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Home My WebLink AboutDSHW-2024-0070511 STATE OF UTAH DEPARTMENT OF ENVIRONMENTAL QUALITY DIVISION OF WASTE MANAGEMENT AND RADIATION CONTROL RESPONSE TO COMMENTS DRAFT Exploration and Production Waste Rules Review Package July 3, 2024 Proposed rules to regulate oil and gas exploration and production waste were recently shared with stakeholders and other interested parties in a document titled Draft Exploration and Production Waste Rules Review Package (“Rules Review Package”). Notification of an informal comment period of the Rules Review Package from March 15, 2024, through May 3, 2024, was communicated by letter and email. A minor revision to the initial Rules Review Package was released on April 29, 2024, and stakeholders were notified of the change that included language for temporary permits to assist with the transition from regulation under Rule R649-9 of the Utah Admin.Code to the requirements of Title R315 of the Utah Admin. Code. During the informal comment period, 144 total comments were received from 16 individuals representing 7 different “persons.” See Utah Code § 19-1-103(4). Duplicate comments have been combined in the response and are arranged alphabetically by subject. Citations referenced from Rules R315-301 through R315-320 in this response refer to those found in the Utah Admin. Code on March 15, 2024. Citations referenced in proposed Rules R315-321 and R315-322 refer to those found in the Rules Review Package. If a numbering change was made during revisions to draft rules, the updated citation is italicized and in brackets. 2 Contents Definitions, E&P Waste ................................................................................................................................... 3 Depth of Waste ................................................................................................................................................. 3 Director Authority ............................................................................................................................................ 3 Enhanced Evaporation ..................................................................................................................................... 4 EPA Best Practices ........................................................................................................................................... 5 Existing Facility Requirements vs. New and Laterally Expanding Facility Requirements ............................ 5 Financial Assurance ......................................................................................................................................... 6 Groundwater .................................................................................................................................................... 7 Hazardous Waste Determination ...................................................................................................................... 9 Hazardous Waste from a Very Small Quantity Generator ................................................................................ 9 High Liquid Waste ........................................................................................................................................... 9 Hydrocarbon Accumulation on Surface Impoundments ................................................................................ 10 Landfarm Closure .......................................................................................................................................... 10 Landfill Transition from Class IIIb to Class VII ............................................................................................ 11 Liners ............................................................................................................................................................. 11 Location Standards, Existing Facilities .......................................................................................................... 15 Performance Standards .................................................................................................................................. 16 Professional Certifications ............................................................................................................................. 16 Recycle, Reuse, Reclamation ......................................................................................................................... 16 Run-off Control .............................................................................................................................................. 17 Skim Ponds and Open Tanks.......................................................................................................................... 17 Surface Impoundment Design ........................................................................................................................ 17 Training .......................................................................................................................................................... 18 Transfer of Waste Between Facilities ............................................................................................................. 19 Wildlife Protection ......................................................................................................................................... 19 3 Definitions, E&P Waste Landfills Surface Impoundments Rule Change 1. Comment: One (1) comment stated, “The definition of E&P waste should explicitly state that E&P waste is not hazardous waste, in accordance with R315-261- 4(b)(5). The 'but only to the extent the waste is exempt'...is confusing as written.” Response: The definition the comment is addressing states, “ 'Exploration and Production Waste' or 'E&P Waste' means solid wastes that are intrinsically derived from primary field operations associated with the exploration, development, or production of crude oil or natural gas, but only to the extent the waste is exempt from hazardous waste regulation according to Subsection R315-261-4(b)(5).” The purpose of the phrase, “but only to the extent the waste is exempt from hazardous waste regulation” is to clarify that the earlier use of “intrinsically derived from primary field operations” does not include wastes that are not exempt from the hazardous waste regulations. For example, if a container of unused drill fluid is spilled at a drill site, the drill fluid waste was not generated as the result of exploration and production of oil or gas; it may have become waste because of human error or by a failure of controls, but since it was never used to drill for oil or gas, it is not an E&P waste. The unused drill fluid spill is not exempt and may be subject to hazardous waste regulations. See Federal Register Volume 58, Pages 15284 to 15287; and EPA document 530-K-01-004, Exemption of Oil and Gas Exploration and Production Wastes from Federal Hazardous Waste Regulations. Although Subsection R315-261- 4(b)(5) provides that the E&P waste is exempt from hazardous waste regulation, E&P waste may demonstrate characteristics of hazardous waste or contain constituents that may be regulated as hazardous waste under other circumstances. Depth of Waste Landfills Surface Impoundments Rule Change 2. Comment: Three (3) comments inquired about any limitations of waste depth. Response: While the comments used the term “depth,” the Division of Waste Management and Radiation