water 
control systems, therefore, EPA considers that the logic of the 
comments on fault area

[[Page 34259]]

restrictions applies to this restriction as well, and as such, the 
Agency sees no reason to include this location restriction as part of 
today's final rulemaking.
6. Unstable Areas
    EPA proposed that new, existing and lateral expansions of existing 
non-municipal non-hazardous waste disposal units, that receive CESQG 
hazardous waste, located in an unstable area demonstrate that 
engineering measures have been incorporated into the facility design to 
ensure that the integrity of the structural components of the facility 
will not be disrupted.
    As with the seismic impact zone restriction, no specific comments 
were received on this part of the proposal. However, for the same 
reasons as discussed above under the fault area and seismic impact zone 
restrictions, this location restriction is also not part of today's 
final rule.
7. Deadline for Making Demonstrations
    EPA proposed that existing non-municipal non-hazardous waste 
disposal units, that receive CESQG hazardous wastes, that could not 
make the demonstrations pertaining to airports, floodplains, or 
unstable areas, would not be allowed to accept CESQG hazardous waste 
for disposal 18 months after the date of publication of the final rule.
    No specific comments were received on this provision of the 
proposal. As the final rule only applies to existing units located in 
floodplains, this provision has been changed to require that only 
existing units in floodplains will not be allowed to accept CESQG 
hazardous waste for disposal 18 months after the date of publication of 
the final rule.

C. Sections 257.21-257.28--Ground-Water Monitoring and Corrective 
Action

1. Applicability
    The Agency proposed a number of requirements under the heading 
``applicability.'' The Agency proposed that the ground-water monitoring 
requirements could be suspended by the Director of an approved State if 
the owner/operator could demonstrate that there was no potential for 
migration of hazardous constituents from the facility to the uppermost 
aquifer during the active life plus 30 years.
    The Agency also proposed the existing units had to be in compliance 
with the groundwater monitoring requirements within 2 years after the 
date of publication of the final rule in the Federal Register. EPA 
proposed that new facilities meet the ground-water monitoring 
requirements when waste is first placed in the unit. The Director of an 
approved State could specify an alternative schedule for compliance for 
existing units. The proposed alternative schedule called for 50% of 
existing units to be in compliance within 2 years and for all existing 
units to be in compliance within 3 years.
    The Agency also proposed that ground-water monitoring be conducted 
throughout the active life plus 30 years. The director of an approved 
State could decrease the 30 year period.
    Lastly, the Agency proposed to grant the Director of an approved 
State the flexibility to establish and use an alternative list of 
indicator parameters for some or all of the constituents listed in 
Appendix I (appendix I to Part 258) and to allow small, dry, remote 
non-municipal non-hazardous waste disposal units to use an alternative 
form of detecting ground-water contamination.
    The Agency received no adverse comment on most of these provisions. 
The flexibility for small, dry, remote non-municipal units was 
considered an example of increased flexibility by a commentor. The 
Agency has slightly altered the regulatory language for the proposed 
flexibility for small, dry, remote non-municipal non-hazardous waste 
disposal units that may be allowed to use alternative forms of 
detecting ground-water contamination. The proposed language required, 
in two places, that an owner or operator had to submit results or seek 
approval of corrective measures within 60 days. These deadlines have 
been removed to allow for increased flexibility. The deadlines have 
been replaced with language that allows the Director of an approved 
State to establish a schedule for the owner or operator for the above 
mentioned activities. This change is also being done to be consistent 
with the rule language that was proposed for MSWLFs, allowing small, 
dry, remote MSWLFs to use alternative forms of detecting ground-water 
contamination. See 60 FR 40799, August 10, 1995. The proposed language 
allowing for alternatives to be used for small, dry, remote MSWLFs was 
the basis for the proposed language to allow small, dry, remote non-
municipal, nonhazardous waste disposal units to also use alternative 
forms of detecting ground-water monitoring. See 60 FR 30976, June 12, 
1995.
    The length of the ground-water monitoring period (i.e., active life 
plus 30 years) generated some disagreement. In regard to the length of 
the ground-water monitoring period, two commentors concurred with the 
Agency's decision to impose the ground-water monitoring period through 
the active life plus 30 years. The commentors believed that the time 
frame was consistent with other similar rules, and based upon the 
flexibility in the rule, was not overly burdensome to units in 
comparison to the environmental protection it affords.
    Several commentors requested that the Agency reduce the ground-
water monitoring period to a shorter time period or to a time period 
based on an individual unit's performance standard. In regard to a 
performance standard, one commentor argued a performance standard could 
be used by an owner/operator to demonstrate that an alternative time 
period is appropriate. One example suggested was that the performance 
standard be based on a specified number of years without significant 
changes in ground-water quality. No specific number of years was 
provided.
    In regard to a shorter period of time, commentors generally agreed 
that the 30 years was not reflective of the low risks posed by units 
that may potentially receive CESQG wastes. One commentor requested 10 
years for existing and 15 years for new units. Another commentor stated 
that a shorter period was necessary because most States have a post-
closure period that ranges from 5-10 years. A third commentor stated 
that applying an extremely burdensome 30 years period places an 
economic burden on operators that is not remotely balanced by any real 
environmental benefit. This commentor suggested a 5-year period and 
that the rules could be extended if problems are discovered during the 
5 years. Lastly, one commentor questioned what incentive existed to 
monitor groundwater for 30 years beyond the final receipt of waste. 
This commentor considered it unreasonable to expect that the monitoring 
program will be met after a disposal unit has no further economic 
value.
    After a consideration of the comments, the Agency has elected to 
retain the requirement that ground-water monitoring be conducted for 30 
years after the active life of the unit for the same reasons that were 
discussed in the proposal. The Agency believes that there is sufficient 
flexibility within Sec. 257.21(e) for an approved State to decrease the 
30-year period. The final regulation allows the Director of an approved 
State to reduce the length of the monitoring period if the owner/
operator demonstrates that a shorter period is adequate to protect 
human health and the environment. The Agency expects that States will 
reduce

[[Page 34260]]

