[Federal Register Volume 60, Number 112 (Monday, June 12, 1995)]
[Proposed Rules]
[Pages 30964-30992]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-14065]




[[Page 30963]]

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Part III





Environmental Protection Agency





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40 CFR Parts 257, 261, and 271



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

  Federal Register / Vol. 60, No. 112 / Monday, June 12, 1995 / 
Proposed Rules  
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[[Page 30964]] 


ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 257, 261, and 271

[FRL-5209-4]
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: Proposed rule.

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SUMMARY: The Environmental Protection Agency (EPA) is proposing 
revisions to the existing Criteria for solid waste disposal facilities 
and practices. The proposed revisions would establish specific 
standards for non-municipal solid waste disposal facilities that 
receive conditionally exempt small quantity generator (CESQG) wastes. 
EPA is also proposing revisions to regulations for hazardous wastes 
generated by CESQGs. Today's proposal will clarify acceptable disposal 
options under Subtitle D of the Resource Conservation and Recovery Act 
(RCRA) by specifying that CESQG hazardous waste may be managed at 
municipal solid waste landfills subject to part 258 and at non-
municipal solid waste facilities subject to the facility standards 
being proposed today.
    The Agency is obligated to issue this proposal by Section 4010(c) 
of RCRA, and is issuing it today in partial settlement of a lawsuit 
brought by the Sierra Club to enforce the statutory mandate. The Agency 
generally believes that the facilities subject to today's proposal 
present a relatively small risk when compared to other conditions or 
situations, and that in a time of limited resources, EPA prefer to 
address higher priorities first. However, to satisfy its statutory and 
judicial obligations, today's proposal will clarify acceptable Subtitle 
D disposal options for non-municipal solid waste facilities that accept 
CESQG hazardous wastes. EPA has worked with the States, in their 
capacity as co-regulators, in developing standards that are flexible 
and efficient. To that end, EPA is proposing only the minimum standards 
described by the statute, and is offering maximum flexibility for 
states and facilities in meeting those standards. Indeed, in addition 
to proposing a flexible scheme modeled after the current part 258 
Standards for municipal solid waste facilities, EPA is seeking comment 
on an option which would set a performance standard--that covered 
facilities be operated in a manner that is protective of human health 
and the environment. Under this approach, States would have maximum 
flexibility in developing standards appropriate to facilities under 
their jurisdiction.

DATES: Comments on this proposed rule must be submitted on or before 
August 11, 1995. Both written and electronic comments must be submitted 
on or before this date.

ADDRESSES: Commentors must send an original and two copies of their 
comments to: RCRA Information Center (5305), U.S. Environmental 
Protection Agency, 401 M Street, SW. Washington, D.C. 20460. All 
comments must be identified by docket number F-95-NCEP FFFFF. An 
original and two copies of Confidential Business Information (CBI) must 
be submitted under separate cover to: Document Control Officer (5305), 
Office of Solid Waste, U.S. Environmental Protection Agency, 401 M 
Street, SW. Washington, D.C. 20460.
    Public comments and relevant documents are available for viewing in 
the EPA RCRA Information Center (RIC), located in Room M2616, at the 
EPA address above. The RIC is open for viewing from 9 to 4 Monday 
through Friday, except federal holidays. The public must make an 
appointment to review docket materials. Call (202) 260-9327 for 
appointments. Materials may be copied for $0.15 per page.

FOR FURTHER INFORMATION CONTACT: For specific information on aspects of 
this proposed 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:

Official Record for Proposed Rule

    Both the Federal Register notice and the supporting material will 
be available in electronic format on the Internet system through the 
EPA Public Access Server @ gopher.epa.gov. The official record for this 
proposal, as well as the public version available through Internet will 
be kept in paper form. Accordingly, EPA will transfer all comments 
received electronically into printed paper form as they are received 
and will place the paper copies in the official record, which will 
include all comments submitted directly in writing. The official record 
for this rulemaking is the paper copy maintained at the address in 
ADDRESSES.

Electronic Filing of Comments

    Comments may also be submitted electronically by sending electronic 
mail to RCRA-Docket @epamai.epa.gov. All electronic comments must be 
submitted as an ASCII file avoiding the use of special characters and 
any form of encryption. Comments also will be accepted on disks in 
Wordperfect 5.1 file format or ASCII file format.
    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)''. Finally, choose ``Office of 
Solid Waste''.
    2. Through FTP: Go to: ftp.epa.gov.

Login: anonymous
Password: Your Internet Address
Files are located in /pub. All OSW files are in directories beginning 
with ``OSW''.

    3. Through Telnet: Go to: gopher.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).'' Then, choose ``Office of Solid Waste.''
    4. 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)''. Finally, choose ``Office of Solid Waste''.
    5. 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)''. Finally, choose ``Office of Solid Waste''.
Supporting Documents

    All of the main and secondary supporting documents that were used 
in the development of this proposal have been placed in the docket. EPA 
is making the main supporting documents (listed below) available in 
electronic format on the Internet System through the EPA Public Access 
Server at gopher.epa.gov. A paper copy of these main supporting 
documents is available for purchase through the National Technical 
Information Service (NTIS), U.S. Department of Commerce, Springfield, 
VA 22161. The phone number at NTIS is (703) 487-4650. [[Page 30965]] 

Main Supporting Documents

    1. Background Document for the CESQG Rule, U.S. EPA, 1995, PB95-
208930.
    2. Damage Cases: Construction and Demolition Waste Landfills, U.S. 
EPA, Office of Solid Waste, Prepared by ICF, February 1995, PB95-
208922.
    3. Construction and Demolition Waste Landfills, U.S. EPA, Office of 
Solid Waste, Prepared by ICF, February, 1995, PB95-208906.
    4. List of Industrial Waste Landfills and Construction and 
Demolition Waste Landfills, U.S. EPA, Office of Solid Waste, Prepared 
by Eastern Research Group, September 30, 1994, PB95-208914.
    5. Generation and Management of CESQG Waste, U.S. EPA, Office of 
Solid Waste, Prepared by ICF, July 1994, PB95-208898.
    6. Cost and Economic Impact Analysis of the CESQG Rule, Prepared by 
ICF, February, 1995, PB95-208948.

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
III. Summary of Today's Proposed Regulatory Approach
IV. Characterization of CESQG Waste, Industrial D Facilities That 
May Receive CESQG Wastes, and Existing State Programs Related to 
CESQG Disposal
    A. CESQG Waste Volumes, Generators and Management
    B. Facilities That May Receive CESQG Waste
    C. Existing State Programs
V. Discussion of Today's Regulatory Proposal
    A. Non-Municipal Solid Waste Disposal Facilities That Receive 
CESQG Hazardous Waste
    B. Decision to Impose or Go Beyond the Statutory Minimum 
Components
    C. Decision to Establish Facility Standards Under Part 257 and 
Revisions to Part 261
    D. Request for Comment on the Use of an Alternative Regulatory 
Approach in Today's Rule
    E. Highlights of Today's Statutory Minimum Requirements for Non-
Municipal Solid Waste Disposal Facilities That May Receive CESQG 
Hazardous Wastes
    1. Applicability
    2. Specific Location Restrictions
    3. Specific Ground-Water Monitoring and Corrective Action 
Requirements
    4. Recordkeeping Requirements
    F. Other Issues Relating to Today's Proposal
    1. Owner/Operator Responsibility and Flexibility in Approved 
States
    2. CESQG's Responsibilities Relating to the Revisions in Section 
261.5, Paragraphs (f) and (g)
VI. Implementation and Enforcement
    A. State Activities Under Subtitle C
    B. State Activities Under Subtitle D
    C. Relationship Between Subtitles C and D
    D. Enforcement
VII. Executive Order No. 12866--Regulatory Impact Analysis
    A. Cost Impacts
    B. Benefits
VIII. Regulatory Flexibility Act
IX. Paperwork Reduction Act
X. Environmental Justice Issues
XI. Unfunded Mandates Reform Act
XII. References

I. Authority

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

A. Current Solid Waste Controls Under the Resource Conservation and 
Recovery Act (RCRA) 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. These 
revisions fulfilled the part of the statutory mandate found in RCRA 
section 4010 for all facilities that receive household hazardous 
wastes. (Any facility receiving any household waste is subject to the 
revised Criteria, which were relocated at 40 CFR part 258 for purposes 
of clarity). Revisions to the part 257 Criteria for other Subtitle D 
disposal facilities that may receive 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. 
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.

B. Sierra Club Lawsuit

    The Sierra Club, on October 21, 1993, filed suit against the EPA in 
the United States District Court for the District of Columbia, seeking 
to compel the EPA to promulgate revised Criteria for nonmunicipal 
facilities that may receive small quantity generator hazardous waste.
    As a result of the October 21, 1993 lawsuit, the EPA and the Sierra 
Club reached agreement on a schedule concerning revised Criteria for 
non-municipal facilities that may receive [[Page 30966]] CESQG wastes. 
This schedule requires that the EPA Administrator sign a proposal by 
May 15, 1995 and a final rule by July 1, 1996. Today's proposed 
amendments to 40 CFR parts 257 and 261 respond directly to the Sierra 
Club challenge to EPA's revised Criteria for MSWLFs.

III. Summary of Today's Proposed Regulatory Approach

    Today's proposal would add the statutory minimum requirements for 
non-municipal solid waste disposal facilities that receive CESQG 
hazardous waste. Any non-municipal solid waste disposal facility that 
does not meet the proposed requirements may not receive CESQG hazardous 
waste. Sections 257.5 through 257.30 are being proposed to address the 
facility standards for owners/operators of non-municipal solid waste 
disposal facilities that receive CESQG hazardous wastes. The 
requirements being proposed in Secs. 257.5 through 257.30 are 
substantially the same as the statutory minimum requirements developed 
for 40 CFR part 258. The location restrictions are proposed to be 
effective 18 months after publication of the final rule while the 
ground-water monitoring and corrective action requirements are proposed 
to be effective 24 months after publication of the final rule.
    The Agency decided to use the previously promulgated MSWLF Criteria 
in part 258 as the basis for today's proposal for a number of reasons. 
The Agency believes that the part 258 Criteria are being used as 
mandatory standards by some States for non-municipal solid waste 
disposal facilities. Furthermore, additional States are incorporating 
as mandatory requirements standards that are substantially similar to 
the part 258 Criteria. The Agency also believes that the part 258 
Criteria, particularly the ground-water monitoring and corrective 
action requirements, are an appropriate set of performance standards 
and minimum requirements that can be applied at non-municipal solid 
waste disposal facilities that receive CESQG hazardous waste to protect 
human health and the environment. In addition, EPA is requesting 
comment on an alternative approach which is solely a performance 
standard without the national minimum requirements in part 258.
    Today's proposal also amends the existing language of 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. Today's 
proposal would continue to allow CESQG waste to be managed at a 
hazardous waste facility or at a reuse or recycling facility. Today's 
proposal, however, will require that if CESQG waste is managed in a 
Subtitle D disposal facility, it must be managed in a MSWLF that is 
subject to part 258 or a non-municipal solid waste disposal facility 
that is subject to the facility standards being proposed in Secs. 257.5 
through 257.30.
    A complete discussion of the rationale of today's proposed 
approach, specifics of the proposed changes, and related issues is 
presented in Reference #1.
    As previously discussed, today's proposal responds to both the 
statutory language in RCRA section 4010(c) and to the Sierra Club 
lawsuit. In responding initially to the statutory language of section 
4010(c), EPA elected to regulate municipal solid waste landfills first, 
due to the comparatively higher risks presented by these types of 
facilities. As will be discussed later in today's preamble, the subject 
of today's proposal--non-municipal solid waste disposal facilities that 
receive CESQG waste--presents a small risk relative to risks presented 
by other environmental conditions or situations. Given this lower risk, 
the Agency would have elected not to issue this proposal at this time. 
In a time of limited resources, common sense dictates that we deal with 
higher priorities first, a principle on which EPA, members of the 
regulated community, and the public can agree. The Agency requests 
comment from members of the public and regulated community on whether 
they agree with the Agency's position that this rulemaking is a low 
priority.
    However, given the D.C. Circuit's reading of RCRA section 4010(c), 
Sierra Club v. EPA, 992 F.2d 3337, 347 (D.C. Cir. 1993), and the 
schedule established as a result of the litigation initiated by Sierra 
Club in district court, the Agency believes it must issue this proposal 
now (although there are higher priorities within the Agency). Faced 
with having to issue this proposal for a class of facilities that do 
not generally pose risks as high as municipal solid waste landfills, 
the Agency is proposing alternatives that address only the statutory 
minimum requirements in an attempt to reduce the economic burden on the 
regulated community.
IV. Characterization of CESQG Waste, Industrial D Facilities That May 
Receive CESQG Wastes, and Existing State Programs Related to CESQG 
Disposal

A. CESQG Waste Volumes, Generators, and Management

    In preparation for this rulemaking, EPA sought to characterize the 
CESQG universe. EPA examined several national, state, and local studies 
that contained information on CESQGs, and summarized this information 
into five categories: (1) Number of establishments, (2) waste volumes, 
(3) major waste generating industries, (4) major waste types, and (5) 
waste management practices. All of this information is contained in 
Reference #2. Reference #7 also presents an earlier comprehensive 
overview of the CESQG universe. The Agency is interested in receiving 
data on the current management practices for CESQG wastes likely to be 
covered by this rulemaking.

