When is Enough, Enough? – EPA Seeks Comment on Post-Closure Care for Hazardous Waste Disposal Facilities Under RCRA

In 1980, as part of the implementation of statutes governing hazardous waste, the Environmental Protection Agency (EPA or Agency) required that owners and operators of disposal facilities containing hazardous waste provide active monitoring of their sites for 30 years following closure. At that time the 30-year duration likely seemed like an eternity (or as long as the Agency could push such a requirement). Fast forward nearly 35 years and the end of this 30 year milestone looms, but EPA has failed to identify the next step, making the milestone more of a regulatory cliff than an exit ramp. The Agency has the authority to extend post-closure requirements beyond the 30-year threshold but has not yet explicitly done so. For the universe of site owners and operators who have met the requirements set forth in closure regulations for nearing 30 years, this uncertainty raises significant concerns.

Late last week, EPA issued draft guidance concerning this issue (Guidance). The Agency’s Guidance attempts to illustrate when it may be necessary to extend (or shorten) the post-closure duration (a task typically taken on by state regulators). The Guidance begins by dispelling any myth around the magic of the number 30. It states, “a 30-year post-closure care period does not reflect a determination by EPA that 30 years of post-closure care is necessarily sufficient to eliminate potential threats to human health and the environment in all cases.” The document then pivots and sets forth a number of criteria that should be utilized when considering an adjustment to the 30-year post-closure period. These criteria include: the presence and nature of the hazardous waste remaining in the unit, the design of the unit, the existence of leachate, groundwater and the impact of site geology/hydrogeology, facility history, physical infrastructure such as gas collection systems and existing cover, and long-term stewardship controls already in place. The Agency believes these criteria should be evaluated on a case-by-case basis, beginning no later than 18 months prior to the expiration of the post-closure permit or post-closure period (whichever comes first).

Parties interested in shaping the final Guidance have until June 30, 2015 to submit comments. The EPA is specifically seeking input from treatment, storage, and disposal facilities, permit writers, trade associations, and environmental groups.