Mississippi Administrative Code
Title 11 - Mississippi Department of Environmental Quality
Part 4 - Nonhazardous Solid Waste Management Regulations
Chapter 1 - Mississippi Commission on Environmental Quality Regulation Regarding Nonhazardous Solid Waste Management Regulations
Rule 11-4-1.4 - Landfill Requirements

Universal Citation: MS Code of Rules 11-4-1.4

Current through September 24, 2024

A. Applicability

(1) The requirements of this rule do not apply to MSWLF units that stopped receiving solid waste before October 9, 1991, or to other landfills that stopped receiving solid waste before the effective date of these regulations.

(2) MSWLF units that received waste after October 9, 1991 but stopped receiving waste before the effective date of these regulations are exempt from all the requirements of this rule, except for the closure requirements specified in paragraph E.2 of this rule. The owner must complete closure requirements within six months of last receipt of wastes. Owners of MSWLF units that fail to complete closure requirements, as required in this paragraph, will be subject to all the requirements of this rule.

(3) Notwithstanding paragraphs A.1 and A.2 of this rule, the Commission or Permit Board may impose additional requirements on any landfill on a case-by-case basis in order to prevent, abate, control or correct groundwater contamination, public endangerment or as otherwise determined necessary to protect human health, welfare or the environment.

(4) All landfills that received waste on or after the effective date of these regulations, must comply with the requirements of this rule, unless otherwise specified.

B. Operating Requirements

(1) Procedures for Excluding the Receipt of Hazardous Waste and other Unauthorized Wastes

(a) Owners of all MSWLF units must implement a program at the facility for detecting and preventing the disposal of the following wastes:

(1) hazardous waste as defined by and subject to the Mississippi Hazardous Waste Management Regulations and Subtitle C of the Federal Resource Conservation and Recovery Act;

(2) polychlorinated biphenyls (PCB) waste;

(3) liquid wastes as described in Paragraph B.(10) of this rule;

(4) regulated Asbestos Containing Materials (ACM) which have not been properly bagged or contained in such a manner as to prevent the wastes from becoming airborne; and

(5) whole waste tires which have not been shredded, chopped, cut or otherwise processed as described in Rule 4.4.Bof the Mississippi Waste Tire Management Regulations.

(b) At a minimum, the program required in paragraph B.1.a of this rule, must include the following procedures:

(1) The owner must obtain information on any industrial process waste stream, prior to disposal, including the following:

(i) generator's name and address

(ii) transporter's name and address

(iii) name of the waste

(iv) process generating the waste

(v) physical and chemical properties of the waste

(vi) quantity of waste

(vii) certification from the generator that the waste is not a regulated hazardous waste under Subtitle C of the Resource Conservation and Recovery Act and the Mississippi Hazardous Waste Management Regulations.

(2) The owner shall forward the information required above to the Department and shall not accept the industrial process waste if the Department objects to the disposal of such waste at this facility. If the Department does not object to the disposal of such waste within 14 days of receipt of the information required above, the permittee may assume that the Department has no objections. The Department may require the submission of additional information in order to further describe or characterize the waste.

(3) For purposes of this rule, the term "industrial process waste" shall mean any solid waste generated as a result of the manufacture of a product, except uncontaminated packaging materials and containers, uncontaminated machinery components, tires, land clearing or landscaping wastes, office wastes, cafeteria wastes, and construction and demolition wastes.

(4) The owner shall conduct random inspections of incoming loads unless the owner takes other steps to ensure that incoming loads do not contain regulated hazardous wastes or PCB wastes.

(5) The owner shall maintain records of any inspections.

(6) The owner shall insure that all facility personnel are properly trained to recognize regulated hazardous waste and PCB wastes.

(7) The owner shall notify the Department if a regulated hazardous waste or PCB waste is discovered at the facility.

(2) Cover Material Requirements

(a) Except as provided in paragraph B.2.c. of this rule, the owners of all MSWLF units, except ash monofills, must cover disposed solid waste with at least six inches of earthen material at the end of each operating day, or at more frequent intervals if determined to be necessary by the Department to control disease vectors, fires, odors, blowing litter, and scavenging.

(b) Except as provided in paragraph B.2.c. of this rule, the owners of all MSWLF units which receive only ash and owners of all landfills other than MSWLF units must cover disposed solid waste with at least six inches of earthen material at a frequency determined by the Department.

(1) Alternative materials of an alternative thickness (other than at least six inches of earthen material) may be approved by the Department, if the owner demonstrates that the alternative material, thickness and/or method of application adequately control disease vectors, fires, odors, blowing litter, and scavenging without presenting a threat to human health and the environment.

(2) The use of alternate cover materials shall generally require the weekly application of a soil cover, unless otherwise determined by the Department.

(3) Disease Vector Control Populations of disease vectors shall be minimized through proper compaction and covering procedures. Approved pesticides, or use of other techniques appropriate for the protection of human health and the environment, shall be employed for vector control when necessary.

(4) Explosive Gases Control

(a) Owners of all MSWLF units must ensure that:

(1) the concentration of methane gas generated by the facility does not exceed 25 percent of the lower explosive limit for methane in facility structures (excluding gas control or recovery system components); and

(2) the concentration of methane gas does not exceed the lower explosive limit for methane at the facility property boundary.