the length of the monitoring period if an owner/operator can 
demonstrate, for example, that no adverse changes in ground-water 
quality have been detected for some period of time less than 30 years. 
Furthermore, although some commentors expressed concern over the length 
of the 30-year period, the Agency did not receive any data supporting 
any such reduction in the length of the monitoring period.
    Today's final rule continues to provide flexibility for an approved 
State to suspend the ground-water monitoring requirements in 
hydrogeologic settings that may preclude the migration of hazardous 
constituents from the unit to the ground water.
2. Ground-Water Monitoring Systems
    The Agency proposed a number of requirements under the proposed 
section ``ground-water monitoring systems''. The Agency proposed that 
ground-water monitoring systems consist of a sufficient number of 
wells, installed at appropriate locations and depths to yield ground-
water samples from the uppermost aquifer that represent the quality of 
background ground water and the quality of ground water passing the 
relevant point of compliance. The downgradient monitoring system was to 
be installed at the relevant point of compliance, as allowed by the 
Director of an approved State, or at the waste management unit boundary 
in unapproved States. The relevant point of compliance specified by the 
Director of an approved State was proposed to be no more than 150 
meters from the waste management unit boundary and located on land 
owned by the owner/operator. Furthermore, the proposal allowed for 
multi-unit monitoring under specific conditions.
    The only area to receive comments was the point of compliance. A 
number of commentors expressed concern regarding the 150 meter limit 
for the point of compliance. One commentor requested EPA to either 
allow a site-specific decision regarding the point of compliance or 
allow the use of a point of compliance within the facility boundary. A 
second commentor requested that EPA not specify a specific distance but 
rather authorize a site-specific identification of a compliance point 
based on the location for the potential for exposure. For example, if a 
unit is located a considerable distance from a drinking water well, 
having the point of compliance 150 meters from the unit boundary may be 
needlessly stringent. A third commentor stated that a flexible approach 
to establishing the point of compliance is well suited to low-risk 
facilities.
    After a consideration of the comments, the Agency has decided to 
retain the proposed language regarding the point of compliance. The 
final rule will require that the downgradient monitoring wells be 
installed at the waste management unit boundary in unapproved States or 
at the relevant point of compliance, as allowed by the Director of an 
approved State. The relevant point of compliance can be up to 150 
meters from the waste management unit boundary. The Agency retained the 
150 meter limit because the Agency believes it is essential to set a 
maximum distance limit for the point of compliance that would limit 
ground-water contamination, yet still provide flexibility to owners/
operators of non-municipal non-hazardous waste disposal units that 
receive CESQG wastes. A point of compliance set some distance much 
farther from the unit boundary would result in a situation where 
ground-water contamination, when first detected, would be more wide-
spread and result in higher corrective action costs to remedy the 
situation.
    The Agency realizes that the point of compliance can have 
significant implications associated with the scope, magnitude and cost 
of ground-water remedial actions. Because of these implications, the 
point of compliance continues to be an area of discussion and debate. 
At this point in time, the Agency is finalizing the point of compliance 
language for Subtitle D units as described in the proposal for this 
rule. However, the Agency is addressing the point of compliance issue 
in an Advance Notice of Proposed Rulemaking (ANPR) (See 61 FR 19432, 
May 1, 1996) as part of developing regulations concerning ``Corrective 
Action for Releases from Solid Waste Management Units at Hazardous 
Waste Management Facilities'' (subpart S of 40 CFR part 264). The 
Agency intends to use the ANPR to invite comments on a number of 
issues, including the point of compliance pertaining to corrective 
action under Subtitle C of RCRA. It is possible that future 
regulations, which address new point of compliance approaches for 
Subtitle C facilities, could also address Subtitle D units subject to 
today's final rule.
3. Ground-Water Sampling and Analysis Requirements
    The proposal required the use of consistent sampling and analysis 
procedures that would be designed to ensure monitoring results that 
provide an accurate representation of ground-water quality at the 
background and downgradient monitoring wells. The Agency received no 
substantial comments on this section of the proposal; therefore, the 
sampling and analysis requirements are being finalized as proposed. 
Comments concerning sampling and analysis requirements are addressed in 
the comment response document associated with this final rule.
4. Detection Monitoring Program
    The proposal addressed numerous requirements associated with 
detection monitoring, the first phase of ground-water monitoring. The 
majority of the proposed requirements pertained to which constituents 
had to be monitored for and the required frequency of monitoring. The 
proposal required that those constituents identified in Appendix I of 
part 258 were to be monitored for during the detection monitoring phase 
of ground-water monitoring and that the frequency of monitoring was to 
be at least semi-annual. The proposal also specified the areas of 
flexibility that existed for an owner/operator during detection 
monitoring.
    The Agency received no comments on the frequency of monitoring 
during the detection monitoring period, and as such, the final rule 
requires at least semi-annual monitoring during detection monitoring. 
The final rule also continues to allow the Director of an approved 
State to specify an alternative frequency of monitoring during the 
active life plus 30 years (no less than annual during the active life).
    The Agency did receive some comments regarding the constituents to 
be monitored for during detection monitoring. A commentor raised the 
issue of developing a new list of ground-water parameters for 
facilities that accept CESQG wastes. Another commentor stated that 
MSWLFs contain a much larger portion of waste that is biodegradable and 
therefore creates its own chemical degradation byproducts. Unless EPA 
has data that shows that leachates from non-municipal non-hazardous 
waste facilities are similar to municipal solid waste landfills, the 
Agency should not be imposing similar requirements. According to the 
commentor, the ground-water monitoring program should require testing 
only for constituents that are related to the waste accepted at the 
facility, not a list of constituents that could be found at any 
facility that may accept CESQG wastes. Lastly, the commentor stated 
that the monitoring parameters should be representative of

[[Page 34261]]

those constituents that are most mobile in the ground-water environment 
so that early detection is accomplished without undue cost of over 
regulation.
    After a consideration of the comments, the Agency has decided to 
retain the requirements as proposed in the detection monitoring section 
of the proposal. The Agency believes that developing a new list of 
ground-water constituents for facilities that accept CESQG wastes would 
cause undue confusion for the regulated community. However, EPA has 
provided some flexibility for approved States in regard to testing for 
constituents that are related to the wastes accepted at the unit. 
Today's final rule provides flexibility to the Director of an approved 
State to remove from the detection monitoring list of constituents, any 
constituent that is not reasonably expected to be in or derived from 
the waste contained in the unit. Furthermore, the Director of an 
approved State may establish an alternative list of indicator 
parameters in lieu of some or all of the constituents in appendix I of 
part 258, if the alternative indicator parameter(s) provides a reliable 
indication of releases from the unit to the ground water.
    The June 1995 proposal allowed the Director of an approved State to 
develop only an alternative list of inorganic indicator parameters; the 
organic parameters in appendix I of part 258 were to be monitored for 
and no substitutions were allowed. However, in today's final rule, the 
Agency has provided additional flexibility in that the Director of an 
approved State can establish an alternative list of indicator 
parameters for some or all of the constituents in appendix I of part 
258 including the organic constituents. The Agency has provided this 
area of increased flexibility because an alternative list of indicator 
parameters, approved by the Director of an approved State, could be 
appropriate in specific circumstances, and the Agency continues to 
believe that the risks posed by non-municipal non-hazardous waste 
disposal units that may elect to receive CESQG wastes is relatively 
small when compared to MSWLFs. Non-municipal non-hazardous waste units 
that elect to receive CESQG wastes will be mostly C&D units. The Agency 
stated in the proposal for this rulemaking, that these types of units, 
in general, do not pose a significant risk. As such, the Agency 
believes that Directors of approved State programs can exercise 
additional flexibility in establishing the appropriate list of 
detection monitoring constituents or indicator parameters.
    This area of increased flexibility can serve to alleviate 
commentor's concerns regarding the appropriate parameters to monitor 
for during detection monitoring. This area of flexibility will allow 
the Director of an approved State to tailor the detection monitoring 
list to those wastes accepted at the facility and/or those that are 
expected to be a concern due to mobility. One commentor expressed 
concern that the detection monitoring list (Appendix I to Part 258) for 
today's final rule should not be identical to the detection monitoring 
list developed for municipal solid waste landfills. The Agency, 
however, believes that leachates from non-municipal units are somewhat 
similar, in that some of same types of organics and inorganics can 
appear in non-municipal leachates but at lesser concentrations, and as 
such, saw no reason to create a separate and new detection monitoring 
list.
5. Assessment Monitoring Program
    The proposal would have required that once a statistically 
significant increase over background was detected during detection 
monitoring, a full assessment of any impacts on ground-water quality 
had to be undertaken. The purpose of assessment monitoring was to 
sample for a larger list of constituents to determine which were 
present. The assessment monitoring program also required the 
establishment of ground-water protection standards.
    The Agency received no comments on the proposed assessment 
monitoring requirements; therefore, the assessment monitoring program 
requirements are being finalized as proposed.
6. Assessment of Corrective Measures, Selection of Remedy, and 
Implementation of the Corrective Action Program
    The proposal required that once a statistically significant 
increase was detected over the ground-water protection standard for any 
constituent detected during assessment monitoring, the owner/operator 
was required to assess available corrective measures. Available 
corrective measures were those that could meet the performance 
standards established under the proposed selection of remedy 
requirements. Lastly, the proposal would have required that once a 
corrective measure was selected, the owner/operator would be required 
to implement the selected remedy.
    The Agency received no comments on the proposed corrective action 
requirements; therefore, the corrective action requirements are being 
finalized as proposed.

D. Section 257.30--Recordkeeping Requirements

    EPA proposed that owners/operators of non-municipal non-hazardous 
waste disposal units record and retain various pieces of information in 
an operating record. The operating record was proposed to be at the 
facility or at an alternative location as approved by the Director of 
an approved State. The following type of information was proposed to be 
retained: any location restriction demonstration and any demonstration, 
certification, finding, monitoring, testing, or analytical data 
required as part of complying with the ground-water monitoring and 
corrective action requirements.
    No comments were received on the substance of the recordkeeping 
requirements; therefore, the Agency is finalizing the recordkeeping 
requirements provision as it was proposed.

