Final Rule: Post-Closure Permit Requirement and Closure Process
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Background
Under Subtitle C of the Resource Conservation and Recovery Act (RCRA), Congress gives EPA the authority to regulate the permitting of hazardous waste treatment, storage, and disposal facilities. In 1982, EPA promulgated rules applicable to regulated land disposal units, including rules governing closure of those units, and rules requiring owners and operators of land disposal units to obtain a post-closure permit if they leave hazardous waste in place after closure.
In the 1984 Hazardous and Solid Waste Amendments, Congress expanded EPA’s authority to implement corrective action for releases from all solid waste management units (SWMUs) located at hazardous waste facilities. As a result, EPA’s closure and post-closure requirements applied to regulated units, while other SWMUs at the same facilities were addressed under the Agency’s newer corrective action authority. After implementing this dual regulatory structure for several years, EPA recognized a need for flexibility in its regulations.
As a result, on October 22, 1998, EPA promulgated revisions to its regulations to coordinate the implementation of RCRA closure, post-closure care, and corrective action requirements (also referred to as the “Post-Closure Rule”).
Post-Closure Rule
The Post-Closure Rule amended the regulations under the RCRA in two key areas.
1. Post-Closure Permit Flexibility for Non-permitted Facilities:
First, the Agency modified the requirement for a post-closure permit, to allow EPA and the authorized states to use a variety of authorities to impose requirements on non-permitted land disposal units requiring post-closure care. As a result of this rule, regulators have the flexibility to use alternate mechanisms under a variety of authorities to address these requirements at non-permitted facilities, based on the particular needs at the facility. Facilities that receive enforceable documents in lieu of post-closure permits must continue to meet all requirements of the regulations applicable to non-permitted facilities and must meet the additional requirements outlined in the rule at Title 40 of the Code of Federal Regulations (CFR) section 265.121 – that is, they must submit information about the facility as specified in the regulations, conduct facility-wide corrective action, and comply with the groundwater requirements applicable under permits. In addition, the Agency must provide for meaningful public involvement at three key stages in the corrective action process – when it becomes involved in the corrective action activities at the facility, during remedy selection, and prior to making a decision that corrective action is complete at the facility. These requirements assure that closed facilities addressed under alternate authorities are subject to the same level of environmental protection as facilities regulated under post-closure permits, while allowing regulators flexibility to use the best tool available to address the facility.
2. Alternate Requirements for Regulated Units in Cases of Commingled Releases:
Second, for all facilities, the Agency amended the regulations to allow EPA and the authorized states to replace the groundwater and/or closure requirements at regulated units with similar, site-specific requirements developed through the corrective action process. The new requirements would be specified in a permit directly or incorporated into the permit by reference to an enforceable document for permitted facilities, or in an enforceable document for interim status facilities.
The flexibility to replace the groundwater requirements of Subpart F is available to the regulator under the following conditions:
- When the regulated unit is situated among solid waste management units (SWMUs) (or areas of concern), a release has occurred, and both the regulated unit and the SWMU(s) are likely contributors to the release (i.e., commingled releases); and
- When EPA determines it is not necessary to apply the hazardous waste groundwater requirements because the alternative requirements developed through the corrective action process will protect human health and the environment.
The flexibility to replace the closure requirements of subpart G is available to the regulator under the following conditions:
- The regulated unit is situated among SWMUs (or areas of concern), a release has occurred, and both the regulated unit and the SWMUs (or areas of concern) are likely to have contributed to the release; and
- When EPA determines it is not necessary to apply the closure requirements because the alternative requirements developed through the corrective action process will protect human health and the environment and will satisfy the closure performance standard.
Additionally, when the closure or groundwater requirements are developed through corrective action, the rule also allows regulators to develop site-specific financial assurance requirements for the regulated unit. In order to do this, the regulator must also determine that it is not necessary to apply the financial assurance requirements prescribed in the Subpart H regulations because the alternative financial assurance requirements will protect human health and the environment.
In order to implement these flexibilities, the rule also provides regulators the flexibility to modify the post-closure requirements (e.g., the engineering and/or institutional controls) with any site-specific groundwater, closure, or financial assurance requirements developed through the corrective action process and approved for a regulated unit as described above. For example, at a regulated unit where closure was addressed through the corrective action process rather than the closure regulations, the post-closure care requirements to maintain a cap may be incongruous with a remedy that did not require a cap.
As a result of the post-closure rule, EPA and the authorized States have discretion to use corrective action requirements, rather than the prescribed regulatory requirements (refer to the table below), to address the regulated units. This flexibility reduces the potential for confusion and inefficiency created by the application of two different regulatory requirements. This second part of the rule does not affect the unit’s status as a regulated treatment, storage or disposal unit, nor does it affect the permit requirement for owners and operators.
Recap of the main applicable regulations for number 2 Alternate Requirements for Regulated Units in Cases of Commingled Releases:
|
If Permitted (under 40 CFR 264) |
If Interim Status (under 40 CFR 265) |
Requirements for regulated units that, under certain conditions, may be replaced in a cleanup where there are commingled releases. The regulators (not the owner or operator) determine whether these types of replacements are appropriate. |
|---|---|---|
| 264.110(c) | 265.110(d) | CLOSURE. The parts 264 and 265 subpart G closure requirements can be replaced by site-specific corrective action remedy requirements per these regulations. |
| 264.90(f) | 265.90(f) | GROUNDWATER. The requirements can be replaced per these regulations for (1) groundwater monitoring and corrective action for releases to groundwater in sections 264.91-264.100, and (2) for part 265 subpart F groundwater monitoring. |
| 264.140(d) | 265.140(d) | FINANCIAL REQUIREMENTS. the financial assurance requirements of parts 264 and 265 subpart H can be replaced where the closure or groundwater requirements were replaced per these regulations. |
| 264.118(b)(4) | 265.118(c)(5) | POST-CLOSURE If using any of the alternative requirements listed in the three rows above, the post-closure plan should reflect the alternate requirements instead of the otherwise applicable regulatory requirements. |