(b) Owners of all MSWLF units must implement a routine methane monitoring program to ensure that the standards of paragraph B.4.a. of this rule are met. A plan describing the methane monitoring program should be submitted to the Department for approval. The plan should provide for the following:

(1) The type and frequency of monitoring must be determined based on the following factors:

(i) soil conditions;

(ii) the hydrogeologic conditions surrounding the facility;

(iii) the hydraulic conditions surrounding the facility; and

(iv) the location of facility structures and property boundaries.

(2) The minimum frequency of monitoring shall be quarterly.

(3) Results of all methane monitoring pursuant to paragraph B.4.b. of this rule shall be submitted to the Department no later than sixty (60) days following each monitoring period.

(1) immediately take all necessary steps to ensure protection of human health and notify the Department;

(2) within seven days of detection, submit to the Department and place in the operating record the methane gas levels detected and a description of the steps taken to protect human health; and

(3) within 60 days of detection, implement a remediation plan for the methane gas releases. A copy of the plan shall be submitted to the Department for approval and upon approval shall be placed in the operating record. The plan shall describe the nature and extent of the problem and the proposed remedy.

(d) The Department may establish alternative schedules for demonstrating compliance with paragraphs B.4.c.(2) and B.4.c.(3) of this rule.

(5) Air Criteria

(a) Owners of all landfills must ensure that they do not violate any applicable requirements developed under a State Implementation Plan (SIP) approved or promulgated by the Administrator pursuant to Section 110 of the Clean Air Act, as amended.

(b) Open burning of solid waste, except for land clearing debris generated on the site of the facility, shall be prohibited. Open burning of land clearing debris shall be conducted in accordance with Rule 1.3.G. of the "Air Emission Regulations for the Prevention, Abatement, and Control of Air Contaminants." (Title 11, Part 2, Chapter 1). An adequate supply of water under pressure at the site or an adequate stockpile of earth reasonably close to the disposal area shall be provided, or there shall be a nearby, organized Fire Department providing service when called. The Department may approve alternate methods of fire protection or waive this requirement when there is no need for fire protection. Should an accidental fire occur, the operator shall immediately take action to extinguish the fire and shall notify the Department by the close of the Department's next business day.

(6) Waste Placement

(a) Disposal activity shall be restricted to the area defined in the approved application.

(b) For landfills subject to the construction quality assurance (CQA) requirements of Rule 1.4(B)(19):

Prior to construction or preparation of any new disposal cell or area at a landfill, the cell boundaries shall be appropriately located and marked by a land surveyor licensed by the State of Mississippi to ensure construction within the approved area.

Prior to construction or preparation of any new disposal cell or area, disposal area boundaries shall be located and clearly marked by a land surveyor licensed by the State of Mississippi. Permanent markers shall be erected at the corners of the approved disposal area. The markers shall be a minimum, 3-foot high concrete posts, metal pipes, weather resistant wood posts or other suitable markers approved by the Department. The markers shall be placed in the ground to a sufficient depth to facilitate permanence and shall be maintained by the owner. Markers that become damaged shall be promptly re-established by the owner with the assistance of a licensed land surveyor, where necessary.

(7) Access Requirements. Unloading of solid waste shall be confined to as small an area as practical. Adequate security, including use of artificial barriers, natural barriers, or both, as appropriate to protect human health and the environment and to control access into the facility and to prevent the disposal of unauthorized materials, unauthorized vehicular traffic and illegal dumping of wastes, shall be provided. An attendant shall be on duty during operating hours and during special site utilization to direct unloading of solid waste.

(8) Run-On/Run-Off Control Systems

(a) Owners of all landfills must design, construct, and maintain:

(1) a run-on control system to prevent flow onto the active portion of the landfill during the peak discharge from a 25-year storm;

(2) a run-off control system from the active portion of the landfill to collect and control at least the water volume resulting from a 24-hour, 25-year storm.

(b) Run-off from the active portion of the landfill unit must be handled in accordance with paragraph B.9 of this rule.

(9) Surface Water Requirements

(a) Landfills shall not:

(1) cause a discharge of pollutants into waters of the State, including wetlands, that violates any requirements of the Clean Water Act or the Mississippi Air and Water Pollution Control Act, including but not limited to the National Pollutant Discharge Elimination System (NPDES) requirements.

(2) cause the discharge of a non-point source of pollution to waters of the State, including wetlands, that violates any requirement of an area-wide or state-wide water quality management plan that has been approved under Section 208 or 319 of the Clean Water Act, as amended.

(b) Monitoring of surface waters may be required in some instances. Where monitoring of surface waters is required, the frequency of sampling, the parameters to be analyzed, and the reporting requirements shall be established in the permit.

(10) Liquids Restrictions

(a) Bulk or non-containerized liquid waste may not be placed in landfills unless:

(1) the waste is household waste other than septic waste; or

(2) the waste is leachate or gas condensate derived from the landfill. Prior to placing such liquids in the landfill the owner must demonstrate and obtain approval from the Department that the landfill, whether it is a new or existing landfill or lateral expansion, is designed with a composite liner and leachate collection system as described in paragraph C.1.b. of this rule. The owner must place the demonstration in the operating record and notify the Department that it has been placed in the operating record.

(b) Containers holding liquid waste may not be placed in a landfill unless:

(1) the container is a small container similar in size to that normally found in household waste;

(2) the container is designed to hold liquids for use other than storage; or

(3) the waste is household waste.

(11) Recordkeeping Requirements

(a) The owner of a landfill must keep an accurate written daily record of deliveries of solid waste to the facility including but not limited to: the name of the hauler, the source of the waste, the types of waste received and the weight of solid waste measured in tons received at the facility. For those facilities that do not have access to weight scales, the weight should be converted to tons from cubic yards using conversion factors developed or approved by the Department.

