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