E. Special Requirements for Hazardous Waste Generated by Conditionally 
Exempt Small Quantity Generators

1. Changes to Section 261.5
    The proposal would have amended the existing language of Sec. 261.5 
by establishing acceptable Subtitle D management options for CESQG 
waste. The existing language in Sec. 261.5, paragraphs (f)(3) and 
(g)(3), allows for a CESQG hazardous waste to be managed at a hazardous 
waste facility (either in interim status or permitted), a reuse or 
recycling facility, or a non-hazardous solid waste facility that is 
permitted, licensed, or registered by a State to manage municipal or 
industrial wastes. The proposed rule would have continued to allow 
CESQG waste to be managed at a hazardous waste facility, or at a reuse 
or recycling facility; however, the proposal would have required that 
if CESQG waste was to be managed at a Subtitle D disposal facility, it 
must be managed in a MSWLF that is subject to Part 258 or a non-
municipal non-hazardous waste disposal unit that is subject to the 
standards that were proposed for units receiving CESQG waste.
    Commentors supported the proposed rule changes to paragraphs (f)(3) 
and (g)(3) in Sec. 261.5 regarding waste generated by CESQGs. 
Commentors stated that the continuation of the CESQG rules was very 
important as these rules were developed to ease the burden of small 
generators. Other commentors also supported the proposed generator 
changes for various reasons: proposed changes will help CESQGs ensure 
that their wastes are properly managed, CESQGs may

[[Page 34262]]

investigate the recycling or reuse of their waste streams, or use of 
alternative, less-hazardous materials in their operations, and the 
proposed changes are a wise-policy decision.
    Given the agreement that commentors had with the proposed changes 
to Sec. 261.5, the Agency has decided to largely finalize the 
requirements as proposed.
    One small change has been made in today's final rule language, 
however, in paragraphs (f)(3) and (g)(3). This small conforming change 
deals with final regulatory language that was developed in the 
universal waste rule (see 60 FR 25541, May 11, 1995). Universal wastes 
are the following hazardous wastes that are subject to the universal 
waste rule: batteries as described in 40 CFR 273.2, pesticides as 
described in 40 CFR 273.3, and thermostats as described in 40 CFR 
273.4. The conforming changes are found in today's final rule language 
in paragraphs (f)(3)(vii) and (g)(3)(vii). The conforming changes in 
today's final rule allow a CESQG to manage universal wastes in a 
facility that is a universal waste hauler or destination, provided that 
facility is subject to the universal waste requirements in 40 CFR Part 
273. See 60 FR 25492, May 11, 1995. The possibility that some CESQG 
waste could be considered a universal waste was discussed in the 
proposal to this final rule. See 60 FR 30968, June 12, 1996.
    RCRA Section 3010(b) states that regulations respecting 
requirements applicable to the generation, transportation, treatment, 
or disposal of hazardous waste that are promulgated under Subtitle C 
shall take effect six months after the date of promulgation. The 
Administrator is authorized to establish a shorter effective date. 42 
U.S.C. 6930(b).
    The revisions to 40 CFR Section 261.5 and 271.1 are being 
promulgated, in part, under RCRA section 3001(d)(4), and thus, are 
subject to the six month effective date provision in section 3010(b). 
In the proposed rule, EPA stated that it intended to make these 
revisions to the Subtitle C regulations effective 18 months after their 
publication so as to coincide with the effective dates of the Subtitle 
D provisions. See 60 FR 30979. In the final rule, EPA is making the 
Subtitle C provisions effective in six months in accordance with RCRA 
section 3010(b). However, to ensure that there will be consistency in 
implementation of both the Subtitle C and D provisions, as suggested in 
the proposal, EPA has chosen to delay the compliance date for the 
Subtitle C provisions until 18 months after today's date. Thus, 
although the Subtitle C revisions go into effect in six months, those 
who generate CESQG waste will have to comply with the revised disposal 
standards in section 261.5 (f)) and (g) only when the Subtitle D 
revised location restrictions for CESQG waste go into effect in 18 
months. The final rule language for section 261.5 and 271.1 reflect 
this delayed compliance date.
2. CESQG Wastes
    Comments were received concerning various aspects related to the 
requirements for CESQGs. Comments were also received requesting that 
the Agency provide a clearer picture of what constitutes a CESQG waste. 
Lastly, other commentors stated that the final rule needed to have a 
screening requirement in place for facilities that elect not to receive 
CESQG wastes.
    In regard to the comments concerning the need to better identify 
what is a CESQG waste, the proposal identified examples of CESQG 
wastes, particularly for the construction and demolition waste 
industry. See 60 FR 30967, June 12, 1995. CESQG hazardous wastes 
generated in the construction, renovation, and demolition waste 
industry are more likely to be specific chemicals or products used in 
these activities. Building demolition debris can be a CESQG waste if 
based on generator knowledge or a representative sample of the entire 
building debris, the building debris is determined to be a hazardous 
waste (i.e., it exhibits one of the four characteristics of a hazardous 
waste), and if hazardous, is under the waste quantity cutoff limit for 
a CESQG waste (See 60 FR 30967, June 12, 1995).
    Commentors requested a comprehensive listing of C&D wastes which 
may be typically hazardous. The Agency's supporting document 
``Construction and Demolition Waste Landfills'' identified a number of 
wastes that were considered potentially ``hazardous'' by various 
sources. The Agency continues to believe, as stated in the proposal, 
that not all of the wastes identified in the report are hazardous as 
determined under Subtitle C; however, the listing provided in the 
supporting document provides an indication of the types of wastes that 
may be present in the construction and demolition waste industry that 
could be a concern. Given that the Subtitle C and D regulations are 
generally implemented by the States, the Agency believes that owners/
operators should work with their State Agencies to determine what 
specific rules or guidance applies with regard to the types of wastes 
that their State Agency considers to be hazardous.
3. Screening Procedures
    Comments were also received requesting that the Agency acknowledge 
the use of existing screening procedures. With regard to the comments 
concerning the need to acknowledge the use of existing screening 
procedures and the need to have a screening procedure in place for 
facilities that elect not to receive CESQG wastes, the proposal did not 
require non-municipal non-hazardous waste disposal units to screen 
incoming wastes in order to assure that they were not receiving CESQG 
wastes. Rather, it left it up to the owner/operator to assure, through 
what ever means he/she determined, that the facility was not receiving 
CESQG waste. This could include certifications by waste haulers that 
their wastes destined for the facility will not contain CESQG wastes, 
written prohibitions in contracts between waste haulers and the owner/
operator stating that the facility does not receive CESQG waste for 
disposal, and/or random screening procedures at the facility. 
Commentors were concerned that CESQG wastes would find their way into 
C&D landfills that elect not to upgrade and comply with today's final 
requirements, particularly given that the proposal did not require the 
use of a formal screening procedure to prove that the facility was not 
receiving CESQG wastes. Specifically, one commentor stated that without 
a stringent method of restricting wastes and documenting these efforts, 
C&D landfills that do not meet the proposed requirements may become 
low-cost alternatives for the unscrupulous. Two other commentors stated 
that the proposed rule, as written, lacked an affirmative demonstration 
on the part of a facility that elected not to comply with the proposed 
requirements, that the facility was in reality not receiving CESQG 
waste for disposal. The commentor argued that ``without a screening 
method at facilities that elect not to comply, the proposed rule is 
insufficient to satisfy the mandate of RCRA Section 4010(c)''. Several 
of these commentors suggested the use of the screening procedure 
specified in the Part 258 Criteria for municipal solid waste landfills.
    Other commentors acknowledged that screening exists today for C&D 
facilities and that it is successful. Screening is done at most C&D 
facilities and, thus, regulatory criteria made applicable to such 
facilities should take into account screening practices that 
significantly reduce the risks that C&D facilities present to human 
health and the environment. These commentors wanted EPA to expressly 
acknowledge