(b) The owner of a landfill must record and retain near the facility in an operating record or in an alternative location approved by the Department the following information as it becomes available:

(1) any location restriction demonstration required under Rule 1.3 of these regulations;

(2) inspection records, training procedures, notification procedures, and any other information necessary to demonstrate compliance with paragraph B.1. of this rule;

(3) any gas monitoring results from monitoring and any remediation plans required by paragraph B.4 of this rule;

(4) any landfill design documentation for placement of leachate or gas condensate in the landfill as required under paragraph 10.a.(2) of this rule;

(5) any demonstration, certification, finding, monitoring, testing, or analytical data required by paragraph D of this rule;

(6) closure and post-closure care plans and any monitoring, testing, or analytical data as required by paragraph E of this rule; and

(7) any cost estimates and financial assurance documentation required by paragraph F of this rule.

(c) The owner must notify the Department when the documents from paragraph B.11.b of this rule have been placed or added to the operating record and shall make such documents available at all reasonable times for inspection by the Department. Additionally, upon request by the Department, a copy of any information contained in the operating record must be furnished to the Department.

(d) The Department may set alternative schedules for recordkeeping and notification requirements as specified in paragraphs B.11.b. and B.11.c of this rule, except for the notification requirements in Rule 1.3.B.5 of this rule and paragraph D.5.g(1)(iii) of this rule.

(12) Buffer Requirements to Utility Easements. Unless otherwise required by special circumstances, owners of all landfills must maintain a minimum distance of 25 feet between the disposal operation and pipeline, underground utility or electrical transmission line easements. The buffer should provide enough distance to ensure the safety of the operating personnel and facilities to be protected and should also provide space for drainage controls.

(13) Windblown Materials. A portable fence or other suitable means of containment shall be employed, if necessary, to confine windblown materials from unloading, spreading and compaction operations to the smallest area practical. It shall be the responsibility of the site operator to collect and return to the active disposal area all windblown materials at least every operating day or as necessary to minimize unhealthy, unsafe or unsightly conditions.

(14) All Weather Access. All-weather roads shall be provided within the site to any designated unloading area. Provisions shall be made to provide proper cover during wet weather.

(15) Annual Report. The owner of a solid waste landfill shall submit an annual report to the Department each year on or before February 28th, to include information describing the operations from the preceding calendar year. At a minimum, the report shall contain the following:

(a) aggregate information on the types, amounts and sources of waste received during the calendar year. Listed types should be divided minimally into residential and non-residential wastes. The amounts of waste received should be reported in units of tons, with the amount of waste originating in-state and out-of-state listed separately. The sources of waste should list cities and/or counties individually, with a clear indication of wastes originating from out-of-state.

(b) a contour drawing of the landfill showing areas filled during the report year and total cumulative areas filled.

(d) if the owner or contract operator is a private concern, an updated disclosure statement. If all information from the previously submitted disclosure statement is unchanged, a letter stating such may be included in lieu of an updated disclosure statement.

(e) an adjusted closure and post-closure cost estimate, if applicable.

(f) an audit of the financial assurance document and the end-of-year value of the financial assurance mechanism, if applicable.

(g) a modified financial assurance document, if necessary.

(16) Contract Operator - Disclosure Requirements. If the owner of a commercial solid waste landfill contracts with any person other than a public agency to operate the facility, the owner shall not allow the contractor to begin operation until a disclosure statement has been submitted to and approved by the Permit Board or the Permit Board's designee in accordance with Section 17-17-501, Mississippi Code Annotated, and the regulations promulgated pursuant thereto.

(17) Equipment. Owners of a landfill must insure that adequate numbers and types of operating equipment are provided at all times to properly manage the landfill operation. Replacement equipment shall be promptly brought to the site, as necessary, in the event of equipment breakdown.

(18) Excavation of Waste. No excavation of solid waste shall be conducted without approval of the Department.

(19) Liner Quality Assurance. At least two weeks prior to disposal of solid waste in any new MSWLF unit or lateral expansion of existing MSWLF unit, or other landfill where deemed necessary by the Permit Board, a construction quality assurance report shall be submitted to the Department. The report shall contain a certification from an independent registered professional engineer that the area has been constructed according to the approved design plans.

(20) Operator Certification

(a) Each commercial solid waste landfill must be operated by a person who holds a current certificate of competency issued by the Commission in accordance with Title 11, Part 4, Chapter 8 (Operator Regs.). Such person must have direct supervision over and be personally responsible for the daily operation and maintenance of the landfill.

(b) In the event of temporary loss of a certified operator due to illness, death, discharge, or other legitimate cause, written notice shall be given to the Department within 7 days. The continued operation of such system without a certified operator may proceed on an interim basis for a period not to exceed 180 days, except for good cause shown upon petition to the Commission.

C. Design Criteria

(1) New landfills and lateral expansions of existing, MSWLF units shall be constructed in accordance with one of the following designs:

(a) with a composite liner as defined by these regulations and a leachate collection system that is designed and constructed to maintain less than a 30-cm depth (11.81 inches) of leachate over the liner, excluding sumps and collection trenches; or

(b) with a design approved by the Department. For new MSWLF units and lateral expansions of existing MSWLF units, the design must ensure that the concentration values listed in Table 1 of 40 CFR Part 258 (Subpart D) will not be exceeded in the uppermost aquifer at the relevant point of compliance, as specified by the Department under paragraph C.3 of this rule.