B. Facilities That May Receive CESQG Waste

1. Manufacturing Industries With On-Site CESQG Disposal
    The first type of facility that may receive CESQG waste is a 
manufacturing facility that co-disposes its industrial non-hazardous 
process waste on-site with its CESQG hazardous wastes.
    The Agency's 1987 ``Screening Survey of Industrial Subtitle D 
Establishments'' was used as the starting point in the Agency's 
evaluation of the number of potential establishments that operated 
land-based units for their industrial non-hazardous waste 
(Reference#3). The Screening Survey projected that only 605 
establishments managed their CESQG waste on-site in a land-based unit 
(605 establishments represents approximately 5% of the total 12,000 
establishments that managed industrial waste on-site in land-based 
units).
    The Agency has conducted meetings and conference calls with some 
industries to ascertain the current status of CESQG hazardous waste 
generation and management. The results of those meetings and conference 
calls are summarized in Reference #1.
    In regard to industrial waste facilities, the Agency believes that 
on-site co-disposal of industrial wastes with some amount of CESQG 
waste is a very limited practice. The Agency believes that industrial 
waste disposal facilities that may still be disposing of CESQG waste 
on-site, will elect to send their CESQG waste off-site to a municipal 
landfill, a hazardous waste landfill or [[Page 30967]] off-site for 
treatment or recycling. These options would be cheaper for industrial 
waste facilities vs. continuation of CESQG on-site disposal and 
compliance with today's proposed standards (i.e., ground-water 
monitoring and corrective action).
    The Agency wishes to emphasize that this proposal does not change 
the manner in which waste is determined to be hazardous. Generators of 
wastes have an obligation to determine through testing or their 
knowledge of the waste if a waste is a hazardous waste (40 CFR 262.11). 
The generator must then determine if any hazardous waste he generates 
is regulated hazardous waste, or conditionally exempt small quantity 
generator hazardous waste (40 CFR 261.5).
    The Agency is requesting comment on the prevalence of manufacturing 
industries that manage CESQG hazardous wastes on-site along with volume 
estimates. The Agency is also interested in obtaining comments on the 
Agency's assumption that on-site disposal of CESQG hazardous waste at 
industrial waste facilities has decreased overall and will not continue 
in the future.
2. Commercial Off-Site Facilities
    The second type of facility that in some cases receive CESQG waste 
is a commercial off-site facility that disposes of only industrial non-
hazardous wastes with some amount of CESQG hazardous wastes being co-
disposed at the facility. Based on information from the groups listed 
below, the Agency estimates that there are only 10-20 commercial off-
site facilities that receive only non-hazardous industrial wastes. 
(Off-site commercial facilities that receive household hazardous waste 
are subject to the part 258 Criteria.) However, in meetings with the 
Environmental Industry Associations (EIA) (formerly known as the 
National Solid Waste Management Association) and Browning Ferris 
Industries, the Agency was told that as a general matter CESQG disposal 
is prohibited at these 10-20 facilities as a result of permitting 
conditions and due to decisions at the corporate level of the 
individual companies not to accept CESQG waste.
3. Construction and Demolition Landfills
    The last group of facilities that receive CESQG wastes are 
construction and demolition waste landfills. The Agency's List of 
Construction and Demolition Waste Landfills estimates approximately 
1900 construction and demolition waste facilities. These construction 
and demolition landfills dispose of construction waste and demolition 
debris (which generally refers to waste materials generated as a result 
of construction, renovation, or demolition). Many types of wastes are 
disposed of in construction and demolition landfills, such as metals, 
wood, concrete, dry wall, asphalt, rocks, soil, plastics, pipes and 
glass. Construction and demolition landfills may also receive CESQG 
hazardous waste materials, which could include things such as paints, 
adhesives, and roofing cements. Although the general term 
``construction and demolition waste'' is used to describe all wastes 
generated in construction, renovation, and demolition activities, the 
specific types of waste generated are a direct result of the type of 
project. Construction of a new house, demolition of old buildings as 
part of a restoration of a downtown area, renovation of an old office 
building, and new highway construction all result in different types of 
construction and demolition waste materials being generated.
    The report entitled ``Construction Waste and Demolition Debris 
Recycling . . . A Primer'' divided construction and demolition waste 
activities into five categories. These five categories and the typical 
construction and demolition waste materials associated with each 
category are presented below:

Roadwork Material: Mostly asphalt, concrete (with or without 
reinforcing bar), and dirt
Excavated Material: Mostly dirt, sand, stones (sometimes contaminated 
with site clearance wood waste and buried pipes)
Building Demolition: Mainly mixed rubble, concrete, steel beams, pipes, 
brick timber and other wastes from fittings and fixtures
Construction/Renovation: Mixed waste including wood, roofing, wall 
board, insulation materials, pieces of duct work and plumbing
Site Clearance: Mostly trees and dirt with the potential for some 
concrete, rubble, sand and steel

    Some construction and demolition waste facilities may be subject to 
the requirements being proposed today. Construction and demolition 
waste facilities that receive wastes that are CESQG hazardous wastes 
will have to comply with the proposed changes in Secs. 257.5 through 
257.30.
    CESQG hazardous wastes generated in construction, renovation, and 
demolition are most likely to be specific chemicals or products used in 
these activities. Listed below are typical examples of wastes generated 
by construction and demolition activities that may be CESQG wastes, if 
the wastes are hazardous and are generated under the CESQG limits (<100 
kg per month, or less than 1 kg per month of acute hazardous waste):
     Excess materials used in construction, and their 
containers. Examples: adhesives and adhesive containers, leftover paint 
and paint containers, excess roofing cement and roofing cement cans.
     Waste oils, grease, and fluids. Examples: machinery 
lubricants, brake fluids, engine oils.
     Waste solvents or other chemicals that would fail a 
characteristic or that are listed as a hazardous waste that are removed 
from a building prior to demolition (e.g., ignitable spent solvents, 
spent acids or bases, listed spent solvents (F001-F005), or listed 
unused commercial chemical products that are to be discarded).
    General construction and demolition debris (e.g., rubble from 
building demolition) would typically be hazardous waste only if it 
exhibits one of the four characteristics of hazardous waste: 
ignitability, corrosivity, reactivity, or toxicity (see subpart C of 40 
CFR part 261). To determine if such debris is hazardous, the generator 
should use knowledge of the waste or test to determine if a 
representative sample of the waste exhibits any of the characteristics. 
See 40 CFR 262.11. See also Chapter nine of ``Test Methods for 
Evaluating Solid Waste, Physical/Chemical Methods'' (SW-846), Third 
Edition, on how to develop a sampling program. As an example, if a 
building is demolished, the generator should use his knowledge 
concerning the building debris, or test a representative sample of the 
building debris, to see if the building debris exhibits a 
characteristic of hazardous waste.
    Prior to demolishing a building, the owner or the demolition 
company may choose to remove components of the building that contain 
concentrated constituents of concern such as lead pipe, lead flashing, 
mercury containing thermostats and switches, or mercury-containing 
lamps (light bulbs). This may be done for purposes of avoiding concern 
that the entire demolition rubble may exhibit the characteristic of 
toxicity, for recycling and resource conservation, or as required by 
state or local law. For purposes of resource conservation, the Agency 
encourages removal of items that may be cost-effectively recycled or 
reused. It should be noted that any removed items should be managed in 
compliance with applicable requirements, including, if the items 
exhibit characteristics, the [[Page 30968]] requirements for CESQGs or 
the full hazardous waste regulations. Also note that some such items 
may be, in the future, covered under streamlined ``universal waste'' 
regulations that would minimize the applicable regulatory requirements. 
(See final ``universal waste rule,'' 60 FR 25492, May 11, 1995.)
    Literature that was evaluated by the Agency and summarized in 
Chapter 2 of the Agency's report ``Construction and Demolition Waste 
Landfills'' identify a number of wastes that are referred to using such 
terms as ``hazardous,'' ``excluded,'' ``unacceptable,'' ``problem,'' 
``potentially toxic,'' or ``illegal.'' It is not necessarily true that 
all of these wastes meet the definition of ``hazardous'' under Subtitle 
C of RCRA, but they provide an indication of the types of wastes that 
may be present in the construction and demolition waste stream that are 
considered by others to be a potential problem.
    A construction and demolition waste generator should contact their 
State Solid Waste Program for their guidance or rules concerning the 
types of construction and demolition wastes that the State considers to 
be hazardous.

C. Existing State Programs

1. State Requirements Pertaining to Management of CESQG Hazardous 
Wastes
    Since the existing controls governing the disposal of CESQG waste 
are under the Subtitle C program (i.e., Sec. 261.5), State requirements 
must be at least as stringent as the Federal requirements. States may 
however establish more stringent controls for CESQGs within their 
jurisdiction. Some States require that CESQGs obtain a hazardous waste 
ID number while other States require CESQGs to use a manifest for off-
site transportation. Some States require that all or some portion 
(e.g., those with liquid industrial and ignitable wastes) of CESQG 
waste be managed at only permitted Subtitle C facilities. States that 
require that CESQG waste be managed at only Subtitle C facilities would 
prohibit CESQG disposal in a municipal, non-hazardous industrial, or 
construction and demolition waste landfill.
2. State Requirements for Construction and Demolition Facilities
    EPA conducted a study to determine the current regulatory standards 
for construction and demolition facilities that are applicable on a 
State level. State regulatory standards for construction and demolition 
facilities vary State-by-State and are generally not as detailed nor 
environmentally stringent as State standards for municipal solid waste 
landfills. Furthermore, States apply standards more frequently to off-
site construction and demolition waste facilities vs. on-site 
construction and demolition waste facilities. In general, the EPA study 
focussed on the number of State programs that had requirements for the 
statutory minimum components specified in RCRA section 4010(c). The 
numbers, discussed below, correspond to the number of States that 
impose the requirement or standard on off-site construction and 
demolition waste facilities. Generally, a smaller number of States 
impose requirements on on-site facilities.
    The most common location restrictions that States apply to C&D 
facilities relate to airports and bird hazards, wetlands and 
floodplains. A majority of the States (35) have restrictions applicable 
to construction and demolition facilities being located within the 100-
yr. floodplain. Twenty-five (25) States have location restrictions 
pertaining to construction and demolition disposal facilities in 
wetlands. Similarly, 21 States have location restrictions for some or 
all construction and demolition facilities pertaining to airports and 
bird hazards. Fewer States have adopted location restrictions 
pertaining to seismic impact zones, fault areas, or unstable areas.
    With regard to ground-water monitoring and corrective action, 29 
States require some or all construction and demolition facilities to 
monitor ground-water and 22 States have corrective action requirements. 
For those States that impose ground-water monitoring requirements, most 
States have requirements that are substantially less stringent than the 
Municipal Solid Waste Landfill Criteria (part 258). With regard to 
those States that impose corrective action requirements, States usually 
require that either the permit applicant submit a corrective action 
plan with the permit or require the facility owner/operator to submit a 
plan after a release to ground water is detected.

V. Discussion of Today's Regulatory Proposal

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

    This rule applies to non-municipal solid waste disposal facilities 
that receive CESQG hazardous waste, and the rule would provide that 
only such facilities which meet the requirements in Secs. 257.5 through 
257.30 ``may receive'' CESQG waste, as required by RCRA section 
4010(c). Any non-municipal solid waste disposal facility that does not 
meet the proposed requirements may not receive CESQG hazardous wastes. 
The non-municipal units that are subject to this rule are surface 
impoundments, landfills, land application units and waste piles that 
receive CESQG waste for storage, treatment, or disposal. This is based 
on the existing applicability of part 257 to all solid waste disposal 
facilities (40 CFR 257.1(c)). Disposal is defined at Sec. 257.2 to mean 
``the discharge, deposit, injection, dumping, spilling, leaking, or 
placing of any solid waste or hazardous waste into or on any land or 
water so that such solid waste or hazardous waste or any constituent 
thereof may enter the environment or be emitted into the air or 
discharged into any waster, including ground waters.'' This is also the 
statutory definition of ``disposal'' in RCRA section 1004(3). The 
definition covers any placement of waste on the land whether it is 
intended to be temporary or permanent.

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

    RCRA section 4010(c) requires that these revised Criteria must at a 
minimum include location restrictions, ground-water monitoring as 
necessary to detect contamination, and corrective action, as 
appropriate. The part 258 Municipal Solid Waste Landfill Criteria went 
beyond the statutory minimum requirements (see 56 FR 50977) and 
included the following additional requirements: Operational 
requirements, design standards, closure and post-closure care 
requirements and financial assurance standards. The Municipal Solid 
Waste Landfill Criteria went beyond the statutory minimum components 
for a variety of reasons. Some of these reasons included:

--163 case studies that revealed ground-water contamination at 146 
MSWLFs, along with 73 MSWLFs that had documented cases of surface water 
contamination,
--29 documented cases of uncontrolled methane releases at MSWLF causing 
fires and explosions at 20 of the 29 facilities,
--A high percentage of National Priority List (NPL) sites were MSWLFs 
(184 sites out of 850 as of May 1986), and
--A belief, based on risk modelling, that some MSWLFs presented 
unacceptable risks to human health.

