W. Va. Code R. § 33-1-6

Current through Register Vol. XLI, No. 50, December 13, 2024

Section 33-1-6 - Closure and Post-Closure Care

6.1. Permanent Closure Criteria.

6.1.a. Applicability. -- Any person who maintains or operates a solid waste facility must, when the fill area or portion thereof reaches final grade or when the Secretary determines that closure is required, cease to accept waste and perform closure activities at the facility or portion thereof in accordance with the plan approval issued by the Secretary and the provisions of subsection 6.1 of this rule, unless otherwise approved by the Secretary in writing.

6.1.a.1. Upon request of the permittee, or upon the Secretary's own initiative, the Secretary may waive or modify any of the closure requirements of section 6 of this rule or allow alternative permit conditions or practices as appropriate for a specific coal combustion by-product facility or industrial solid waste facility, based upon the type of wastes disposed, type of facility, site characteristics, and sound engineering judgment.

6.1.b. Notification Procedures.

6.1.b.1. At least one hundred twenty (120) days prior to closing the facility, the permittee must notify the Secretary in writing of the intent to close the facility and the expected date of closure. Prior to this date, the permittee must notify all users of the facility of the intent to close the facility so that alternative disposal options may be evaluated.

6.1.b.2. Signs must be posted at all points of access to the facility at least thirty (30) days prior to closure indicating the date of closure and alternative disposal facilities.

6.1.b.3. Notice of the upcoming closure must be a Class II legal advertisement, which must be published in a local newspaper at least thirty (30) days prior to closure, and a copy of the notice must be provided to the Secretary within ten (10) days of the date of publication.

6.1.c. Restricted Access. -- Within ten (10) days after ceasing to accept waste, the permittee must restrict access by the use of gates, fencing or other appropriate means to ensure against further use of the facility. If the final use allows access, such access must be restricted until closure has been completed and approved by the Secretary.

6.1.d. Deed Notation.

6.1.d.1. Following closure of all portions of the SWLF, the owner or operator must record a deed notation to the SWLF facility property with the county clerk's office that must be available with the deed of the property, which will in perpetuity notify any potential purchaser of the following: (The permittee must also retain a copy of the deed notation in the facility operating record.)

6.1.d.1.A. The land has been used as a landfill facility;

6.1.d.1.B. Its use is restricted under paragraph 6.3.f.3 to ensure post-closure care, including any use that would interfere with maintaining the integrity and effectiveness of the final cover and maintaining the system to control the formation and release of leachate and explosive gases into the environment.

6.1.d.1.C. The permittee may request permission from the Secretary to remove the notation from the deed if all wastes are removed from the facility.

6.1.d.2. The deed must include at a minimum:

6.1.d.2.A. A survey plot indicating the location and dimension of the landfill;

6.1.d.2.B. A record of waste, including type, location, and quantity of waste disposed of at the site; and

6.1.d.2.C. Disposal location of asbestos and any other waste specified by the Secretary.

6.1.d.3. A certification of deed notation must be filed with the Secretary within ninety (90) days of closure.

6.1.e. Closure and Post-Closure Care.

6.1.e.1. Unless otherwise approved by the Secretary in writing, the closure plan must include the installation of a final cover system that is designed to minimize infiltration and erosion, as follows:

6.1.e.1.A. The permittee must provide a final cover system comprised of an erosion layer underlain by an infiltration layer and grading in the following manner:

6.1.e.1.A.1. Gas Management Layer. -- A one (1) foot layer of a material with a high hydraulic conductivity or a geocomposite drainage layer having a permeability of at least 1 X 10^-3 cm/sec may be used in lieu of the one (1) foot drainage layer must be placed directly on the intermediate cover to facilitate landfill gas control;

6.1.e.1.A.2. Clay Cap Layer. -- A cap consisting of a uniform and compacted one (1) foot layer of clay that is no more permeable than 1 x 10^-7 cm/s must be placed and graded over the entire surface of each final lift in six (6) inch lifts. The Secretary may, in the issued permit, approve the use of a synthetic material in lieu of the layer of clay;