(2) When approving a design that complies with paragraph C.1.b of this rule, the Department shall consider at least the following factors:

(a) the hydrogeologic characteristics of the facility and surrounding land;

(b) the climatic factors of the area;

(d) other relevant factors as determined by the Department.

(3) The relevant point of compliance specified by the Department shall be no more than 150 meters from the waste management unit boundary and shall be located on land owned by the owner of the landfill. In determining the relevant point of compliance, the Department shall consider at least the following factors:

(a) the hydrogeologic characteristics of the facility and surrounding land;

(b) the volume and physical and chemical characteristics of the leachate;

(d) the proximity and withdrawal rate of the groundwater users;

(e) the availability of alternative drinking water supplies;

(f) the existing quality of the groundwater, including other sources of contamination and their cumulative impacts on the groundwater and whether groundwater is currently used or reasonably expected to be used for drinking water;

(g) public health, safety, and welfare effects;

(h) practicable capability of the owner; and

(i) other relevant factors as determined by the Department.

D. Groundwater Monitoring and Corrective Action Requirements

(1) Schedule of Compliance

(a) Owners of landfills must comply with the groundwater monitoring requirements of this rule before waste can be placed in the landfill.

(b) The Department may approve an alternative schedule for the owners of existing landfills and lateral expansions to comply with the groundwater monitoring requirements specified in this section. In setting the compliance schedule, the Department must consider potential risks posed by the unit to human health and the environment. The following factors should be considered in determining potential risk:

(1) proximity of human and environmental receptors;

(2) design of the landfill;

(3) age of the landfill;

(4) the size of the landfill;

(5) types and quantities of wastes disposed including sewage sludge; and

(6) resource value of the underlying aquifer, including:

(i) current and future uses;

(ii) proximity and withdrawal rate of users; and

(iii) groundwater quality and quantity.

(c) Once established at a landfill, groundwater monitoring shall be conducted throughout the active life and post-closure care period of that landfill as specified in paragraph E. of this rule.

(d) The Department may establish alternative schedules for demonstrating compliance with:

(1) paragraph D.2.d.(2) of this rule, pertaining to notification of placement of certification in operating record;

(2) paragraph D.4.d.(1) of this rule, pertaining to notification that statistically significant increase (SSI) notice is in operating record;

(3) paragraphs D.4.d.(2) and D.4.d.(3) of this rule, pertaining to an assessment monitoring program;

(4) paragraph D.5.b of this rule, pertaining to sampling and analyzing Appendix II constituents;

(5) paragraph D.5.d.(1) of this rule, pertaining to placement of notice (Appendix II constituents detected) in record and notification of notice in record;

(6) paragraph D.5.d.(2) of this rule, pertaining to sampling for Appendix I and II;

(7) paragraph D.5.g. of this rule, pertaining to notification (and placement of notice in record) of SSI above groundwater protection standard;

(8) paragraphs D.5.g.(1)(iv) and D.6.a of this rule, pertaining to assessment of corrective measures;

(9) paragraph D.7.a of this rule, pertaining to selection of remedy and notification of placement in record;

(10) paragraph D.8.c.(4) of this rule, pertaining to notification of placement in record (alternative corrective action measures); and

(11) paragraph D.8.f of this rule, pertaining to notification of placement in record (certification of remedy completed).

(e) Groundwater monitoring requirements under paragraphs D.2 through D.5 of this rule may be suspended by the Department, if the owner can demonstrate that there is no potential for migration of hazardous constituents from the landfill to the uppermost aquifer during the active life of the landfill and the post-closure care period. This demonstration must be certified by a qualified groundwater scientist and approved by the Department, and must be based upon:

(1) site-specific field collected measurements, sampling, and analysis of physical, chemical, and biological processes affecting contaminant fate and transport; and

(2) contaminant fate and transport predictions that maximize contaminant migration and consider impacts on human health and environment.

For landfills other than MSWLF units the Department may approve an alternative demonstration process.

(2) Groundwater Monitoring Systems

(a) A groundwater monitoring system must be installed that consists of a sufficient number of wells, installed at appropriate locations and depths, to yield groundwater samples from the uppermost aquifer that:

(1) Represent the quality of background groundwater that has not been affected by leakage from a unit. A determination of background quality may include sampling of wells that are not hydraulically upgradient of the waste management area where:

(i) hydrogeologic conditions do not allow the owner or operator to determine what wells are hydraulically upgradient; or

(ii) sampling at other wells will provide an indication of background groundwater quality that is as representative or more representative than that provided by the upgradient wells.

(2) Represent the quality of groundwater passing the relevant point of compliance specified by the Department under paragraph C.3 of this rule. The downgradient monitoring system must be installed at the relevant point of compliance specified by the Department under paragraph C.3. of this rule that ensures detection of groundwater contamination in the uppermost aquifer. When physical obstacles preclude installation of groundwater monitoring wells at the relevant point of compliance at existing units, the down-gradient monitoring system may be installed at the closest practicable distance hydraulically down-gradient from the relevant point of compliance specified by the Department, under paragraph C.3 of this rule that ensure detection of groundwater contamination in the uppermost aquifer.

(b) The Department may approve a multi-unit groundwater monitoring system instead of separate groundwater monitoring systems for each landfill unit when the facility has several units, provided the multi-unit groundwater monitoring system meets the requirement of paragraph D.2.a of this rule and will be as protective of human health and the environment as individual monitoring systems for each landfill unit, based on the following factors:

(1) number, spacing, and orientation of the landfill units;

(2) hydrogeologic setting;

(3) site history;

(4) engineering design of the landfill units; and

(5) type of waste accepted at the landfill units.

