EPA's New Land Disposal Standards

Susan Bromm

Ms. Bromm is an attorney/advisor with the Office of Solid Waste of the U.S. Environmental Protection Agency. The views in this article are the author's and do not necessarily represent those of the Agency.

[12 ELR 15027]

On July 26, 1982, the Environmental Protection Agency (EPA) promulgated the long awaited hazardous waste land disposal standards.¹ Publication of these regulations, which apply to hazardous waste landfills, surface impoundments, waste piles, and land treatment facilities, completes the core hazardous waste management regulatory program under Subtitle C of the Resource Conservation and Recovery Act (RCRA).² Further regulatory activity is planned, however, to "fine tune" existing regulations. The new regulations, which form the basis for granting permits³ to new and existing hazardous waste land disposal facilities, rely on a two-pronged approach for protection of human health and the environment. They establish a performance-oriented groundwater protection standard, implemented through groundwater monitoring and, if contamination is detected, corrective action. In addition, they prescribe performance-based design and operating standards aimed at preventing the release of waste and waste constituents during the facility's operating life and post-closure care period.

History of Regulatory Development

The Agency's efforts to promulgate these standards began with a proposed rulemaking in December 1978.⁴ The proposal set uniform design requirements from which variances could be granted based on a showing that alternative designs achieved an equivalent degree of protection. After considerable criticism of the proposal as being too inflexible and failing to establish clearly defined performance goals, EPA abandoned its original proposal and on February 5, 1981⁵ reproposed standards for land disposal facilities. The February 5 reproposal adopted an entirely different regulatory philosophy, an approach often referred to as risk assessment or best engineering judgment. The February 5 proposed rule required a site-specific assessment of the risks presented by a facility based on extensive information and evaluation submitted by the permit applicant. This information and analysis would be used by the permitting entity in its decision on whether or not to grant a permit, and in deciding on the appropriate design and operating requirements to include in it. This approach was also harshly criticized. Critics suggested that it was both too vague, because it provided no certainty as to what constituted an acceptable facility, and too demanding, because the information and analysis requirements were expensive and beyond the state-of-the-art.

In light of the poor reception accorded these proposals, EPA once again went back to the drawing board to develop and propose a third set of land disposal standards. Until final standards were promulgated, existing facilities would remain subject to the interim status standards which had been promulgated on May 19, 1980.⁶ In the meantime, temporary standards for permitting new land disposal facilities had been promulgated on February 13, 1981.⁷ Without such standards, no new hazardous waste land disposal facilities could be constructed. The temporary standards were essentially broad performance goals, leaving the establishment of design and operational requirements up to the permitting process. The February 13 regulations were seen as a temporary solution, and by their own terms were to expire in February 1983 or when permanent standards were promulgated, whichever occurred first.⁸

The Agency's plans to eventually propose a third set of land disposal standards were quickly changed when on November 13, 1981, Judge Gerhard Gesell issued an order in Illinois v. Gorsuch⁹ directing EPA "to promulgate regulations for existing hazardous waste land disposal facilities on or before February 1, 1982." In response, EPA immediately began work to issue a set of land disposal standards by that date. The district court denied a motion for reconsideration filed by the Agency, however, on January 22, 1982, granted a 14-day stay pending appeal of its February 1 promulgation order. On February 2, 1982, EPA and Justice Department attorneys filed an appeal with the U.S. Court of Appeals for the District of Columbia Circuit. The D.C. Circuit granted a stay of the lower court order pending the outcome of the appeal. Oral arguments on the appeal were held before a three-judge panel on June 1, 1982. The court of appeal's decision,¹⁰ handed down on June 7, 1982, gave the Agency just over a month to issue final regulations, ordering promulgation by July 15, 1982.