6.1.e.1.A.2.1. An alternative clay cap layer may be approved by the Secretary on a site-specific basis. In no case may this (infiltration) layer be comprised of less than a minimum of eighteen (18) inches of earthen material that has a permeability less than or equal to the permeability of any bottom liner system or natural subsoils present, or a permeability no greater than 1 x 10^-5 cm/sec, whichever is less; and

6.1.e.1.A.3. Drainage Layer. -- A one (1) foot drainage layer that is more permeable than 1 X 10^-3 cm/s or a geocomposite drainage layer having a permeability of at least 1 X 10^-3 cm/sec may be used in lieu of the one (1) foot drainage layer, capable of transmitting flow and preventing erosion must be placed over the cap.

6.1.e.1.A.4. Vegetative Cover Layer. -- A uniform and compacted layer of soil that is at least two (2) feet in thickness and capable of supporting vegetation must be placed over the drainage layer. The erosion layer portion of the drainage layer must consist of a minimum six (6) inches of earthen material that is capable of sustaining native plant growth.

6.1.e.1.B. The permittee must install an appropriate gas management system, active or passive, if required by W. Va. Code and all rules promulgated thereunder, to collect and control methane and other explosive gases. At a minimum, passive gas vents must be installed at a ratio of one (1) per acre.

6.1.e.1.C. Placement of Final Cover. -- The operator must install a final cover system as described in subdivision 6.1.e. within six (6) months after disposal in the final lift ceases or as soon thereafter as weather permits, unless the permittee obtains written approval from the Secretary allowing a later period, based on a demonstration that a later period is necessary to protect the cap and drainage layer from differential settlement of waste at the facility. The Secretary will not allow a later period unless, at a minimum, delayed installation will not cause or allow any violations of any provision of this rule, or based on a demonstration that a later period is necessary to protect the cap and drainage layer from differential settlement of waste at the facility.

6.1.e.1.D. Surface water run-on must be diverted around all areas used for waste disposal to limit the potential for erosion of the cover soils and increased infiltration. Drainage swales conveying surface water runoff over previous waste disposal areas must be lined with a minimum thickness of two (2) feet of earthen material or a layer of synthetic material acceptable to the Secretary.

6.1.e.1.E. The grade of the final surface of the facility must not be less than three percent (3%) nor more than twenty-five percent (25%) unless otherwise approved by the Secretary as a part of the issued permit. Long slopes must incorporate runoff control measures and terracing in order to minimize erosion. For sites having a natural slope greater than twenty-five percent (25%), a slope up to thirty-three percent (33%) may be considered acceptable if terracing is incorporated at least every twenty (20) feet of vertical distance with runoff control.

6.1.e.1.F. Within ninety (90) days after the placement of the final cover system, the permittee must complete seeding, fertilizing, and mulching of the finished surface. The seed type and amount of fertilizer applied must be selected depending on the type and quality of topsoil and compatibility with both native vegetation and the final use. Unless otherwise approved by the Secretary in writing, seed mixture and application rates must be in accordance with subdivision 4.5.f of this rule.

6.1.e.1.G. Additional information may be required at the discretion of the Secretary.

6.1.e.1.H. A closure plan for solid waste facilities other than landfills must include the requirements of subparagraphs 6.1.e.1.D and 6.1.e.1.E of this rule and any other requirement specified by the Secretary.

6.1.e.2. Alternative Final Cover Design. -- The Secretary may approve an alternative final cover design that includes:

6.1.e.2.A. An infiltration layer that achieves an equivalent reduction in infiltration as the infiltration layer specified in subparagraph 6.1.e.1.A; and

6.1.e.2.B. An erosion layer that provides equivalent protection from wind and water erosion as the erosion layer specified in part 6.1.e.1.A.4.

6.1.e.3. The permittee must prepare a written closure plan that describes the steps necessary to close all portions of the SWLF at any point during its active life, in accordance with the cover design requirements in paragraph 6.1.e.1 or 6.1.e.2, as applicable.