[[Page 34263]]

that screening programs reduce risks at C&D facilities or to develop a 
regulatory approach that allows C&D facilities with established 
screening programs to be exempted from a majority of the proposed 
criteria or EPA should develop relaxed regulatory criteria that take 
into account such risk-reduction operational practices.
    The proposal explained that owners/operators implementing a 
screening procedure should contact their State Agency to determine that 
the screening procedure ensures that the facility does not receive 
CESQG wastes. Responding to this statement, one commentor said that the 
Agency should not delegate this obligation to the states because doing 
so will lead to unwarranted lawsuits against owners/operators that do 
not want to accept CESQG wastes and confusion at the state level caused 
by widely divergent screening requirements that may or may not be 
acceptable.
    In response to the comments about the need for screening 
requirements as part of today's final rule, the Agency is concerned 
that the establishment of specific and/or detailed screening standards 
would limit flexibility that owners/operators and State Agencies have 
in developing an appropriate screening method, if one is considered 
necessary. Under the rule as proposed and promulgated, if an owner/
operator of a non-municipal non-hazardous waste disposal unit elects 
not to receive CESQG wastes, and therefore, does not upgrade to meet 
the requirements in today's final rule, he/she is not legally allowed 
to accept CESQG wastes. See 40 CFR 257.5(a)(3). If the owner/operator 
does accept CESQG wastes, then he/she would be in violation of today's 
final rule and would be subject to enforcement actions. See 40 CFR 
257.5(a)(1). CESQGs that send their CESQG waste to landfills that are 
not subject to today's requirements for non-municipal units would, 
likewise, be subject to enforcement actions.
    Owners/operators that elect not to upgrade and therefore not 
receive CESQG hazardous wastes, may on their own elect to develop a 
screening procedure that is effective in screening out CESQG materials. 
Owners/operators who elect to develop a screening procedure are 
encouraged to work with their State Agency to determine what screening 
procedures, may at a State level be required, recommended or in 
guidance. The Agency believes that the adoption of a Federal screening 
program as a condition of not receiving CESQG hazardous waste, will 
limit the flexibility that both States and owners/operators can 
exercise in developing a successful screening program. The Agency does 
not want to interfere in the development of acceptable screening 
programs that, based on comments received on this rule, can be 
developed and are being used in the field .

VII. Implementation of Today's Final Rule

A. State Activities Under Subtitle C (Regulation of CESQGs of Hazardous 
Waste)

1. Hazardous and Solid Waste Amendments to RCRA
    Today's final rule changes the existing requirements in Sec. 261.5, 
paragraphs (f)(3) and (g)(3) pertaining to the special requirements for 
CESQGs. Under Section 3006 of RCRA, EPA may authorize qualified States 
to administer and enforce the RCRA program within the State. (See 40 
CFR Part 271 for the standards and requirements for authorization.) 
Following authorization, EPA retains enforcement authority under 
Sections 3008, 7003 and 3013 of RCRA, although authorized States have 
primary enforcement responsibilities.
    Prior to the Hazardous and Solid Waste Amendments of 1984 (HSWA), a 
State with final authorization administered its hazardous waste program 
entirely in lieu of EPA administering the Federal program in that 
State. The Federal requirements no longer applied in the authorized 
State, and EPA could not issue permits for any facility which the State 
was authorized to permit. When new, more stringent, Federal 
requirements were promulgated or enacted, the State was obliged to 
enact equivalent authority within specified time frames. New Federal 
requirements did not take effect in an authorized State until the State 
adopted the requirements as State law.
    In contrast, under Section 3006(g) of RCRA, 42 U.S.C. 6926(g), new 
requirements and prohibitions imposed by HSWA take effect in authorized 
States at the same time they take effect in unauthorized States. EPA is 
directed to carry out these requirements and prohibitions in previously 
authorized States, including the issuance of permits and primary 
enforcement, until the State is granted HSWA authorization to do so. 
While States must still adopt HSWA-related provisions as State law to 
retain final authorization, the HSWA provisions apply in authorized 
States in the interim.
    The amendments to Sec. 261.5, paragraphs (f)(3) and (g)(3), are 
finalized pursuant to section 3001(d)(4) of RCRA, which is a provision 
added by HSWA. Therefore, the Agency has added the requirements to 
Table 1 in Sec. 271.1(j) which identifies the Federal program 
requirements that are promulgated pursuant to HSWA and that take effect 
in all States, regardless of their authorization status. States may 
apply for either interim or final authorization for the HSWA provisions 
identified in Table 1.
2. Effect on State Authorizations
    As noted above, EPA will implement today's rule (i.e., the revision 
to Sec. 261.5) in authorized States until they modify their programs to 
adopt the Section 261.5 rule change and the modification is approved by 
EPA. Because the rule has been finalized pursuant to HSWA, a State 
submitting a program modification may apply to receive either interim 
or final authorization under Section 3006(g)(2) or 3006(b), 
respectively, on the basis of requirements that are substantially 
equivalent or equivalent to EPA's. The procedures and schedule for 
State program modifications for either interim or final authorization 
are described in 40 CFR 271.21. It should be noted that all HSWA 
interim authorizations will expire January 1, 2003. (See Sec. 271.24(c) 
and 57 FR 60129 (December 18, 1992)).
    40 CFR 271.21(e)(2) provides that States that have final 
authorization must modify their programs to reflect Federal program 
changes, and must subsequently submit the modifications to EPA for 
approval. The deadline by which the State must modify its program to 
adopt these regulations and submit its application for approval is 
specified in 40 CFR 271.21(e). These deadlines can be extended in 
certain cases (40 CFR 271.21(e)(3)). Once EPA approves the 
modification, the State requirements act in lieu of Subtitle C RCRA 
requirements.
    States with authorized RCRA programs may already have adopted 
requirements under State law similar to those in today's rule. These 
State regulations have not been assessed against the Federal 
regulations being finalized today to determine whether they meet the 
tests for authorization. Thus, a State is not authorized to implement 
these requirements in lieu of EPA until the State program modification 
is approved. Although revisions to 40 CFR Parts 257 and 261 are being 
finalized, for the purpose of authorization under Subtitle C, only the 
final changes to Sec. 261.5 would be assessed against the Federal 
program. Of course, States with existing standards may continue to 
administer and enforce their standards as a matter of State law. In 
implementing the Federal program, EPA will work with States under 
cooperative agreements to minimize

[[Page 34264]]

duplication of efforts. In many cases EPA will be able to defer to the 
States in their efforts to implement their programs, rather than take 
separate actions under Federal authority.
    States that submit their official applications for final 
authorization less than 12 months after the effective date of these 
standards are not required to include standards equivalent to these 
standards in their application. However, the State must modify its 
program by the deadlines set forth in Sec. 271.21(e). States that 
submit official applications for final authorization 12 months after 
the effective date of these standards must include standards equivalent 
to these standards in their applications. 40 CFR 271.3 sets forth the 
requirements a State must meet when submitting its final authorization 
application.
3. States With More Stringent Programs
    EPA is aware that a number of States have more stringent 
requirements for the disposal of waste generated by CESQGs. In 
particular, some States do not allow the disposal of this waste into 
any Subtitle D landfill (i.e., some States do not allow permitted 
MSWLFs to accept CESQG hazardous waste). For these States, today's 
final rule would clearly be considered less stringent than the 
applicable provisions in these States' authorized programs. Section 
3009 of RCRA allows States to adopt or retain provisions that are more 
stringent than the Federal provisions. Therefore, regarding today's 
final rule, EPA believes that States which do not allow the disposal of 
wastes generated by CESQGs into Subtitle D landfills under their 
existing authorized Subtitle C program would not be required to revise 
their programs and obtain authorization for today's proposed rule. Of 
course this situation would only apply in those cases where a State is 
not changing its authorized regulatory language. Further, the 
authorized State requirements in such States, since they would be more 
stringent than today's final rule, would continue to apply in that 
State, even though today's rule is proposed pursuant to HSWA authority.
    For a State to not be required to submit an authorization revision 
application for today's final rule, the State must have provisions that 
are authorized by EPA and that are more stringent than the analogous 
Subtitle C provisions in today's rule. For those States that would not 
be required to revise their authorization, EPA encourages States to 
inform their EPA Regional Office by letter that for this final rule, 
they are not required to submit a revision application pursuant to 40 
CFR 271.21(e), because in accordance with RCRA Section 3009 the 
authorized State provision currently in effect is more stringent than 
the requirements contained in today's final rule. Otherwise, EPA might 
conclude that a revised authorization application is required.