Control (DWMRC) interprets the question to ask about the allowable aboveground height for a landfill. The height of a landfill may be restricted on a siting basis by requirements of other state agencies, political subdivisions of the state, federal agencies, or Indian governance. However, the DWMRC limits landfill height according to required rule standards, as follows: Subsection R315-302-1(2) provides location standards that may affect the height of a landfill; Subsection R315-303-3(4) [R315-303-3(5)] provides that the side slope of a landfill may not exceed 33%, “except where construction integrity and the integrity of erosion control can be demonstrated at steeper slopes;” and Subsection R315-302-3(5) requires proof of landfill stability to be released from post-closure care. Director Authority Landfills Surface Impoundments Rule Change 3. Comment: Four (4) comments addressed the Director's authority. Generally, the comments requested specification through articulable standards when the Director may approve an alternative, exempt or waive a requirement, or when the Director may require a more stringent standard. Phrases from the rules that led to this comment include “as determined by the Director,” “unless determined unnecessary by the 4 Director,” and “if the Director determines that the exemption will cause no adverse impact.” Response: In each case that allows for Director discretion, a standard is set in the rules. Administrative rules cannot account for every possible scenario. The discretionary options provided in the rules allow the Director to consider circumstances that are unforeseen or for which there is not an explicit definition or framework, and provides flexibility for the Director to determine how to protect human health and the environment in any given situation. This might include but is not limited to proposed alternative waste handling or treatment practices, alternative designs, technologies, and infrastructure. In cases where the rule allows Director discretion, an applicant normally provides the justification for the alternative requested and is responsible to ensure that all required performance standards are achieved. The justification should be compelling and may require the applicant to conduct trials to demonstrate the validity of the proposal. The justification should include rationale that the proposed alternative protects human health and the environment using current and forecasted environmental conditions, and best available technology. The Director's staff will conduct a review of the justification and may request additional information. The Director's staff will make a recommendation to the Director, and any alternatives that are approved are recorded in the administrative record. Enhanced Evaporation Landfills Surface Impoundments Rule Change 4. Comment: Four (4) comments request that DWMRC create rules for preventing overspray on enhanced evaporation systems. All comments request a wind speed at which enhanced evaporation may not be used. One comment recommends establishing setbacks from surface water, roads, and property boundaries. Response: The DWMRC has revised proposed Subsection R315-322-5(6)(a) [R315-322-5(7)(a)] to say, “Enhanced evaporation systems shall be no closer than 100 feet from a facility’s exterior boundary.” Proposed Subsection R315-322-6(5) has been revised to include provisions that say: (5) Overspray including foam from sprinklers, wind, or enhanced evaporation systems, outside of lined areas shall be prevented. (a) Operation of enhanced evaporation systems is prohibited when wind speeds at the unit are equal to or greater than 15 mph. (i) If overspray outside of the lined area occurs, it shall be corrected and cleaned up to soil background levels immediately, or as soon as wind speeds allow. (ii) Sampling and analysis of soils suspected to be contaminated from overspray may be required by the director. Additionally, Proposed Subsection R315-322-3(1)(b) has been added to say: (b) For solid waste surface impoundments that use enhanced evaporation systems, a plan to control overspray, including corrective actions to cleanup waste shall be included in the plan of operation. 5 EPA Best Practices Landfills Surface Impoundments Rule Change 5. Comment: Three (3) comments inquire about differences between best practices identified in a letter from EPA Region 8 dated October 18, 2023, and the proposed DWMRC rules. Comments were provided on a single bullet point in the letter that states, “Landfills should be designed and constructed per industry standard, to include appropriate composite liner systems and leak detection to ensure the protectiveness required under part 257.” Response: The DWMRC appreciates EPA's letter and acknowledges that the best practices identified therein are recommended to “help ensure compliance with the RCRA requirements . . . depending on site-specific conditions.” While these best practices are commendable, the groundwater monitoring requirements of 40 CFR Part 257 are applicable only to non-municipal non-hazardous wase disposal units that receive hazardous waste from a very small quantity generator (see 40 CFR 257.5(a)(2)), and coal combustion residuals (CCR) landfills that receive CCR (see 40 CFR 257.90). The DWMRC has incorporated groundwater monitoring requirements for facilities that receive hazardous waste from very small quantity generators. The liner requirements of 40 CFR Part 257 are applicable only to CCR landfills that receive CCR, as defined by 40 C.F.R. 257.53. E&P Waste landfills are authorized to receive E&P waste, not CCR. Therefore, as further discussed under the response to comment #28 below, the liner requirements under 40 CFR Part 257 are not applicable to E&P waste landfills. Existing Facility Requirements vs. New and Laterally Expanding Facility Requirements Landfills Surface Impoundments Rule Change 6. Comment: One (1) comment refers to proposed Subsection R315-321-3(1), which states, “A new Class VII Facility or the lateral expansion of an existing Class VII Facility shall be subject to the following location standards...” and asks, “Does new Class VII refer to newly constructed or for the initial permit?” Response: The DWMRC is addressing this comment broadly because “new and laterally expanding” and “existing” requirements are found throughout the rules and this discussion is important for both landfills and solid waste surface impoundments. First, a “new” facility is one that is not “existing.” The current definition for “existing” includes all current DWMRC-permitted solid waste disposal facilities and has been revised to include all solid waste disposal facilities that had a Division of Oil, Gas, and Mining (DOGM) permit as of October 1, 2023. Second, wherever “lateral expansion” of an existing facility is used, the requirement applies to the expansion of a facility beyond the property boundaries outlined in the permit application for the current permit under which the facility is operating. See Subsection R315-301-2(22) [R315-301-2(23)]. Unless otherwise specified in the rules, the horizontal expansion or construction of a cell, module, or unit within the boundaries outlined in the permit application of the current permit is considered “existing.” See Subsection R315-301- 2(40) [R315-301-2(43)]. 