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(continued)
(a) Must characterize the chemical composition of the release, the contaminant fate and transport characteristics; the rate and extent of contamination in all ground water flow paths by installing additional monitoring wells;
(b) Must install at least one additional monitoring well at the facility boundary in the direction of contaminant migration and sample this well in accordance with subsection (2) of this section;
(c) Must notify all persons who own the land or reside on the land that directly overlies any part of the plume of contamination if contaminants have migrated off-site if indicated by sampling of wells in accordance with subsection (6) of this section; and
(d) Must initiate an assessment, selection, and implementation of corrective measures as required by chapter 173-340 WAC, the Model Toxics Control Act regulation; or
(e) May demonstrate that a source other than a MSWLF unit caused the contamination, or that the statistically significant increase resulted from error in sampling, analysis, statistical evaluation, or natural variation in ground water quality. A report documenting this demonstration must be prepared by a hydrogeologist or other qualified ground water scientist and approved by the jurisdictional health department and placed in the operating record. If a successful demonstration is made the owner or operator must continue monitoring in accordance with the assessment monitoring program pursuant to this section, and may return to detection monitoring if the Appendix III constituents are at or below background as specified in subsection (4) of this section. Until a successful demonstration is made, the owner or operator must comply with this subsection (6) including initiating an assessment of corrective measures.
(7) The owner or operator:
(a) Must establish a ground water protection standard using the ground water quality criteria of chapter 173-200 WAC; and
(b) For constituents for which the background level is higher than the protection standard identified under (a) of this subsection, must use the background concentration for the constituents established from wells in accordance with WAC 173-351-405 through 173-351-430.
[Statutory Authority: Chapter 70.95 RCW and 40 CFR 258. 93-22-016, § 173-351-440, filed 10/26/93, effective 11/26/93.]
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173-351-450
Alternate ground water monitoring programs.
(1) The owner or operator may propose changes and/or alternate ground water monitoring programs for detection after the second year of ground water monitoring under WAC 173-351-430, or the assessment monitoring program of WAC 173-351-440 as follows:
(a) An alternate ground water monitoring frequency for sampling and analysis of Appendix I and II constituents of no less than semiannual monitoring;
(b) A deletion or alternate ground water monitoring constituents for Appendix I, II and III;
(c) An appropriate subset of wells to be sampled and analyzed for Appendix III under WAC 173-351-440(2).
(2) All proposed changes in ground water monitoring frequency must be no less than semiannually for detection ground water monitoring and no less than quarterly for assessment monitoring. The owner or operator must apply for a permit modification under WAC 173-351-720(5) or must apply during the renewal process of WAC 173-351-720 (1)(i) for changes in ground water monitoring frequency making a demonstration based on the following information:
(a) A characterization of the hydrostratigraphic unit(s) including the unsaturated zone, transmissive and confining units and include all of the following:
(i) Hydraulic conductivity; and
(ii) Ground water flow rates.
(b) Minimum distance between upgradient edge of the MSWLF unit and downgradient monitoring wells (minimum distance of travel); and
(c) Contaminant fate and transport characteristics.
(3) The owner or operator must apply for a permit modification under WAC 173-351-720(5) or must apply during the renewal process of WAC 173-351-720 (1)(i) for all proposed deletions or changes to ground water monitoring constituents of Appendix I, II, and III based on all of the following information:
Verification that the removed constituents are not reasonably expected to be in or derived from the waste contained in the unit, by:
(a) Leachate monitoring results consisting of those parameters listed in Appendix IV; all leachate monitoring shall be quarterly unless otherwise approved by the jurisdictional health department and the department;
(b) The types, quantities, and concentrations of constituents in wastes managed at the MSWLF unit;
(c) The mobility, stability, and persistence of waste constituents or their reaction products in the unsaturated zone beneath the MSWLF unit;
(d) The detectability of indicator parameters, waste constituents, and reaction products in the ground water; and
(e) The concentration or values and coefficients of variation of monitoring parameters or constituents in the ground water background.
(4) Multiunit ground water monitoring systems.
An owner or operator may propose during the permitting process of WAC 173-351-700 a multiunit ground water monitoring system instead of separate ground water monitoring systems for each MSWLF unit, including MSWLF units which were closed in accordance with chapter173-351, 173-304, or 173-301 WAC when the facility has several MSWLF units, provided the multiunit system meets all of the requirements of WAC 173-351-400 through WAC 173-351-490 and will be as protective of human health and environment as individual ground water monitoring systems for each MSWLF unit. Permit approval for multiunit ground water monitoring systems and programs will be based on the ability to provide early warning detection of any contaminant releases including:
(a) Number, spacing, and orientation of units;
(b) Hydrogeologic setting;
(c) Site history;
(d) Engineering design of the MSWLF units;
(e) Type of waste accepted at the MSWLF units; and
(f) Leachate analysis as referenced in subsection (3)(a) of this section.