(c) Monitoring wells must be cased in a manner that maintains the integrity of the monitoring well bore hole. This casing must be screened or perforated and packed with gravel or sand, where necessary, to enable collection of groundwater samples. The annular space (i.e., the space between the bore hole and well casing) above the sampling depth must be sealed to prevent contamination of samples and the groundwater.

(1) The owner must notify the Department that the design, installation, development, and decommission of any monitoring wells, piezometers and other measurement, sampling, and analytical devices documentation has been placed in the operating record; and

(2) The monitoring wells, piezometers, and other measurement, sampling, and analytical devices must be operated and maintained so that they perform to design specifications throughout the life of the monitoring program.

(d) The number, spacing, and depths of monitoring systems shall be:

(1) Determined based upon site-specific technical information that must include thorough characterization of:

(i) aquifer thickness, groundwater flow rate, groundwater flow direction including seasonal and temporal fluctuations in groundwater flow; and

(ii) saturated and unsaturated geologic units and fill materials overlying the uppermost aquifer, materials comprising the uppermost aquifer, and materials comprising the confining unit defining the lower boundary of the uppermost aquifer; including, but not limited to: thicknesses, stratigraphy, lithology, hydraulic conductivities, porosities and effective porosities.

(2) Certified by a qualified groundwater scientist and approved by the Department. Within 14 days of this certification, the owner must notify the Department that the certification has been placed in the operating record.

(3) Groundwater Sampling and Analysis Requirements

(a) The groundwater monitoring program must include consistent sampling and analysis procedures that are designed to ensure monitoring results that provide an accurate representation of groundwater quality at the background and downgradient wells installed in compliance with paragraph D.2.a of this rule. The owner must notify the Department that the sampling and analysis program documentation has been placed in the operating record and the program must include procedures and techniques for:

(1) sample collection;

(2) sample preservation and shipment;

(3) analytical procedures;

(4) chain of custody control; and

(5) quality assurance and quality control.

(b) The groundwater monitoring program must include sampling and analytical methods that are appropriate for groundwater sampling and that accurately measure hazardous constituents and other monitoring parameters in groundwater samples. Groundwater samples shall not be field-filtered prior to laboratory analysis.

(d) Groundwater elevations must be measured in each well immediately prior to purging, each time groundwater is sampled. The owner must determine the rate and direction of groundwater flow each time groundwater is sampled. Groundwater elevations in wells which monitor the same waste management area must be measured within a period of time short enough to avoid temporal variations in groundwater flow which could preclude accurate determination of groundwater flow rate and direction.

(e) The owner must establish background groundwater quality in a hydraulically upgradient or background well(s) for each of the monitoring parameters or constituents required in the particular groundwater monitoring program that applies to the landfill, as determined under paragraph D.4.a or paragraph D.5.a of this rule. Background groundwater quality may be established at wells that are not located hydraulically upgradient from the landfill if it meets the requirements of paragraph D.2.a (1) of this rule.

(f) The number of samples collected to establish groundwater quality data must be consistent with the appropriate statistical procedures determined pursuant to paragraph D.3.g of this rule. The sampling procedures shall be those specified under paragraph D.4.b of this rule for detection monitoring, paragraphs D.5.b and D.5.d of this rule for assessment monitoring, and paragraph D.6.b of this rule for corrective action.

(g) The owner must specify in the operating record one of the following statistical methods to be used in evaluating groundwater monitoring data for each hazardous constituent. The statistical test chosen shall be conducted separately for each hazardous constituent in each well.

(1) A parametric analysis of variance (ANOVA) followed by multiple comparisons procedures to identify statistically significant evidence of contamination. The method must include estimation and testing of the contrasts between each compliance well's mean and the background mean levels for each constituent.

(2) An analysis of variance (ANOVA) based on ranks followed by multiple comparisons procedures to identify statistically significant evidence of contamination. The method must include estimation and testing of the contrasts between each compliance well's median and the background median levels for each constituent.

(3) A tolerance or prediction interval procedure in which an interval for each constituent is established from the distribution of the background data, and the level of each constituent in each compliance well is compared to the upper tolerance or prediction limit.

(4) A control chart approach that gives control limits for each constituent.

(5) Another statistical test method that meets the performance standards of paragraph D.3.h of this rule. The owner must place a justification for this alternative in the operating record and obtain approval from the Department for the use of this alternative test. The justification must demonstrate that the alternative method meets the performance standards of paragraph D.3.h of this rule.

(h) Any statistical method chosen under paragraph D.3.g of this rule shall comply with the following performance standards, as appropriate:

(1) The statistical method used to evaluate groundwater monitoring data shall be appropriate for the distribution of chemical parameters or hazardous constituents. If the distribution of the chemical parameters or hazardous constituents is shown by the owner to be inappropriate for a normal theory test, then the data should be transformed or a distribution-free theory test should be used. If the distributions for the constituents differ, more than one statistical method may be needed.

(2) If an individual well comparison procedure is used to compare an individual compliance well constituent concentration with background constituent concentrations or a groundwater protection standard, the test shall be done at a Type I error level no less than 0.01 for each testing period. If a multiple comparisons procedure is used, the Type I experiment wise error rate for each testing period shall be no less than 0.05; however, the Type I error of no less than 0.01 for individual well comparisons must be maintained. This performance standard does not apply to tolerance intervals, prediction intervals, or control charts.