6 Financial Assurance Landfills Surface Impoundments Rule Change 7. Comment: One (1) comment requested financial assurance to be calculated based on the amount of material received by a facility. Response: Rule R315-309 details how financial assurance is to be calculated and can be summarized as being equal to the full cost of closure and post-closure care of a facility, based on third party supply of all materials and performance of all activities. The amount of waste received by a facility does not directly correlate to the cost to perform closure of the facility or to any required post-closure care. 8. Comment: One (1) comment requested that the transition of bonding from DWMRC to DOGM not force a double bonding scenario. Response: The DWMRC will allow operators to apply for and obtain a temporary permit as described under proposed Subsection R315-321-4(8) or proposed Subsection R315-322-3(2)(a). In calculating the appropriate financial assurance amount for the temporary permit, the Director may (but is not required to) rely on bond calculations performed by DOGM. Neither agency expects this transfer to result in double bonding. During the time that the temporary permit is in effect, an owner and operator will calculate the amount of financial assurance required by DWMRC under Rule R315-309 for a third party to supply all materials and perform all required closure and post-closure activities. Any increases in the estimated costs for closure and post- closure care greater than the existing bond amount must be accounted for and funded by the financial assurance mechanism before a 10-year permit is issued from DWMRC. Any decreases in the estimated costs will be released to the owner or operator. The DWMRC will release a temporary permit application and instructions soon. 9. Comment: Two (2) comments were received about fairness in applying financial assurance requirements. Response: The financial assurance requirements found in Rule R315-309 require the same coverage for all facilities. 10. Comment: One (1) comment asked what form of financial assurance will be allowed, and whether certificates of deposit are allowed. Response: Rule R315-309 details the financial assurance instruments that are allowed. A certificate of deposit is not currently allowed per Solid Waste Permitting and Management Rules, but it is being considered. 11. Comment: One (1) comment inquired about the exemptions found in proposed Subsections R315-321-4(6)(b) and R315-322-7(1)(a) from the financial assurance requirements of Rule R315-309 when a federal or other state agency has financial assurance requirements that are at least as stringent as Rule R315-309. Response: The purpose of financial assurance is to ensure that DWMRC has funds available to perform any required closure, post-closure care, and any known corrective actions for a facility. Proposed Subsections R315-321-4(6)(b) and R315-322-7(1)(a) allow DWMRC to exempt an owner and operator from additional financial assurance obligations if a federal or other state agency holds funds for the same purpose and in 7 the amounts required by Rule R315-309. DWMRC does not guarantee an exemption and such an exemption may be dependent on DWMRC's ability to ensure that another agency holding funds will adequately perform the required activities or transfer the funds to DWMRC to ensure that the activities are completed. 12. Comment: Two (2) comments inquired about the release of financial assurance upon closure of landfill cells and one of the comments requested confirmation on the ability to close a landfill cell by cell. Response: Subsection R315-309-2(3)(a) states that the amount of financial assurance required for closure is based on the “most expensive cost to close the largest area of the disposal facility ever requiring final cover at any time during the active life...” Therefore, the closure of a landfill cell may result in a reduction of overall closure costs. When the Director has approved the closure of a portion or all of a facility, and the closure results in a reduction of closure and post-closure costs, an owner or operator may request the release of the respective funds. Additionally, Subsection R315-309-2(2) requires that the owner or operator submit an annual update of its financial assurance cost estimate “to adjust for inflation or facility modification that would affect closure or post-closure care costs” and Subsection R315-311-1(4)(b) requires a full calculation of market costs every five years. Each of these updates provides an opportunity to reduce the amount of funding when appropriate. Groundwater Landfills Surface Impoundments Rule Change 13. Comment: Two (2) comments requested quantitative standards for what qualifies as an “extreme depth to groundwater” and a “natural impermeable barrier” as found in the location standard of Subsection R315-302-1(2)(e)(vi)(A). Response: The term “extreme depth to groundwater” is undefined because an owner or operator must make such a demonstration using technical analysis unique to the facility. The Director has discretion to make a determination of an “extreme depth to groundwater” based on evaluation of the technical analysis provided by the owner or operator and other site-specific characteristics. For reference, Subsections R315- 302-1(2)(e) and R315-308-1(3) provide further detail and should be considered when demonstrating that a location has an “extreme depth to groundwater.” Regarding a “natural impermeable barrier,” Subsection R315-301-2(54) defines permeability, and states that “Soils and synthetic liners with a permeability for water of 1 x 10-7 cm/sec or less may be considered impermeable.” This standard does not conclude that a “natural impermeable barrier” above groundwater is present but may be considered when as part of the necessary technical analysis. 14. Comment: Two (2) comments requested either an exemption from groundwater monitoring at Class VII Landfills or more direction concerning groundwater monitoring at Class VII Landfills. Response: Owners and operators of Class VII Landfills will not be required to monitor groundwater at their facility unless they receive hazardous waste from a very small quantity generator. See proposed Subsection R315-321-4(4)(a) [R315-321- 4(3)(a)]. If they do accept this waste, they must monitor the groundwater according to 8 Rule R315-308 or receive approval for a groundwater alternative or waiver according to Subsection R315-302-1(2)(e)(vi). 15. Comment: Two (2) comments request that a groundwater monitoring waiver option be excluded from the rules for solid waste surface impoundments, and one of the commenters suggests that no evaluation of horizontal contaminant migration is included in proposed Subsection R315-322-5(10)(b) [R315-322-5(11)(b)]. Response: Regarding groundwater monitoring alternatives and waivers, Subsection R315-302-1(2)(e)(vi) provides the Director the authority to “approve, on a site specific basis, an alternative groundwater monitoring system at the facility or…wave the groundwater monitoring requirement.” Under the alternative monitoring option, an owner or operator may propose the alternative monitoring system. This allows the Director to consider an alternative groundwater monitoring system that has sampling capability, and a sampling regime or a detection trigger as part of the monitoring system. Under the waiver option, the Director may grant a groundwater monitoring waiver if the owner or operator demonstrates, according to Subsection R315-308-1(3), that there is no potential for groundwater contamination during the active life and post-closure care period of the facility. This demonstration requires significant knowledge of the waste characteristics, degradation processes, and modeling of contaminant fate and transport. Importantly, neither a groundwater monitoring alternative, nor a groundwater monitoring waiver, relieve an owner or operator from the responsibility to take corrective action if groundwater is contaminated. Regarding horizontal contaminant migration, all groundwater protection options outlined in proposed Subsection R315-322-5(10)(b) [R315-322-5(11)(b)] include monitoring of horizontal groundwater movement. 