[Statutory Authority: Chapter 70.95 RCW and 40 CFR 258. 93-22-016, § 173-351-450, filed 10/26/93, effective 11/26/93.]
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173-351-460
Role of jurisdictional health department in corrective action.
The jurisdictional health department:
(1) May participate in all negotiations, meetings, and correspondence between the owner and operator and the department in implementing the model toxics control action;
(2) May comment upon and participate in all decisions made by the department in assessing, choosing, and implementing a corrective action program;
(3) Shall require the owner or operator to continue closure and post-closure activities as appropriate under these rules, after corrective action measures are completed; and
(4) Shall continue to regulate all MSWLF units during construction, operation, closure and post-closure, that are not directly impacted by Model Toxics Control Act.
[Statutory Authority: Chapter 70.95 RCW and 40 CFR 258. 93-22-016, § 173-351-460, filed 10/26/93, effective 11/26/93.]
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173-351-465
Role of department of ecology in corrective action.
The department shall carry out all the responsibilities assigned to it under the Model Toxics Control Act (MTCA), chapter 70.105D RCW, during the corrective action process.
Note: Ecology encourages and will support owners or operators who perform independent corrective action(s) consistent with MTCA.
[Statutory Authority: Chapter 70.95 RCW and 40 CFR 258. 93-22-016, § 173-351-465, filed 10/26/93, effective 11/26/93.]
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173-351-480
Ground water modeling.
All ground water and contaminant fate and transport modeling must meet the following performance standards:
(1) The model shall have supporting documentation that establishes its ability to represent ground water flow and contaminant transport and any history of previous applications;
(2) The set of equations representing ground water movement and contaminant transport must be theoretically sound and well documented;
(3) The numerical solution methods must be based upon sound mathematical principles and be supported by verification and checking techniques;
(4) The model must be calibrated against site-specific field data;
(5) A sensitivity analysis shall be conducted to measure the model's responses to changes in the values assigned to major parameters, specified tolerances, and numerically assigned space and time discretizations;
(6) Mass balance calculations on selected elements in the model shall be performed to verify physical validity. Where the model does not prescribe the amount of mass entering the system as a boundary condition, this step may be ignored;
(7) The values of the model's parameters requiring site specific data shall be based upon actual field or laboratory measurements; and
(8) The values of the model's parameters which do not require site specific data shall be supported by laboratory test results or equivalent methods documenting the validity of the chosen parameter values.
[Statutory Authority: Chapter 70.95 RCW and 40 CFR 258. 93-22-016, § 173-351-480, filed 10/26/93, effective 11/26/93.]
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173-351-490
The hydrogeologic report contents.
(1) The hydrogeologic report shall meet all of the following performance standards as follows:
(a) Examine existing site conditions for compliance with ground water and surface water location restrictions under WAC 173-351-130 and 173-351-140;
(b) Determine existing or background ground water quality conditions, including any ground water contamination; and
(c) Define a detection ground water monitoring program capable of immediate and early warning detection for potential contamination as required in WAC 173-351-400 and the information required in subsection (2) of this section.
(2) The hydrogeologic report contents shall include the following information:
(a) A summary of local and regional geology and hydrology, including faults, zones of joint concentrations, unstable slopes and subsidence areas on site; areas of ground water recharge and discharge; stratigraphy; erosional and depositional environments and facies interpretation(s);
(b) A borehole program which identifies all performance criteria of WAC 173-351-405 including lithology, soil/bedrock types and properties, preferential ground water flow paths or zones of higher hydraulic conductivity, the presence of confining unit(s) and geologic features such as fault zones, cross-cutting structures etc., and the target hydrostratigraphic unit(s) to be monitored.
(i) A minimum of twenty subsurface borings is required for MSWLF sites which are 50 acres or less in aerial extent. For sites greater than fifty acres, twenty borings, plus three borings for each additional ten acres thereafter, is required. Soil borings shall be established in a grid pattern with a boring in each major geomorphic feature such as topographic divides and lowlands;
(ii) Each boring will be of sufficient depth below the proposed grade of the bottom liner as to identify soil, bedrock and hydrostratigraphic unit(s) conditions as required in WAC 173-351-405.
(iii) The jurisdictional health department and the department may approve alternate methods including geophysical techniques, either surface or downhole including electric logging, some sonic logging, nuclear logging, seismic profiling, electromagnetic profiling and resistivity profiling in lieu of some of the number of borings required in the subsurface borehole program of (b)(i) of this subsection, provided sufficient hydrogeological site characterization can be accomplished and prior approval is obtained.
(iv) At each boring samples shall be collected from each lithologic unit and tested for all of the following:
(A) Particle size distribution by both sieve and hydrometer analyses in accordance with approved ASTM methods (D422 and D1120);
(B) Atterburg limits following approved ASTM methods (D4318); and
(C) Classification under the unified soil classification system, following ASTM standard D2487-85.