B. State Activities Under Subtitle D (Regulation of Receiving Non-
Municipal Non-Hazardous Units)

    States are the lead entities in implementing and enforcing Subtitle 
D rules. The Agency intends to maintain the State's lead in 
implementing the Subtitle D program. RCRA Section 4005 requires States 
to adopt and implement, within 18 months of the publication of a final 
rule, a permit program or other system of prior approval and conditions 
to ensure that non-municipal non-hazardous waste disposal units 
receiving CESQG waste comply with today's standards. The statute 
requires EPA to determine whether States have developed adequate permit 
programs. States will need to review their existing programs to 
determine where their programs need to be revised and to complete 
program changes, if changes are necessary. The process for evaluating 
the adequacy of State programs has been set forth in a separate 
proposal, the State/Tribal Permit Program Determination of Adequacy. 
See 61 FR 2584, January 26, 1996.
    For the purpose of determining adequacy and granting approval under 
Subtitle D for today's rule, only the proposed technical changes in 
Secs. 257.5 through 257.30 will be evaluated by the Agency. The State 
may need to meet other procedural and administrative provisions 
identified in the State/Tribal Permit Program Determination of 
Adequacy. EPA policy on approval of permit programs for non-municipal 
non-hazardous waste disposal units receiving CESQG waste is the same 
process that the Agency used for determining the adequacy of State 
programs for the Municipal Solid Waste Landfill Criteria. In States 
already approved for the Part 258 MSWLF Criteria, changes required by 
this rulemaking will constitute a program revision.
    The Agency believes that for many approved States, changes required 
by this rulemaking will affect the technical Criteria only and should 
warrant limited changes to the approved State program. For example, if 
non-municipal non-hazardous waste disposal units subject to this rule 
are already subject to an approved State MSWLF program (i.e., the non-
municipal non-hazardous waste disposal units receiving CESQG waste are 
currently subject to the Part 258 location restrictions, ground-water 
monitoring, and corrective action criteria), the State may only be 
required to submit documentation that the non-municipal non-hazardous 
waste disposal units receiving CESQG waste are subject to their 
approved program. In most cases, the Agency anticipates that a 
streamlined approval process would be appropriate. States are 
encouraged to contact their appropriate EPA Regional office to 
determine the specifics of the approval process.
    In the proposed State/Tribal permit program determination of 
adequacy, the Agency originally proposed that a streamlined approval 
process would not be used for permit programs that related to 
additional classifications other than MSWLFs. See 61 FR 2599, January 
26, 1996. As suggested above, the Agency is re-evaluating its proposed 
position and a final determination will be made in the final State/
Tribal permit program determination of adequacy.
    In States that have not been approved for the MSWLF Criteria, these 
revisions can be incorporated into an application for overall program 
approval of Part 258 and Secs. 257.5 through 257.30. For purposes of 
today's rule, States that currently restrict CESQG disposal to Subtitle 
C facilities (and States that may choose to adopt that restriction) or 
approved States which currently restrict CESQG disposal to Part 258 
municipal solid waste landfills will not need to seek further EPA 
approval of their Subtitle D program. RCRA Section 4005(c)(1)(B) 
requires States to adopt and implement permit programs to ensure that 
facilities which receive CESQG waste will comply with the revised 
Criteria promulgated under Section 4010(c). However, the Agency sees no 
need for approved States that already require CESQG waste to be 
disposed of in either Subtitle C facilities or facilities subject to 
the Part 258 MSWLF Criteria to adopt and implement a permit program 
based upon the standards being finalized today.
    RCRA Section 7004(b)(1) requires the Administrator and the States 
to encourage and provide for public participation in the development, 
revision, implementation, and enforcement of this regulation and, once 
it is promulgated, in the State permit programs which implement it. EPA 
provides for public participation in its decisions on whether State 
permit programs are adequate under RCRA Section 4005(c)(1)(c). In 
developing and implementing permit programs, States must provide for 
public participation in accordance with the provisions of 40 CFR Part 
239 (specifically Sec. 239.6).

[[Page 34265]]

Permit programs have been defined in the proposed State/Tribal Permit 
Program Determination of Adequacy to include other systems of prior 
approval and conditions, including licenses or registrations.

C. Summary of Comments and EPA Response

    Several commenters supported EPA's approach in the proposal toward 
States with approved Subtitle D programs that have CESQG disposal 
restrictions in their Subtitle D programs. In particular, the 
commenters supported EPA's statement that States which require CESQG 
waste to be disposed of in either Subtitle C facilities or facilities 
subject to the part 258 MSWLF Criteria do not need EPA approval for a 
permit program based on today's final (Subtitle D) standards. However, 
the commenters believed that for these States, the absence of a 
required EPA approval should be extended to the Subtitle C program.
    EPA believes that its approach toward States with programs that are 
more stringent than this final rule is the same for both the Subtitle C 
and Subtitle D programs. Those States with approved Subtitle D or 
authorized Subtitle C program that do not allow CESQG waste to be 
disposed of in a landfill addressed by today's technical standards do 
not need approval by EPA for that program. EPA's position is detailed 
in sections VII.A. and VII.B. above. EPA believes that since the 
existing approved State requirements are more stringent than the 
provisions in today's rule, in such States, program revisions are not 
necessary for the State programs to remain at least equivalent to the 
Federal rules.
    Other commenters raised the possibility of State self-certification 
for State authorization for both the RCRA Subtitle C and D programs, 
particularly where the State already has rules that are equivalent to 
today's rule in its waste management programs. The commenters argued 
that this self-certification will result in significant resource 
savings.
    Regarding the commenters suggestion on allowing State self-
certification, EPA is currently examining this issue for Subtitle C 
authorization as part of the HWIR-Media rulemaking (see 61 FR 18780, 
April 29, 1996). In the proposed Phase IV LDR rule, EPA proposed an 
abbreviated authorization process for new minor rule changes (see 60 FR 
43686, August 22, 1995). Although this authorization proposal did not 
address the rule changes in the June 12, 1995 proposal, EPA is 
committed to streamlining the Subtitle C authorization process.
    EPA believes that the authorization process for the Subtitle C 
portion of today's final rule will be very straightforward because 
today's rule only added two new provisions to the hazardous waste 
regulations. EPA will work with States and EPA regions to ensure that 
the Subtitle C authorization process for this rule will be completed 
swiftly. EPA believes that it can take such certifications into account 
to a large degree, thereby, greatly reducing review time. Further, EPA 
believes that many States will not require revisions to their 
authorized programs because their authorized programs are currently 
more stringent than today's rule.