16. Comment: Two (2) comments requested that all surface impoundments be required to both monitor groundwater and have a leak detection system. Response: If a facility monitors groundwater according to Rule R315-308, when contamination is detected for an extended period, the facility must enter the corrective action program detailed in Section R315-308-3. This requires the facility to remedy the contamination. Similarly, for facilities performing leak detection outlined in proposed Subsection R315-322-5(12) [R315-322-5(13)] , any leak detection will require repair. The DWMRC maintains that one or the other is sufficient for environmental protection. 17. Comment: One (1) comment expressed concern that the rule “does not mention that the construction of the collection system for leak detection system should include an electrically conductive geofabric or similar material between synthetic liners to allow for a liner integrity survey.” Response: The dual liner requirements drafted for surface impoundments are based on best available technologies and include the use of leak detection risers and leak detection surveys. Upon discovery of a leak, a liner integrity survey may assist an owner or operator find and repair leaks quickly, and the installation of an electrically conductive geofabric between liners may be useful. This construction option is 9 available to owners or operators, but the DWMRC does not intend to prescribe this in the rules. Hazardous Waste Determination Landfills Surface Impoundments Rule Change 18. Comment: One (1) comment referenced the definition of E&P waste in Subsection R315-301-2(25), and stated, “The Department needs to provide quantifiable criteria for how hazardous waste will be classified, including the provision of specific analytic testing standards.” Response: Hazardous waste is identified according to Rule R315-261, “General Requirements -- Identification and Listing of Hazardous Waste.” The process that a generator of a solid waste must follow to determine whether waste is hazardous is found in Section R315-262-11, “General -- Hazardous Waste Determination and Recordkeeping.” The requirements for an owner of a treatment, storage or disposal facility to obtain a detailed chemical and physical analysis of a representative sample of the hazardous waste is found in Section R315-264-13, “General Waste Analysis.” Hazardous Waste from a Very Small Quantity Generator Landfills Surface Impoundments Rule Change 19. Comment: Three (3) comments expressed concern over acceptance and management of hazardous waste from a very small quantity generator. The comments requested that facilities track hazardous waste acceptance or demonstrate that hazardous waste is not accepted. Response: The federal requirements for non-municipal solid waste facilities that accept hazardous waste from a very small quantity generator have been incorporated into the proposed rules. Namely, exemptions to wetland and floodplain location standards must meet certain requirements, and groundwater monitoring may not be exempted at such a facility without meeting certain standards. See proposed Subsection R315-321-4(4)(a) [R315-321-4(3)(a)] ; and proposed Subsection R315- 322-2(5)(b). Whether a solid waste facility is to accept hazardous waste from a very small quantity generator is a business decision left to owners and operators. Section R315-262-11 requires a generator of solid waste to determine whether waste is hazardous and to maintain records of each hazardous waste determination. The DWMRC recommends that the owner and operator of a solid waste facility request the record of the waste determination and maintain it in the facility's daily operating record. The daily operating is required to contain, among other information, “the weights, in tons, or volumes, in cubic yards, of solid waste received each day, number of vehicles entering, and if available, the type of wastes received each day.” Subsection R315-302-2(3)(a)(i). The daily operating would be an ideal place to maintain hazardous waste determinations as waste is received at the facility. High Liquid Waste Landfills Surface Impoundments Rule Change 20. Comment: Two (2) comments expressed concern over the management of high liquid wastes, specifically requesting guidance for high liquid waste off-loading and stabilization areas outside of the landfill cell and protections for liners and operation areas inside of the landfill cell. 10 Response: Solid waste surface impoundments may accept high liquid waste. Class VII landfills may not accept high liquid waste without implementing appropriate measures in an approved high liquid waste management plan as required by Subsection R315-303-3(1.1) [R315-303-3(2)]. The plan must detail waste acceptance, dewatering unit designs and techniques, other stabilization techniques, and a communication plan to inform customers of high liquid waste acceptance criteria. Additionally, as required by Subsection R315-303-3(1.1)(b) [R315-303-3(2)(b)] , all unloading areas and structures, staging areas, and areas used for dewatering, stabilization, or other treatment, which may be located in a landfill cell, must have a permeability of no more than 1 x 10-7 cm/sec and be capable of maintaining integrity under the operation of heavy equipment. The permeability of the areas must be demonstrated by testing or other certification. Hydrocarbon Accumulation on Surface Impoundments Landfills Surface Impoundments Rule Change 21. Comment: Six (6) comments addressed proposed Subsection R315-322-6(4)(a), which states, “Hydrocarbon accumulation, other than de minimis quantities, on a Class VII solid waste surface impoundment is prohibited. Any such accumulation shall be removed within 24 hours of the time accumulation began.” Commenters requested a clearer definition. Response: Any amount of hydrocarbons on a surface impoundment increases risk to birds and other wildlife, and increases emissions of volatile organic compounds. Although it would be difficult to operate in such a way that hydrocarbons are never observed, a prescriptive regulatory standard would require owners or operators to frequently measure hydrocarbons on surface impoundments, possibly multiple times each day. The use of the term “de minimis” meaning lacking significance, trifling, minimal, or of little importance, is preferred over a specified, measurable amount. For illustration purposes, a minimal sheen on a surface impoundment may be de minimis, but a sheen that covers the whole surface impoundment may not be considered de minimis. Landfarm Closure Landfills Surface Impoundments Rule Change 22. Comment: Four (4) comments asked whether soil testing of waste in a landfarm is necessary for closure, if testing of the soil used for a closure cap is necessary, and if post-closure monitoring is required. Response: Landfarm owners and operators that seek closure under DWMRC requirements at the time of regulatory transition may apply for a closure and post- closure permit, or they may apply for risk-based closure. For owners and operators choosing a closure and post-closure care permit for any portion of an existing facility, a closure plan must be submitted that meets the requirements of proposed Subsection R315-321-4(2) [R315-321-4(5)] , and an application for a post-closure permit must be submitted according to Section R315- 310-10. Under the requirements of a closure and post-closure permit, no testing of waste to be covered is required. However, the soil used for final cover must be uncontaminated soil that never had waste applied to it. The application for a closure and post-closure 11 care permit will require a post-closure care monitoring plan to meet the applicable requirements of Subsections R315-302-3(5) and R315-302-3(6). Risk-based closure will only apply to facilities that have selected this option at the time of transition from regulation under Rule R649-9 to regulation under Title R315. For risk-based closure, all standards are found in Rule R315-101, Cleanup Action and Risk-Based Closure Standards. 