6.1.e.3.A. The closure plan, at a minimum, must include the following information:

6.1.e.3.A.1. A description of the final cover, designed in accordance with paragraph 6.1.e.1 and the methods and procedures to be used to install the cover;

6.1.e.3.A.2. An estimate of the largest area of the SWLF ever requiring a final cover, as required under paragraph 6.1.e.1, at any time during the active life;

6.1.e.3.A.3. An estimate of the maximum inventory of wastes ever on-site over the active life of the landfill facility; and

6.1.e.3.A.4. A schedule for completing all activities necessary to satisfy the closure criteria in section 6 of this rule.

6.1.e.4. The permittee must notify the Secretary that a closure plan has been prepared and placed in the operating record no later than the date of the initial receipt of waste.

6.1.e.5. Prior to beginning closure of each portion of the SWLF, as specified in paragraph 6.1.e.6, a permittee must notify the Secretary that a notice of the intent to close a portion of the SWLF has been placed in the operations record.

6.1.e.6. The permittee must begin closure activities of each portion of the SWLF no later than thirty (30) days after the date on which the SWLF receives the known final receipt of wastes or, if the SWLF has remaining capacity and there is a reasonable likelihood that the SWLF will receive additional wastes, no later than one (1) year after the most recent receipt of wastes.

6.1.e.6.A. Extensions beyond the one-year deadline for beginning closure may be granted by the Secretary if the permittee demonstrates that the SWLF has the capacity to receive additional wastes, and the permittee has taken and will continue to take all steps necessary to prevent threats to human health and the environment from the unclosed portion of the SWLF.

6.1.e.7. The permittee of all SWLFs must complete closure activities of each SWLF in accordance with the closure plan within one hundred eighty (180) days following the beginning of closure as specified in paragraph 6.1.e.6 of this rule, unless otherwise approved by the Secretary in writing.

6.1.e.7.A. Extensions of the closure period may be granted by the Secretary if the permittee demonstrates that closure will, of necessity, take longer than one hundred eighty (180) days and he or she has taken and will continue to take all steps to prevent threats to human health and the environment from the unclosed portion of the SWLF.

6.1.f. Final Use at Landfills. -- The following activities are prohibited at closed landfills, unless specifically approved by the Secretary in writing:

6.1.f.1. Use of the facility for agricultural purposes;

6.1.f.2. Establishment or construction of any buildings; or

6.1.f.3. Excavation of the final cover or any waste materials.

6.1.g. Certification by Registered Professional Engineer.

6.1.g.1. Following closure of each portion of the SWLF, all closure activities must be inspected and approved by a registered professional engineer prior to the application to the Secretary for closure approval. The permittee must also notify the Secretary in writing of this certification, signed by an independent registered professional engineer and approved by the Secretary, verifying that closure has been completed in accordance with the closure plan. A copy of all related information must be retained in the facility operating record.

6.1.h. Closure Approval. -- Upon completion of requirements related to closure, the Secretary will issue a final closure approval. The date of the Secretary's final closure approval must be the date of commencement of the post-closure bond liability period.

6.2. Inactive Status. -- Upon application to the Secretary, a permittee may request inactive status for a period not to exceed six (6) months. To qualify for inactive status, the permittee must:

6.2.a. Intermediate Cover. -- Demonstrate that all solid wastes are covered by at least one (1) foot of intermediate cover.

6.2.b. Final Cover. -- Demonstrate that all areas where solid waste disposal is complete have been covered with final cover as described in subparagraph 4.6.b.2.C of this rule.

6.2.c. Revegetation. -- Demonstrate that all disturbed areas have been seeded in accordance with the revegetation plans specified by subdivision 4.5.f of this rule.

6.2.d. Restricted Access. -- Restrict access to the area.

6.2.e. Maintenance of Leachate Control. -- Demonstrate that leachate collection and treatment will be maintained.

6.2.f. Deed Notation. -- Demonstrate that notations have been made in permanent deed records in the county clerk's office that the site has been used as a solid waste facility.

6.2.g. Other Assurances. -- Provide any other assurance specified by the Secretary.