    Taken together, these problems demonstrated a pattern of recurring 
problems and potential hazards associated with MSWLFs best addressed by 
requiring a comprehensive set of facility standards. [[Page 30969]] 
    Today's proposal imposes only the statutory minimum components for 
non-municipal solid waste disposal facilities that receive CESQG 
hazardous wastes. Based on the data reviewed below, the Agency believes 
that these facilities do not pose risks that would warrant more 
comprehensive facility standards.
1. Construction and Demolition Waste Facilities
    The Agency analyzed existing leachate and ground-water monitoring 
data, and damage cases associated with construction and demolition 
waste management to assess potential risks associated with construction 
and demolition waste disposal facilities. Landfill leachate sampling 
data and ground-water monitoring data were collected from states and 
from general literature provided to the Agency by the National 
Association of Demolition Contractors (NADC).
    a. Construction and Demolition Leachate. EPA evaluated 
representative construction and demolition waste leachate values 
(``Construction and Demolition Waste Landfills''). (This data was 
compiled by NADC). Leachate sampling data for 305 parameters sampled 
for at one or more of 21 construction and demolition landfills were 
compiled into a database.
    Of the 305 parameters sampled for, 93 were detected at least once. 
The highest detected concentrations of these parameters were compared 
to regulatory or health-based ``benchmarks,'' or concern levels, 
identified for each parameter. Safe Drinking Water Act Maximum 
Contaminant Levels (MCLs) or Secondary Maximum Contaminant Levels 
(SMCLs) were used as the benchmarks if available. Otherwise, health-
based benchmarks for a leachate ingestion scenario were identified; 
these were either reference doses (RfDs) for non-carcinogens, or 
10-6 risk-specific doses (RSDs) for carcinogens. Benchmarks were 
unavailable for many parameters because they have not been studied 
sufficiently.
    Of the 93 parameters detected in C&D landfill leachate, 25 had at 
least one measured value above the regulatory or health-based 
benchmark. For each of these 25 parameters, the median leachate 
concentration was calculated and compared to its benchmark. The median 
value was first calculated among the samples taken at each landfill, 
and then across all landfills at which the parameter was detected. Due 
to anomalies and inconsistencies among the sampling equipment used at 
different times and at different landfills, non-detects were not 
considered in determining median values; i.e., the non-detects were 
discarded before calculating both individual landfill concentration 
medians and medians across landfills. Thus, the median leachate 
concentrations represent the median among the detected values, rather 
than the median among all values. The median concentration among all 
values would in most cases have been lower than those calculated here.
    Based on (1) the number of landfills at which the benchmark was 
exceeded and (2) a comparison between the median detected concentration 
and the benchmark, seven parameters emerge as being potentially 
problematic. The Agency identified this list of 7 potentially 
problematic parameters by eliminating from the original list of 25 
parameters any parameter that was only detected at one landfill (this 
was determined to be not representative) and, furthermore, eliminating 
any parameter whose median concentration did not exceed the benchmark 
value for that parameter. The 7 potentially problematic parameters are 
as follows:

1,2-Dichloroethane
Methylene chloride
Cadmium
Iron
Lead
Manganese
Total dissolved solids

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


----------------------------------------------------------------------------------------------------------------
                                                                                   Health-based values          
                    Constituent                           Median       -----------------------------------------
                                                       concentration           Value               Source       
----------------------------------------------------------------------------------------------------------------
1,2-Dichloroethane................................  19 g/l...  5 g/l....  MCL.                
Methylene chloride................................  15.2 g/l.  5 g/l....  10-6 RSD.           
Cadmium...........................................  10.5 g/l.  5 g/l....  MCL.                
Lead..............................................  55 g/l...  15 g/l...  Action level.       
----------------------------------------------------------------------------------------------------------------

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

------------------------------------------------------------------------
                                                 Median                 
                                              concentration     Health- 
                Constituent                  divided by DAF      based  
                                                 of 100          value  
------------------------------------------------------------------------
1,2-Dichloro-ethane.......................  .19 g/l  5 g/l    
Methylene chloride........................  .152 g/  5 g/l    
Cadmium...................................  .105 g/  5 g/l    
Lead......................................  .55 g/l  15 g/l    
------------------------------------------------------------------------

    b. Construction and Demolition Damage Case Analysis. EPA conducted 
[[Page 30970]] a study (``Damage Cases: Construction and Demolition 
Waste Landfills'') to determine whether the disposal of C&D debris in 
C&D landfills has led to the contamination of ground or surface water 
or damages to ecological resources. All of the damage case information 
EPA evaluated came from existing information in State files and 
literature sources. EPA was able to identify only 11 C&D landfills with 
evidence of ground water or surface water contamination. EPA found no 
documented evidence of existing human health risks or ecosystem damages 
at construction and demolition landfills and little documented evidence 
of off-site contamination.
    When the Agency reviewed existing sources of data for C&D damage 
cases, the Agency reviewed existing Superfund databases (NPL), 
contacted EPA regional representatives, 32 States, county environmental 
Agencies, and existing studies or reports providing background 
information on C&D facilities and damages.
    When EPA searched for C&D damage cases, several criteria were used 
to identify where the damages could reasonably be associated with 
construction and demolition facilities and construction and demolition 
waste disposal. First and foremost, the Agency sought to identify C&D 
facilities that accepted predominantly C&D wastes. Landfills that had 
received significant quantities of municipal waste, non-hazardous 
industrial waste, or hazardous waste in the past were excluded from 
consideration. Additionally construction and demolition sites located 
near other facilities or leaking underground storage tanks that could 
reasonably be the source of contamination were excluded as possible C&D 
damage cases. Lastly, there needed to be documented evidence of 
contamination at the C&D site.
    The 11 damage cases that the Agency has identified are from New 
York, Virginia, and Wisconsin. Virginia and Wisconsin have required 
groundwater monitoring since 1988 at C&D facilities. The facilities in 
New York were among 9 C&D sites investigated due to public concerns 
about possible hazardous waste disposal and potential human health and 
environmental impacts.
    A study of the 11 C&D sites revealed on-site ground-water 
contamination at all of the facilities and surface water contamination 
at 6 of the 11 sites, with the main contaminants being metals and other 
inorganics. At 3 of the 11 facilities, sediment contamination was also 
detected. Although most of the contamination associated with these 
damage cases occurred on-site, 2 of the eleven facilities did have off-
site contamination (both facilities had sediments and surface water 
contamination occurring off-site).
    Although most of the 11 sites were monitored for a wide range of 
organic and inorganic constituents, virtually all of the contamination 
was associated with inorganics. Constituents that exceeded State 
ground-water protection standards or Federal drinking water criteria 
most frequently were manganese (9 sites), iron (8 sites), total 
dissolved solids (6 sites), lead (5 sites), magnesium (4 sites), sodium 
(4 sites), pH (3 sites) and sulfate (3 sites). The other 8 constituents 
that were detected in ground water at these 11 sites were detected at 
only one or two sites.
    For the 6 sites that had surface water contamination, the 
constituents that exceeded State surface water standards or Federal 
Ambient Water Quality Criteria most frequently were iron (4 sites), 
zinc (3 sites), lead (2 sites), and copper (2 sites). The other 5 
constituents that were detected in surface water at these 6 sites were 
detected only once. No fish kills or other observable impacts on 
aquatic life were reported in any of the references that the Agency 
reviewed.
    A look at the most frequently detected constituents in ground water 
or surface water reveals that of the 10 constituents, 7 are a concern 
due to SMCLs; only lead, magnesium, and sodium are not. Magnesium was 
found to exceed only an applicable State standard by a factor of 4 
times, while sodium was found to exceed an applicable State standard by 
a factor of 14. Lead was found in ground water to exceed the Federal 
action level at the tap (15 g/l) by a factor of 6. Lead was 
also found in surface water to exceed the established Federal Ambient 
Water Quality Criteria by a factor of 16 to 300 (although for the 
higher factor the reported value of lead in the surface water was 
``estimated'').
    c. Construction and Demolition Ground-Water Monitoring Data. 
Limited ground-water monitoring data suggests that a similar set of 
parameters that are detected in C&D leachate and that appear in damage 
cases associated with C&D facilities are also detected in ground water. 
Based on the limited ground-water data, only 19 parameters had a 
maximum value exceeding a health-based benchmark. Of these 19 
parameters, 8 exceeded a secondary MCL (TDS, sulfates, Ph, manganese, 
chlorides, iron, copper, and aluminum). For the remaining 11 
parameters, 5 are organics (Bis(2-ethylhexyl) phthalate, methylene 
chloride, tetrachloroethene, 1,2,4-trichlorobenzene, and 1,1,1-
trichloroethane), 5 are inorganics (arsenic, cadmium, lead, mercury, 
and nickel), and 1 is a conventional parameter (nitrate). Only one 
constituent (cadmium) exceeded its health-based value by an order of 
magnitude. Some constituents had a maximum ground-water value just 
exceeding its health-based value. It is important to remember that when 
looking at the limited ground-water monitoring data what is being 
discussed in this paragraph are maximum levels; additional sampling 
events for these constituents resulted in lower levels or non-detects.
    d. Conclusions for Construction and Demolition Facilities. While 
the data on construction and demolition waste landfills are limited, 
the Agency has reached some conclusions. Based on evaluation of the 
data analyzed above, individual construction and demolition waste 
facilities may have caused limited damage to ground water and surface 
water and potentially, may pose a risk to human health and the 
environment. Individual C&D facilities may also affect usability of 
drinking water due to aesthetic impacts. However, the Agency believes 
that C&D facilities, in general, do not currently pose significant 
risks and that individual damage cases are limited in occurrence. The 
small number of damage cases and the leachate concentration data 
reviewed above support these conclusions. Ground-water monitoring and 
corrective action at these facilities will ensure that any releases and 
potential risks at individual facilities will be identified and 
corrected in a timely fashion to protect human health and the 
environment. Location restrictions will ensure that non-municipal solid 
waste disposal facilities that receive CESQG waste will be located in 
acceptable areas, thereby, providing further protection of human health 
and the environment. Because construction and demolition waste 
facilities, in general, do not currently pose significant risk, the 
Agency has concluded that the statutory minimum requirements will 
ensure protection of human health and the environment.
2. Off-Site Commercial Landfills
    As for the 10-20 commercial off-site facilities that accept only 
industrial wastes, the Agency understands that corporate policy has 
been to subject these types of facilities to stringent environmental 
controls. In addition, State regulations also apply to these types of 
facilities. A facility of this type generally employs a liner, has 
closure and post-closure care requirements and financial assurance 
standards. These [[Page 30971]] State and corporate controls go beyond 
the statutory minimum controls and therefore the Agency believes that 
there is no need, on the Federal level, to impose additional standards 
beyond the statutory minimum.
3. Request for Additional Data and Comments Concerning Statutory 
Minimum or More Comprehensive Facility Requirements
    The leachate and ground-water monitoring data and the damage cases 
analyzed represent a small number of facilities relative to the 
construction and demolition facility universe. The Agency solicits any 
additional data concerning C&D facilities to further assess the 
potential risks they may pose, as well as additional data on commercial 
industrial solid waste facilities or other types of facilities that may 
be subject to today's proposal.
    The Agency also requests comment on whether the requirements being 
proposed today should go beyond the statutory minimum components. 
Requirements beyond the statutory minimum components could include all 
or any of the following components: Operational criteria, design 
standards, closure and post-closure care requirements, and financial 
assurance standards. The Agency is requesting that commentors provide 
data that documents the need to go beyond the statutory minimum 
components. The Agency is also requesting that commentors be specific 
as to whether any additional controls should be identical to the part 
258 Criteria for municipal landfills or should require a different 
standard and what that standard should be.