23. Comment: One (1) comment requested that “Existing landfarms with a closure plan approved by DOGM should be allowed to complete closure with DOGM after the WMRC rule change is in effect.” Response: As part of the November 17, 2021 Stakeholder Meeting, a DOGM - DWMRC E&P Waste Outline stated that landfarms would no longer be permitted, and that landfarm operators would have three options that include two closure scenarios and one conversion to landfill option. The option for closure under DOGM program requirements expressly states that it must be completed prior to the regulatory transition date. Landfill Transition from Class IIIb to Class VII Landfills Surface Impoundments Rule Change 24. Comment: Two (2) comments asked about whether existing E&P landfills permitted by DWMRC will need new permits. Response: E&P waste landfills with existing DWMRC permits that do not have a need to add additional waste management units to the existing permit and are not expanding the facility footprint, are not required to apply for a new permit as part of the regulatory shift. E&P waste landfill owners and operators with existing DWMRC permits will be required to get a Class VII landfill permit at the next scheduled renewal for each existing permit. For all circumstances that include transitioning a waste management unit permitted by DOGM to DWMRC’s jurisdiction, owners and operators will need to apply for and get a temporary permit for waste management units not permitted by DWMRC before the regulatory shift, followed by a Class VII Permit before the expiration of the temporary permit. 25. Comment: Two (2) comments asked about permit requirements when converting a DOGM-permitted pond to a DWMRC-permitted landfill or surface impoundment. Response: All conversions of DOGM-permitted facilities to DWMRC-permitted facilities require an application that meets DWMRC requirements. This includes any E&P solid waste management unit that has not received closure approval or completed post-closure care requirements if applicable. To facilitate the regulatory transition, an owner and operator must acquire a temporary permit or a Class VII permit before the regulatory shift. If a Temporary permit is sought, a Class VII Permit must be acquired before the expiration of the temporary permit. Detailed instructions for the temporary permit application will be provided soon. Liners Landfills Surface Impoundments Rule Change 26. Comment: Three (3) comments identify that there are existing surface impoundments that do not have the dual synthetic liner system found in proposed 12 Subsection R315-322-5(11)(f) [R315-322-5(12)(f)] and would like more direction on how these facilities will be managed. Response: The dual synthetic liner system described in proposed Subsection R315- 322-5(11)(f) [R315-322-5(12)(f)] applies to “Solid waste surface impoundments following the leak detection monitoring requirements of proposed Subsection R315- 322-5(10)(b)(iii),” [R315-322-5(11)(b)(iii)] and the referenced subsection is only applicable to new facilities. For existing surface impoundments, the applicable requirements for leak detection and groundwater monitoring are found in Subsections proposed Subsections R315-322-5(10)(c) [R315-322-5(11)(c)] and R315-322-5(10)(d) [R315-322-5(11)(d)] , and the existing surface impoundment requirements for synthetic liners are found in proposed Subsections R315-322-5(11)(a) [R315-322- 5(12)(a)] through R315-322-5(11)(d) [R315-322-5(12)(d)]. These provisions are not expected to result in design changes to an existing facility. 27. Comment: Three (3) comments requested clarity on whether landfarms may operate without liners, and asked where the rules specify when a liner is or is not required for a landfill. Response: Upon the repeal of the current Rule R649-9, administrative rules allowing landfarming will cease to exist. Landfarms that are not closed prior to the transition from DOGM regulation to DWMRC regulation will be required to either apply for a closure and post-closure permit with DWMRC or operate under the landfill requirements as proposed in Rules R315-301 through R315-322. While Class VII landfill cells do not require liners, Rule R315-303 provides liner requirements for other facilities under the “Landfilling Standards.” DMWRC is proposing to clarify the applicability of Rule R315-303 to Class VII landfills by adjusting Section R315-303-1 to say, “The standards of Rule R315-303 apply to: (4) Class VII Landfills as specified in Rule proposed R315-321.” Accordingly, only the requirements of Rule R315-303 specified within proposed Rule R315-321 are applicable to Class VII landfills. Proposed Rule R315-321 does not reference the liner standards in Subsection R315-303-3(3) [R315-303-3(4)] , and therefore liners are not required for Class VII landfill cells. 28. Comment: Three (3) comments request that DWMRC require Class VII landfills to have a liner. Response: DWMRC maintains that, unless otherwise determined by the Director, liners are not required for new or expanding Class VII E&P waste landfill cells under proposed Rule R315-321. The relevant regulations are outlined below. Liners are not required for new or expanding E&P waste landfill cells under federal law. Federal law requires liners for two types of landfills—Coal Combustion Residuals landfills (“CCR landfills”) and municipal solid waste landfills (“MSWLF”). The federal CCR landfill requirements are codified under 40 C.F.R. 257. Under 40 C.F.R. 257.70(a)(1), a new or expanding CCR landfill “must be designed, constructed, operated, and maintained with either a composite liner [. . .] or an alternative composite liner.” A CCR landfill is a landfill that receives CCR. 40 C.F.R. 257.53. Importantly, CCR is defined as “fly ash, bottom ash, boiler, slag, and flue gas desulfurization materials generated from burning coal for the purpose of 13 generating electricity by electric utilities and independent power producers.” 40 C.F.R. 257.53. E&P waste is not CCR, and the liner requirements under 40 C.F.R. 257 are inapplicable to E&P waste landfills. The federal MSWLF unit requirements are codified under 40 C.F.R. 258. Under 40 C.F.R. 258.40(a)(1), new or expanding MSWLF units “shall be constructed with a composite liner.” A MSWLF unit is “a discrete area of land or an excavation that receives household waste, and that is not a land application unit, surface impoundment, injection well, or waste pile.” 40 C.F.R. 258.2. Household waste is “any solid waste (including garbage, trash, and sanitary septic tanks) derived from households.” 