(iv) Each lithologic unit on site will be analyzed for:
(A) Moisture content, following approved ASTM methods (D2216); and
(B) Hydraulic conductivity by an in-situ field method or laboratory method approved by the jurisdictional health department and the department. All samples collected for the determination of permeability shall be collected by standard ASTM procedures.
(v) All boring logs shall be submitted with the following information:
(A) Soil and rock descriptions and classifications;
(B) Method of sampling;
(C) Sample depth;
(D) Date of boring;
(E) Water level measurements;
(F) Soil test data;
(G) Boring location; and
(H) Standard penetration number of ASTM standard D1586-67.
(vi) All borings not converted to monitoring wells or piezometers shall be carefully backfilled, plugged and recorded in accordance with WAC 173-160-420.
(vii) During the borehole drilling program, any on-site drilling and lithologic unit identification must be performed by a hydrogeologist, geologist or other qualified ground water scientist who is trained to sample and identify soils and bedrock lithology.
(c) Depths to ground water and hydrostratigraphic unit(s) including transmissive and confining units;
(d) Potentiometric surface elevations and contour maps; direction and rate of horizontal and vertical ground water flow;
(e) A description of regional ground water trends including vertical and horizontal flow directions and rates;
(f) All elevations and top of well casings shall be related to the national geodetic vertical datum of 1929 (NGVD 29) and the horizontal datum shall be in accordance with chapter 58.20 RCW, Washington Coordinate System and as amended per chapter 332-130 WAC.
(g) Quantity, location, and construction (where available) of private and public wells within a two thousand foot (six hundred ten meter) radius of site;
(h) Tabulation of all water rights for ground water and surface water within a two thousand foot (six hundred ten meter) radius of the site;
(i) Identification and description of all surface waters within a one-mile (1.6 kilometer) radius of the site;
(j) A summary of all previously collected ground water and surface water analytical data, and for expanded facilities, identification of impacts of existing facility of the applicant to date upon ground and surface waters from landfill leachate discharges;
(k) Calculation of a site water balance;
(l) Conceptual design of a ground water and surface water monitoring system, including proposed installation methods for these devices and where applicable a vadose zone monitoring plan, including well construction diagrams;
(m) Land use in the area, including nearby residences; and
(n) A topographic map of the site and drainage patterns; an outline of the waste management area and MSWLF units, property boundary, the proposed location of ground water monitoring wells;
(o) Geologic cross-sections.
(3) Ground water flow path analysis. The hydrogeologic report shall include a summary ground water flow path analysis which includes all supportive documentation, and calculations of the performance criteria of WAC 173-351-405.
[Statutory Authority: Chapter 70.95 RCW and 40 CFR 258. 93-22-016, § 173-351-490, filed 10/26/93, effective 11/26/93.]
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173-351-500
Closure and post-closure care.
(1) Closure criteria.
(a) Nonarid areas. Owners or operators of all MSWLF units located in areas having mean annual precipitation of equal to or greater than twelve inches, must install a final cover system that is designed to minimize infiltration and erosion.
(i) The final cover system must be designed and constructed to:
(A) Minimize infiltration through the closed MSWLF by the use of an anti-infiltration layer that contains a composite layer as defined in (a)(i)(B) of this subsection;
(B) For the purpose of this section, "composite layer" means a system consisting of two components; the upper component must consist of a minimum of 30 mil (0.76 mm) thickness of geomembrane (60 mils (1.5 mm) for high density polyethylene geomembranes). The lower component must consist of at least a two-foot (60 cm) layer of compacted soil with a hydraulic conductivity of no more than 1X10-5 cm/sec. The geomembrane must be installed in direct and uniform contact with the compacted soil component;
(C) Minimize erosion of the final cover by use of an anti-erosion layer that contains a minimum of a one-foot (30 cm) layer of earthen material of which at least six inches (15 cm) of the uppermost layer is capable of sustaining native plant growth; and
(D) Address anticipated settlement (with a goal of achieving no less than two to five percent slopes after settlement), drainage and/or the need for drainage layers, gas generation and/or the need for gas layers, freeze-thaw, desiccation and stability and mechanical strength of the design.
(ii) The jurisdictional health department may approve an alternative final cover design equivalent to that specified in (a)(i) of this subsection that includes:
(A) An anti-infiltration layer that achieves an equivalent reduction in infiltration as the anti-infiltration layer specified in (a)(i)(A) and (B) of this subsection;
(B) An anti-erosion layer that provides equivalent protection from wind and water erosion as the anti-erosion layer specified in (a)(i)(C) of this subsection; and
(C) The additional design features of (a)(i)(D) of this subsection.
