Under the Resource Conservation and Recovery Act (“RCRA”), 42 U.S.C. §§6901 et seq., hazardous waste land disposal units in operation after November 19, 1980 are subject to the RCRA hazardous waste management regulatory program. After closure of a hazardous waste land disposal unit where waste remains in place, RCRA regulations require the owner or operator (“owner/operator”) to perform post-closure care activities and provide financial assurance for the estimated costs of the post-closure care. The regulations require a 30-year post-closure care period, though the post-closure period may be extended by EPA or an authorized state if it can be demonstrated that an extension is “necessary to protect human health and the environment.”[i]
We previously prepared a white paper, Liability of Hazardous Waste Land Disposal Units Beyond RCRA Post Closure Care Period, which examined the considerable discretion afforded to agencies in their decisions to extend post-closure care periods and release the financial assurance requirement and the substantial uncertainty it creates for owner/operators. However, as closed landfills around the country have continued reaching the end of their post-closure care periods, owner/operators and industry trade groups raised questions regarding their regulatory obligations and liabilities for closed units once the post-closure care period ends. Acknowledging these longstanding concerns, the U.S. Environmental Protection Agency (“EPA”) recently issued long-awaited guidance to help state and federal regulators determine whether the post-closure care period should be adjusted or allowed to end in December 2016.[ii] The new guidance provides insight into when post-closure care periods may be adjusted allowing owner/operators to better evaluate long-term waste management strategies and understand the associated costs. An overview of the key facets of the new criteria for adjusting post-closure care periods is provided below.
Criteria for Evaluating the Post-Closure Care Period
EPA’s 2016 guidelines are intended to assist evaluators in determining whether the post-closure period should be extended by clarifying what may be “necessary to ensure protection of human health and the environment.” The guidelines emphasize the need for continued monitoring in cases where hazardous wastes remain a risk and recommends criteria that permitting authorities should consider when evaluating facilities near the end of the post-closure care term.
According to the guidance document, the overarching consideration in determining whether to extend the post-closure care period is the inherent uncertainty associated with the long-term presence of hazardous waste in the unit. The greater the uncertainty associated with a site, the greater the need for increased monitoring. For example, the continued presence of hazardous waste in a unit and uncertainty over whether controls will continue to function as planned, indicate a need for continued monitoring until it can be demonstrated the risk that contaminants will migrate from the unit has been adequately minimized or that in the event the engineering controls fail, a release would not pose an unacceptable risk to human health and the environment.
The guidance document recommends specific evaluation criteria that can be used to determine whether an adjustment to the post-closure care period may be necessary to ensure protection of human health and the environment.
1. Application of Current Regulatory Standards
A primary criterion is the degree of risk associated with the wastes in the unit at the time of evaluation. EPA recommends evaluators looks at the toxicity of constituents, whether constituents become less toxic with time, and whether they are compatible with the liner. In order to help regulators effectively evaluate the nature of the hazardous wastes present, EPA recommends owner/operators provide up-to-date information to inform regulators’ evaluations. Owner/operators should review and update the list of constituents to analyze as scientific understanding of constituents evolved to account for any new information on toxicity and carcinogenicity. In addition, owner/operators should keep apprised of changes in regulatory standards and update the performance goals articulated in their post-closure plans, as necessary.
2. Compliance with Land Disposal Restrictions Program
Similarly, EPA considers whether hazardous waste was disposed at a site prior to 1984, the effective date of the Land Disposal Restrictions (“LDR”) program, as an important piece of information when evaluating site-specific conditions because the LDR program ensures that wastes are properly treated or stabilized prior to disposal.[iii] Sites that were subject to the uncontrolled land disposal of hazardous waste pose a greater risk and are more likely to be subject to extended post-closure care requirements.
3. Compliance with Minimum Technology Requirements
Another factor EPA emphasizes is a disposal unit’s ability to contain hazardous wastes over the long term. To evaluate a disposal unit, the main determinant is whether the unit was in existence at the time the minimum technology requirements were promulgated in 1992 or whether the disposal unit was retrofitted to comply with these requirements.[iv]
4. Location, Location, Location
EPA indicated that regulators should evaluate the geology and hydrogeology of a site, as well as its proximity to residential areas and surface and drinking water sources. In addition, EPA advises that potential climate change effects, such as increased flooding and storm events, should be taken into account when making a site geology assessment.
5. Overall Facility History
According to EPA, a well-managed facility is more likely to maintain its structural integrity over the long term. Good compliance records, routine maintenance and inspections, and emergency preparedness indicate that a unit is adequately managed. Well-managed facilities have closure plans that minimize the need for ongoing monitoring and maintenance and have comprehensive and accurate facility records. On the other hand, facilities with a history of noncompliance and past releases may be subject to an extension of the post-closure care period.
In addition to the above, EPA identified a number of other criteria that regulators may also want to consider, such as the results of leachate monitoring, groundwater quality, gas collection system integrity, cover system integrity, and maintenance requirements of engineering controls.
What This Means to You
While EPA’s guidance document provides additional insight into the criteria that regulators may use to extend post-care closure periods, the guidance does not establish concrete and uniform criteria or indicate how regulators should weigh the different factors. Although this flexibility is intended to reflect the variations in sites across the country, it has caused a few industry groups to assert that the guidance will make it easier for states to extend post-closure care periods. The absence of guidance had previously deterred states from extending post-closure periods, according EPA’s Office of Inspector General (“OIG”), because they feared litigation with owner/operators.[v] This guidance provides a framework for regulators to justify their extension decisions.
Additionally, the guidance also clarifies that owner/operators should not assume their obligations expire at the end of the 30-year period. Owner/operators are still required to renew their permits at the end of the 30-year term. Permits are generally issued for a 10-year period and need to be renewed several times within the span of a 30-year post-closure care period. Renewal application must be submitted 180 days before the expiration of an effective permit. If towards the end of the post-closure care period an owner/operator fails to renew their permit, EPA recommends the regulatory agency request submission of a renewal application. If a renewal application is not timely submitted and the permit is not administratively permitted, the regulator may initiate an enforcement action. Thus, it is important not to presume that the post-closure care period ends after 30 years.
Finally, it is important to keep in mind that an agency’s decision to extend the post-closure period is appealable under most circumstances. An owner/operator with a RCRA post-closure permit may file an administrative appeal if EPA or the state agency either modifies the post-closure permit by extending the permit-required post-closure care obligations of the owner/operator or renews the post-closure permit with new terms.[vi] After exhausting the administrative appeal process, an owner/operator may then seek judicial review of the final permit modification decision.[vii]
For more information, contact Megan McLean, Charlie Merrill or any member of Husch Blackwell’s Environmental team.
[i] See 40 C.F.R. § 264.117(a)(2)(ii).
[ii] See U.S. Envtl. Prot. Agency, Office of Res. Conservation & Recovery, Guidelines for Evaluating the Post-Closure Care Period for Hazardous Waste Disposal Facilities under Subtitle C of RCRA (2016).
[iii] See 40 C.F.R. § 268.
[iv] See 40 C.F.R. § 264.221(c) (establishing minimum technology requirements of two or more liners and a leachate collection and removal system).
[v] See Office of Inspector General, Audit Report: RCRA Financial Assurance for Closure and Post-Closure, 2001-P-007, at 37 (March 30, 2001).
[vi] See 42 U.S.C. § 6976; 40 C.F.R. § 124.19(a).
[vii] See 40 C.F.R. § 124.19(l).