D. Owner/Operator Responsibilities

1. Owner/Operator Responsibility and Flexibility in Approved States
    The regulatory structure of the Part 258 MSWLF Criteria is based on 
an owner/operator achieving compliance through self-implementation with 
the various requirements while allowing approved States the flexibility 
to consider local conditions in setting appropriate alternative 
standards that still achieve compliance with the basic goal of the Part 
258 Criteria. This flexibility that exists for approved States under 
Part 258 has been retained in today's final rule and can be used by 
approved States in determining facility specific requirements. Owners/
operators of non-municipal non-hazardous waste disposal units that are 
receiving CESQG wastes as of the effective dates of today's final rule, 
due to the self-implementing nature of this final rule, would be 
required to comply with the promulgated standards regardless of the 
status of the States approval determination under Subtitle D. If an 
owner/operator of a non-municipal non-hazardous waste disposal unit is 
receiving CESQG waste and is located in a State that has not been 
approved under Subtitle D for these revised criteria, then the owner/
operator would have to comply with the promulgated standards, without 
the benefit of the flexibility allowed to be granted by the Director of 
an approved State.
    Owners/operators of non-municipal non-hazardous waste disposal 
units that receive CESQG waste and are located in approved States may 
be subject to alternate requirements based on the approved State 
standards.
2. CESQG's Responsibilities Relating to the Revisions in Sec. 261.5, 
Paragraphs (f) and (g)
    Today's final rule allows that CESQG waste go to either a hazardous 
waste facility, a reuse or recycling facility, a municipal solid waste 
landfill subject to Part 258, a non-municipal solid waste disposal 
facility that is subject to the requirements being proposed in 
Secs. 257.5 through 257.30 or a solid waste management facility (i.e., 
incinerator) that is permitted, licensed, or registered by a State to 
manage municipal or non-municipal waste. Today's final rule does not 
mandate that CESQG waste go to a MSWLF or to a non-municipal non-
hazardous waste disposal unit subject to today's final requirements. 
These are just two of the options as to where CESQG hazardous waste can 
be send for management.
    The Agency does not believe that today's final rule amendment to 
Sec. 261.5 will result in a larger obligation for any CESQG. The Agency 
knows that the majority of CESQG waste is managed off-site. For the 
CESQG waste managed off-site, recycling is the predominant form of 
management. The Agency assumes that for the small amount of CESQG waste 
that is currently being sent off-site to a MSWLF, this practice can 
continue to occur, as long as allowed under State regulations, as all 
MSWLFs where CESQG waste could be sent are subject to Part 258. 
Hazardous waste regulations applicable to CESQGs require that CESQG 
hazardous waste be managed in a unit permitted, licensed, or registered 
by the State to manage municipal or industrial waste. Those CESQGs, 
including construction and demolition waste generators, who wish to 
send their CESQG waste to a non-municipal non-hazardous waste disposal 
unit and are uncertain whether the unit has the appropriate permit, 
license, or registration should contact his/her State Agency to 
ascertain if the non-municipal non-hazardous waste disposal unit in 
question can legally accept CESQG waste.
    A CESQG may elect to screen-out or segregate out the CESQG 
hazardous wastes from his non-hazardous waste and then manage the CESQG 
hazardous portion in compliance with today's final amendments to 
Sec. 261.5(f)(3) and (g)(3). The remaining non-hazardous waste would 
not be subject to the final requirements in Sec. 261.5; however, it 
must be managed in a facility that complies with either the Part 258 
Criteria or the existing Criteria in Secs. 257.1-257.4. On the other 
hand, a CESQG may elect not to screen-out or segregate the CESQG 
hazardous waste

[[Page 34266]]

preferring instead to leave it mixed with the mass of non-hazardous 
waste. If the CESQG elects this option, the entire mass of material 
must be managed in a Subtitle C or Subtitle D facility as per today's 
final language in Sec. 261.5.

E. Enforcement

1. Hazardous Waste Enforcement
    Today's final rule amends Sec. 261.5, paragraphs (f)(3) and (g)(3), 
and as such any CESQG who mismanages their CESQG hazardous waste on-
site or delivers the CESQG hazardous waste to an inappropriate Subtitle 
D facility becomes subject to enforcement actions which could include 
loss of CESQG status for any CESQG waste that is improperly disposed 
of.
2. Subtitle D Enforcement
    States that adopt programs meeting the standards in Secs. 257.5 
through 257.30 may enforce them in accordance with State authorities. 
Under RCRA Section 7002, citizens may seek enforcement of the standards 
in Secs. 257.5 through 257.30 independent of any State enforcement 
program. Section 7002 provides that any person may commence a civil 
action on his/her own behalf against any person who is alleged to be in 
violation of any permit, standard, regulation, condition, requirement, 
prohibition, or order that has become effective pursuant to RCRA. Once 
the self-implementing provisions in Secs. 257.5 through 257.30 become 
effective, they constitute the basis for citizen enforcement. Federal 
enforcement by EPA can be done only in States that EPA has determined 
have inadequate programs. EPA has no enforcement authorities under 
Section 4005 in approved States. EPA does, however, retain enforcement 
authority under Section 7003 to protect against imminent and 
substantial endangerment to health and the environment in all States.

VIII. Executive Order 12866

    Under Executive Order No. 12866, EPA must determine whether a new 
regulation is significant. A significant regulatory action is defined 
as an action likely to result in a rule that may:
    1. Have an annual effect on the economy of $100 million or more or 
adversely affect in a material way the economy, a sector of the 
economy, productivity, competition, jobs, the environment, public 
health or safety, or state, local, or tribal governments or 
communities;
    2. Create a serious inconsistency or otherwise interfere with an 
action taken or planned by another agency;
    3. Materially alter the budgetary impact of entitlements, grants, 
user fees, or loan programs or the rights and obligations of recipients 
thereof; or
    4. Raise novel legal or policy issues arising out of legal 
mandates, the President's priorities, or the principles set forth in 
Executive Order 12866.
    Pursuant to the terms of the Executive Order 12866, it has been 
determined that this rule is a ``significant regulatory action'' 
because it raises novel legal or policy issues arising out of legal 
mandates, the President's priorities, or the principles set forth in 
the Executive Order. Changes made in response to OMB suggestions or 
recommendations will be documented in the public record.

A. Cost Impacts

    In the Cost and Economic Impact Analysis (May, 1995) accompanying 
the proposed rule, the Agency estimated the total annual costs to the 
economy resulting from the proposed rule ranged from $10.0 million to 
$47.0 million.
    The national low-end cost assumes that all CESQG hazardous waste is 
separated at the point of generation for the construction industry. It 
assumes there will be no CESQG waste generated by the demolition 
industry. The CESQG portion is disposed of at hazardous waste 
facilities while the remaining non-hazardous waste portion is disposed 
of in non-upgraded construction and demolition waste facilities. The 
costs include the separation costs at the point of generation, costs of 
transporting/disposing the hazardous portion at a Subtitle C facility, 
and the costs of screening incoming wastes at all of the construction 
and demolition waste facilities.
    The national annual high-end cost assumes that generators will not 
separate out CESQG waste from 30% of construction and demolition wastes 
and that this fraction will be sent to upgraded construction and 
demolition waste facilities that elect to comply with today's proposed 
requirements. Under this scenario, the Agency assumed that most medium 
to large size construction and demolition waste facilities (162) will 
upgrade. The costs include separation costs at the point of generation 
for waste not going to an upgraded landfill, costs of screening 
incoming wastes at 80% of the affected construction and demolition 
waste facilities which do not upgrade and costs for 20% of the affected 
construction and demolition wastes facilities to upgrade. Upgrade costs 
include ground-water monitoring and corrective action.
    Upon receipt and incorporation of public comments, the Agency 
prepared a revised Cost and Economic Impact Analysis (June, 1996). In 
the revised analysis, the Agency estimates the total annual costs to 
the economy for today's final rule will range from $12.65 to $51.0 
million dollars. These costs fall upon approximately three types of 
facilities: 600 manufacturing-sector CESQGs, at an average annual cost 
of $280 per facility; 10,000 construction-sector CESQGs, at an average 
cost of $930 per facility; and 700 construction/demolition waste 
landfills, at an average cost of $4500 per facility.
    One commentor suggested that EPA had understated the costs of 
compliance with the new regulation. The commentor supported this 
conclusion based on several contentions:
    (1) The commentor maintained that EPA's estimates of total 
construction and demolition wastes were flawed because some data 
sources were inappropriate, including European data. Although EPA 
agrees that U.S. data would be preferable, the European information 
provided an important and relevant insight for our analysis. EPA 
believes that many aspects of construction technology are similar from 
one developed western country to another. EPA also notes that the 
costing methodology used in the analysis rests mostly on costs per 
facility, rather than costs per ton.
    (2) The commentor suggested that EPA underestimated the labor 
required for screening hazardous waste at construction/demolition waste 
landfills. Data that EPA has collected from construction/demolition 
landfill owner/operators, however, indicates that screening programs 
are already in affect at most of these facilities. EPA has collected 
information on the number of hours required for screening wastes per 
year per landfill, and believes that the nationwide estimate of one 
additional hour of labor per day per landfill is reasonable.
    (3) The commentor also suggested that EPA had underestimated the 
amount of labor which would be required to separate wastes at 
construction sites. The Cost and Economic Impact Analysis estimated one 
labor hour per week per company for separating hazardous wastes. Since 
a company can have multiple job-sites operating simultaneously, the 
commentor indicated that it would be more reasonable to estimate one 
hour per job-site, rather than per company. EPA agrees, and notes that 
the wording in the original analysis was incorrect; the estimate was 
actually labor hours per establishment, where each establishment 
represents a group of job sites. Therefore, EPA has used the

[[Page 34267]]

costing methodology that the commentor recommends.
    (4) Finally, the commentor disputes EPA's estimate of the hourly 
labor cost for screening wastes at the landfill and separating wastes 
at the generator site. EPA re-examined the labor costs, consulting with 
the Bureau of Labor Statistics and a standard construction industry 
costing guide. As a result, EPA agrees with this comment and has 
adjusted the labor figure by 27% (from $13.60 per hour to $17.32 per 
hour).
    Further discussion of the cost analysis can be found in Cost and 
Economic Impact Analysis of the CESQG Rule, June 1996, available in the 
docket.