(b) Arid areas. Owners or operators of all MSWLF units located in arid areas must install a final cover system that is designed to minimize infiltration and erosion.
(i) The final cover system must be designed and constructed to:
(A) Minimize infiltration through the closed MSWLF by the use of an anti-infiltration layer that contains at least a two-foot (60 cm) layer of compacted soil with a hydraulic conductivity of no more than 1X10-5 cm/sec;
(B) Minimize erosion of the final cover by use of an anti-erosion layer that contains a minimum of one-foot (30 cm) layer of earthen material of which at least six inches (15 cm) of the uppermost layer is capable of sustaining native plant growth; and
(C) Address anticipated settlement (with a goal of reaching two to five percent slopes after settlement), drainage and/or the need for drainage layers, gas generation and/or the need for gas layers, freeze-thaw, desiccation and stability and mechanical strength of the design.
(ii) The jurisdictional health department may approve an alternative final cover design to that specified in (b)(i) of this subsection that includes:
(A) An anti-infiltration layer that achieves an equivalent reduction in infiltration as the anti-infiltration layer specified in (b)(i)(A) of this subsection;
(B) An anti-erosion layer that provides equivalent protection from wind and water erosion as the anti-erosion layer specified in (b)(i)(B) of this subsection; and
(C) The additional design features of (b)(i)(C) of this subsection.
(c) The owner or operator must prepare a written closure plan that describes the steps necessary to close all MSWLF units at any point during its active life. The closure plan must be approved by the jurisdictional health department during the permit process of Section 700 and, at a minimum, must include the following information:
(i) A description of the final cover, designed in accordance with (a) or (b) of this subsection and the methods and procedures to be used to install the cover;
(ii) An estimate of the largest area of the MSWLF unit or all MSWLF units ever requiring a final cover as required under (a) or (b) of this subsection at any time during the active life;
(iii) An estimate of the maximum inventory of wastes ever on-site over the active life of the facility; and
(iv) A schedule for completing all activities necessary to satisfy the closure criteria in this subsection (1), Closure criteria including sequencing of each MSWLF unit and the use of intermediate cover.
(d) The owner or operator of existing MSWLF units must no later than the effective date of this chapter:
(i) Prepare a closure plan;
(ii) Place the closure plan in the operating record; and
(iii) Notify the jurisdictional health department that (d)(i) and (ii) of this subsection have occurred.
(e) One hundred eighty days (but no sooner than the effective date of this chapter) prior to beginning closure activities of each MSWLF unit or all MSWLF units as specified in (f) of this subsection, the owner or operator must:
(i) Notify the jurisdictional health department and the financial assurance trustee and/or insurer of the intent to close the MSWLF unit or all MSWLF units according to the approved closure plan; and
(ii) Submit final engineering closure plans for review, comment, and approval by the jurisdictional health department.
(f) The owner or operator must begin closure activities of each MSWLF unit or all MSWLF units no later than thirty days after the date on which the MSWLF unit or all MSWLF units receives the known final receipt of wastes or, if the MSWLF unit or all MSWLF units has remaining capacity and there is a reasonable likelihood that the MSWLF unit or all MSWLF units will receive additional wastes, no later than one year after the most recent receipt of wastes. Extensions beyond the one-year deadline for beginning closure may be granted by the jurisdictional health department if the owner or operator demonstrates during the permit process of WAC 173-351-700 that the MSWLF unit or all MSWLF units has the capacity to receive additional waste and the owner or operator has taken and will continue to take all steps including the application of intermediate cover necessary to prevent threats to human health and the environment from the unclosed MSWLF unit or all MSWLF units.
(g) The owner or operator of all MSWLF units must complete closure activities of each MSWLF unit or all MSWLF units in accordance with the closure plan within one hundred eighty days following the beginning of closure as specified in (f) of this subsection. Extensions of the closure period may be granted by the jurisdictional health department if the owner or operator demonstrates that closure will, of necessity, take longer than one hundred eighty days and he/she has taken and will continue to take all steps to prevent threats to human health and the environment from the unclosed MSWLF unit.
(h) Following closure of each MSWLF unit or all MSWLF units, the owner or operator must submit to the jurisdictional health department a certification or declaration of construction signed by an independent registered professional engineer verifying that closure has been completed in accordance with the approved final engineering plans and the closure plan.
(i) Notation on the deed.
(i) Following closure of all MSWLF units, the owner or operator must record a notation on the deed to the facility property, and send a copy of the notation as recorded to the jurisdictional health department.
(ii) The notation on the deed must in perpetuity notify any potential purchaser of the property that:
(A) The land has been used as a landfill facility; and
(B) Its use is restricted under subsection (2)(c)(iii) of this section.
(j) The owner or operator may request permission from the jurisdictional health department to remove the notation from the deed if all wastes (including any contaminated ground water and soils) are removed from the facility.