(3) If a control chart approach is used to evaluate groundwater monitoring data, the specific type of control chart and its associated parameter values shall be protective of human health and the environment. The parameters shall be determined after considering the number of samples in the background data base, the data distribution, and the range of the concentration values for each constituent of concern.

(4) If a tolerance interval or a predictional interval is used to evaluate groundwater monitoring data, the levels of confidence and, for tolerance intervals, the percentage of the population that the interval must contain, shall be protective of human health and the environment. These parameters shall be determined after considering the number of samples in the background database, the data distribution, and the range of the concentration values for each constituent of concern.

(5) The statistical method shall account for data below the limit of detection with one or more statistical procedures that are protective of human health and the environment. Any practical quantitation limit (pql) that is used in the statistical method shall be the lowest concentration level that can be reliably achieved within specified limits of precision and accuracy during routine laboratory operating conditions that are available to the facility.

(6) If necessary, the statistical method shall include procedures to control or correct for seasonal and spatial variability as well as temporal correlation in the data.

(i) The owner must determine whether or not there is a statistically significant increase over background values for each parameter or constituent required in the particular groundwater monitoring program that applies to the landfill, as determined under paragraphs D.4.a or D.5.a of this rule.

(1) In determining whether a statistically significant increase has occurred, the owner must compare the groundwater quality of each parameter or constituent at each monitoring well designated pursuant to paragraph D.2.a.(2) of this rule to the background value of that constituent, according to the statistical procedures and performance standards specified under paragraphs D.3.g and D.3.h of this rule.

(2) Within a reasonable period of time after completing sampling and analysis, the owner must determine whether there has been a statistically significant increase over background at each monitoring well.

(4) Detection Monitoring Program

(a) Detection monitoring is required at all groundwater monitoring wells defined under paragraphs D.2.a.(1) and D.2.a.(2) of this rule. At a minimum, a detection monitoring program must include the monitoring for the constituents listed in Appendix I of 40 CFR Part 258.

(1) The Department may delete any of the Appendix I monitoring parameters for a landfill if it can be shown that the removed constituents are not reasonably expected to be contained in or derived from the waste contained in the landfill.

(2) The Department may establish an alternative list of inorganic indicator parameters for a landfill, in lieu of some or all of the heavy metals (constituents 1-15 in Appendix I of 40 CFR Part 258, if the alternative parameters provide a reliable indication of inorganic releases from the landfill to the groundwater. In determining alternative parameters, the Department shall consider the following factors:

(i) the types, quantities, and concentrations of constituents in waste managed at the landfill;

(ii) the mobility, stability, and persistence of waste constituents or their reaction products in the unsaturated zone beneath the landfill;

(iii) the detectability of indicator parameters, waste constituents, and reaction products in the groundwater; and

(iv) the concentration or values and coefficients of variation of monitoring parameters or constituents in the groundwater background.

(b) The monitoring frequency for all constituents listed in Appendix I of 40 CFR Part 258, or in the alternative list approved in accordance with paragraph D.4.a.(2) of this rule, shall be at least semiannual during the active life of the facility (including closure) and the post-closure period. A minimum of four independent samples from each well (background and downgradient) must be collected and analyzed for the Appendix I constituents, or the alternative list approved in accordance with paragraph D.4.a.(2) of this rule, during the first semiannual sampling event. At least one sample from each well (background and downgradient) must be collected and analyzed during subsequent semiannual sampling events.

The Department may specify an appropriate alternative frequency for repeated sampling and analysis for Appendix I constituents, or the alternative list approved in accordance with paragraph D.4.a.(2) of this rule, during the active life (including closure) and the post-closure care period. The alternative frequency during the active life (including closure) shall be no less than annual. The alternative frequency shall be based on consideration of the following factors:

(1) lithology of the aquifer and unsaturated zone;

(2) hydraulic conductivity of the aquifer and unsaturated zone;

(3) groundwater flow rates;

(4) minimum distance between upgradient edge of the landfill and downgradient monitoring well screen (minimum distance of travel); and

(5) resource value of the aquifer.

(c) Results of all detection monitoring pursuant to paragraph D.4.a of this rule shall be submitted to the Department no later than sixty (60) days following each monitoring period.

(d) If the owner determines, pursuant to paragraph D.3.g of this rule, that there is a statistically significant increase (SSI) over background for one or more of the constituents listed in Appendix I of 40 CFR Part 258, or in the alternative list approved in accordance with paragraph D.4.a.(2) of this rule, at any monitoring well at the boundary specified under paragraph D.2.a.(2) of this rule, the owner:

(1) must, within 14 days of this finding, place a notice in the operating record indicating which constituents have shown statistically significant changes from background levels, and notify the Department that this notice was placed in the operating record; and

(2) must establish an assessment monitoring program meeting the requirements of paragraph D.5. of this rule within 90 days except as provided for in paragraph D.4.d.(3) of this rule.

(3) the owner may demonstrate that a source other than the landfill caused the contamination or that the statistically significant increase resulted from error in sampling, analysis, statistical evaluation, or natural variation in groundwater quality. A report documenting this demonstration must be certified by a qualified groundwater scientist and approved by the Department and shall be placed in the operating record. If a successful demonstration is made and documented, the owner may continue detection monitoring as specified in this section. If, after 90 days, a successful demonstration is not made, the owner must initiate an assessment monitoring program as required in paragraph D.5. of this rule.

