Closure, Post-Closure, and Financial Responsibility

• Author: Susan M. McMichael
• Pages: 287-326

Page 287

Chapter 9

Closure, Post-Closure, and Financial Responsibility

9.0 Introduction

is chapter addresses the last stage of the permit process for RCRA-regulated units: closure, post-closure, and

nancial responsibility. EPA rules for this stage, found at subparts G and H of parts 264 and 265, had a rough

and controversial start. Shortly after the rules were issued in 1981, 17 individual lawsuits were led against the

Agency challenging these rules. A s a result of this litigious beginning, the Agency reissued rules under a court

settlement in 1986.1 e basic premise of EPA’s rules is that to receive a RCRA permit, a facility must show

that it can close a unit in an environmentally sound ma nner and has adequate funds and liability insurance to

do so. As stated by a Georgia state court judge:

To ask the question is almost to answer [it]. In Georgia, you cannot operate a hazardous waste

facility without liability insurance or without a permit. If a facility does not or cannot obtain

the insurance, it must close. e Act provides no a lternative. . . . It is in t he permitting pro-

cess that requirements for approved closure and post-closure plans and nancial assurance for

closure and post-closure arise.2

EPA and state-equivalent rules contain speci c requirements to close and, as applicable, engage in post-

closure care, i.e., long-term activities for land-based units and non-land-based units. e chapter discusses these

requirements and the major court cases concerning t hese obligations. Of particular focus are recent concerns

with nancial assurance, raised by state RCRA regulators and others for units that are fast approaching the end

of their RCRA-regulated life cycles. ese c oncerns include post-closure care beyond 30 years, cost estimates,

and potential shortcomings with certain nancial assura nce mecha nisms, e.g., the nancial test and captive

insurance. e chapter also addresses special considerations for facilities that manage radioactive mixed waste,

reclaim certain secondary haz ardous materials, and operate under a standa rdized permit. And checklists and

other tools are provided to assist the reader to understand these requirements. e chapter’s specic topics

include the following:

• Closure and post-closure care requirements (Sections 9.1-9.2);

• Unit-specic closure requirements (Section 9.3);

• Closure and post-closure plan amendments (Section 9.4);

• Post-closure care beyond 30 years (Section 9.5);

• Financial responsibility (Section 9.6); and

• Special considerations (Section 9.7).

1. e lawsuit was known as the “ACCI Litigation,” and the 1986 rules were issued consistent with settlement in that case. See U.S. EPA, Standards

Applicable to Owners and Operators of Hazardous Waste Treatment, Storage, and Disposal Facilities; Closure/Post-Closure and Financial Re-

sponsibility Requirements, 51 Fed. Reg. 16422 (May 2, 1986).

2. In re Escambia Treating Camilla and Brunswick, Ga. Bd. of Nat. Res., Nos. DNR-EPD-HW-AH 9-86, 1987 WL 54527 (June 26, 1987).

Page 288 RCRA Permitting Deskbook

9.1 Closure

Closure is dened as permanently taking a RCRA-regulated unit out of service. It refers to the time period after

a hazardous waste management facility stops accepting waste.3 A ll facilities must plan for the potential closure

of a unit, a process that actually starts before the RCRA permit is issued. New and interim-status facilities must

submit a written closure plan w ith their Part B permit application under §270.14. e plan must describe the

necessary steps to close a unit at any given time, in the event that the facility is unexpectedly required to close.

RCRA closure plans are often decient, perhaps due to the misplaced belief that providing a detailed permit

application is unnecessary for future closure activities. Such an attitude, however, can directly delay and impact

the permit issua nce process. Closure plans are considered a precondition to permit issuance.4 Further, at least

one court has held that the requirement to submit a closure plan implies an “acceptability” requirement that, if

violated, may create a per se violation of RCRA, e.g., submitting a grossly decient closure plan.5 Closure plans

can also be required as a result of an enforcement action. e fai lure to provide a closure pla n has resulted in

the loss of interim status, and the failure to close in accordance with the approved closure plan can result in the

forfeiture of nancial assurance funds.6

Once the closure plan is submitted, it must be reviewed and approved by the permitting agency through the

RCRA permit process. e permitting agency may also conditionally approve a closure plan.7 Once approved,

the closure plan becomes part of the nal RCRA permit, which is an enforceable document that can be changed

only through the permit-modication process under §§270.41

and 42. e closure process itself is implemented through a

closure schedule and an approved closure plan, which contains

pre-closure notice to t he agency a nd sets forth the steps to close

each unit a nd to decontaminate equipment, containment sys-

tems, structures, and soils. After a unit is closed, the facility must

submit a closure cer tication and survey plats to the permitting

agency. If post-closure care is required, a post-closure permit may

be required, and a 30-year period star ts, along with new notice

and implementation requirements. Upon nal closure, the facil-

ity must provide notice, new certications, and survey plats (see

Box 9.1).

Types of RCRA Closure

ere are three t ypes of RCR A closure, which hinge on whether a facility unit will be clean-closed, wil l leave

hazardous waste in place, or is undergoing corrective action and cleanup at closure.