(2) Post-closure care requirements.
(a) Following closure of each MSWLF unit or all MSWLF units, the owner or operator must conduct post-closure care. Post-closure care must be conducted for thirty years, except as provided under (b) of this subsection and consist of at least the following:
(i) Maintaining the integrity and effectiveness of any final cover, including making repairs to the cover as necessary to correct the effects of settlement, subsidence, erosion, maintaining the vegetative cover (including cutting of vegetation when needed) or other events, and preventing run-on and run-off from eroding or otherwise damaging the final cover;
(ii) Maintaining and operating the leachate collection system in accordance with the requirements in WAC 173-351-300 if applicable. The jurisdictional health department may recommend to the department and the department under its authority in chapter 90.48 RCW, the Water Pollution Control Act, may allow the owner or operator to stop managing leachate if the owner or operator demonstrates that leachate no longer poses a threat to human health and the environment;
(iii) Monitoring the ground water in accordance with the requirements of WAC 173-351-400, Ground water monitoring systems and corrective action and maintaining the ground water monitoring system, if applicable; and
(iv) Maintaining and operating the gas monitoring system in accordance with the requirements of WAC 173-351-200(4).
(b) The length of the post-closure care period may be:
(i) Decreased by the jurisdictional health department if the owner or operator demonstrates that the reduced period is sufficient to protect human health and the environment and this demonstration is approved by the jurisdictional health department; or
(ii) Increased by the jurisdictional health department if the jurisdictional health department determines that the lengthened period is necessary to protect human health and the environment.
(c) The owner or operator of all MSWLF units must prepare a written post-closure plan that is approved by the jurisdictional health department during the permit process of Section 700 and that includes, at a minimum, the following information:
(i) A description of the monitoring and maintenance activities required in (a) of this subsection for each MSWLF unit or all MSWLF units, and the frequency at which these activities will be performed;
(ii) Name, address, and telephone number of the person or office to contact about the facility during the post-closure period; and
(iii) A description of the planned uses of the property during the post-closure period. Post-closure use of the property shall not disturb the integrity of the final cover, liner(s), or any other components of the containment system, or the function of the monitoring systems unless necessary to comply with the requirements of this regulation. The jurisdictional health department may approve any other disturbance if the owner or operator demonstrates that disturbance of the final cover, liner or other component of the containment system, including any removal of waste, will not increase the potential threat to human health or the environment.
(d) The owner or operator of existing MSWLF units must notify the jurisdictional health department that a post-closure plan has been prepared and placed in the operating record no later than the effective date of this regulation.
(e) Following completion of the post-closure care period for each MSWLF unit or all MSWLF units, the owner or operator must submit to the jurisdictional health department and the financial assurance trustee and/or insurer a certification or declaration of construction signed by an independent registered professional engineer verifying that post-closure has been completed in accordance with the post-closure plan.
[Statutory Authority: Chapter 70.95 RCW and 40 CFR 258. 93-22-016, § 173-351-500, filed 10/26/93, effective 11/26/93.]
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173-351-600
Financial assurance criteria.
(1) Applicability and effective date.
(a) The requirements of this section apply to owners and operators of all MSWLF units.
(b) The requirements of this section are effective on the effective date of this rule, except as provided herein.
(2) Financial assurance for closure.
(a) The owner or operator must have a detailed written estimate, in current dollars, of the cost of hiring a third party to close the largest area of all MSWLF units ever requiring a final cover as required under WAC 173-351-500(1), Closure criteria, at any time during the active life in accordance with the closure plan. The owner or operator must place the detailed written estimate in the application for a permit under WAC 173-351-700 in order for the jurisdictional health department to determine whether a solid waste permit should be issued.
(i) The cost estimate must equal the cost of closing the largest area of the MSWLF unit or MSWLF units ever requiring a final cover at any time during the active life when the extent and manner of its operation would make closure the most expensive, as indicated by its closure plan see WAC 173-351-500 (1)(c)(ii).
(ii) During the active life of the MSWLF unit or MSWLF units, the owner or operator must annually adjust the closure cost estimate for inflation.
(iii) The owner or operator must increase the closure cost estimate and the amount of financial assurance provided under (b) of this subsection if changes to the closure plan or MSWLF unit conditions increase the maximum cost of closure at any time during the remaining active life.
(iv) The owner or operator may reduce the closure cost estimate and the amount of financial assurance provided under (b) of this subsection if the cost estimate exceeds the maximum cost of closure at any time during the remaining life of the MSWLF unit or all MSWL units. The owner or operator must submit justification for the reduction of the closure cost estimate and the amount of financial assurance to the jurisdictional health department for approval as a condition of the solid waste permit.