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

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

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

    The Agency previously discussed its proposed approach to impose 
only the statutory minimum requirements on non-municipal solid waste 
facilities that receive CESQG hazardous waste. The Agency has 
identified two options for writing the statutory minimum components. 
One option is to use the part 258 Criteria as the baseline for these 
requirements. The second option would be to specify general performance 
standards to be met by facility owners/operators as they implement the 
standards as well as to guide States in designing new regulatory 
programs (or revising existing regulatory programs).
    There are several reasons why the Agency is considering using the 
part 258 Criteria. (1) Part 258 Criteria provide sufficient detail so 
that an individual owner/operator can self-implement them without State 
interaction in those instances where States do not seek approval of 
their permitting program as required in RCRA section 4005(c). (2) EPA 
believes that the national minimum requirements are necessary to 
collect reliable and consistent ground-water monitoring data and to 
respond to contamination from the unit. (3) They contain a substantial 
amount of flexibility that allows approved States to tailor standards 
to individual and classes of facilities. Also, EPA and State success in 
accomplishing 42 State program approvals demonstrates that a variety of 
State approaches are consistent with the part 258 Criteria. As an 
example, States have established different design standards based on 
State-specific or site-specific factors that comply with the part 258 
criteria. The Agency expects States to likewise use this same 
flexibility in tailoring their ground-water monitoring programs. (4) 
Some States have expressed strong support for using 258 standards as 
the baseline for solid waste disposal facilities that receive CESQG 
hazardous waste. (5) While some States have standards for non-municipal 
facilities that are not identical to the 258 standards, the Agency 
believes there is a strong likelihood that many state programs would be 
approvable.
    Reasons cited in support of using the general performance standard 
approach include: (1) Although the part 258 standards contain 
substantial flexibility for States to tailor the programs to their 
conditions, the part 258 standards put certain limits on State 
flexibility to design a program tailored to local conditions; (2) The 
part 258 standards also include certain national minimum requirements 
(which States can not modify) that EPA promulgated because of the risks 
posed by MSWLFs. However, since EPA has found that facilities that 
receive CESQG waste may pose substantially less risk than MSWLFs, these 
national minimum standards may be overly stringent at certain 
facilities; (3) In the absence of a significant Federal program, over 
half of the States have adopted location standards, ground-water 
monitoring requirements, and corrective action requirements that are 
significantly less extensive than the part 258 standards. If a State 
believes that its existing program satisfies the general RCRA 
performance standard--protects human health and the environment, taking 
into account the practicable capability of these facilities--it could 
seek approval of their existing programs and avoid substantial 
regulatory or legislative changes; and (4) a general performance 
standard would provide the maximum flexibility for States and owners to 
adopt new methodologies and technologies (e.g., detecting groundwater 
contamination from the [[Page 30972]] surface, not from wells) to meet 
the standard at the lowest possible cost.
    In order to give the regulated community a better idea of how the 
ground-water monitoring and corrective action requirements could be 
written using a general performance standard approach, the Agency has 
developed the following examples of general performance language for 
each of the main elements of a ground-water and corrective action 
program.
    For Sec. 257.22, ground-water monitoring systems, the regulatory 
language for the general performance approach could require that the 
owner/operator install a ground-water monitoring system capable of 
detecting contamination that would consist of a sufficient number of 
wells, installed at appropriate locations and depths, to yield ground-
water monitoring samples from the uppermost aquifer that represent both 
the quality of background ground-water and the quality of ground-water 
passing the point of compliance. However, this section would not 
specify how the monitoring wells should be cased or the proper depth 
and spacing of the wells. The part 258 approach establishes the point 
of compliance for units under today's proposed rulemaking to no more 
than 150 meters from the edge of a unit boundary. However, a general 
performance standard could be written to allow states to set the point 
of compliance at other protective locations. The Agency specifically 
requests comment on whether a flexible approach to establishing the 
point of compliance is particularly well suited to low-risk facilities 
such as those addressed by this rulemaking, and if so, which factors 
should be considered in making a determination at these facilities.
    The Agency also is currently evaluating a performance-based 
approach to locating the point of compliance for clean-up of releases 
in the hazardous waste program as part of the corrective action rule 
development in subpart S of 40 CFR part 264. The states are 
participating in the subpart S rulemaking as co-regulators. Point of 
compliance options under consideration include: The unit boundary, the 
facility boundary, use of a buffer zone and anywhere in the plume of 
contamination beyond the unit boundary. We are contemplating that the 
subpart S approach could provide a basis for flexible, site-specific 
decision making for waste management facilities covered by today's 
rule.
    For Sec. 257.23, ground-water sampling and analysis requirements, 
the regulatory language for the general performance language could 
require that the owner/operator establish a ground-water monitoring 
program that includes consistent sampling and analysis procedures that 
ensure monitoring results that provide an accurate representation of 
background ground-water quality and down-gradient ground-water quality. 
The Agency would also state that the sampling and analysis procedures 
should also ensure that appropriate sampling and analytical methods are 
used and that ground-water quality data is based on appropriate 
statistical procedures. However, the regulatory language would not 
require that any specific statistical test be used nor would the 
regulatory language require that general performance standards be met 
as a condition of using an alternative statistical test.
    For Sec. 257.24, detection monitoring program, the regulatory 
language for the general performance language could require that the 
owner/operator establish a list of indicator or detection parameters 
that are monitored for and that enable the owner/operator to detect 
contamination. The Agency would also state that the monitoring 
frequency should be determined based on site specific factors and that 
the owner/operator must also establish a process for assessing any 
potential contamination, based on the statistical procedures 
established in Sec. 257.23. However, EPA's regulatory language would 
not specify any factors that an owner/operator should consider in 
selecting his/her indicator/detection monitoring parameters nor would 
the regulatory language specify the site-specific factors that would 
need to be evaluated by the owner/operator in determining the frequency 
of monitoring.
    For Sec. 257.25, assessment monitoring program, the regulatory 
language for the general performance standard approach could require 
that the owner/operator establish a process for assessing any potential 
contamination based on (1) additional monitoring for hazardous 
constituents that are expected to be present at the facility and (2) 
the establishment of background standards and health-based standards 
for the constituents that are monitored. The Agency would also state 
that the process must allow for a comparison, based on the statistical 
procedures established in Sec. 257.23, of those background and health-
based standards in order to determine when a health-based standard has 
been exceeded and to allow for the assessment of corrective measures 
when it is determined that an exceedance has occurred. However, the 
regulatory language would not specify any steps that must be complied 
with as part of the process in assessing the monitoring program.
    For Sec. 257.26, assessment of corrective action, the regulatory 
language for the general performance standard approach could require 
that the owner/operator assess the potential range of corrective 
measures that could be used to meet the performance standard 
established in Sec. 257.27. However, the regulatory language would not 
list any factors that should be considered by the owner/operator in 
assessing any potential remedy. It may allow the States flexibility to 
use a different risk assumption than those in part 258 to establish 
triggers for corrective action.
    For Sec. 257.27, selection of remedy, the regulatory language for 
the general performance standard approach could require that the owner/
operator select the most appropriate remedy that (1) controls the 
source of releases to the maximum extent possible, (2) attains the 
health-based standard(s) developed in the assessment monitoring 
program, and (3) protects human health and the environment. The Agency 
would also state that the owner/operator would also need to establish a 
time period for initiating and completing the selected remedy. However, 
the regulatory language would not list any factors that an owner/
operator should consider in selecting the remedy, in establishing a 
schedule for initiating and completing the remedy, or in deciding that 
remediation is not necessary.
    For Sec. 257.28, implementation of the corrective action program, 
the regulatory language for the general performance standard approach 
could require that the owner/operator implement the selected remedy, 
based on the schedule established in Sec. 257.27, and attain compliance 
with the health-based standards established in Sec. 257.25. The Agency 
would also state that the implementation of the corrective action 
program should include a consideration of interim measures that may 
need to be considered during corrective action and a consideration of 
alternative corrective measures if, after implementation of the 
selected remedy, the health-based standards in Sec. 257.25 are not 
being achieved. However, the regulatory language would not list any 
factors that an owner/operator should consider in developing interim 
measures or in the selection of an alternative remedy.
    The Agency believes that the general performance standard approach 
has some advantages. The approach would offer more flexibility to 
States to determine how best to run their State program for non-
municipal solid waste facilities that receive CESQG hazardous waste, 
while allowing States to tailor [[Page 30973]] regulations based on 
anticipated risks. In the absence of a State program, owners/operators 
would have to determine how to comply based on risk. However, the 
Agency is concerned that such a performance standard approach may 
result in greater uncertainty for owners/operators.
    While the Agency has not proposed the general performance standard 
approach in today's proposal, the Agency believes that the performance 
standard approach provides some interesting options/advantages for 
owners/operators and State agencies. Therefore, the Agency is 
requesting comments on the use of general performance standards in lieu 
of the approach used in today's proposal.

E. Highlights of Today's Statutory Minimum Requirements for Non-
Municipal Solid Waste Disposal Facilities That May Receive CESQG 
Hazardous Waste

    For today's proposed regulatory language, the Agency has used the 
part 258 Criteria as a baseline. The highlights of the part 258 
requirements are presented in this section of today's preamble. The 
flexibility that was developed for the part 258 Criteria has been 
incorporated into today's proposal for the location restrictions and 
the ground-water monitoring and corrective action requirements. The 
Agency solicits comments from the regulated community on whether these 
standards would provide sufficient flexibility for construction and 
demolition waste facilities. Commentors are requested to review the 
proposal with an eye towards identifying those areas in the proposal 
that they believe do not contain sufficient flexibility and would 
unduly hinder or place unnecessary burdens on construction and 
demolition waste facilities or other facilities potentially affected by 
the rule. The Agency requests that if commentors identify a provision 
that is lacking in flexibility, that the commentors clearly identify 
alternative rule language that provides the necessary flexibility.
1. Applicability and Effective Date
    Today's proposal establishes new sections in part 257 (i.e., 
Secs. 257.5 through 257.30) that apply to any non-municipal solid waste 
disposal facility that receives CESQG hazardous wastes. Today's 
proposal does not apply to municipal solid waste landfills subject to 
part 258 or hazardous waste facilities subject to regulations under 
Subtitle C of RCRA.
    Owners/operators of non-municipal solid waste disposal facilities 
whose facilities do not meet the proposed requirements may not receive 
CESQG hazardous waste. Owners/operators of such facilities would 
continue to be subject to the requirements in Secs. 257.1-257.4.
    Owners/operators of non-municipal solid waste disposal facilities 
that receive CESQG hazardous waste after the effective date (i.e., 18 
months after the date of publication of the final rule in the Federal 
Register) must comply with the requirements in Secs. 257.5 through 
257.30.
    Certain facilities may implement screening procedures to 
effectively eliminate the receipt of CESQG hazardous wastes. If an 
owner/operator has a question concerning applicability of the rule, he/
she is encouraged to contact his/her State Agency to determine that the 
screening procedure ensures that the facility does not receive CESQG 
hazardous waste.
2. Existing Part 257 Requirements
    All types of non-hazardous waste facilities, except municipal solid 
waste landfills, must comply with the current requirements in 40 CFR 
part 257. In developing today's proposal for non-municipal solid waste 
disposal facilities that receive CESQG wastes, the Agency decided to 
retain some of the existing part 257 requirements. Owners/operators of 
non-municipal solid waste disposal facilities that receive CESQG 
hazardous waste continue to be subject to the following existing 
requirements in Secs. 257.1-257.4: Secs. 257.3-2 (Endangered Species), 
257.3-3 (Surface Water), 257.3-5 (Application to food-chain crops), 
257.3-6 (Disease), 257.3-7 (Air), and 257.3-8 (a), (b), and (d) 
(Safety). The Agency saw no reason to eliminate these requirements 
because non-municipal solid waste facilities have been subject to these 
requirements since 1979. A non-municipal solid waste disposal facility 
that becomes subject to the CESQG requirements in Secs. 257.5 through 
257.30 would no longer be subject to the following existing 
requirements in Secs. 257.1-257.4: Secs. 257.3-1 (Floodplains), 257.3-4 
(Ground water), and 257.3-8(c) (bird hazards to aircraft) because 
Secs. 257.5 through 257.30 would contain separate standards for each of 
these areas.
    As stated earlier, RCRA section 4010 requires that the Agency 
establish revised Criteria for non-municipal solid waste disposal 
facilities that receive CESQG wastes that include, at a minimum, 
ground-water monitoring, corrective action, and location restrictions. 
These requirements have been included in new Secs. 257.5 through 
257.30. Each of these requirements is discussed below and in more 
detail in Reference #1.
3. Specific Location Restrictions
    The requirements in Secs. 257.7 through 257.12 will establish 
location restrictions for any non-municipal solid waste disposal 
facility that receives CESQG hazardous wastes. The location 
restrictions are for airport safety, floodplains, wetlands, fault 
areas, seismic impact zones, and unstable areas. The location 
restrictions being proposed today for non-municipal solid waste 
disposal facilities that receive CESQG hazardous wastes are identical 
to the location restrictions that were promulgated under Part 258 for 
municipal solid waste landfills. A detailed discussion of the municipal 
solid waste landfill location restrictions can be found at 56 FR 51042-
51049 and in reference #1.

a. Airport Safety

Today's Proposed Language Regarding Airport Safety (Sec. 257.7)

    Today's proposal uses the identical airport safety language that 
was established for MSWLFs. Today's proposal will require that new, 
existing, and lateral expansions of non-municipal solid waste disposal 
facilities that receive CESQG hazardous waste demonstrate that the 
facility does not pose a bird hazard to aircraft. For existing 
facilities that become subject to today's rule, only the demonstration 
requirement is different from the current airport safety standard in 
Sec. 257.3-8(c). The demonstration requirement is being proposed 
because today's airport safety requirement is written to be self-
implementing and the demonstration documents compliance and may protect 
the owner/operator from a citizen suit. For new and lateral expansions 
of non-municipal solid waste disposal facilities, the notification to 
the FAA and the affected airport is a new provision. This provision is 
being proposed in order for the Agency to be consistent with existing 
FAA Order #5200.5A (see Reference #9--page 51043). This FAA Order 
establishes that any disposal site that attracts or sustains hazardous 
bird movements from feeding, watering or roosting areas may be 
incompatible with airport operations.

b. Floodplains

Today's Proposed Language Regarding Floodplains (Sec. 257.8)

    Today's proposal uses the identical language from the MSWLF 
Criteria. The demonstration requirement for new, existing, and lateral 
expansions of non-municipal solid waste disposal facilities 
[[Page 30974]] is the only change to the existing part 257 language and 
is being proposed due to the self-implementing nature of today's 
proposal and to document compliance on the part of the owner/operator.

c. Wetlands

Today's Proposed Language Regarding Wetlands (Sec. 257.9)

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

Today's Proposed Language Regarding Fault Areas (Sec. 257.10)

    Today's proposal for non-municipal solid waste disposal facilities 
that receive CESQG hazardous waste contains a location restriction 
regarding fault areas. These requirements are identical to the 
requirements established for MSWLFs. Today's proposal bans the siting 
of new non-municipal solid waste disposal facilities or lateral 
expansions of these facilities in areas that are susceptible to 
faulting (i.e., areas located within 200 feet of a fault that has had 
displacement in recent times) based on the fault area provision 
established in part 258. The Agency believes that locating a new 
facility or lateral expansion in a location that has experienced 
faulting has inherent dangers. If a facility is located near a fault 
and displacement occurs, release of solid waste and hazardous 
constituents will occur. The Agency, however, believes that some 
flexibility should be incorporated into the proposal for approved 
States and, as such, today's proposal allows approved States to site a 
new non-municipal solid waste disposal facility or lateral expansion 
within 200 feet of an active fault if the owner/operator demonstrates 
that such an action will be protective of human health and the 
environment. Existing non-municipal solid waste disposal facilities 
that receive CESQG hazardous wastes would not be subject to today's 
proposed fault area restriction.
    The Agency requests comments on the necessity of requiring a fault 
area restriction for new non-municipal solid waste disposal facilities 
or lateral expansions of these types of facilities that receive CESQG 
hazardous waste.

e. Seismic Impact Zones

Today's Proposed Language Regarding Seismic Impact Zones (Sec. 257.11)

    Today's proposal for non-municipal solid waste disposal facilities 
that receive CESQG hazardous waste contains a location restriction 
regarding seismic impact zones. These requirements are identical to the 
requirements established for MSWLFs. Today's proposal bans the siting 
of new non-municipal solid waste disposal facilities or lateral 
expansions of these facilities in seismic impact zones based on the 
seismic impact zone provision in part 258. Existing non-municipal solid 
waste disposal facilities that receive CESQG hazardous wastes would not 
be subject to today's proposed seismic zone restriction. Seismic 
activity manifests itself in the form of ground shaking and fracturing. 
These activities can, like faulting, result in the release of solid 
waste and hazardous constituents. The Agency has incorporated the 
flexibility found in the MSWLF Criteria in today's proposal. As such, 
if owners/operators of new non-municipal solid waste disposal 
facilities that receive CESQG hazardous waste or lateral expansions of 
such facilities can demonstrate to the Director of an approved State 
that the facility and any containment devices used in the construction 
of the facility are designed to withstand the effects of seismic 
activity, then such a facility may be located in a seismic impact zone.