40 C.F.R. 258.2. E&P waste is not household waste, and the liner requirements under 40 C.F.R. 258 are inapplicable to E&P waste landfills. High liquid waste is prohibited from being disposed of in any Class VII landfill cell and must be managed appropriately. See Subsection R315-303-3(1.1) [R315-303- 3(2)] ; and proposed Subsection R315-321-4(3)(c) [R315-321-4(2)(c)]. High liquid waste is “nonhazardous solid waste that is liquid in its natural state, contains free liquids, or is expected to liquefy or vaporize under the circumstances that is managed or disposed.” See Subsection R315-301-2(27) [R315-301-2(29)]. However, the prohibition against disposing of high liquid waste is but one control to protect groundwater. The proposed rules include other controls to protect groundwater, including run-on and run-off controls, final cover, and post-closure monitoring. See Proposed Subsections R315-321-4(3)(a), (d), (e); and R315-321-4(2) [R315-321- 4(2)(a), (d), (e); and proposed R315-321-4(5)]. The provisions in the draft rule are protective of groundwater and ensure the long-term stability of Class VII landfill cells. Most Class VII landfill cells are located (or expected to be located) in arid areas of the state where groundwater resources are not prevalent, groundwater tables are deep, and natural silts and clays provide varying degrees of inherent protection. However, as discussed below, the Director has full discretion to require a liner. The current regulatory structure is preferable to a structure where liners are always required but provides operators the right to seek exemptions and variances from the liner requirement due to site-specific conditions. Unlike Class VII landfills, liners are required for new or expanding solid waste surface impoundments under proposed Rule R315-322. The waste disposed of in an E&P waste landfill is fundamentally distinct from the waste disposed of in a surface impoundment. Solid waste surface impoundments may accept high liquid waste, leachate, or sludge and need only comply with the high liquid waste management requirements under Subsection R315-303-3(1.1) [R315-303-3(2)] if a dewatering or other stabilization technique is used in association with the solid waste surface impoundment. See proposed Subsection R315-301-2(71) [R315-301-2(73)]; and proposed Subsection R315-322-5(4) [R315-322-5(5)]. The distinction in liner requirements for E&P waste landfills and solid waste surface impoundments addresses the type of waste accepted in the respective facilities and the associated risks. Additionally, the Director of DWMRC is the statutory “Director” under the Water Quality Act, Utah Code § 19-5-101 et seq., and the rules promulgated thereunder for groundwater protection at any facility licensed by and under the jurisdiction of DWMRC. Utah Code § 19-5-102(6). Pursuant to this statutory directive, the Director has the authority and regulatory tools necessary to protect groundwater through permitting, enforcement, and corrective actions. The Director’s authority includes the 14 duty and ability to require liners, monitoring, and other measures necessary to protect groundwater resources at E&P facilities through rules outside of the proposed solid waste rules. See Utah Admin. Code R317-6 et seq. In short, the substance of the groundwater protection program under the Water Quality Act applies to Class VII landfills and solid waste surface impoundments, as implemented by the DWMRC Director. Under the DWMRC Board’s rulemaking authority, no rule may be enacted that is more stringent than federal law unless the Board makes specific findings that federal law is not adequate to protect human health and the environment. Utah Code § 19-6- 106(1), (2). Because the Director may require liners and other appropriate controls to protect groundwater at sites where conditions warrant such protections, there is no reason for the E&P waste rules to be more stringent than federal law. Accordingly, DWMRC’s design standards for E&P waste landfills align with federal law, the Director’s statutory authority under the Water Quality Act, and the distinct nature of waste accepted by such facilities. 29. Comment: One (1) comment raises concerns about the use of anything but synthetic liners for surface impoundment cell design, including concerns about the allowance of equivalent designs or alternative designs specified in Subsection R315- 303-3(3) [R315-303-3(4)]. Additionally, the comment states that potassium chloride- based drill muds may increase the permeability of clay, thus presenting liner integrity risks when clay is selected as a secondary liner. Response: The proposed rules require synthetic liners for solid waste surface impoundments under proposed Subsection R315-322-5(11) [R315-322-5(12)]. While some owners and operators may use dual synthetic liner systems with leak detection, others may choose the liner systems detailed in Subsection R315-303-3(3) [R315-303- 3(4)] when groundwater monitoring wells are installed that allow for detection, regular sampling, and correction of any groundwater contamination. Subsection R315-303-3(3) [R315-303-3(4)] provides three liner design options, including standard design, equivalent design, or alternative design. The standard design found in Subsection R315-303-3(3)(a) [R315-303-3(4)(a)] requires a composite liner system and a leachate collection system. The equivalent design found in Subsection R315-303-3(3)(b) [R315-303-3(4)(b)] requires the owner and operator to demonstrate that the equivalent design will be as protective as the standard design, including evaluation of the volume and physical and chemical characteristics of the leachate generated by the waste accepted at the facility. The alternative design found in R315-303-3(3)(c) [R315-303-3(4)(c)] similarly requires demonstrations, including predictions of contaminate fate and transport and leachate flows. The DWMRC maintains that the liner requirements of Subsection R315-303-3(3) [R315-303-3(4)], as applied to solid waste surface impoundments under proposed Section R315-322-5, are protective of human health and the environment. The commentor's statement about potassium chloride-based drill muds increasing the permeability of clay liners is unclear since drill muds are not an acceptable waste for solid waste surface impoundments. However, the DWMRC was interested to learn about any risks introduced by accepting potassium chloride-based drill mud into clay- lined landfill cells. The scholarly articles that DWMRC reviewed discuss how potassium chloride is used in clay soils for stabilization purposes, including a 15 reduction of plasticity, lending to reduced permeability, swelling, and greater compactability of the clay soil. Potassium chloride is used for oil and gas drilling and production purposes to reduce clay blocking, which is the swelling of clays that can make well drilling more difficult, and during production, can reduce performance of a well. Research shows that potassium chloride alters the characteristics of clay soils because of cation exchange. The positive charge of potassium chloride is attracted to the negative charge in clay, and at an optimum concentration of potassium chloride between 6% and 8%, clays become more stable than without the additive. The articles seem to indicate that clean water may reverse some of the stability provided by the potassium chloride, and that elevated concentrations of potassium chloride above 15% may not be beneficial. Given that potassium chloride is added to drilling fluids to reduce clay blocking, the DWMRC believes that potassium