B. Benefits

    The Agency believes that the requirements being proposed for non-
municipal solid waste disposal facilities will result in more Subtitle 
D facilities providing protection against ground-water contamination 
from the disposal of small amounts of hazardous waste. Today's action 
will force some non-municipal solid waste disposal facilities to either 
upgrade and install ground-water monitoring and perform corrective 
action if contamination is detected, or stop accepting hazardous waste. 
Today's action will also cause some generators of CESQG wastes to 
separate out these small quantities of hazardous waste and send them to 
more heavily regulated facilities (i.e., Subtitle C facilities or 
MSWLFs). These are the direct benefits of today's proposal, however, 
additional benefits will be realized due to this proposal.
    Today's final rule will require that any ground-water contamination 
that is occurring at units that continue to receive CESQG hazardous 
waste will be quickly detected, and therefore, corrective action can be 
initiated sooner avoiding a more costly corrective action.
    To the extent that existing non-municipal non-hazardous waste 
disposal units that receive CESQG hazardous waste upgrade their units 
to include ground-water monitoring, and to the extent that new 
facilities will be located outside of floodplains and wetlands, public 
confidence in these types of units will be increased. Having a higher 
level of confidence should result in these types of units being easier 
to site in the future.
    Finally, to the extent that CESQGs separate out the small volumes 
of hazardous waste, the resulting mass of clean non-hazardous waste 
would have a better potential to be recycled.

IX. Regulatory Flexibility Act

    Pursuant to the Regulatory Flexibility Act (5 U.S.C. 601 et seq., 
Pub. L. 96-354), as amended by the Small Business Regulatory 
Enforcement Fairness Act of 1996 (``SBREFA''), EPA must consider 
whether a regulatory action will have a significant adverse impact on 
small entities. For a rule promulgated after June 27, 1996, EPA must 
either certify that the regulation will not have a significant impact 
on a substantial number of small entities or prepare a final regulatory 
flexibility analysis that contains an evaluation of five factors. 5 
U.S.C. 604(a). Because EPA promulgated this rule prior to June 28, 
1996, the revised requirements of SBREFA for an expanded regulatory 
flexibility analysis if a certification is not made do not apply. At 
the same time, however, EPA has conducted an analysis to determine 
whether the rule will have a significant impact on small entities. On 
the basis of that analysis, EPA certifies that this rule will not have 
a significant impact on a substantial number of small entities. The 
factual basis for this certification is as follows.
    EPA anticipates that this rule will increase costs for two classes 
of facilities. CESQG generators that still handle their CESQG waste on 
site are expected to send their CESQG waste to Subtitle C facilities, 
at a maximum per-facility cost of $570 per year. Construction waste 
generators will incur maximum additional per-firm costs of $1,469 per 
year, for separation, transportation, and disposal of hazardous wastes. 
In each case, EPA's analysis shows that the impacts are less than one 
percent of annual revenues, for all sizes and types of companies.
    This determination is based on EPA's projection of the response of 
CESQG waste generators and disposal facilities to today's rule. EPA 
performed a high end analysis, predicated on an assumption that C&D 
landfills upgrade to meet these standards. In this scenario, cost 
impacts would be higher. EPA does not expect C&D landfills to upgrade, 
however, since they would be unlikely to recover the high costs of 
upgrading. The analysis of effects on small entities is predicated on 
an assumption that the owners of C&D landfills act rationally, i.e., 
they choose not to upgrade but rather choose to stop accepting CESQG 
wastes.
    Moreover, EPA has modified the proposed rule in a number of ways so 
that cost to small entities may be decreased. For example, EPA has 
included a provision which authorizes Directors of approved state 
programs to establish an alternative list of indicator parameters not 
only for the inorganic constituents but also for the organic 
constituents to be monitored for in the detection monitoring phase of 
ground water monitoring. Thus, owner/operators of non-municipal, non-
hazardous waste disposal units in approved states may have lower ground 
water monitoring costs.
    In addition, EPA has removed four location restrictions (airports, 
fault areas, seismic impact zone, and unstable areas) from the final 
rule for the reasons set forth in Section VI.B of today's preamble. 
Costs for small entities that own non-municipal, non-hazardous waste 
disposal units that must comply with this rule would thus be reduced 
because no demonstrations to establish that these location restrictions 
have been met would need to be made.

X. Submission to Congress and the General Accounting Office

    Under section 801(a)(1)(A) of the Administrative Procedure Act 
(APA) as amended by the Small Business Regulatory Enforcement Fairness 
Act of 1996, EPA submitted a report containing this rule and other 
required information to the U.S. Senate, the U.S. House of 
Representatives and the Comptroller General of the General Accounting 
Office prior to publication of the rule in today's Federal Register. 
This rule is not a ``major rule'' as defined by section 804(2) of the 
APA as amended.

XI. Paperwork Reduction Act

    The information collection requirements in this rule have been 
submitted for approval to the Office of Management and Budget (OMB) 
under the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. An 
Information Collection Request (ICR) document has been prepared by EPA 
(ICR No. 1745.01) and a copy may be obtained from Sandy Farmer, OPPE 
Regulatory Information Division, U.S. Environmental Protection Agency 
(2136), 401 M St., S.W. Washington, DC 20460 or by calling (202) 260-
2740. The information requirements are not effective until OMB approves 
them.
    The information to be collected under this rulemaking would be used 
primarily by the States to regulate and ensure that non-municipal non-
hazardous waste disposal units that may receive CESQG wastes are 
complying with the final requirements. The information collected would 
be used by the State Director to confirm compliance on the part of the 
owner/operator with the final requirements. All information will be 
reported to the States or kept in an operating record at the facility. 
EPA will not collect information from any of the facilities subject to 
today's requirements, except in any potential enforcement case.

[[Page 34268]]

    The total annual public recordkeeping and reporting burden is 
estimated to be 12,100 hours with an average of 67 hours per 
respondent. Burden means the total time, effort, or financial resources 
expended by persons to generate, maintain, retain, or disclose or 
provide information to or for a Federal agency. This includes the time 
needed to review instructions; develop, acquire, install and utilize 
technology and systems for the purposes of collecting, validating, and 
verifying information, processing and maintaining information, and 
disclosing and providing information; adjust the existing ways to 
comply with any previously applicable instructions and requirements; 
train personnel to be able to respond to a collection of information; 
search data sources; complete and review collection of information; and 
transmit or otherwise disclose the information.
    An Agency may not conduct or sponsor, and a person is not required 
to respond to a collection of information unless it displays a 
currently valid OMB control number. The OMB control numbers for EPA's 
regulations are listed in 40 CFR Part 9 and 48 CFR Chapter 15.
    Send comments on the Agency's need for this information, the 
accuracy of the provided burden estimates, and any suggested methods 
for minimizing respondent burden, including through the use of 
automated collection techniques to the Director, OPPE Regulatory 
Information Division, U.S. Environmental Protection Agency (2136), 401 
M St., S.W., Washington, DC 20460 or to the Office of Information and 
Regulatory Affairs, Office of Management and Budget, 725 17th St., 
N.W., Washington, DC 20503, marked ``Attention: Desk Officer for EPA.'' 
Include the ICR number in any correspondence.

XII. Environmental Justice

    Executive Order 12898 requires Federal Agencies, to the greatest 
extent practicable, to identify and address disproportionately high 
adverse human health or environmental effects of its 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 ground-water 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 Sec. 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

[[Page 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).