f. Unstable Areas

Today's Proposed Language Regarding Unstable Areas (Sec. 257.12)

    Today's proposal for non-municipal solid waste disposal facilities 
that receive CESQG hazardous waste contains a location restriction 
regarding unstable areas. These requirements are identical to the 
requirements established for MSWLFs. Today's proposal applies to 
existing non-municipal solid waste facilities, new non-municipal solid 
waste facilities, and lateral expansions of these types of facilities 
and is based on the unstable area provision in part 258. These 
facilities that receive CESQG waste must demonstrate that engineering 
measures have been incorporated into the facility design to ensure that 
the integrity of the structural components will not be disrupted. The 
rationale for requiring this location restriction is the same as that 
provided for fault areas and seismic activity zones: Waste placed in 
locations susceptible to mass movement or placed in areas with poor 
foundation conditions can result in the release of solid waste and 
hazardous constituents. The Agency, therefore, believes that these 
unstable areas should be avoided and locating in an unstable area 
should only be allowed after a successful demonstration by the owner/
operator that the structural integrity of the facility will not be 
disrupted.
    In summary, six location restrictions are being proposed: airport 
safety, floodplains, wetlands, fault areas, seismic impact zones, and 
unstable areas. Existing non-municipal solid waste disposal facilities 
that receive CESQG hazardous wastes are only required to comply with 
the airport safety, floodplain, and unstable area location 
restrictions. New or lateral expansions of non-municipal solid waste 
disposal facilities that receive CESQG hazardous wastes must comply 
with all six location restrictions prior to accepting waste for 
disposal.
    EPA is proposing that existing non-municipal solid waste disposal 
facilities that cannot make the required demonstrations pertaining to 
airports, floodplains, or unstable areas by 18 months after publication 
of the final rule must stop receiving CESQG hazardous wastes. This 18-
month period is much shorter than the 5-year period that was given to 
MSWLFs under 40 CFR 258.16. EPA provided five years to MSWLFs because 
there was concern about capacity shortages if existing owners/operators 
of MSWLFs had to close in the short term. For this proposal, existing 
non-municipal solid waste disposal facilities only have to comply with 
three location restrictions: airport safety, floodplains, and unstable 
areas. Two of these three restrictions being proposed are technically 
identical to the existing Part 257 standards that existing non-
municipal solid waste disposal facilities have been subject to since 
1979 (i.e., airport safety and floodplains). The new requirements for 
these two location restrictions are the demonstrations documenting 
compliance with these provisions and a notification to the FAA if a new 
or lateral expansion of an existing non-municipal solid waste disposal 
facility wants to site within a five-mile radius [[Page 30975]] of an 
airport runway end. The last location restriction applicable to 
existing facilities is the unstable area restriction. The Agency 
believes that 18 months is sufficient time for a owner/operator to 
demonstrate that the integrity of the facility will not be disrupted. 
Furthermore, the Agency does not believe that capacity concerns apply 
to the types of facilities that may potentially become subject to 
today's proposal.
    With the effective date 18 months after the date of publication of 
the final rule, existing non-municipal solid waste disposal facilities 
that receive CESQG hazardous waste will need to make the necessary 
demonstrations during this 18-month period. In the event that an 
existing non-municipal solid waste facility can not make the 
demonstrations, the existing facility may not receive CESQG hazardous 
wastes after this 18-month period. If the existing non-municipal solid 
waste disposal facility fails to make the necessary demonstrations 
within 18 months and thereafter stops receiving CESQG hazardous waste, 
it can continue to stay open and operate; however, it must comply with 
the existing standards in Secs. 257.1-257.4 vs. the requirements being 
proposed today in Secs. 257.5 through 257.30.
3. Specific Ground-Water Monitoring and Corrective Action Requirements
    The requirements in Secs. 257.21-257.28 will establish ground water 
monitoring and corrective action requirements for any non-municipal 
solid waste disposal facility that receives CESQG hazardous wastes. 
Sections 257.21 through 257.28 establish the criteria for determining 
an acceptable ground-water monitoring system, the procedures for 
sampling and analyzing ground-water samples, the steps and factors to 
be used in proceeding from an initial detection monitoring phase, up 
to, and including corrective action for clean-up of contaminated ground 
water.
    As stated earlier, the ground-water monitoring and corrective 
action requirements being proposed today for non-municipal solid waste 
disposal facilities that receive CESQG hazardous wastes are based on 
the ground-water monitoring and corrective action requirements that 
were promulgated under part 258 for municipal solid waste landfills. As 
such the areas of flexibility that exist within the MSWLF Criteria will 
also apply to non-municipal solid waste disposal facilities that 
receive CESQG hazardous waste. A detailed discussion of the MSWLF 
Criteria regarding ground-water monitoring and corrective action 
requirements can be found at 56 FR 51061-51093 and in reference #1.
    Today's proposal is substantively identical to the Part 258 MSWLF 
Criteria. The two areas of difference concern when the ground-water and 
corrective action requirements become effective and the time period 
during which ground-water monitoring must be conducted after the active 
life of the facility. A summary of the applicability of the ground-
water monitoring and corrective action requirements and each provision 
is presented below.
a. Applicability of Ground-water and Corrective Action Requirements

Today's Proposed Language Regarding Applicability of the Ground-Water 
Monitoring and Corrective Action Requirements (Sec. 257.21)

    Today's proposal establishes ground-water monitoring and corrective 
action requirements (discussed separately below) for non-municipal 
solid waste disposal facilities that receive CESQG hazardous wastes. 
Existing non-municipal solid waste disposal facilities subject to this 
rule must be in compliance with the ground-water monitoring 
requirements within 2 years after the date of publication of the final 
rule. The Agency is proposing a shorter effective date for today's 
proposal than for the MSWLF Criteria because these ground-water 
requirements can be phased-in over a much shorter time frame.
    The MSWLF Criteria were phased in over a three to five year period 
based on a lack of qualified well drillers. The Agency has decided on a 
two year effective date for a variety of reasons. First, 24 States 
prohibit hazardous waste from being managed in a construction/
demolition waste facility (see Chapter 4 Reference #6). Construction 
and demolition waste disposal facilities in these 24 States will not be 
impacted because they, under State law, cannot receive hazardous waste. 
These 24 States account for 1060 of the approximate total of 1900 
construction and demolition waste landfills. Further, 8 States require 
ground-water monitoring and corrective action that is similar to Part 
258. These 8 States account for an additional 111 construction and 
demolition facilities. Therefore, a total of 1,171 construction and 
demolition waste facilities in 32 States will not be affected by this 
proposal. A total of 718 construction and demolition waste landfills in 
17 States (New Hampshire has no construction and demolition landfills) 
will be affected after this proposal is finalized. Some States from the 
remaining 17 States have existing State regulations that allow them to 
impose ground-water monitoring requirements on a case-by-case basis. 
There are a total of 5 States that may impose ground-water monitoring 
requirements at their construction and demolition waste landfills (a 
total of 84 construction and demolition landfills exist in these 5 
States). If only 718 construction and demolition waste owners/operators 
may have to have ground-water monitoring wells installed, the Agency 
believes that there are a sufficient number of firms that are qualified 
to install wells within 2 years.
    The Agency is concerned that some States (3 States have a total of 
491 construction and demolition waste landfills out of the 718 total 
that may be affected) may have difficulty in ensuring that all existing 
non-municipal solid waste disposal facilities that may receive CESQG 
waste have ground-water monitoring in place within 2 years and has 
allowed a one-year extension for an approved State. In an approved 
State, the Director can establish an alternative schedule that allows 
50% of existing non-municipal solid waste disposal facilities to be in 
compliance within 2 years of the final rule and all non-municipal solid 
waste facilities that receive CESQG waste to be in compliance with the 
ground-water monitoring requirements within 3 years of the final rule. 
Similar to the MSWLF Criteria, today's proposal list a series of 
factors that the Director of an approved State should consider in 
establishing an alternative schedule.
    Today's proposal establishes that the ground-water monitoring 
program must be conducted through the active life of the facility plus 
30 years. Today's proposal does not contain provisions beyond the 
statutory minimum components and, therefore, no closure or post-closure 
care standards are being proposed. The Agency believes, however, that 
ground-water contamination resulting from the operation of a facility 
may not appear until after the active life of the facility. The Agency 
is therefore concerned that ground-water monitoring be conducted for 
some period of time after the active life of the facility. As such, 
today's proposal establishes the requirement that ground-water 
monitoring be conducted for 30 years after the active life. The term 
active life has also been changed from the definition in the MSWLF 
Criteria. Today's proposal defines active life to be the period of 
operation beginning with the initial receipt of solid waste and ending 
at the final receipt of solid waste. In the MSWLF Criteria the term 
active life was [[Page 30976]] defined to mean the period of operation 
beginning with the initial receipt of solid waste and ending at 
completion of closure activities in accordance with Sec. 258.60 (i.e., 
closure and post-closure care activities). The change in the definition 
of the term active life was necessary to reflect the fact that today's 
proposal does not contain closure or post-closure care requirements.
    The Agency selected the 30 year continuance of ground-water 
monitoring after the final receipt of waste because 30 years is 
consistent with the period of time that ground-water monitoring is done 
after the final receipt of waste at MSWLFs. Following the approach that 
was selected for MSWLFs, the Agency has allowed the Director of an 
approved State to decrease or increase the 30 year period of time that 
ground-water monitoring must be done after the final receipt of waste. 
Any reduction in the period of time may be granted only after a 
demonstration by the owner/operator that a shorter period of time is 
sufficient to protect human health and the environment and the Director 
of an approved State approves such a demonstration.
    The Agency requests comments on the 2-year effective date and the 
30-year period of time after the active life that ground-water 
monitoring must be conducted. Commentors should submit data that 
supports a shorter or longer effective date and data concerning the 
necessity of the 30-year ground-water monitoring period.
    The flexibility that an approved State/Tribal Director has in 
suspending the ground-water monitoring requirements for MSWLFs has been 
provided for non-municipal solid waste disposal facilities that receive 
CESQG hazardous waste in today's proposal (Reference #9, 56 FR 51061-
51062). The provision is proposed for the same reason that it was 
finalized in the MSWLF Criteria. The Agency believes that certain 
hydrogeologic settings may preclude the migration of hazardous 
constituents from the non-municipal solid waste disposal facility to 
the ground-water. This provision is in the applicability section of 
today's ground-water monitoring requirements.
    The Agency is also proposing to provide to approved States the 
flexibility to determine alternative ground-water monitoring 
requirements for small, dry non-municipal solid waste disposal 
facilities that receive CESQG waste. The Agency had previously issued 
an exemption to small, dry municipal solid waste landfills from some of 
the requirements in the MSWLF Criteria (Reference #9, 56 FR 50989-
50991). Although the D.C. Circuit vacated this exemption in the Sierra 
Club v. EPA opinion, 992 f.2d at 345, the Court left it to the Agency's 
discretion to allow for alternative types of ground-water monitoring 
based upon factors such as size, location, and climate. Concurrent with 
this proposal, the Agency is proposing that approved States be allowed 
to determine alternative ground-water monitoring requirements for 
small, dry MSWLFs. The Agency sees no reason to limit this flexibility 
to MSWLFs and, therefore, is proposing that approved States may allow 
alternative monitoring requirements for small, dry non-municipal solid 
waste disposal facilities that are receiving CESQG waste if the 
facilities meet the definition of small and dry proposed in 
Sec. 257.21(i). Additional information concerning the alternative 
ground-water monitoring requirements for MSWLFs will be published soon 
in a FR notice.
    In order to be considered small, the non-municipal solid waste 
disposal facility must dispose of less than 20 tons of non-municipal 
waste daily. The 20 tons per day is proposed in order to be consistent 
with the small landfill exemption under the municipal solid waste 
landfill Criteria. However, the Agency recognizes that the size 
distribution, potential risks, practical capability and other factors 
differ for these facilities. The Agency is accepting comments on 
whether this number should be different for non-municipal solid waste 
facilities.

b. Overall Performance of the Ground-Water Monitoring System

Today's Proposed Language Regarding Ground-Water Monitoring Systems 
(Sec. 257.22)

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

c. Ground-Water Sampling and Analysis Requirements

Today's Proposed Language Regarding Sampling and Analysis (Sec. 257.23)

    Today's proposal contains the same sampling and analysis procedures 
that are in the MSWLF Criteria. The sampling and analysis requirements 
ensure accurate ground-water monitoring results and allow for an 
accurate representation of both the background ground-water quality and 
the quality of ground water at the monitoring wells placed downgradient 
from the facility. Owners/operators need to ensure that consistent 
sampling and analysis procedures are in place in order to determine if 
a statistically significant increase in the level of a constituent has 
occurred indicating the possibility of ground-water contamination.
    In the promulgated Criteria for municipal solid waste landfills, 
the Agency required that ground-water samples not be field-filtered 
prior to laboratory analysis. (See Sec. 258.53(b)). The preamble 
discussion for this requirement can be found at 56 FR 51074, October 9, 
1991. The Agency has been actively working on the issue of sample 
filtration due to concerns expressed by some members of the scientific 
community. The Agency expects to issue, in the near future, a proposal 
addressing additional flexibility on this issue. This proposal would 
include any potential revision to the prohibition on field filtering as 
specified in proposed Sec. 257.23. Thus, any rule language change to 
the part 258 Criteria on this issue will be addressed in the final rule 
language for non-municipal solid waste facilities that receive CESQG 
wastes.
d. Detection Monitoring Program

Today's Proposed Language Regarding Detection Monitoring Requirements 
(Sec. 257.24)