chloride-based drill mud will not have a negative effect on clay-lined landfill cells. A few of the articles DMWRC reviewed include: Abrams, Megan E., et. al, 2016, Everything You Wanted to Know About Clay Damage but Were Afraid to Ask, American Association of Drilling Engineers, accessed June 24, 2024, at: https://www.aade.org/application/files/7815/7131/8490/AADE-16-FTCE-35_- _Abrams.pdf Jones, Frank O., Jr, 1964. Influence of Chemical Composition of Water on Clay Blocking of Permeability. Pan American Petroleum Corp. Accessed June 24, 2024, at: https://onepetro.org/JPT/article/16/04/441/160716/Influence-of-Chemical- Composition-of-Water-on-Clay Shukla, Rajesh Prasad, et. al, 2018. Stabilization of Expansive Soil Using Potassium Chloride. The Civil Engineering Journal 1-2018. Accessed June 24, 2024, at: https://www.researchgate.net/publication/324626030_Stabilization_of_expansive_soil _using_potassium_chloride Location Standards, Existing Facilities Landfills Surface Impoundments Rule Change 30. Comment: One (1) comment stated that an existing facility should be exempt from location standards and that a rule should be added stating this exemption. Response: Proposed Rule R315-321 for Class VII landfills, and proposed Rule R315-322 for solid waste surface impoundments effectively grandfather most of the location standards for existing facilities. However, existing facilities cannot be exempted from the ecologically and scientifically significant natural area requirements of Subsection R315-302-1(2)(a)(ii) or the floodplain standards of Subsection R315- 302-1(2)(c)(ii), because these correspond with mandatory federal requirements and Utah's requirements cannot be less stringent than the federal requirements. In addition, the draft rules require an existing facility to maintain any standards already in place at an existing facility that provide increased protection of human health and the environment, unless otherwise determined by the director. 16 Performance Standards Landfills Surface Impoundments Rule Change 31. Comment: Two (2) comments asked about how to meet requirements to ensure that groundwater, air quality and explosive gas, and surface water standards are not exceeded as required by proposed Sections R315-321-2 and R315-322-4(1). Response: Both of the above citations direct the reader to Section R315-303-2 where performance standards are found for all regulated solid waste facilities. Performance standards broadly describe protections that the owner and operator of a regulated operation must provide, and intentionally do not provide methods to achieve the standards. Performance standards may be achieved through a combination of location standards, design standards, and operation standards, for which minimum requirements are provided in the regulations. Additionally, an owner and operator may exceed the minimum standards and to occasionally evaluate the conditions of the facility's performance to prevent contamination that may lead to expensive remediation. When performance standards are not met, an owner and operator may be required to conduct an environmental assessment and take corrective actions to remediate any contamination in accordance with Subsection R315-301-6(2), which says, “Any contamination of the ground water, surface water, air, or soil that results from the management of solid waste which presents a threat to human health or the environment shall be remediated through appropriate corrective action.” Professional Certifications Landfills Surface Impoundments Rule Change 32. Comment: One (1) comment suggests that all geological and hydrogeological data in a permit application be certified and collected under the direction of a professional geologist. The comment also suggests that every Class VII Facility should be required to provide the stamped engineering plans and reports detailed in Subsection R315- 310-4(2)(c). Response: When geological or hydrogeological data are required, it is in the form of a geohydrological assessment as detailed in R314-310-4(2)(b). By nature of the strict requirements of a geohydrological assessment, a professional geologist would be involved with the collection of the data. Furthermore, engineered facility plans, designs, and drawings are required for specific facility types. The extensive plans and reports outlined in Subsection R315-310-4(2)(c) are not reflective of the environmental risks posed by E&P waste managed in Class VII landfills. Recycle, Reuse, Reclamation Landfills Surface Impoundments Rule Change 33. Comment: Three (3) comments inquired whether waste may be removed from a Class VII landfill, what cleanup standards would apply, and where an oil cleaning facility is found in the rules. One of the commenters also asked, “Can solid precipitates and other solids that accumulate in the surface impoundments be removed and placed in a landfill?” Response: The DWMRC does not have a full understanding of what the commenters mean by asking if waste can be removed from a Class VII landfill; or what the question about associated cleanup means; or what is meant by an oil cleaning facility. However, precipitates and other solids that accumulate in a Class VII solid waste surface impoundment may be placed in a Class VII landfill cell, provided that 17 such precipitates and other solids are an acceptable waste and managed appropriately under proposed Rule R315-321. 34. Comment: One (1) comment inquired whether soils from a landfarm closed under DOGM requirements may be used as mixing soil to meet the requirements of a high liquids waste plan. Response: Yes, the DWMRC will consider soils from a landfarm closed under DOGM authority as acceptable mixing soil for the purpose of managing high liquid waste. Run-off Control Landfills Surface Impoundments Rule Change 35. Comment: One (1) comment stated that the inclusion of another line to proposed Subsection R315-322-5(5) [R315-322-5(6)] should state that “storm water run-off must be redirected to one or more retainment ponds.” Response: The addition of a Subsection R315-322-5(5)(b) to address stormwater run-off being directed to one or more containment ponds is accounted for in Subsection R315-303-3(1)(d) in its requirement to design the landfill to treat run-off of surface waters and other liquids. Design drawings of run-on/run-off control systems are also required per Subsection R315-303-3(6)(a) [R315-303-3(7)(a)]. Although the rules don't specify “containment ponds,” this is a common way to manage large storm events and resulting surface water. Skim Ponds and Open Tanks Landfills Surface Impoundments Rule Change 36. Comment: Three (3) comments requested guidance concerning skim ponds and open tanks, specifically requesting information about hydrocarbon accumulation and skim pond applicability with new rules. Response: The solid waste surface impoundment rule applies to any part of a solid waste facility that is a natural topographic depression, human-made excavation, or a diked area designed to hold nonhazardous high liquid waste, leachate, or sludge, to dispose of, reduce the volume of, or otherwise separate or treat the waste. Skim ponds qualify as solid waste surface impoundments, and proposed Rule R315-322 will apply. If surface impoundments are used for oil separation, the de minimis hydrocarbon accumulation standard applies. See the response to question #21 for more information on de minimis hydrocarbon accumulation. Surface Impoundment Design Landfills Surface Impoundments Rule Change 37. Comment: Four comments (4) requested maximum allowable leakage rates to be set for surface impoundments and stated that liquid in the leak detection riser could result from shallow groundwater when the dual liners are not sealed together and that “the presence of liquid should not be assumed to be a reportable leak or one that requires repair.” Response: The DWMRC will treat all liquid found in a leak detection system as a leak until evidence suggests otherwise. The operator will be responsible for providing evidence that the water is not a leak that requires repair. Maximum allowable leakage rates are a technical issue that should be addressed on a site-specific basis. 