(5) Assessment Monitoring Program

(a) Assessment monitoring is required whenever a statistically significant increase (SSI) over background has been detected for one or more of the constituents listed in Appendix I of 40 CFR Part 258 or in the alternative list approved in accordance with paragraph D.4.a.(2) of this rule.

(b) Within 90 days of triggering an assessment monitoring program, and annually thereafter, the owner must sample and analyze the groundwater for all constituents identified in Appendix II of 40 CFR Part 258. A minimum of one sample from each downgradient well must be collected and analyzed during each sampling event. For any constituent detected in the downgradient wells as the result of the complete Appendix II analysis, a minimum of four independent samples from each well (background and downgradient) must be collected and analyzed to establish background for the new constituents.

The Department may specify an appropriate subset of wells to be sampled and analyzed for Appendix II constituents during assessment monitoring. The Department may delete any of the Appendix II monitoring parameters if it can be shown that the removed constituents are not reasonably expected to be in or derived from the waste contained in the unit.

Results of all assessment monitoring pursuant to this paragraph shall be submitted to the Department no later than sixty (60) days following each monitoring period.

(c) The Department may specify an appropriate alternate frequency for repeated sampling and analysis for the full set of Appendix II constituents required by paragraph D.5.b of this rule, during the active life (including closure) and post-closure care of the unit considering the following factors:

(1) lithology of the aquifer and unsaturated zone;

(2) hydraulic conductivity of the aquifer and unsaturated zone;

(3) groundwater flow rates;

(4) minimum distance between upgradient edge of the landfill and downgradient monitoring well screen (minimum distance of travel);

(5) resource value of the aquifer; and

(6) nature (fate and transport) of any constituents detected in response to this section.

(d) After obtaining the results from the initial or subsequent sampling events required in paragraph D.5.b of this rule, the owner must:

(1) within 14 days, place a notice in the operating record identifying the Appendix II constituents that have been detected and notify the Department that this notice has been placed in the operating record;

(2) within 90 days, and on at least a semiannual basis thereafter, resample all wells specified by paragraph D.2.a. of this rule, conduct analyses for all constituents in Appendix I of 40 CFR Part 258 or in the alternative list approved in accordance with paragraph D.4.a.(2) of this rule, and for those constituents in Appendix II of 40 CFR Part 258 that are detected in response to paragraph D.5.b of this rule, and record their concentrations in the facility operating record. At least one sample from each well (background and downgradient) must be collected and analyzed during these sampling events.

The Department may specify an alternative monitoring frequency during the active life (including closure) and the post closure period for the constituents referred to in this paragraph. The alternative frequency for Appendix I constituents, or the alternative list approved in accordance with paragraph D.4.a.(2) of this rule, during the active life (including closure) shall be no less than annual. The alternative frequency shall be based on consideration of the factors specified in paragraph D.5.c. of this rule;

(3) establish background concentrations for any constituents detected pursuant to paragraphs D.5.b or D.5.d.(2) of this rule; and

(4) establish groundwater protection standards for all constituents detected pursuant to paragraphs D.5.b. or D.5.d of this rule. The groundwater protection standards shall be established in accordance with paragraphs D.5.h or D.5.i of this rule.

(e) If the concentrations of all Appendix II constituents are shown to be at or below background values, using the statistical procedures in paragraph D.3.g of this rule, for two consecutive sampling events, the owner must notify the Department of this finding and may return to detection monitoring.

(f) If the concentrations of any Appendix II constituents are above background values, but all concentrations are below the groundwater protection standard established under paragraphs D.5.h or D.5.i of this rule, using the statistical procedures in paragraph D.3.g of this rule, the owner must continue assessment monitoring in accordance with this section.

(g) If one or more Appendix II constituents are detected at statistically significant levels above the groundwater protection standard established under paragraphs D.5.h or D.5.i of this rule in any sampling event, the owner must, within 14 days of this finding, place a notice in the operating record identifying the Appendix II constituents that have exceeded the groundwater protection standard and notify the Department and all appropriate local government officials that the notice has been placed in the operating record.

(1) The owner also:

(i) must characterize the nature and extent of the release by installing additional monitoring wells as necessary;

(ii) must install at least one additional monitoring well at the facility boundary in the direction of contaminant migration and sample this well in accordance with paragraph D.5.d.(2) of this rule;

(iii) must notify all persons who own the land or reside on the land that directly overlies any part of the plume of contamination if contaminants have migrated off-site if indicated by sampling of wells in accordance with paragraph D.5.g.(1) of this rule; and

(iv) must initiate an assessment of corrective measures as required by paragraph D.6 of this rule within 90 days; or

(2) The owner may demonstrate that a source other than the landfill caused the contamination, or that the SSI resulted from error in sampling, analysis, statistical evaluation, or natural variation in groundwater quality. A report documenting this demonstration must be certified by a qualified groundwater scientist and approved by the Department and placed in the operating record. If a successful demonstration is made the owner must continue monitoring in accordance with the assessment monitoring program pursuant to this section, and may return to detection monitoring if the Appendix II constituents are at or below background as specified in paragraph D.5.e of this rule. Until a successful demonstration is made, the owner must comply with paragraph D.5.g of this rule including initiating an assessment of corrective measures.