    Today's proposal establishes the same series of steps for ground-
water monitoring as developed in the MSWLF Criteria. The Agency 
believes that monitoring for a limited set of parameters and 
determining if there is a statistically significant increase for any of 
these parameters is an essential first step in evaluating the 
possibility of a release from a non-municipal solid waste disposal 
facility that receives CESQG wastes. Today's proposed detection 
monitoring program contains the same areas of flexibility that exist 
within the MSWLF Criteria. This flexibility can be used by the Director 
of an approved State to delete any parameter from appendix I (appendix 
I [[Page 30977]] of part 258) where the Director believes that the 
constituent is not expected to be in or derived from the waste in the 
unit. Furthermore, the Director of an approved State can establish an 
alternative list of inorganic indicator parameters for the metals in 
appendix I of part 258. Also, today's proposal allows the Director of 
an approved State to allow for annual ground-water monitoring vs. 
semiannual based on a series of factors spelled-out in the proposal.

e. Assessment Monitoring Program

Today's Proposed Language Regarding Assessment Monitoring Requirements 
(Sec. 257.25)

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

f. Corrective Action Program

Today's Proposed Language Regarding Corrective Action Program 
Secs. 257.26-257.28)

    Today's proposal establishes the same corrective action steps as in 
the MSWLF Criteria. The steps that have been proposed today are those 
that are necessary for a successful corrective action program. Today's 
proposal allows the owner/operator to successfully remediate a ground-
water contamination problem in a swift manner yet provides flexibility 
for selecting and implementing the corrective remedy. The proposed 
language contains performance objectives that must be considered in the 
evaluation, selection, and implementation of a remedy. The Agency also 
believes that the flexibility that exists in the MSWLF Criteria is 
sufficient to deal with the types of non-municipal facilities that 
receive CESQG hazardous waste and has, therefore, retained all of the 
flexibility in today's proposal.
4. Recordkeeping requirements (Sec. 257.30)
    Similar to the recordkeeping requirement contained in the MSWLF 
Criteria, today's proposal requires that owners/operators of non-
municipal solid waste disposal facilities that receive CESQG waste 
maintain a historical record of the facility. EPA is proposing this 
requirement to ensure the availability of basic information that will 
demonstrate compliance with the remainder of today's proposed 
requirements. Owners/operators would be required to maintain location 
restriction demonstrations and ground-water monitoring demonstrations, 
certifications, findings, reports, test results and analytical data in 
today's proposed operating record.
    The goal of today's proposal is to have the owner/operator maintain 
such demonstrations in a single location that is easily accessible. The 
Director of an approved State has the flexibility to establish 
alternative locations for recordkeeping and alternative schedules for 
recordkeeping and notification requirements.

F. Other Issues Relating to Today's Proposal

1. Owner/Operator Responsibility and Flexibility in Approved States

    The regulatory structure of the part 258 MSWLF Criteria is based on 
an owner/operator achieving compliance through self-implementation with 
the various requirements while allowing approved States the flexibility 
to consider local conditions in setting appropriate alternative 
standards that still achieve compliance with the basic goal of the part 
258 Criteria. This flexibility that exists for approved States under 
part 258 has been retained in today's proposal and can be used by 
approved States in determining facility specific requirements. 
Individual areas of flexibility have been discussed in the previous 
sections detailing today's location restrictions, ground-water 
monitoring and corrective action requirements.
    Owners/operators, due to the self-implementing nature of this 
proposal, would be required to comply with the promulgated standards, 
as of the appropriate effective date, regardless of the status of the 
States approval determination. If an owner/operator is located in a 
State that has not been approved under Subtitle D, then the owner/
operator would have to comply with the promulgated standards, without 
the benefit of the flexibility allowed to be granted by the Director of 
an approved State. Owners/operators of non-municipal solid waste 
disposal facilities located in approved States, that become subject to 
today's proposed requirements when finalized, may be subject to 
alternate requirements based on the approved State standards.
2. CESQG's Responsibilities Relating to the Revisions in Sec. 261.5, 
Paragraphs (f) and (g)

    Today's proposal would allow 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 that is 
permitted, licensed, or registered by a State to manage municipal or 
non-municipal waste. The Agency believes that it is appropriate to 
establish facility standards for non-municipal solid waste disposal 
facilities that receive CESQG waste while at the same time specifying 
acceptable disposal options that are available to CESQGs in order to 
ensure that their waste is properly managed. The Agency believes that 
proposing both regulatory changes together clarifies the obligations of 
both CESQGs and owners/operators of disposal facilities to ensure 
proper management of CESQG hazardous waste and will lead to better 
management of these wastes. By regulating the generators, as well as 
the receiving facilities, today's proposal also helps to fulfill the 
statutory mandate that only facilities meeting the location, ground-
water monitoring, and corrective action requirements (i.e., Secs. 257.5 
through 257.30) ``may receive'' CESQG waste. See RCRA Section 4010(c).
    The Agency does not believe that today's proposed change 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, no additional 
obligation would be imposed on a CESQG by today's proposal because the 
MSWLF where the CESQG waste is being sent is subject to part 258. For 
construction and demolition waste generators who wish to send their 
CESQG waste to a non-municipal solid waste disposal facility subject to 
the proposed requirements in Secs. 257.5 through 257.30, the only 
additional obligation would be that associated with a phone call to the 
appropriate State Agency to determine if the non- 
[[Page 30978]] municipal solid waste disposal facility is subject to 
Secs. 257.5 through 257.30 and thus could legally accept CESQG waste. 
Furthermore, as stated previously, some States require that disposal of 
CESQG waste occur only at permitted Subtitle C facilities and CESQGs in 
these States would not face any burden as a result of this rule due to 
the more stringent State standard that the CESQG is currently subject 
to. Today's proposal does not change the generator's obligation to 
first determine if the waste is hazardous and, secondly, to determine 
if the waste is below the quantity levels established for a CESQG. If a 
generator is a CESQG, today's proposal continues an existing obligation 
on the generator to ensure that acceptable management of the CESQG 
hazardous waste occurs.
    A CESQG may elect to screen-out or segregate out the CESQG 
hazardous wastes from his non-hazardous waste and then manage the CESQG 
hazardous portion in a facility meeting the requirements of proposed 
Sec. 261.5(f)(3) and (g)(3). The remaining non-hazardous waste is not 
subject to today's proposed Secs. 257.5 through 257.30; 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 preferring instead to leave it mixed with the 
mass of non-hazardous waste. If the CESQG elects this option, the 
entire mass of material must be managed in a Subtitle C facility or a 
Subtitle D facility that is subject to part 258 or the proposed 
requirements in Secs. 257.5 through 257.30.

VI. Implementation and Enforcement

A. State Activities Under Subtitle C
1. Hazardous and Solid Waste Amendments to RCRA
    Today's proposal changes the existing requirements in 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 
proposed pursuant to section 3001(d)(4) of RCRA, which is a provision 
added by HSWA. Therefore, the Agency is proposing to add the 
requirement to Table 1 in 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, as discussed in the following section 
of the preamble.
2. Effect on State Authorizations
    As noted above, EPA will implement today's rule in authorized 
States until they modify their programs to adopt the Sec. 261.5 rule 
change and the modification is approved by EPA. Because the rule is 
proposed pursuant to HSWA, a State submitting a program modification 
may apply to receive either interim or final authorization under 
section 3006(g)(2) or 3006(b), respectively, on the basis of 
requirements that are substantially equivalent or equivalent to EPA's. 
The procedures and schedule for State program modifications for either 
interim or final authorization are described in 40 CFR 271.21. It 
should be noted that all HSWA interim authorizations will expire 
January 1, 2003. (See 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 submit its application 
for approval for this proposed regulation will be determined by the 
date of publication of the final rule in accordance with 
Sec. 271.21(e). These deadlines can be extended in certain cases (40 
CFR 271.21(e)(3)). Once EPA approves the modification, the State 
requirements become Subtitle C RCRA requirements.
    EPA is aware that a number of States have more stringent 
requirements for the disposal of waste generated by CESQGs. In 
particular, some States do not allow the disposal of this waste into 
any Subtitle D landfill. For these States, today's proposed rule would 
clearly be considered less stringent than the applicable provisions in 
these States' authorized programs. Section 3009 of RCRA allows States 
to adopt or retain provisions that are more stringent than the Federal 
provisions. Therefore, regarding today's proposed rule, EPA believes 
that States which do not allow the disposal of wastes generated by 
CESQGs into Subtitle D landfills under their existing authorized 
Subtitle C program would not be required to revise their programs and 
obtain authorization for today's proposed rule. Of course this 
situation would only apply in those cases where a State is not changing 
its regulatory language. Further, the authorized State requirements in 
such States, since they would be more stringent than today's proposed 
rule, would continue to apply in that State, even though today's rule 
is proposed pursuant to HSWA authority.
    For a State to not be required to submit an authorization revision 
application for today's proposed rule, the State must have provisions 
that are authorized by EPA and that are more stringent than all the 
provisions in the new Federal rule. For those States that would not be 
required to revise their authorization, EPA strongly encourages the 
State to inform their EPA Regional Office by letter that for this 
proposed rule, it is not required to submit a revision application 
pursuant to 40 CFR 271.21(e), because in accordance with RCRA section 
3009 the authorized State provision currently in effect is more 
stringent than the requirements contained in today's proposed rule. 
Otherwise, EPA would conclude that a revised authorization application 
is required.
    Other States with authorized RCRA programs may already have adopted 
requirements under State law similar to those in today's proposal. 
These State [[Page 30979]] regulations have not been assessed against 
the Federal regulations being proposed today to determine whether they 
meet the tests for authorization. Thus, a State is not authorized to 
implement these requirements in lieu of EPA until the State program 
modification is approved. Although revisions to 40 CFR parts 257 and 
261 are being proposed, for the purpose of authorization under Subtitle 
C, only the proposed 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 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.

B. State Activities Under Subtitle D

    States are the lead Agencies in implementing Subtitle D rules. The 
Agency intends to maintain the State's lead in implementing the 
Subtitle D program. RCRA requires States to adopt and implement, within 
18 months of the publication of a final rule, a permit program or other 
system of prior approval and conditions to ensure that non-municipal 
solid waste disposal facilities comply with today's standards. EPA is 
required to determine whether States have developed adequate programs. 
States will need to review their existing programs to determine where 
their programs need to be upgraded and to complete program changes, if 
changes are necessary. The process that the Agency will use in 
evaluating the adequacy of State programs will be set forth in a 
separate rulemaking, the State/Tribal Permit Program Determination of 
Adequacy. For the purpose of determining adequacy and granting approval 
under Subtitle D, only the proposed technical changes in Secs. 257.5 
through 257.30 will be evaluated by the Agency. The State will need to 
meet other procedural and administrative requirements identified in the 
State/Tribal Permit Program Determination of Adequacy. The approval 
process to be used for non-municipal solid waste disposal facilities is 
the same process that the Agency used for determining the adequacy of 
State programs for the Municipal Solid Waste Landfill criteria. In 
States already approved for the part 258 MSWLF Criteria, changes 
required by this rulemaking will constitute a program revision.
    The Agency believes that for many approved States, changes required 
by this rulemaking will affect the technical criteria only and should 
warrant limited changes to the approved application. For example, if 
non-municipal solid waste disposal facilities subject to this rule are 
already subject to an approved State MSWLF program (i.e., the non-
municipal solid waste disposal facilities are currently subject to the 
part 258 location restrictions, ground-water monitoring, and corrective 
action), the State may only be required to submit documentation that 
the non-municipal solid waste disposal facilities are subject to their 
approved program. States are encouraged to contact their appropriate 
EPA Regional office to determine the specifics of the approval process.
    In States that have not been approved for the MSWLF Criteria, these 
revisions can be incorporated into an application for overall program 
approval of part 258 and Secs. 257.5 through 257.30. States that 
currently restrict CESQG disposal to Subtitle C facilities (and States 
that may choose to adopt that restriction) or approved States which 
currently restrict CESQG disposal to part 258 municipal solid waste 
landfills will not need to seek further EPA approval of their Subtitle 
D program. RCRA section 4005(c)(1)(B) requires States to adopt and 
implement permit programs to ensure that facilities which receive CESQG 
waste will comply with the revised Criteria promulgated under section 
4010(c). However, the Agency sees no need for approved States that 
already require CESQG waste to be disposed of in either Subtitle C 
facilities or facilities subject to the part 258 MSWLF Criteria to 
adopt and implement a permit program based upon the standards being 
proposed today.
    RCRA section 7004(b)(1) requires the Administrator and the States 
to encourage and provide for public participation in the development, 
revision, implementation, and enforcement of this regulation, and once 
it is promulgated, the State programs implemented to enforce it. EPA 
provides for public participation by seeking public comment on this 
proposal and its decisions on whether State programs are adequate under 
RCRA section 4005(c)(1)(c). In developing and implementing permit 
programs, States must provide for public participation in accordance 
with the provisions of 40 CFR part 256, subpart G.

C.  Relationship  Between  Subtitle  C  and D

    Today's proposal has an effective date of 18 months after 
publication of the final rule for the location restrictions with the 
ground-water monitoring and corrective action requirements becoming 
effective 2 years after the date of publication of the final rule. The 
Agency is proposing that the revisions to Sec. 261.5(f)(3) and (g)(3) 
have the same effective date as the proposed changes in Secs. 257.5 
through 257.30 (i.e., 18 months after the date of publication of the 
final rule). Owners/operators of facilities that receive CESQG 
hazardous waste will be subject to the requirements in Secs. 257.5 
through 257.30. CESQGs will be subject to the proposed requirements in 
Sec. 261.5. Today's proposed 18-month effective date coincides with the 
period of time that States have, under Subtitle D, to adopt and 
implement a program to ensure that owners/operators are in compliance 
with the proposed changes to Secs. 257.5 through 257.30.