18 38. Comment: One (1) comment mentioned that some facilities do not have leak detection risers that are a minimum of 18 inches in diameter as required by proposed Subsection R315-322- 5(12)(c)(i). Response: The language of proposed Subsection R315-322-5(12)(c)(i) [R315-322- 5(13)(c)(i)] has been changed in response to this comment, and is now proposed to say: (i) to be large enough in diameter to allow for visual observation and sampling of any fluid, at least 18 inches in diameter and extend to two feet below the inlet line from the pond the lowest elevation of the lower secondary liner of the solid waste surface impoundment, allowing visual detection of any fluid and sampling of fluid;” 39. Comment: Three (3) comments requested further clarification on the director's discretion about the allowable size of a surface impoundment as found in proposed Subsection R315-322-5(1) [R315-322-5(2)] and specifically requested that a maximum surface area be included in the rules. Response: Please see the response to comment #3 regarding the director's discretion authority. As to the maximum allowable surface area as a standard, it was determined that a volumetric size only is sufficient. 40. Comment: One (1) comment suggested that slope and erosion controls be included in surface pond engineering. Response: The current rule includes a slope requirement that, when followed, is also an erosion control measure. 41. Comment: Two (2) comments requested that freeboard in surface impoundments remain at two feet rather than three feet. Response: Large surface impoundments are prone to wave action that can impact embankments, detach soil particles, and spill waste outside of the surface impoundment. Based on the potential circumstances, three feet of freeboard is appropriate. Training Landfills Surface Impoundments Rule Change 42. Comment: Two (2) comments recommend that the requirement in proposed Subsection R315-322-3(2) to “submit details of controls and employee training programs used to prevent the acceptance of very small quantity generator waste” for surface impoundments not permitted to receive hazardous waste from very small quantity generators, should also be a requirement for Class VII landfills. Additionally, commenters request that the DWMRC define the controls and training programs that should be in place. Response: The DWMRC appreciates this suggestion. Proposed Subsection R315- 321-4(1)(e) has been added to say: (e) for Class VII facilities with landfill cells that do not accept hazardous waste from a very small quantity generator as defined by Subsection R315-260-10(c), 19 submit details of controls and employee training programs used to prevent the acceptance of hazardous waste. As to specific controls and training requirements, the DWMRC recommends that owners and operators seek out, evaluate, and enroll in training courses that are commercially available on hazardous waste management and are offered by various educators and consulting groups. Additionally, the DWMRC recommends that owners and operators supplement available training courses with facility-specific training to ensure that the specific wastes that arrive at each facility are understood, handled properly, appropriate documentation is maintained, and that any facility-specific hazards are addressed. Transfer of Waste Between Facilities Landfills Surface Impoundments Rule Change 43. Comment: Two (2) comments inquired if leachate and water collected in DWMRC regulated cells may be transferred to a surface impoundment or put down a Class II injection well. Response: Leachate collected from Class VII landfill cells may be transferred to a solid waste surface impoundment that is permitted to receive it. Leachate from E&P waste is exempt from hazardous waste regulations, and environmental precipitation is non-hazardous to begin with. Questions regarding whether leachate from disposal cells may be injected down a Class II injection well should be directed toward DOGM. Wildlife Protection Landfills Surface Impoundments Rule Change 44. Comment: Two (2) comments requested clarification on what is required to “[demonstrate] that uncovered waste is not a threat to human health, the environment, wildlife, or other receptors,” as required to relieve a Class VII facility owner and operator of the requirement for daily cover under proposed Subsection R315-321- 4(5)(a)(i) [R315-321-4(4)(a)(i)]. Response: Demonstrating that uncovered waste is not a threat to human health, the environment, wildlife, or other receptors, is a site-specific requirement that the Director will address on a case-by-case basis. In this context, an owner or operator can make such a demonstration during the application process, specifically within the facility's plan of operation. For example, a facility might specify that the type of waste to be accepted is not a food or nutrient source that may attract wildlife or livestock. If the waste to be accepted could attract wildlife or livestock, then the owner or operator may be required to demonstrate that implementing deterrents or other measures will be protective of such wildlife or livestock. 45. Comment: Five (5) comments referred to proposed Section R315-322-4, some requesting clarification, and others expressing requesting that standards for netting or flagging be expressly required on surface impoundments for the protection of livestock, migratory birds, and other wildlife. Response: All entities in the U.S. are subject to wildlife protection laws, such as the Endangered Species Act, Migratory Bird Treaty Act, Bald and Golden Eagle Protection Act, and applicable State laws requiring wildlife protection. proposed Subsection R315-322-4 generally addresses solid waste surface impoundments and is not specific to E&P derived liquids. Requiring the installation, monitoring, and 20 Created by Andrew Doane from Noun Project and Created by Adrien Coquet from Noun Project maintenance of specific wildlife and livestock deterrents may negate other alternative efforts utilized by industry. Such deterrents may include avian predator sound devices, abrupt noise producing devices, such as propane cannons, or dedicated onsite personnel trained to utilize non-lethal deterrents such as shotgun blanks, lasers, or a licensed falconer. Additionally, wildlife-proof fencing is a broad category and may also include the installation of barriers that deter small mammals, reptiles, or amphibians that are subject to Federal or State protection. Each surface impoundment will have a unique set of local conditions, including migratory bird flyway, elevation, proximity to anthropogenic influences, habitat conditions suitable for particular species, etc. Such local conditions may make certain deterrents more effective than others. DWMRC encourages owners and operators to account for these unique conditions when seeking to comply with applicable wildlife protection laws.