Coverage

Although Judge Gesell's order addressed only standards for existing facilities, the new regulations also include permanent standards for new facilities. Including standards for new facilities, essentially completes the [12 ELR 15028] RCRA Subtitle C regulatory program. As a result, final state authorization can begin, allowing states to administer their own permitting programs, once they were determined to be "equivalent" to and "consistent" with the federal program.¹¹ The regulations promulgated on July 26 replace the temporary standards promulgated on February 13, 1981 for all types of new land disposal facilities except injection wells. RCRA standards for injection wells will be issued at a later date. The new regulations also supercede the interim final standards promulgated on January 12, 1981 for new and existing waste piles and surface impoundments used for storing hazardous wastes.¹²

Regulatory Framework

Under the two-pronged approach of the new regulations, facilities are subject to both the groundwater protection requirements and a set of design and operating requirements, specified to the type of facility (i.e., landfill, waste pile, surface impoundment, or land treatment). In defining which waste management components are subject to the groundwater protection requirements, EPA uses the term "regulated unit." A unit is a contiguous area of land on or in which waste is placed. Examples of units include a single surface impoundment or a single waste pile. A "regulated unit" is any unit that receives hazardous waste after January 26, 1983 (the effective date of the regulations). All regulated units are subject to the groundwater protection provisions unless they have been constructed with a double liner system incorporating a leak detection system between the liners. The underlying rationale for this exemption is that the facility's design, coupled with an alternative monitoring system (i.e., the leak detection system) for detecting breaches in the uppermost liner, provide an acceptable substitute for groundwater monitoring. If a leak is detected, the uppermost liner must be repaired or replaced or, alternatively, the facility must begin complying with the groundwater protection requirements. Also exempt from the groundwater protection requirements are facilities located in areas with deep, tight soils (e.g., clay) that will prevent the migration of leachate to groundwater for at least 30 years after closure.

All permitted facilities are subject to the design and operating requirements; however, "existing portions" of existing facilities are not required to install liners or leachate collection and removal systems.¹³ By definition, existing portions are land areas on which wastes have been placed prior to permit issuance. Thus, lateral expansions of existing facilities after permit issuance are required to meet the liner requirements. The distinction between new and existing facility standards is based in part, on a 1980 amendment to § 3004 of RCRA.¹⁴ That amendment states "in establishing such [permitting] standards the Administrator shall, where appropriate, distinguish in such standards between requirements appropriate for new facilities and for facilities in existence on the date of promulgation of such regulations." The legislative history of this provision indicates Congress' concern over the potential burden on existing facilities if retrofitting to meet design standards is required. Further, exhuming wastes for the purpose of installing liners in existing facilities may present far greater risks than continuing operation of an unlined facility. However, critics have pointed out that the regulations make no attempt to distinguish those situations in which retrofitting would not be dangerous or burdensome. EPA has requested comments on the scope of this exemption.

Existing facilities are, however, subject to all other design and operating standards. These standards are roughly equivalent to the interim status standards under which existing facilities are now regulated, although in some cases they are expressed in terms of a more specific performance standard. Included in these generally applicable design and operating standards are run-on and run-off control,¹⁵ wind dispersal control,¹⁶ restrictions on the disposal of ignitable and reactive wastes,¹⁷ restrictions on the disposal of incompatible wastes,¹⁸ restrictions on the disposal of liquids in landfills,¹⁹ and final cover (cap) requirements for disposal facilities.²⁰

New facilities may be eligible for an exemption from the liner system requirements based on a demonstration that "alternate design and operating practices, together with location characteristics, will prevent the migration of any hazardous constituents into groundwater or surface water at any future time."²¹ This demonstration places a fairly onerous burden on permit applicants and thus will probably be accepted in only a small number of cases.

Groundwater Protection Standard

The heart of the groundwater protection requirements is the assumption that significant leachate plumes reaching groundwater can and will be detected and removed [12 ELR 15029] through corrective action (e.g., counter pumping). This requirement represents a significant step forward from the interim status standards, which mandate groundwater monitoring to detect contamination but do not establish a groundwater protection standard or prescribe a "cure" when contamination occurs. Although there is limited experience with corrective action to remove contamination from groundwater, this is likely to be a very expensive undertaking and should provide an economic incentive for owners and operators to employ designs and operating practices that minimize the chance that corrective action will be necessary.