D. Enforcement

1. Hazardous Waste Enforcement
    Today's proposal 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 the full set of Subtitle C hazardous 
waste regulations.
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 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 
[[Page 30980]] effective, they constitute the basis for citizen 
enforcement. Federal enforcement by EPA can be done only in States that 
EPA has determined have inadequate programs. EPA has no enforcement 
authorities under Section 4005 in approved States. EPA does, however, 
retain enforcement authority under section 7003 to protect against 
imminent and substantial endangerment to health and the environment in 
all States. A more complete discussion of the Subtitle D enforcement 
issue can be found in the MSWLF Criteria.

VII. Executive Order No. 12866--Regulatory Impacts Analysis

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

    The Agency estimates that of the total 1900 construction and 
demolition waste facilities, 718 would be potentially affected. The 
national annual low-end cost is estimated to be $10.0M. This low-end 
cost assumes that all CESQG hazardous waste is separated at the point 
of generation for the construction industry. It assumes there will be 
no CESQG waste generated by the demolition industry. The CESQG portion 
is disposed of at hazardous waste facilities while the remaining non-
hazardous waste portion is disposed of in non-upgraded construction and 
demolition waste facilities. The costs include the separation costs at 
the point of generation, costs of transporting/disposing the hazardous 
portion at a Subtitle C facility, and the costs of screening incoming 
wastes at all of the construction and demolition waste facilities. 
There are hundreds of thousands of construction and demolition sites 
active in the U.S. each year. EPA assumes that demolition rubble will 
not be CESQG waste and affected by this rule. Therefore, separation 
costs are likely to occur only at construction sites and the 3,742 
industrial facilities with on-site non-hazardous waste landfills. The 
Agency requests comment on the labor and capital necessary to conduct 
separation at these facilities. The Agency also requests comment on how 
frequently CESQG hazardous waste is currently being separated at 
construction sites at these industrial facilities. In addition, the 
Agency requests comment on the transportation costs to bring small 
amounts of hazardous wastes from construction sites to a treatment and 
disposal facility.
    The national annual high-end cost is estimated to be $47.0M. This 
high-end cost assumes that generators will not separate out CESQG waste 
from 30% of construction and demolition wastes and that this fraction 
will be sent to upgraded construction and demolition waste facilities 
that elect to comply with today's proposed requirements. Under this 
scenario, the Agency assumed that most medium to large size 
construction and demolition waste facilities (162) will upgrade. The 
costs include separation costs at the point of generation for waste not 
going to an upgraded landfill, costs of screening incoming wastes at 
80% of the affected construction and demolition waste facilities which 
do not upgrade and costs for 20% of the affected construction and 
demolition wastes facilities to upgrade. Upgrade costs include ground-
water monitoring and corrective action.
    This rule allows States and individual owners/operators to choose 
among compliance options. States and owners/operators may determine 
that facility screening is a successful method to prevent the receipt 
of CESQG hazardous wastes. Other States and owners/operators may 
determine that upgrading is necessary or there is a market for upgraded 
landfill capacity for generators and, as such, some facilities may 
upgrade. If more States and owners/operators elect to use screening 
then the estimated cost of this proposal would be closer to the lower-
bound estimate.
    The full analysis that was used to determine the range of costs for 
this rulemaking is presented in the Cost and Economic Impact Analysis 
of the CESQG Rule.

B. Benefits

    The Agency believes that the requirements being proposed for non-
municipal solid waste disposal facilities will result in more Subtitle 
D facilities providing protection against ground-water contamination 
from the disposal of small amounts of hazardous waste. Today's action 
will force some non-municipal solid waste disposal facilities to either 
upgrade and install ground-water monitoring and perform corrective 
action if contamination is detected, or stop accepting hazardous waste. 
Today's action will also cause some generators of CESQG wastes to 
separate out these small quantities of hazardous waste and send them to 
more heavily regulated facilities (i.e., Subtitle C facilities or 
MSWLFs). These are the direct benefits of today's proposal, however, 
additional benefits will be realized due to this proposal.
    Today's proposal will ensure that any ground-water contamination 
that is occurring at facilities that continue to accept small 
quantities of hazardous waste will be quickly detected and corrective 
action can be initiated sooner.
    To the extent that existing non-municipal facilities that receive 
CESQG hazardous waste upgrade their facilities to include ground-water 
monitoring and to the extent that new facilities will be sited in 
acceptable areas with ground-water monitoring, public confidence in 
these types of facilities will be increased. Having public confidence 
increased would result in these types of facilities being easier to 
site in the future.

VIII. Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA) of 1980 requires Federal 
agencies to consider ``small entities'' throughout the regulatory 
process. Section 603 of the RFA requires an initial screening analysis 
to be performed to determine whether small entities will be adversely 
affected by the regulation. If affected small entities are identified, 
regulatory alternatives must be considered to mitigate the potential 
impacts. The Agency believes that it is unlikely that any industry will 
face significant impacts under the low-end scenario.
    To help mitigate these impacts, EPA is proposing the minimum 
regulatory requirements allowed under the statute (which are still 
protective of human health and the environment). As a result, EPA 
believes that the lower- [[Page 30981]] bound scenario, where 
demolition firms separate-out their CESQG waste and continue to send 
the non-hazardous portion to landfills not subject to the revised Part 
257 standards, is the most likely scenario and that small entities will 
not be significantly impacted.
    The Agency's full analysis of the impacts on small entities can be 
found in the Cost and Economic Impact Analysis of the CESQG Rule.

IX. Paperwork Reduction Act

    The information collection requirements in today's proposed rule 
have been submitted for approval to the Office of Management and Budget 
(OMB) under the Paperwork reduction Act, 44 U.S.C. 3501 et seq. Submit 
comments on these requirements to the Office of Information and 
Regulatory Affairs, OMB, 726 Jackson Place, NW, Washington, DC 20503, 
marked ``Attention: Desk Officer for EPA.'' The final rule will respond 
to any OMB comments or public comments on the information collection 
requirements.

X. Environmental Justice Issues

    Executive Order 12898 requires Federal Agencies, to the greatest 
extent practicable, to identify and address disproportionately high 
adverse human health or environmental effects of its activities on 
minority and low-income populations.
    The Agency does not currently have data on the demographics of 
populations surrounding the facilities affected by today's proposal 
(i.e., construction and demolition landfills). The Agency does not 
believe, however, that today's proposed rule will adversely impact 
minority or low-income populations. The facilities affected by the 
proposal currently pose limited risk to surrounding populations (see 
section V.B.1.d of today's preamble). In addition, today's proposal 
would further reduce this risk by requiring the affected facilities to 
either stop accepting CESQG hazardous waste or to begin ground-water 
monitoring and, if applicable, corrective action.
    Thus, today's proposal would further reduce the already low risk 
for populations surrounding construction and demolition landfills, 
regardless of the population's ethnicity or income level. Minority and 
low-income populations would not be adversely affected.

XI. Unfunded Mandates Reform Act

    Under section 202 of the Unfunded Mandates Reform Act of 1995 (the 
Act), Pub. L. 104-4, which was signed into law on March 22, 1995, EPA 
generally must prepare a written statement for rules with Federal 
mandates that may result in estimated costs to State, local, and tribal 
governments in the aggregate, or to the private sector, of $100 million 
or more in any one year. When such a statement is required for EPA 
rules, under section 205 of the Act EPA must identify and consider 
alternatives, including the least costly, most cost-effective or least 
burdensome alternative that achieves the objectives of the rule. EPA 
must select that alternative, unless the Administrator explains in the 
final rule why it was not selected or it is inconsistent with law. 
Before EPA establishes regulatory requirements that may significantly 
or uniquely affect small governments, including tribal governments, it 
must develop under section 203 of the Act a small government agency 
plan. The plan must provide for notifying potentially affected small 
governments, giving them meaningful and timely input in the development 
of EPA regulatory proposals with significant Federal intergovernmental 
mandates, and informing, educating, and advising them on compliance 
with the regulatory requirements.
    EPA has determined that the proposal discussed in this notice does 
not include a Federal mandate that may result in estimated costs of 
$100 million or more to State, local, or tribal governments in the 
aggregate, or to the private sector, in any one year. EPA has estimated 
that the annual costs of the proposed rule on generators of CESQG 
wastes and those entities which own or operate CESQG disposal 
facilities, including the private sector, States, local or tribal 
governments, range from $10.0M to $47.0M.
    In addition to compliance costs for those who own or operate CESQG 
facilities, States will have a cost of developing permit programs or 
other systems of prior approval to ensure that CESQG facilities comply 
with the proposal, once it is promulgated. Adoption and implementation 
of such State permit programs is required under RCRA section 
4005(c)(1)(B). 42 USC 6945(c)(1)(B). Forty-two states already have 
adopted and implemented permit programs to ensure compliance with the 
MSWLF rule (40 CFR part 258) which EPA has approved as ``adequate.'' 
The Agency has estimated that the costs for a state to develop an 
application for approval of an MSWLF permit program to be approximately 
$15,000. Because these state permit programs already contain ground 
water monitoring, corrective action, and location standards for MSWLFs 
that are quite similar to those in this proposal, EPA believes that the 
additional costs for states to revise their permit programs to reflect 
the CESQG requirements are not expected to be significant. Also, 
because of the reduced level of regulatory requirements contained in 
this CESQG proposal as compared to the MSWLF Part 258 criteria, state 
costs for preparing applications for approval of a CESQG permit program 
should be considerably less than that $15,000 figure.
    Indian tribes are not required to develop permit programs for 
approval by EPA, but the Agency believes tribal governments are 
authorized to development such permit programs and have them approved 
by EPA. EPA has estimated that it will cost a tribal government 
approximately $7,000 to prepare an application for approval of a MSWLF 
program. Because of the reduced regulatory provisions of the CESQG 
proposal, EPA expects that the costs which a tribal government might 
face in developing a permit program for CESQG facilities should be less 
than $7,000.
    EPA is also proposing to revise the requirements for generators of 
CESQG hazardous waste. These amendments to 40 CFR 261.5 (f)(3) and 
(g)(3) are proposed 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 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 Sec. 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 proposed today will not significantly or uniquely 
affect small governments, including tribal governments. EPA 
[[Page 30982]] recognizes that small governments may own or operate 
solid waste disposal facilities that receive CESQG waste. However, EPA 
currently estimates that the majority of construction and demolition 
landfills, which are the primary facilities likely to be subject to any 
final rule, are owned by the private sector. Moreover, EPA is aware 
that a number of states already require owners/operators of C&D 
landfills to meet regulatory standards that are similar to those being 
proposed today. Thus, EPA believes that the proposed rule contains no 
regulatory requirements that significantly or uniquely affect small 
governments.
    EPA has, however, sought meaningful and timely input from the 
private sector, states, and small governments on the development of 
this notice. Prior to issuing this proposed rule, EPA met with members 
of the private sector as discussed earlier in the preamble. In 
addition, EPA met twice with an ``Industrial D'' Steering Committee of 
the Association of State and Territorial Solid Waste Management 
Officials (ASTSWMO) to discuss the contents of today's proposal. The 
Agency provided a draft of the proposed rule to the ASTSWMO Steering 
Committee and incorporated comments that were received.
    Finally, included in this proposal is a provision that would allow 
certain small CESQG landfills which are located in either arid or 
remote locations and which service small communities to utilize 
alternative methods of ground water monitoring. Prior to developing 
this provision, which is also being proposed in a separate notice 
applicable to small MSWLF facilities that are in arid or remote 
locations, EPA held a series of public meetings. These meetings were 
held in June 1994 in Texas, Utah, Alaska, and Washington, DC. EPA 
received comment from a variety of parties, including States and small 
governments. Through these meetings and publication of this notice, EPA 
expects that any applicable requirements of section 203 of the Act will 
have been satisfied prior to promulgating a final rule.

XII. References

    1. Background Document for the CESQG Rule, U.S. EPA, 1995
    2. Generation and Management of CESQG Waste, U.S. EPA, Office of 
Solid Waste, Prepared by ICF, July 1994.
    3. Screening Survey of Industrial Subtitle D Establishments, Draft 
Final Report, U.S. EPA, Office of Solid Waste, Prepared by Westat, 
December 29, 1987.
    4. Construction Waste and Demolition Debris Recycling . . . A 
Primer, The Solid Waste Association of North America (SWANA), October 
1993, Publication #: GR-REC 300
    5. List of Industrial Waste Landfills and Construction and 
Demolition Waste Landfills, U.S. EPA, Office of Solid Waste, Prepared 
by Eastern Research Group, September 30, 1994.
    6. Construction and Demolition Waste Landfills, U.S. EPA, Office of 
Solid Waste, Prepared by ICF, May, 1995.
    7. National Small Quantity Hazardous Waste Generator Survey, U.S. 
EPA, Office of Solid Waste, Prepared by Abt Associates, Inc., February 
1985.
    8. Damage Cases: Construction and Demolition Waste Landfills, U.S. 
EPA, Office of Solid Waste, Prepared by ICF, May, 1995.
    9. Solid Waste Disposal Facility Criteria, 56 FR 50977, October 9, 
1991
    10. Cost and Economic Impact Analysis of the CESQG Rule, Prepared 
by ICF, 1995.

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: May 15, 1995.
Carol M. Browner,
Administrator.
    For reasons set out in the preamble, Title 40 of the Code of 
Federal Regulations is proposed to be amended as follows:
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).

    2. Sections 257.1 through 257.4 are designated as Subpart A--
Classification of Solid Waste Disposal Facilities and Practices.
    3. Section 257.1, paragraph (a) is revised to read as follows:


Sec. 257.1  Scope and purpose.

    (a) Unless otherwise provided, the criteria in Secs. 257.1-257.4 
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. 257.5-257.30 are adopted for purposes of ensuring 
that non-municipal solid waste disposal facilities 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 facilities in accordance with 
section 4010(c) of the Act.
    (1) Facilities failing to satisfy either the criteria in 
Secs. 257.1-257.4 or Secs. 257.5-257.30 are considered open dumps, 
which are prohibited under section 4005 of the Act.
    (2) Practices failing to satisfy either the criteria in 
Secs. 257.1-257.4 or Secs. 257.5-257.30 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 Solid Waste 
Disposal Facilities
Sec.
257.5  Facility standards for owners/operators of non-municipal 
solid waste disposal facilities that receive Conditionally Exempt 
Small Quantity Generator (CESQG) waste.