6.3. Post-Closure Care Requirements. -- Following closure of each portion of the SWLF, the permittee must conduct post-closure care as required by the permit. Post-closure care must continue for up to thirty (30) years after final closure of areas unless otherwise modified by the Secretary and must consist of the following:

6.3.a. Monitoring. -- Monitoring must continue as specified in the monitoring plan required by the permit.

6.3.b. Repair of Settlement. -- Any settling of solid waste that occurs up to thirty (30) years after the date of final closure, causing ponding of waters in areas of solid waste deposits, must be repaired promptly. Such repairs must include any necessary regrading, additions of fill material, and revegetation of settled areas, while 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 or other events, and preventing run-on and run-off from eroding or otherwise damaging the final cover;

6.3.c. Repair of Cover Material. -- Any cracking or erosion of cover material that occurs and may cause waters to enter solid waste deposits must be repaired immediately. Such repairs must include any necessary regrading, additions of cover material, and revegetation to eliminate such cracks or eroded areas.

6.3.d. Site Monitoring. -- Further disposal of solid waste at a closed solid waste facility is prohibited. The closed solid waste facility must be monitored by the permittee at a minimum frequency of once each month during the post-closure period to ensure that solid waste deposits and vandalism do not occur at the closed solid waste facility. Any solid waste deposited at the closed solid waste facility during the post-closure period must be promptly removed and disposed of at an approved solid waste facility. Evidence of disease vectors must be treated promptly.

6.3.d.1. Maintaining and operating the leachate collection system in accordance with the requirements in paragraph 4.5.d.1.

6.3.d.1.A. The Secretary may allow the permittee to stop managing leachate if the permittee demonstrates that leachate no longer poses a threat to human health and the environment;

6.3.d.2. Monitoring the groundwater in accordance with the requirements of subsection 4.11 and maintaining the groundwater monitoring system, if applicable; and

6.3.d.3. Maintaining and operating the gas monitoring system in accordance with the requirements of subsection 4.10 of this rule.

6.3.e. Length of the Post-Closure Care Period. -- The length of the post-closure care period may be:

6.3.e.1. Decreased by the Secretary if the permittee demonstrates that the reduced period is sufficient to protect human health and the environment and this demonstration is approved by the Secretary; or

6.3.e.2. Increased by the Secretary, if the Secretary determines that the lengthened period is necessary to protect human health and the environment.

6.3.f. Post-Closure Plan. -- The permittee of all SWLFs must prepare a written post-closure plan that includes, at a minimum, the following information:

6.3.f.1. A description of the monitoring and maintenance activities required in subsection 6.3 for each SWLF and the frequency at which these activities will be performed;

6.3.f.2. Name, address, and telephone number of the person or office to contact about the facility during the post-closure period; and

6.3.f.3. A description of the planned uses of the property during the post-closure period.

6.3.f.3.A. Post-closure use of the property must 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 in this rule.

6.3.f.3.B. The Secretary may approve any other disturbance if the permittee 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.

6.3.g. The permittee must notify the Secretary that a post-closure plan has been prepared and placed in the operating record no later than the date of the initial receipt of waste.

6.3.g.1. Following completion of the post-closure care period for each portion of the SWLF, the permittee must notify the Secretary that a certification, signed by an independent registered professional engineer and approved by the Secretary, verifying that post-closure care has been completed in accordance with the post-closure plan, has been placed in the operating record.

6.4. Final Post-Closure Inspection.

6.4.a. If the permittee of a solid waste facility believes that post-closure requirements have been met, the permittee may file a request for a final post-closure inspection with the Secretary.

6.4.b. Upon a request for a final post-closure inspection, the Secretary will inspect the facility to verify that final post-closure has been completed as follows:

6.4.b.1. The applicable operating requirements of the Solid Waste Management Act and all other environmental laws of the State of West Virginia, the rules and regulations of the West Virginia Department of Environmental Protection, all terms and conditions of the facility permit(s), including the approved closure plan and all orders issued by the Secretary have been complied with.