The groundwater protection program is comprised of three phases — detection monitoring, compliance monitoring, and the corrective action program. New facilities and existing facilities at which no groundwater contamination has been detected during the interim status period will initially begin in the detection monitoring phase.²² During this phase, owners and operators are required to conduct a groundwater monitoring program typically using a small number of surrogate monitoring parameters capable of detecting broad classes of organic and inorganic hazardous constituents. Monitoring is to be conducted in the uppermost groundwater aquifer at the waste management area boundary. This monitoring must continue throughout the facility's operating life and the post-closure care period (normally 30 years after closure). If no statistically significant contamination (over pre-established background levels) is detected during this period, the owner or operator has fulfilled his permit responsibilities and may cease monitoring.

If detection monitoring indicates that leachate has reached groundwater, the second phase of the program, compliance monitoring,²³ is triggered. Once leachate is detected, the owner or operator must analyze groundwater for specific hazardous constituents that are known to be in the waste at the facility and determine their concentrations. Appropriate hazardous constituents must be selected from a list of 387 constituents promulgated by the Agency on May 19, 1980.²⁴ The information on hazardous constituent concentrations must be submitted to the Agency within 90 days of detection, along with a permit modification application to begin the compliance monitoring program. EPA will then (after a public hearing) modify the permit to include a groundwater protection standard. This standard identifies the hazardous constituents for which monitoring must be conducted and the allowable concentration limits for these constituents. For the 14 hazardous constituents covered by the National Interim Primary Drinking Water Regulations (NIPDWR),²⁵ under the Safe Drinking Water Act,²⁶ the allowable concentration limits are those which have been specified as the maximum concentration limits for drinking water, or background concentrations (i.e., the concentrations already present in groundwater in the aquifer which has not been affected by a regulated unit), whichever is higher. For all other hazardous constituents, the concentration must not exceed background levels. However, the owner or operator has the opportunity to demonstrate that a concentration above background will not adversely affect human health and the environment. If a successful demonstration can be made for some or all hazardous constituents, the groundwater protection standard written into the permit will incorporate these alternate concentration limits. If the demonstration is not attempted or is unsuccessful, the standard for constituents other than the NIPDWR constituents is no statistically significant increase over background.

Compliance monitoring begins when leachate is detected and must continue for a number of years equal to the entire operating life of the facility. Thus, if a facility with an operating life of 20 years detects contamination in the 15th year of operation, compliance monitoring begins in the 15th year and continues for an additional 20 years. If the concentration limits established in the permit are not exceeded during this period, compliance monitoring ceases. However, should the specified concentration limits be exceeded at any time during the compliance monitoring phase, a corrective action program must be instituted.

If compliance monitoring indicates an excessive concentration of hazardous constituents, the owner or operator must immediately notify EPA and within six months submit an application for a permit modification for a corrective action program.²⁷ This application must explain what actions the owner/operator proposes in order to return groundwater quality to within the acceptable concentration limits established in the compliance monitoring phase. The application must also include a groundwater monitoring scheme to verify the results of corrective action. Corrective action must continue until groundwater quality at the waste management boundary is again within the limits established in the groundwater protection standard for the unit.

Existing facilities at which contamination has been discovered prior to permit issuance (i.e., during the interim status period) do not begin with detection monitoring but rather enter directly into the compliance monitoring phase, or, in some cases, the corrective action program.²⁸ At such facilities, concentration limits will be established as part of the original permit and demonstrations for alternate concentration limits may be made as part of the original permit application. If concentrations exceed these established limits, corrective action must begin immediately.