Location Restrictions

257.7  Airport safety.
257.8  Floodplains.
257.9  Wetlands
257.10  Fault areas.
257.11  Seismic impact zones.
257.12  Unstable areas.
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. [[Page 30983]] 

Supart B--Disposal Standards for the Receipt of Confidenfiality 
Exempt Small Generator (CESQG) Wastes at Non-Municpal Solid Waste 
Disposal Facilities


Sec. 257.5  Facility standards for owners/operators of non-municipal 
solid waste disposal facilities 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 solid waste disposal facility 
that receives CESQG hazardous waste, as defined in 40 CFR 261.5. Any 
owner/operator of a non-municipal solid waste disposal facility 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 solid waste disposal facility that does not 
meet the requirements in Secs. 257.7 through 257.12 by [Insert date 18 
months after date of publication of the final rule in the Federal 
Register] and the requirements in Secs. 257.21 through 257.28 by 
[Insert date 24 months after date of publication of the final rule in 
the Federal Register] may not receive CESQG hazardous waste. Such a 
non-municipal solid waste disposal facility continues to be subject to 
the requirements in Secs. 257.1-257.4.
    (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 facility means any non-municipal solid waste disposal 
facility that is receiving CESQG hazardous waste as of the appropriate 
dates specified in Sec. 257.5(a)(1).
    Lateral expansion means a horizontal expansion of the waste 
boundaries of an existing non-municipal solid waste disposal facility.
    New facility means any non-municipal solid waste disposal facility 
that has not received CESQG hazardous waste prior to [Insert date 18 
months after date of publication of the final rule in the Federal 
Register].
    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/Tribal Director means the chief administrative officer of the 
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  Airport Safety

    (a) Owners or operators of new facilities, existing facilities, and 
lateral expansions that are located within 10,000 feet (3,048 meters) 
of any airport runway end used by turbojet aircraft or within 5,000 
feet (1,524 meters) of any airport runway end used by only piston-type 
aircraft must demonstrate that the units are designed and operated so 
that the unit does not pose a bird hazard to aircraft.
    (b) Owners or operators proposing to site new facilities and 
lateral expansions located within a five-mile radius of any airport 
runway end used by turbojet or piston-type aircraft must notify the 
affected airport and the Federal Aviation Administration (FAA).
    (c) The owner or operator must place the demonstration in paragraph 
(a) of this section in the operating record and notify the State 
Director that it has been placed in the operating record.
    (d) For purposes of this section:
    (1) Airport means public-use airport open to the public without 
prior permission and without restrictions within the physical 
capacities of available facilities.
    (2) Bird hazard means an increase in the likelihood of bird/
aircraft collisions that may cause damage to the aircraft or injury to 
its occupants.


Sec. 257.8  Floodplains.

    (a) Owners or operators of new facilities, existing facilities, 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 facilities and lateral expansions 
shall not locate such facilities 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 MSWLF 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 facility will not cause or contribute to significant 
degradation of wetlands. The owner/operator must demonstrate the 
integrity of the facility 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 facility;
    (ii) Erosion, stability, and migration potential of dredged and 
fill materials used to support the facility;
    (iii) The volume and chemical nature of the waste managed in the 
facility;
    (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 [[Page 30984]] 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  Fault areas.

    (a) Owners or operators of new facilities and lateral expansions 
shall not locate such facilities within 200 feet (60 meters) of a fault 
that has had displacement in Holocene time unless the owner or operator 
demonstrates to the Director of an approved State that an alternative 
setback distance of less than 200 feet (60 meters) will prevent damage 
to the structural integrity of the facility and will be protective of 
human health and the environment.
    (b) For the purposes of this section:
    (1) Fault means a fracture or a zone of fractures in any material 
along which strata on one side have been displaced with respect to that 
on the other side.
    (2) Displacement means the relative movement of any two sides of a 
fault measured in any direction.
    (3) Holocene means the most recent epoch of the Quaternary period, 
extending from the end of the Pleistocene Epoch to the present.


Sec. 257.11  Seismic impact zones.

    (a) Owners or operators of new facilities and lateral expansions 
shall not locate such facilities in seismic impact zones, unless the 
owner or operator demonstrates to the Director of an approved State 
that all containment structures are designed to resist the maximum 
horizontal acceleration in lithified earth material for the site. 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 the purposes of this section:
    (1) Seismic impact zone means an area with a ten percent or greater 
probability that the maximum horizontal acceleration in lithified earth 
material, expressed as a percentage of the earth's gravitational pull 
(g), will exceed 0.10g in 250 years.
    (2) Maximum horizontal acceleration in lithified earth material 
means the maximum expected horizontal acceleration depicted on a 
seismic hazard map, with a 90 percent or greater probability that the 
acceleration will not be exceeded in 250 years, or the maximum expected 
horizontal acceleration based on a site-specific seismic risk 
assessment.
    (3) Lithified earth material means all rock, including all 
naturally occurring and naturally formed aggregates or masses of 
minerals or small particles of older rock that formed by 
crystallization of magma or by induration of loose sediments. This term 
does not include man-made materials, such as fill, concrete, and 
asphalt, or unconsolidated earth materials, soil, or regolith lying at 
or near the earth surface.


Sec. 257.12  Unstable areas.

    (a) Owners or operators of new facilities, existing facilities, and 
lateral expansions located in an unstable area must 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. 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. The owner or operator 
must consider the following factors, at a minimum, when determining 
whether an area is unstable:
    (1) On-site or local soil conditions that may result in significant 
differential settling;
    (2) On-site or local geologic or geomorphologic features; and
    (3) On-site or local human-made features or events (both surface 
and subsurface).
    (b) For purposes of this section:
    (1) Unstable area means a location that is susceptible to natural 
or human-induced events or forces capable of impairing the integrity of 
some or all of the landfill structural components responsible for 
preventing releases from a landfill. Unstable areas can include poor 
foundation conditions, areas susceptible to mass movements, and karst 
terranes.
    (2) Structural components means liners, leachate collection 
systems, final covers, run-on/run-off systems, and any other component 
used in the construction and operation of the facility that is 
necessary for protection of human health and the environment.
    (3) Poor foundation conditions means those areas where features 
exist which indicate that a natural or man-induced event may result in 
inadequate foundation support for the structural components of the 
facility.
    (4) Areas susceptible to mass movement means those areas of 
influence (i.e., areas characterized as having an active or substantial 
possibility of mass movement) where the movement of earth material at, 
beneath, or adjacent to the facility, because of natural or man-induced 
events, results in the downslope transport of soil and rock material by 
means of gravitational influence. Areas of mass movement include, but 
are not limited to, landslides, avalanches, debris slides and flows, 
soil fluction, block sliding, and rock fall.
    (5) Karst terranes means areas where karst topography, with its 
characteristic surface and subterranean features, is developed as the 
result of dissolution of limestone, dolomite, or other soluble rock. 
Characteristic physiographic features present in karst terranes 
include, but are not limited to, sinkholes, sinking streams, caves, 
large springs, and blind valleys.


Sec. 257.13  Deadline for making demonstrations.

    (a) Existing facilities that cannot make the demonstration 
specified in Secs. 257.7(a) pertaining to airports, 257.8(a) pertaining 
to floodplains, or 257.12(a) pertaining to unstable areas by [Insert 
date 18 months after date of publication of the final rule in the 
Federal Register] 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 facilities 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 
facility 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 facility 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:
    (1) Site-specific field collected measurements, sampling, and 
analysis of physical, chemical, and biological processes affecting 
contaminant fate and transport, and

[[Page 30985]]

    (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 facilities and lateral expansions must be in 
compliance with the ground-water monitoring requirements specified in 
Secs. 257.22-257.25 by [Insert date 2 years after date of publication 
of the final rule in the Federal Register]
    (2) New facilities identified in Sec. 257.5(a) must be in 
compliance with the ground-water monitoring requirements specified in 
Secs. 257.22-257.25 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 facilities and lateral 
expansions to comply with the ground-water monitoring requirements 
specified in Secs. 257.22-257.25. This schedule must ensure that 50 
percent of all existing facilities are in compliance by [Insert date 2 
years after date of publication of the final rule in the Federal 
Register] and all existing facilities are in compliance by [Insert date 
3 years after date of publication of the final rule in the Federal 
Register]. 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;
    (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 facility, 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 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 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. 257.5-2.8(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 may allow any non-municipal solid 
waste disposal unit meeting the criteria in paragraph (i) 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 solid 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 part 258 of this 
chapter). Alternative indicator parameters approved by the Director of 
an approved State or Tribe under this section must ensure detection of 
contamination from the non-municipal solid 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 solid 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 non-municipal solid waste disposal 
unit owner or operator must submit the results from expanded monitoring 
to the Director of the approved State within 60 days from the time of 
detection.
    (i) If detection indicates that contamination from the non-
municipal solid 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 detection indicates that contamination from the non-
municipal solid waste disposal unit is present in the unsaturated zone 
or on the surface, the owner or operator must, within 60 days from the 
time expanded monitoring is completed, submit for approval by the 
Director of an approved State adequate corrective measures to prevent 
further contaminant migration, and where appropriate, to remediate 
contamination. 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 subsection are 
inadequate to detect contamination and, [[Page 30986]] if necessary, to 
assess the nature and extent of contamination.
    (i) Directors of approved States can use the flexibility in 
paragraph (h) of this section for any non-municipal solid waste 
disposal facility that receives CESQG waste, if the non-municipal solid 
waste disposal facility:
    (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 solid waste disposal 
facility that meets the criteria in paragraph (i) of this section must 
place in the operating record information demonstrating this.


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. 257.21(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 facility 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;
    (2) Sample preservation and shipment;
    (3) Analytical procedures;
    (4) Chain of custody control; and
    (5) Quality assurance and quality control. [[Page 30987]] 
    (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 Sec. 257.23(h). 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 Sec. 257.23(h).
    (h) Any statistical method chosen under Sec. 257.23(g) 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).
    (A) 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.
    (B) 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.


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 part 258 of this chapter. [[Page 30988]] 
    (1) The Director of an approved State may delete any of the 
appendix I (Appendix I of part 258 of this chapter) 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 inorganic indicator parameters for a unit, in lieu of some or 
all of the heavy metals (constituents 1-15 in appendix I to part 258 of 
this chapter), if the alternative parameters provide a reliable 
indication of inorganic 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 part 258 of this chapter, 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 facility 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 part 258 of this chapter) 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 part 
258 of this chapter) 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) 
of this part, that there is a statistically significant increase over 
background for one or more of the constituents listed in appendix I to 
part 258 of this chapter, 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/Tribal 
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 part 258 of this chapter 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 part 
258 of this chapter. 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 part 258 of this chapter) 
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 part 258 of this chapter) 
constituents during assessment monitoring. The Director of an approved 
State may delete any of the appendix II (appendix II of part 258 of 
this chapter) 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 part 258) constituents required by 
Sec. 257.25(b), 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 part 258 of this chapter) 
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), conduct analyses for 
all constituents in appendix I (appendix I of part 258 of this chapter) 
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 part 
258 that are detected in response to paragraph (b) of this section, and 
record their concentrations in the facility [[Page 30989]] 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 part 258 of this chapter) 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 part 
258 of this chapter) 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 of this chapter) 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 part 258 of this 
chapter) 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 part 258 of this 
chapter) 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 Sec. 257.25(d)(2);
    (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 with Sec. 257.25(g)(1); 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 a MSWLF 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 Sec. 257.25, and may return to detection 
monitoring if the appendix II (appendix II of part 258 of this chapter) 
constituents are at or below background as specified in Sec. 257.25(e). 
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 part 258 of this chapter) 
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 paragraph (h)(1) of this section or health 
based levels identified under Sec. 257.25(i)(1), 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) with 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 part 258 of this chapter) 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 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 [[Page 30990]] 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 part 258 of this chapter) 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 redisposal or 
containment;
    (v) Time until full protection is achieved;
    (vi) Potential for exposure of humans and environmental receptors 
to remaining wastes, considering the potential threat to human health 
and the environment associated with excavation, transportation, 
redisposal, 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 facility 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 part 258 of 
this chapter) 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 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 [[Page 30991]] 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 of this chapter) 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 part 258 of this chapter) 
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 solid waste disposal 
facility 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/Tribal 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 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 [[Page 30992]] (a) and (b) of this section, except for the 
notification requirements in Secs. 257.7(b) and 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 solid waste and, if managed in a non-municipal solid waste 
disposal facility is subject to the requirements in Secs. 257.5 through 
257.30 of this chaper; 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.
    (g) * * *
    (3) A conditionally exempt small quantity generator may either 
treat or dispose of this 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 solid waste and, if managed in a non-municipal solid waste 
disposal facility 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.
* * * * *

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. 8905, 8912(a), and 8926.

    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                           
------------------------------------------------------------------------
                        Title of      Federal Register                  
Promulgation date      regulation         reference      Effective date 
------------------------------------------------------------------------
                                                                        
      *                   *                   *                   *     
                   *                   *                   *            
[Insert date of    Revisions to       [Insert           [Insert date 18 
 publication of     Criteria           publication       months after   
 the final rule     applicable to      citation of the   date of        
 in FR].            solid waste        final rule].      publication in 
                    disposal                             FR of the final
                    facilities that                      rule].         
                    may accept CESQG                                    
                    hazardous                                           
                    wastes,                                             
                    excluding MSWLFs.                                   
------------------------------------------------------------------------

[FR Doc. 95-14065 Filed 6-9-95; 8:45 am]
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