(b) The owner or operator of each MSWLF unit or all MSWLF units must establish financial assurance for closure of the MSWLF unit or all MSWLF units in compliance with WAC 173-351-600(5), Allowable mechanisms. The owner or operator must provide continuous coverage for closure until released from financial assurance requirements by demonstrating compliance with WAC 173-351-500 (1)(h) and (i).
(3) Financial assurance for post-closure care.
(a) The owner or operator must have a detailed written estimate, in current dollars, of the cost of hiring a third party to conduct post-closure care for the MSWLF unit or all MSWLF units in compliance with the post-closure plan developed under WAC 173-351-500(2). The post-closure cost estimate used to demonstrate, during the permit process of WAC 173-351-700, financial assurance in (b) of this subsection must account for the total costs of conducting post-closure care, including annual and periodic costs as described in the post-closure plan over the entire post-closure care period. The owner or operator must place the detailed written estimate in the application for a permit under WAC 173-351-700 in order for the jurisdictional health department to determine whether a solid waste permit should be issued.
(i) The cost estimate for post-closure care must be based on the most expensive costs of post-closure care during the post-closure care period.
(ii) During the active life of the MSWLF unit or all MSWLF units and during the post-closure care period, the owner or operator must annually adjust the post-closure cost estimate for inflation.
(iii) The owner or operator must increase the post-closure care cost estimate and the amount of financial assurance provided under (b) of this subsection if changes in the post-closure plan or MSWLF unit conditions increase the maximum costs of post-closure care.
(iv) The owner or operator may reduce the post-closure cost estimate and the amount of financial assurance provided under (b) of this subsection if the cost estimate exceeds the maximum costs of post-closure care remaining over the post-closure care period. The owner or operator must submit justification for the reduction of the post-closure cost estimate and the amount of financial assurance to the jurisdictional health department for approval as a condition of the solid waste permit.
(b) The owner or operator of each MSWLF unit or all MSWLF units must establish, in a manner in accordance with subsection (5) of this section, financial assurance for the costs of post-closure care as required under WAC 173-351-500(2). The owner or operator must provide continuous coverage for post-closure care until released from financial assurance requirements for post-closure care by demonstrating compliance with WAC 173-351-500 (2)(e).
(4) Financial assurance for corrective action.
(a) An owner or operator of a MSWLF unit or all MSWLF units required to undertake a corrective action program under WAC 173-351-440(6) must have a detailed written estimate, in current dollars, of the cost of hiring a third party to perform the corrective action in accordance with the program required under WAC 173-351-440(6). The corrective action cost estimate must account for the total costs of corrective action activities as described in the corrective action plan for the entire corrective action period. The owner or operator must submit the corrective action cost estimate to the jurisdictional health department for approval.
(i) The owner or operator must annually adjust the estimate for inflation until the corrective action program is completed in accordance with WAC 173-351-440(6).
(ii) The owner or operator must increase the corrective action cost estimate and the amount of financial assurance provided under (b) of this subsection if changes in the corrective action program or MSWLF unit conditions increase the maximum costs of corrective action.
(iii) The owner or operator may reduce the amount of the corrective action cost estimate and the amount of financial assurance provided under (b) of this subsection if the cost estimate exceeds the maximum remaining costs of corrective action. The owner or operator must submit justification for the reduction of the corrective action cost estimate and the amount of financial assurance to the jurisdictional health department for approval.
(b) The owner or operator of each MSWLF unit or all MSWLF units required to undertake a corrective action program under WAC 173-351-440(6), must establish, in a manner in accordance with subsection (5) of this section, financial assurance for the most recent corrective action program. The owner or operator must provide continuous coverage for corrective action until released from financial assurance requirements for corrective action under the Model Toxics Control Act regulation, chapter 173-340 WAC.
(c) The requirements of this subsection become effective April 9, 1994.
(5) Allowable mechanisms. The mechanisms used to demonstrate financial assurance under WAC 173-351-600 must ensure that the funds necessary to meet the costs of closure, post-closure care, and corrective action for known releases will be available whenever they are needed. Except as otherwise provided herein, owners and operators of MSWLF units must use the financial mechanisms specified in (a) or (b) of this subsection.
(a) For MSWLF units owned or operated by municipal corporations, the closure, post-closure, and corrective action reserve account shall be handled in one of the following ways:
(i) Reserve account. Cash and investments accumulated and restricted for closure, post-closure, and corrective action for known releases with an equivalent amount of fund balance reserved in the fund accounting for solid waste activity; or
(ii) The cash and investments held in a nonexpendable trust fund as specified in (c) of this subsection.
(b) For MSWLF units owned by private disposal companies, the closure, post-closure, and corrective action for known releases financial assurance account shall be a trust account as spelled out in (c) of this subsection, except that established financial assurance accounts shall not constitute an asset of the facility owner or operator.
(c) Trust fund.
An owner or operator may satisfy the requirements of this section by establishing a trust fund which conforms to the requirements of (c)(i) through (xi) of this subsection.