Corrective action requirements are described in terms of the performance to be achieved, namely returning the concentration of hazardous constituents in the groundwater to within established concentration limits by removing the hazardous constituents or treating them in place. The regulations do not specify what type of corrective action must be undertaken, leaving this open for a [12 ELR 15030] case-by-case determination. The preamble suggests that containment of contaminated groundwater via slurry walls is not adequate alone; however, the use of slurry walls with counter pumping may constitute an acceptable corrective action program.²⁹

Previously promulgated RCRA regulations³⁰ require owners and operators of land disposal facilities to establish financial assurances (e.g., trust funds or bonds) for purposes of closure and post-closure activities. No similar requirements have been promulgated for the purpose of assuring that adequate resources are available for conducting corrective action, if it becomes necessary. However, establishing reasonable, yet adequate, financial assurance requirements is extremely difficult because of the uncertainties involved in predicting if or when corrective action will be necessary at a particular site. The Agency does, in the preamble to the land disposal rules, request comments on the issue of financial assurances for corrective action.³¹

Design and Operating Standards

While the groundwater protection measures are curative in nature, the design and operating requirements are aimed at preventing groundwater contamination. As mentioned previously, new landfills, surface impoundments, and waste piles are required to have liner systems; existing portions of these facilities are not. Liner systems must be designed to prevent any migration of wastes out of the facility into adjacent subsurface soil or groundwater or surface water during the facility's operating life and closure period.

At storage facilities, migration of waste into the liner is acceptable,³² because storage facilities, by definition, will remove all wastes and contaminated liners at closure. This standard permits the use of single clay liners at waste piles and storage surface impoundments. Disposal facility liners, on the other hand, must be designed to prevent migration of wastes into the liner as well as the subsurface soil.³³ In effect, this rules out the use of clay liners at disposal facilities. EPA states in the preamble that, to its knowledge, only synthetic liners will meet this standard.

Both new and existing surface impoundments and landfills must place a final cap on the facility at closure to minimize the infiltration of precipitation and run-on.³⁴ This in turn is intended to minimize the generation of leachate after closure.

New landfills and waste piles are required to have leachate collection and removal systems to remove leachate generated during the operation of the facility and, in the case of landfills, during the post-closure care period.³⁵ Waste piles, by definition, are storage facilities and thus will not be subject to post-closure care unless all reasonable efforts to remove or decontaminate contaminated components and subsoils fail and the pile must be closed as a landfill.³⁶

The new regulations include restrictions on the disposal of liquids in landfills that parallel the corresponding provisions in the interim status standards. Containers holding liquids may not be placed in landfills unless all free-standing liquid is absorbed, solidified, or otherwise eliminated.³⁷ Bulk liquids may only be disposed of in landfills with liners and leachate collection and removal systems which meet the performance standard specified for new facilities.

Air emissions from hazardous waste disposal facilities are not addressed except to the extent that the regulations require the control of wind dispersal of particulate matter. The Agency commits itself, in the preamble, to further study of the problem of volatile (gaseous) emissions from disposal facilities and to regulatory action, if warranted.

Implementation

All hazardous waste management facilities in existence on November 19, 1980 were required to file a notification and Part A of a permit application with EPA. The actual permitting process begins when the Agency calls in Part B of a facility's permit application. Part B applications for land disposal facilities will be called in as soon as the standards become effective on January 26, 1983.

In accordance with previously promulgated regulations,³⁸ owners and operators have at least six months from the date of request to submit their Part B application. After a draft permit has been developed, public notice is given and a comment period is provided. A public hearing on the draft permit will be held if there is a "significant degree of public interest."³⁹ After the close of the public comment period and the public hearing, significant public comments are addressed and a final permit decision is made. Permits become effective 30 days after the service of notice of the decision.

In a separate Federal Register notice,⁴⁰ also published on July 26, 1982, EPA announced that states could immediately begin applying for the final phase of state authorization. Once a state receives final authorization, it takes over the principal role of issuing permits and enforcing permit conditions.

[12 ELR 15031]

Upcoming Regulatory Activities Under RCRA

Although the land disposal standards were the last major piece of the RCRA Subtitle C regulations left to be promulgated, other rules are under development. There are several types of hazardous waste management processes for which final permitting standards have not yet been issued. These include: treatment or storage in certain types of underground tanks, thermal treatment of hazardous wastes other than incineration, treatment of hazardous wastes by chemical, physical, or biological methods (other than in containers, tanks, surface impoundments, water piles, or land treatment facilities), and RCRA standards for wells injecting hazardous wastes underground. Along with filling in these missing pieces, EPA has identified several other areas in which amendments are likely.⁴¹ These amendments are expected to reflect the "degree of hazard" philosophy — tailoring the stringency of the controls required to the level of risk presented considering factors such as waste type, facility type, and location.

