Does a Landfill Ever Really Close?

Do you or a friend own or operate a landfill?  Is your landfill near the end of its “Post-Closure Care” period?  If so, you are not alone. August Mack has received a number of requests from responsible parties that have one or more landfills that are approaching the end of the post-closure period (typically 30 years).  There are hundreds more landfills in similar situations right now.  These landfills include previously closed municipal landfills (e.g., former town dumps), modern municipal solid waste landfills (trash, general refuse), non-municipal solid waste landfills, hazardous waste landfills, industrial monofills (e.g., foundry sand or ash), and construction & demolition (C&D) landfills. 

So, why are many landfills coming up on their post-closure care period?   What is post closure care?  Does the end of the post-closure care period mean that the responsible party is DONE?  What happens after the 30-year post-closure period?  Let’s talk trash for a little while. 

The reason for the apparent sudden interest in post-closure care of landfills stems from rulemaking efforts by the states in the 1980’s following the passage of the Resource Conservation & Recovery Act (RCRA) and other important environmental laws.  Many landfills stopped accepting wastes and went through formal closure in the late 1980s and early 90s following promulgation of these rules.   Since most states implemented a 30-year post-closure requirement for landfills, we are approaching the time when many of the post-closure permits for closed landfills are “expiring”.   Some states, such as Ohio, have implemented some very useful guidance documents that provide a framework for ending the post-closure care at a closed landfill. 

What are Post-Closure Care Obligations for a Landfill?

Once a landfill stops accepting waste and is formally closed and capped (approved by the state agency’s Commissioner or Director), it enters into the post-closure care period.  There is typically a Post-Closure Care Permit or other enforceable mechanism in place to ensure that the post-closure care requirements are met.   The post-closure care obligations vary by the type of landfill, the date it was closed, and by state rules.  However, the overarching requirements for post-closure care typically include:

  • Routine inspections to ensure that the cap is maintained and the performance of necessary repairs to ensure cap integrity.
  • Evaluating groundwater around the perimeter of the landfill to ensure that there is no potential impacts to any groundwater users (receptors).    
  • Evaluating the presence and migration of any explosive gas (e.g. methane) generated from the landfill as a result decomposing waste.
  • Collecting and evaluating leachate, if required.
  • Financial assurance, which provides a mechanism to ensure that the post-closure care obligations are  met if the responsible party fails to do so. 

What Happens After the Post-Closure Period?

Most states have developed some rules or guidance for the “post” post-closure care period, such as extending the post-closure care period through extensions of the existing permit, or other regulatory mechanism (such as an Order).  If the post-closure care period is extended, then all of the elements required in the current post-closure care permit (or other regulatory mechanism) must be conducted, unless a proposal is made and approved for a specific modification. 

If a responsible party seeks to end post-closure care, then it would require a demonstration that the post-closure care obligations have been met (i.e., integrity of the cap, no groundwater/leachate concerns, and no explosive gas migration, etc.).  In addition, the responsible party would be required to demonstrate that the closed landfill would not pose a threat to human health and the environment in the future, including potential drinking water wells/other receptors and surface water resources.  If the agency agrees that the post-closure period can be ended, it will require “continuing obligations” for the property.  These would include ensuring that a deed restriction is maintained for the property, requiring agency notification if the cap is disturbed, and maintaining the property to ensure the protection of human health and environment.   The responsible party could also request that financial assurance be terminated.

This process is unfolding in many states, and August Mack has helped a number of clients navigate through post-closure care and beyond.   

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