1. Clean closure. Clean closure means closure by removing or decontami nating all hazardous and radioac-

tive mixed waste, including equipment, structures, and contaminated soils associated with t he unit. A

clean-closed system has no post-closure care requirements, but must meet general closure and nancial

assurance requirements under subparts G and H of pa rts 264 and 265. A unit that is clean-closed needs

no further RCRA regulation based on a determination by the perm itting agency that the unit, and any

associated releases, have been clea ned up and do not pose a threat to human health or the environment.

2. Closure with waste in place. A unit that cannot clean-close and must leave hazardous or radioactive mixed

waste in place, like a landll, requires post-closure care. ese units a re typica lly land-based units, and

3. Closure “is the period after wastes are no longer accepted, during which the owners or operators complete treatment, storage, and disposal opera-

tions, apply nal cover to or cap landlls, and dispose of and decontaminate equipment.” 45 Fed. Reg. 33153, 33196 (May 19, 1980).

4. 40 C.F.R. §270.13. See also U.S. EPA, RCRA T M, I  C/P-C, EPA530-K-05-009 at 2 (Sept.

2005) (“permitted facilities are required to submit a closure plan with the Part B permit application”); United States v. Conservation Chemical

Co., 733 F. Supp. 1215, 1226, 20 ELR 21036 (D. Ind. 1989) (the closure plan is a general requirement of the nal Part B permit application).

5. See Conservation Chemical Co., 733 F. Supp. at 1226-27 (court held that the Part B requirement to submit a closure plan implies an acceptability

requirement; if an applicant fails to correct grossly decient specic problems identied in the NOD process, a second plan that remains decient

may violate RCRA).

6. See, e.g., In the Matter of Ross Metals, Inc., TND 096-070-396, 1993 WL 276422 (June 23, 1993).

7. See John Sexton Contractors Co., v. Illinois Pollution Control Bd., 558 N.E.2d 1222, 1228-29 (Ill. Ct. App. 1990).

Box 9.1

RCRA Closure Proce ss

Submit closu re pl an

Final closure plan appro val

Closure plan impl ementation

Closure cer tification /survey plat

Post-cl osure care

Closure, Post-Closure, and Financial Responsibility Page 289

closure involves removing all liquids, stabilizing the remaining ha zardous or radioactive mixed waste,

installing a nal cover, and conducting long-term monitoring and maintenance activities. e post-clo-

sure care period is generally 30 yea rs or longer. Post-closure care is discu ssed below at Section 9.3.

3. Alternative corrective action. In 1998, EPA a mended its rules at §264.110(c) to provide an alternative

“third type” of closure available for permitted and interim-status land-based units that a re also undergo-

ing corrective action or cleanup.8 EPA recognized that an inherent conict may exist for faci lities with

certain units u ndergoing closure and corrective action at the sa me time, stating: “It does not make sense

to have two separate remedia l processes working to clean up a single release” where a regulated unit and

one or more solid waste ma nagement units (SWMUs) have contributed to the same release.9 To address

this conict, the permitting agency may allow a facility to integrate requirements for closure and correc-

tive action for releases at a RCRA-regulated unit situated between SWM Us and areas of concern (AOCs)

when both are suspected to contribute to the release. Under §264.110(c) the permitting agency ca n

replace all or part of subpart G and unit-specic standa rds for regulated units with alternative standards

for closure in an enforceable document or an approved closure or post-closure plan if the following ve

conditions are met:

• e regulated unit is situated among SW MUs or AOCs;

• A release has occurred;

• Both the regulated unit and one or more SWMUs or AOCs are likely to have contributed to the release;

• Alternative requirements will protect human hea lth and the environment; and

• Alternat ive requirements will satisfy the post-closure performance standards under §§264.111(a)

and (b).

Closure Phases

Closure can occur at dierent times and in two phases, pa rtial and na l closure. Partial closure mea ns closure

of one or more RCRA-regulated units at a facility where other units remain active. Partial closure may involve

the closure of a landll cell, storage tank, storage container area, or a combination of individual closures. Partial

closure may also be required if a unit is lea king and cannot be repaired. e closed portion is known as the

“inactive portion” of a facility, and is that portion of the facility that has been closed in accordance with an

approved closure plan. e “active portion” of the facility, on the other hand, is that portion where hazardous

waste management operations continue to occur. Final closure of a facility occurs when, as the name suggests,

the last RCRA-regulated unit ceases operations and al l units are closed according to the closure plan.

9.2 General Closure Requirements

Under §270.14, all hazardous waste management facilities must submit a Part B permit application that meets

general a nd unit-specic closure requirements. e written closure plan must add ress site description; waste

description; performance standards for closure, including sampling and analysis; decontamination and verica-

tion procedures; closure schedules; certicates of closure, and post-closure if required; closure and post-closure

cost estimates; and nancia l assu rance. A facility that submits a decient closure plan or fails to meet these

general closure requirements may not receive a RCRA permit.

8. U.S. EPA, Standards Applicable to Owners and Operators of Closed and Closing Hazardous Waste Management Facilities: Post-Closure Permits

and Closure Process, 63 Fed. Reg. 56714, 56725 (Oct. 22, 1998).

9. U.S. EPA, 63 Fed. Reg. 56714, 56726 (Oct. 22, 1998).