With the promulgation of this crucial "final piece" of hazardous waste management standards, the RCRA program is on the verge of moving forward into full-scale implementation. When these regulations become effective on January 26, 1983, there will indeed be a "cradle-to-grave" management system for hazardous waste.

1. 47 Fed. Reg. 32274-373 (July 26, 1982).

2. The Solid Waste Disposal Act, as substantially amended by the Resource Conservation and Recovery Act of 1976, as amended, 42 U.S.C. § 6901 et seq., ELR STAT. & REG. 41901.

3. Permits are required by § 3005(a) of RCRA (42 U.S.C. § 6925(a), ELR STAT. & REG. 41909) for all facilities which treat, store, or dispose of hazardous waste.

4. 43 Fed. Reg. 58946 (1978).

5. 46 Fed. Reg. 11126 (1981).

6. 45 Fed. Reg. 33154 (May 19, 1980), 40 C.F.R. pt. 265, ELR STAT. & REG. 47335. Section 3005 of RCRA specifies that if the owner or operator of a facility in existence on November 19, 1980 notifies EPA (as required by § 3010 of RCRA, ELR STAT. & REG. 41912) and properly applies for a permit, the facility owner or operator is to "be treated as having been issued such permit." Such an owner or operator has "interim status" and is subject to the "interim status standards" until he is issued a permit.

7. 40 C.F.R. pt. 267, 46 Fed. Reg. 12414 (1981).

8. The two-year expiration date was based on the Agency's estimate of the time required to take comments on the February 5 proposal, promulgate a final rule, and allow six months for the regulations to become effective, as required by § 3010(b) of RCRA, ELR STAT. & REG. 41912.

9. 530 F. Supp. 340, 12 ELR 20101 (D.D.C. 1981).

10. Citizens for a Better Environment v. Gorsuch, 12 ELR 20755 (D.C. Cir. June 7, 1982).

11. RCRA § 3006, 42 U.S.C. § 6926, ELR STAT. & REG. 41910.

12. 40 C.F.R. pt. 264, subpts. K & L. On October 20, 1981, EPA had proposed to suspend the effective date of the January 12 rules as applied to existing storage surface impoundments in order to re-examine their appropriateness. 46 Fed. Reg. 51407. This proposal was withdrawn on July 26 because of the promulgation of a new set of standards for existing surface impoundments. 47 Fed. Reg. 32318 (1982).

13. 47 Fed. Reg. 32357 (July 26, 1982) (to be codified in 40 C.F.R. § 264.221(a)), 47 Fed. Reg. 32359 (40 C.F.R. § 264.251(a)), 47 Fed. Reg. 32365 (40 C.F.R. § 264.301(a)).

14. 42 U.S.C. § 6924, ELR STAT. & REG. 41909.

15. 47 Fed. Reg. 32357 (July 26, 1982) (to be codified at 40 C.F.R. § 264.221(c) & (d)), 47 Fed. Reg. 32360 (40 C.F.R. § 264.251(c) & (d)), 47 Fed. Reg. 32362 (40 C.F.R. § 264.273(c) and (d)), 47 Fed. Reg. 32365 (40 C.F.R. § 264.301(c) & (d)).

16. 47 Fed. Reg. 32360 (July 26, 1982) (to be codified at 40 C.F.R. § 264.251(f)), 47 Fed. Reg. 32362 (40 C.F.R. § 264.273(f)), 47 Fed. Reg. 32365 (40 C.F.R. § 264.301(f)).

17. 47 Fed. Reg. 32359 (July 26, 1982) (to be codified at 40 C.F.R. § 264.229), 47 Fed. Reg. 32360 (40 C.F.R. § 264.256), 47 Fed. Reg. 32364 (40 C.F.R. § 264.281), 47 Fed. Reg. 32366 (40 C.F.R. § 264.312).