(i) The trustee must be an entity which has the authority to act as a trustee and whose trust operations are regulated and examined by a federal or state agency. The owner or operator must place a copy of the trust agreement in the application for a permit under WAC 173-351-700 in order for the jurisdictional health department to determine whether a solid waste permit should be issued.
(ii) Payments into the trust fund must be made annually by the owner or operator over the duration (as defined in WAC 173-351-750) of the initial permit or over the remaining life of the MSWLF unit or all MSWLF units, whichever is shorter, in the case of a trust fund for closure or post-closure care, or over one-half of the estimated length of the corrective action program in the case of corrective action for known releases. This period is referred to as the pay-in period.
(iii) For a trust fund used to demonstrate financial assurance for closure and post-closure care, the first payment into each fund must be at least equal to the current cost estimate for closure or post-closure care, except as provided in (d) of this subsection, divided by the number of years in the pay-in period as defined in (c) of this subsection. The amount of subsequent payments must be determined by the following formula:
Next Payment
= CE-CV
Y
where CE is the current cost estimate for closure or post-closure care (updated for inflation or other changes), CV is the current value of the trust fund, and Y is the number of years remaining in the pay-in period.
(iv) For a trust fund used to demonstrate financial assurance for corrective action, the first payment into the trust fund must be at least equal to one-half of the current cost estimate for corrective action, except as provided in (d) of this subsection, divided by the number of years in the corrective action pay-in period as defined in (c)(ii) of this subsection. The amount of subsequent payments must be determined by the following formula:
Next Payment
= RB-CV
Y
where RB is the most recent estimate of the required trust fund balance for corrective action (i.e., the total costs that will be incurred during the second half of the corrective action period), CV is the current value of the trust fund, and Y is the number of years remaining in the pay-in period.
(v) The initial payment into the trust fund must be made before the initial receipt of waste or before the effective date of this section, whichever is later, in the case of closure and post-closure care, or no later than one hundred twenty days after the corrective action remedy has been selected in accordance with the requirements of WAC 173-351-480 (6) and (7).
(vi) If a municipal corporation owning or operating MSWLF units establishes a trust fund after having used cash and investments held in a nonexpendable reserve account specified in (a)(i) of this subsection, the initial payment into the trust fund must be at least the amount that the fund would contain if the trust fund were established initially and annual payments made according to the specifications of this paragraph and (c) of this subsection as applicable.
(vii) The owner or operator, or other person authorized to conduct closure, post-closure care, or corrective action activities may request reimbursement from the trustee for these expenditures. Requests for reimbursement will be granted by the trustee only if:
(A) Sufficient funds are remaining in the trust fund to cover the remaining costs of closure, post-closure care, or corrective action;
(B) If justification and documentation of the cost is submitted to the jurisdictional health department for review and approval; and
(C) The owner or operator has a post-closure permit in effect according to WAC 173-351-730 (4)(c).
(viii) The trust fund may be terminated by the owner or operator only if:
(ix) In the case of a municipal corporation owning or operating MSWLF units, the municipal corporation substitutes a reserve account as specified in (a)(i) of this subsection; or
(x) Any owner or operator is no longer required to demonstrate financial responsibility in accordance with the requirements of subsection (2)(b), (3)(b), or (4)(b) of this section.
(d) Use of multiple financial mechanisms. A municipal corporation owning or operating MSWLF units may satisfy the requirements of this section by establishing more than one financial mechanism per facility. The mechanisms must be as specified in (a) and (b) of this subsection, except that it is the combination of mechanisms, rather than the single mechanism, which must provide financial assurance for an amount at least equal to the current cost estimate for closure, post-closure care or corrective action, whichever is applicable.
(e) For MSWLF units undergoing corrective action, allowable financial assurance mechanisms include:
(i) Any method approved by EPA under 40 CFR 258.74(f);
(ii) An interlocal agreement entered into under the Interlocal Cooperation Act, chapter 39.34 RCW, obligating the participating local governments to pay for the corrective action.
(f) The language of the mechanisms listed in (a) and (b) of this subsection must ensure that the instruments satisfy the following criteria:
(i) The financial assurance mechanisms must ensure that the amount of funds assured is sufficient to cover the costs of closure, post-closure care, and corrective action for known releases when needed;
(ii) The financial assurance mechanisms must ensure that funds will be available in a timely fashion when needed;
(iii) The financial assurance mechanisms must be obtained by the owner or operator by the effective date of these requirements or prior to the initial receipt of solid waste, whichever is later, in the case of closure and post-closure care, and no later than one hundred twenty days after the corrective action remedy has been selected in accordance with the requirements of WAC 173-351-460, until the owner or operator is released from the financial assurance requirements under subsection (2)(b), (3)(b), or (4)(b) of this section.