6.4.b.2. No further remedial action, maintenance or other activity by the permittee is necessary to continue compliance with the Solid Waste Management Act, all other environmental laws of the State of West Virginia, the rules and regulations of the Department, orders issued by the Secretary, and the terms and conditions of the permit and the approved closure plan.

6.4.b.3. The facility is not causing and will not cause any adverse effects on the environment and is not causing a nuisance.

6.4.c. Upon a finding by the Secretary that the facility is in compliance with all factors listed in subsection 6.4 of this rule, the permittee will be eligible for bond release pursuant to subsection 6.6 of this rule.

6.4.d. Upon a finding by the Secretary that the facility is not in compliance with all the factors listed in subsection 6.4 of this rule, the Secretary will initiate proceedings for bond forfeiture pursuant to subsection 6.5 of this rule.

6.5. Bond Forfeiture.

6.5.a. Procedure. -- If the Secretary declares a bond or any other form of financial assurance provided by the permittee forfeited, the Secretary will:

6.5.a.1. Send written notification of the Secretary's determination to declare the bond forfeit and the reasons for the forfeiture to the principal, to the bond surety, and to every county or regional solid waste authority in the area that utilizes the facility;

6.5.a.2. Advise the principal and surety of the right to appeal to circuit court; and

6.5.a.3. Proceed to collect on the bond as provided by applicable laws for the collection of defaulted bonds or other debts.

6.5.b. Collateral Bonds and other Forms of Financial Assurance. -- If the Secretary declares a collateral bond forfeited, the Secretary will pay, or direct the State Treasurer to pay, the collateral funds into an appropriate Solid Waste Fund. If, upon proper demand and presentation, the banking institution or other person or municipality that issued the collateral refuses to pay the Department the proceeds of a collateral undertaking, such as a certificate of deposit, letter of credit or government negotiable bond, the Secretary will take appropriate steps to collect the proceeds.

6.5.c. Surety Bond. -- If the Secretary declares a surety bond forfeited, he or she will certify the same to the Office of the West Virginia Attorney General, which will proceed to enforce and collect the amount forfeited, which will, upon collection, be paid into an appropriate Solid Waste Fund.

6.5.d. Use of Funds. -- Monies received from the forfeiture of bonds and interest accrued will be used first to accomplish final closure of, and to take steps necessary and proper to remedy and prevent adverse environmental effects from, the solid waste facilities upon which liability was charged on the bonds. Any monies remaining after such final closure, post-closure, and all necessary remedial actions have been accomplished must be deposited in the Solid Waste Enforcement Fund that was established pursuant to W. Va. Code § 22-15-11(h)(1).

6.6. Release of Bonds.

6.6.a. Request. -- An operator seeking a release of a bond previously submitted to the Secretary must file a written request with the Secretary for release of the bond amount after inspection or after posting a replacement bond in accordance with the provisions of subsection 3.13 of this rule.

6.6.b. Application. -- The application for bond release must contain the following:

6.6.b.1. The name of the permittee and identification of the facility for which bond release is sought;

6.6.b.2. The total amount of the bond in effect for the facility; and

6.6.b.3. Other information that may be required by the Secretary.

6.6.b.4. The release or forfeiture of a bond by the Secretary does not constitute a waiver or release of other liability provided in law, nor does it abridge or alter rights of action or remedies of a person or municipality now or hereafter existing in equity or under common law or statutory law, both criminal and civil.

6.6.b.5. The Secretary may grant bond releases immediately upon final closure for facilities other than landfills, if it is clearly demonstrated that further monitoring, restoration or maintenance is not necessary to protect the public health, safety and welfare, and the environment.

6.7. Preservation of Remedies. -- Remedies provided or authorized by law for a violation of applicable Federal or State statutes, the regulations or rules promulgated thereunder, orders issued by the Secretary or the terms and conditions of permits are expressly preserved. Nothing in this rule is an exclusive penalty or remedy for such a violation. No action taken under this rule waives or impairs another remedy or penalty provided in law or equity.

W. Va. Code R. § 33-1-6