18. 47 Fed. Reg. 32359 (July 26, 1982) (to be codified at 40 C.F.R. § 264.230), 47 Fed. Reg. 32361 (40 C.F.R. § 264.257), 47 Fed. Reg. 32365 (40 C.F.R. § 264.282), 47 Fed. Reg. 32366 (40 C.F.R. § 264.313).

19. 47 Fed. Reg. 32366 (July 26, 1982) (to be codified at 40 C.F.R. § 264.314).

20. 47 Fed. Reg. 32358 (July 26, 1982) (to be codified at 40 C.F.R. § 264.228(a)(2)(iii)), 47 Fed. Reg. 32366 (40 C.F.R. § 264.310(a)).

21. 47 Fed. Reg. 32357 (July 26, 1982) (to be codified at 40 C.F.R. § 264.221(b)), 47 Fed. Reg. 32359 (40 C.F.R. § 264.251(b)), 47 Fed. Reg. 32365 (40 C.F.R. § 264.301(b)).

22. 47 Fed. Reg. 32350 (July 26, 1982) (to be codified at 40 C.F.R. § 264.91(a)(4)).

23. 47 Fed. Reg. 32350 (July 26, 1982) (to be codified at 40 C.F.R. § 264.91(a)(1)).

24. 40 C.F.R. pt. 261, app. VIII, 45 Fed. Reg. 33132 (1980). Appendix VIII contains a list of constituents which have been shown to have toxic, carcinogenic, mutagenic, or teratogenic effects on human life or other life forms.

25. 40 C.F.R. pt. 141.

26. 42 U.S.C. § 300(f) et seq., ELR STAT. & REG. 41101.

27. 47 Fed. Reg. 32354 (July 26, 1982) (to be codified at 40 C.F.R. § 264.99(i)(2)).

28. 47 Fed. Reg. 32350 (July 26, 1982) (to be codified at 40 C.F.R. § 264.91(a)(1), (2) & (3)).

29. 47 Fed. Reg. 32310 (July 26, 1982).

30. 40 C.F.R. pt. 364, subpt. H.

31. 47 Fed. Reg. 32279-80 (July 26, 1982).

32. 47 Fed. Reg. 32357 (July 26, 1982) (to be codified at 40 C.F.R. § 264.221(a)), 47 Fed. Reg. 32359 (40 C.F.R. § 264.251(a)).

33. 47 Fed. Reg. 32357 (July 26, 1982) (to be codified at 40 C.F.R. § 264.221(a)), 47 Fed. Reg. 32365 (40 C.F.R. § 264.301(a)).

34. 47 Fed. Reg. 32358 (July 26, 1982) (to be codified at 40 C.F.R. § 264.228(a)(2)(iii)), 47 Fed. Reg. 32366 (40 C.F.R. § 264.310(a)).

35. 47 Fed. Reg. 32359 (July 26, 1982) (to be codified at 40 C.F.R. § 264.251(a)(2)), 47 Fed. Reg. 32365 (40 C.F.R. § 264.301(a)), 47 Fed. Reg. 32366 (40 C.F.R. § 264.310(b)(3)).

36. 47 Fed. Reg. 32361 (July 26, 1982) (to be codified at 40 C.F.R. § 264.258(b)).

37. An interim rule prohibiting the landfill disposal of containers holding freestanding liquids was promulgated in the Part 265 interim status standards on March 22, 1982, 47 Fed. Reg. 12316. This temporary rule was promulgated after strong public opposition resulted from EPA's February 25, 1982 action suspending the existing rule, which prohibited the landfill disposal of containerized liquid waste, and their proposal of a less stringent rule.

38. 40 C.F.R. pts. 122 & 124.

39. 40 C.F.R. § 124.12(a).

40. 47 Fed. Reg. 32378 (July 26, 1982)

41. See, e.g., 47 Fed. Reg. 32280 (July 26, 1982) for a discussion of EPA's plans to publish a separate set of standards for monofills and neutralization surface impoundments.