(g) The financial assurance mechanisms must be legally valid, binding, and enforceable under state and federal law.
[Statutory Authority: Chapter 70.95 RCW and 40 CFR 258. 93-22-016, § 173-351-600, filed 10/26/93, effective 11/26/93.]
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173-351-700
Permitting requirements.
(1) WAC 173-351-700 through 173-351-750 shall constitute the permitting requirements of chapter 173-351 WAC, Criteria for municipal solid waste landfills. Except as provided for in subsection (5) of this section, no owner or operator shall construct, operate, close, or perform post-closure activity with respect to a facility except in conformance with a valid MSWLF permit issued pursuant to this chapter.
(2) Transition rules for existing MSWLF units. The following constitute the transition rules for this section:
(a) Existing MSWLF units with valid chapter 173-304 WAC permits expiring before the effective date of this chapter. Owners or operators of existing MSWLF units having valid permits expiring before the effective date of this chapter, must apply for a valid MSWLF permit no later than ninety days after promulgation of this regulation, to continue operation under the terms of this regulation. Each valid chapter 173-304 WAC permit expiring before the effective date of this chapter, is hereby continued until the valid MSWLF permit is issued under these rules. For these transition rules, the owner or operator shall prepare applications according to WAC 173-351-730(4), Reissuance/transition applications. Upon issuance of a valid MSWLF permit, the owner or operator must comply with the requirements of this regulation.
Note: MSWLF units that do not accept waste on or after the effective date of this chapter, and close under chapter 173-304 WAC, Minimum functional standards for solid waste handling, and the federal rules for closure under 40 CFR Part 258.60 would continue to be permitted under chapter 173-304 WAC unless such MSWLF units are part of a multiunit ground water monitoring system according to WAC 173-351-450(4).
(b) Existing MSWLF units with valid chapter 173-304 WAC permits expiring on or after the effective date of this chapter. Each valid chapter 173-304 WAC permit (for existing MSWLF units) expiring on or after the effective date of this rule, is hereby continued until the expiration date set forth in the permit. Owners and operators must comply with the conditions of the permit and the regulations of chapter 173-304 WAC, in effect on October 8, 1993, for the duration of that permit. Owners or operators of existing MSWLF units with valid chapter 173-304 WAC permits expiring on or after the effective date of this chapter, must apply for a valid MSWLF permit no later than ninety days after promulgation of this regulation. For these transition rules, the owner or operator shall prepare applications according to WAC 173-351-730(4), Reissuance/transition applications. Upon issuance of a valid MSWLF permit, the owner or operator must comply with the requirements of this regulation.
Note: See also WAC 173-351-720 (6)(a), filing for reissuance.
(3) New and laterally expanded MSWLF units. New and laterally expanded MSWLF units receiving waste after the effective date of this chapter, shall meet the requirements of this section before construction has begun and before waste is accepted to the MSWLF unit or lateral expansion.
Note: Any owner or operator planning to incorporate a 50 percent increase or greater in design volume capacity not previously authorized in permit, or unpermitted changes resulting in significant adverse environmental impacts that have lead a responsible official to issue a declaration of significance under WAC 197-11-736 shall meet the requirements of this section before construction has begun and before waste is accepted to the MSWLF unit, or lateral expansion.
(4) Exemptions. The MSWLF units identified in this subsection are exempt from this section:
(a) MSWLF units that are excluded under WAC 173-351-010 (2)(b);
(b) Single family residences and single family farms dumping or depositing solid waste resulting from their own domestic, on-site activities onto or under the surface of land owned or leased by them when such action does not create a nuisance, violate any other statutes, ordinances, regulations, or this regulation, provided that such facilities:
(i) Are fenced or otherwise protected by natural barriers from unauthorized entry by the general public and large animal scavengers; and
(ii) Have placed a monthly soil cover to allow no visible solid waste.
(c) Corrective actions at a MSWLF unit performed by the state and/or in conjunction with the United States Environmental Protection Agency to implement the Comprehensive Environmental Response Compensation and Liability Act of 1980 (CERCLA), the Model Toxics Control Act or corrective actions taken by others to comply with a state and/or federal cleanup order provided that:
(i) The action results in an overall improvement of the environmental impact of the site;
(ii) The action does not require or result in additional waste being delivered to the facility or increase the amount of waste or contamination present at the facility;
(iii) The facility standards of WAC 173-351-300, 173-351-320, and 173-351-500 are met; and
(iv) The jurisdictional health department is informed of the actions to be taken and is given the opportunity to review and comment upon the proposed corrective action plans.
Note: MSWLF units not covered under corrective action are not exempted from permitting under this section.
(5) Renewal required. The owner or operator of a facility shall apply for renewal of the facility's permit annually, except for that year thata permit has been or will be reissued under WAC 173-351-720(6). (continued)