Secs. 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:


Sec. 257.1  Scope and purpose.

    (a) Unless otherwise provided, the criteria in Secs. 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 Secs. 257.5 through 257.30 are adopted for 
purposes of ensuring that non-municipal 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 
Secs. 257.1 through 257.4 or Secs. 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 Secs. 257.1 
through 257.4 or Secs. 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 non-
hazardous 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


Sec. 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 non-hazardous 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 non-hazardous waste disposal unit that receives CESQG 
hazardous waste continues to be subject to the requirements in 
Secs. 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 Secs. 257.7 through 257.13 and 
Sec. 257.30 by January 1, 1998, and the requirements in Secs. 257.21 
through 257.28 by July 1, 1998.
    (3) Any non-municipal non-hazardous waste disposal unit that does 
not meet the requirements in this section may not receive CESQG wastes.

[[Page 34270]]

    (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 Secs. 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 Secs. 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 non-municipal 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 non-hazardous 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


Sec. 257.7  [Reserved]


Sec. 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 flood-prone areas of 
offshore islands, that are inundated by the 100-year flood.
    (2) ``100-year flood'' means a flood that has a 1-percent or 
greater chance of recurring in any given year or a flood of a magnitude 
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.


Sec. 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).


Sec. 257.10  [Reserved]


Sec. 257.11  [Reserved]


Sec. 257.12  [Reserved]


Sec. 257.13  Deadline for making demonstrations.

    Existing units that cannot make the demonstration specified in 
Sec. 257.8(a) pertaining to floodplains by January 1, 1998, must not 
accept CESQG hazardous waste for disposal.
    Ground-water monitoring and corrective action.


Sec. 257.21  Applicability.

    (a) The requirements in this section apply to units identified in 
Sec. 257.5(a), except as provided in paragraph (b) of this section.
    (b) Ground-water monitoring requirements under Secs. 257.22 through 
257.25 may be suspended by the Director of an approved State for a unit 
identified in Sec. 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 approved by the Director of an approved 
State, and must be based upon:

[[Page 34271]]

    (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 Sec. 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 Secs. 257.22 
through 257.25 by July 1, 1998.
    (2) New units identified in Sec. 257.5(a) must be in compliance 
with the ground-water monitoring requirements specified in Secs. 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 Secs. 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, ground-water 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 Sec. 257.22(d)(2), 
pertaining to notification of placement of certification in operating 
record; Sec. 257.24(c)(1), pertaining to notification that 
statistically significant increase (SSI) notice is in operating record; 
Sec. 257.24(c) (2) and (3), pertaining to an assessment monitoring 
program; Sec. 257.25(b), pertaining to sampling and analyzing appendix 
II of Part 258 constituents; Sec. 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; Sec. 257.25(d)(2), 
pertaining to sampling for appendix I and II of 40 CFR Part 258; 
Sec. 257.25(g), pertaining to notification (and placement of notice in 
record) of SSI above ground-water protection standard; 
Secs. 257.25(g)(1)(iv) and 257.26(a), pertaining to assessment of 
corrective measures; Sec. 257.27(a), pertaining to selection of remedy 
and notification of placement in record; Sec. 257.28(c)(4), pertaining 
to notification of placement in record (alternative corrective action 
measures); and Sec. 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 non-hazardous waste 
disposal unit that receives CESQG waste, if the non-municipal 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 non-municipal 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 non-
hazardous waste disposal unit meeting the criteria in paragraph (h) of 
this section to:
    (1) Use alternatives to the ground-water monitoring system 
prescribed in Secs. 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 Secs. 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 non-municipal 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 
non-municipal 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 Secs. 257.22 
through 257.25.
    (ii) If expanded monitoring indicates that contamination from the 
non-municipal 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 measures, where necessary, are undertaken in a timely 
manner that

[[Page 34272]]

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 Secs. 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 Secs. 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.


Sec. 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 Sec. 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 down-gradient 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 ground-water monitoring system meets the 
requirement of Sec. 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 site-specific 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 ground-water 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.


Sec. 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 
Sec. 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:
    (1) Sample collection;

[[Page 34273]]

    (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 Sec. 257.24(a), or Sec. 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 
Sec. 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 Sec. 257.24(b) for 
detection monitoring, Sec. 257.25 (b) and (d) for assessment 
monitoring, and Sec. 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 ground-water 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 
Secs. 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 Sec. 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.

[[Page 34274]]

Sec. 257.24  Detection monitoring program.

    (a) Detection monitoring is required at facilities identified in 
Sec. 257.5(a) at all ground-water monitoring wells defined under 
Secs. 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 
Sec. 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 Sec. 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 Sec. 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 Sec. 257.25.


Sec. 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 Sec. 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 Sec. 257.22(a) to this section, conduct 
analyses for all

[[Page 34275]]

constituents in appendix I (Appendix I of 40 CFR part 258) to this part 
or in the alternative list approved in accordance with 
Sec. 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 Sec. 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 Sec. 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 Sec. 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 
ground-water 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 Sec. 257.26 within 90 days; or
    (2) May demonstrate that a source other than the non-municipal non-
hazardous 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 ground-water 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 
Sec. 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 Sec. 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 ground-water. 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 Sec. 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 
ground-water protection standard for constituents for which MCLs have 
not been established. These ground-water protection standards shall be 
appropriate health based levels that satisfy the following criteria:
    (1) The level is derived in a manner consistent with Agency 
guidelines for assessing the health risks of environmental pollutants 
(51 FR 33992, 34006, 34014, 34028, 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 x 10-4 to 1 x 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.


Sec. 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 ground-water protection 
standards defined under Sec. 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

[[Page 34276]]

the assessment monitoring program as specified in Sec. 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 Sec. 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.


Sec. 257.27  Selection of remedy.

    (a) Based on the results of the corrective measures assessment 
conducted under Sec. 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 Secs. 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 
Sec. 257.28(d).
    (c) In selecting a remedy that meets the standards of 
Sec. 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 re-disposal 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 
Secs. 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

[[Page 34277]]

to migrate in a concentration(s) that would exceed the ground-water 
protection standards established under Sec. 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.


Sec. 257.28  Implementation of the corrective action program.

    (a) Based on the schedule established under Sec. 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 Sec. 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 
Sec. 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 Sec. 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 Sec. 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 Sec. 257.28(c).
    (c) If the owner or operator determines that compliance with 
requirements under Sec. 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 Sec. 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 Sec. 257.27, or an interim measure required under 
Sec. 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 Sec. 257.27 shall be considered 
complete when:
    (1) The owner or operator complies with the ground-water protection 
standards established under Secs. 257.25 (h) or (i) at all points 
within the plume of contamination that lie beyond the ground-water 
monitoring well system established under Sec. 257.22(a).
    (2) Compliance with the ground-water protection standards 
established under Secs. 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 Sec. 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 
ground-water;
    (iii) Accuracy of monitoring or modeling techniques, including any 
seasonal, meteorological, or other environmental variabilities that may 
affect the accuracy; and
    (iv) Characteristics of the ground-water.
    (3) All actions required to complete the remedy have been 
satisfied.
    (f) Upon completion of the remedy, the owner or operator must 
notify the State Director within 14 days that a certification that the 
remedy has been completed in compliance with the requirements of 
Sec. 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


Sec. 257.30  Recordkeeping requirements.

    (a) The owner/operator of a non-municipal 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 
Secs. 257.7 through 257.12; and
    (2) Any demonstration, certification, finding, monitoring, testing, 
or analytical data required in Secs. 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

[[Page 34278]]

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 Sec. 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:


Sec. 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 Secs. 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 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 Secs. 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 Sec. 271.1, paragraph (j), Table 1 is amended by adding the 
following entry in chronological order by publication date:


Sec. 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      61 FR 34278...................  January 1, 1998.              
                        applicable to solid                                                                     
                        waste facilities that                                                                   
                        may accept CESQG                                                                        
                        hazardous wastes,                                                                       
                        excluding MSWLFs.                                                                       
----------------------------------------------------------------------------------------------------------------

[FR Doc. 96-16585 Filed 6-26-96; 11:51 am]
BILLING CODE 6560-50-P`