(h) The owner must establish a groundwater protection standard for each Appendix II constituent detected in the groundwater. The groundwater protection standard shall be:

(1) for constituents for which a maximum contaminant level (MCL) has been promulgated under Section 1412 of the Safe Drinking Water Act (codified) under 40 CFR Part 141, the MCL for that constituent;

(2) for constituents for which MCLs have not been promulgated, the background concentration for the constituent established from wells in accordance with paragraph D.2.a.(1) of this rule; or

(3) for constituents for which the background level is higher than the MCL identified under paragraph D.5.h.(1) of this rule or health based levels identified under paragraph D.5.i.(1) of this rule, the background concentration.

(i) The Department may establish an alternative groundwater protection standard for constituents for which MCLs have not been established. These groundwater protection standards shall be appropriate health based levels that satisfy the following criteria:

(1) the level is derived in a manner consistent with the United States Environmental Protection Agency guidelines for assessing the health risks of environmental pollutants (51 FR 33992, 34006, 34014, 34028, September 24, 1986);

(2) the level is based on scientifically valid studies conducted in accordance with the Toxic Substances Control Act Good Laboratory Practice Standards ( 40 CFR part 792) or equivalent;

(3) for carcinogens, the level represents a concentration associated with an excess lifetime cancer risk level (due to a continuous lifetime exposure) within the 1 x 10-4 to 1 x 10-6 range;

(4) for systemic toxicants, the level represents a concentration to which the human population (including sensitive subgroups) could be exposed to on a daily basis that is likely to be without appreciable risk of deleterious effects during a lifetime. For purposes of these regulations, systemic toxicants include toxic chemicals that cause effects other than cancer or mutation; and

(5) the level is not less stringent than any applicable State groundwater standards.

(j) In establishing groundwater protection standards under paragraph D.5.i of this rule, the Department may consider the following:

(1) multiple contaminants in the groundwater;

(2) exposure threats to sensitive environmental receptors; and

(3) other site-specific exposure or potential exposure to groundwater.

(6) Assessment of Corrective Measures

(a) Within 90 days of finding that any of the constituents listed in Appendix II of 40 CFR Part 258 have been detected at a statistically significant level exceeding the groundwater protection standards defined under paragraph D.5.h or D.5.i of this rule, the owner must initiate an assessment of corrective measures. Such an assessment must be completed within a reasonable period of time.

(b) The owner must continue to monitor in accordance with the assessment monitoring program as specified in paragraph D.5. of this rule.

(c) The assessment shall include an analysis of the effectiveness of potential corrective measures in meeting all of the requirements and objectives of the remedy as described under paragraph D.7 of this rule, addressing at least the following:

(1) the performance, reliability, ease of implementation, and potential impacts of appropriate potential remedies, including safety impacts, cross-media impacts, and control of exposure to any residual contamination;

(2) the time required to begin and complete the remedy;

(3) the costs of remedy implementation; and

(4) the institutional requirements such as State or local permit requirements or other environmental or public health requirements that may substantially affect implementation of the remedy(s).

(d) The owner must discuss the results of the corrective measures assessment, prior to the selection of remedy, in a public meeting with interested and affected parties.

(7) Selection of Remedy

(a) Based on the results of the corrective measures assessment conducted under paragraph D.6 of this rule, the owner must select a remedy that, at a minimum, meets the standards listed in paragraph D.7.b of this rule. The owner must notify the Department, within 14 days of selecting a remedy, that a report describing the selected remedy has been placed in the operating record and how it meets the standards in paragraph D.7.b of this rule.

(b) Remedies must:

(1) be protective of human health and the environment;

(2) attain the groundwater protection standard as specified pursuant to paragraphs D.5.h or D.5.i of this rule;

(3) control the source(s) of releases so as to reduce or eliminate, to the maximum extent practicable, further releases of Appendix II constituents into the environment that may pose a threat to human health or the environment; and

(4) comply with standards for management of wastes as specified in paragraph D.8.d of this rule.

(c) In selecting a remedy that meets the standards of paragraph D.7.b of this rule, the owner shall consider the following evaluation factors:

(1) the long- and short-term effectiveness and protectiveness of the potential remedy(s), along with the degree of certainty that the remedy will prove successful based on consideration of the following:

(i) magnitude of reduction of existing risks;

(ii) magnitude of residual risks in terms of likelihood of further releases due to waste remaining following implementation of a remedy;

(iii) the type and degree of long-term management required including monitoring, operation, and maintenance;

(iv) short-term risks that might be posed to the community, workers, or the environment during implementation of such a remedy, including potential threats to human health and the environment associated with excavation, transportation, and redisposal or containment;

(v) time until full protection is achieved;

(vi) potential for exposure of humans and environmental receptors to remaining wastes, considering the potential threat to human health and the environment associated with excavation, transportation, redisposal, or containment;

(vii) long-term reliability of the engineering and institutional controls; and

(viii) potential need for replacement of the remedy.

(2) the effectiveness of the remedy in controlling the source to reduce further releases based on consideration of the following factors:

(i) the extent to which containment practices will reduce further releases; and

(ii) the extent to which treatment technologies may be used.

(3) the ease or difficulty of implementing a potential remedy(s) based on consideration of the following types of factors:

(i) degree of difficulty associated with constructing the technology;

(ii) expected operational reliability of the technologies;

(iii) need to coordinate with and obtain necessary approvals and permits from other agencies;

(iv) availability of necessary equipment and specialists; and

(v) available capacity and location of needed treatment, storage, and disposal services.

(4) practicable capability of the owner, including a consideration of the technical and economic capability.

(5) the degree to which community concerns are addressed by a potential remedy(s).

(d) The owner shall specify as part of the selected remedy a schedule(s) for initiating and completing remedial activities. Such a schedule must require the initiation of remedial activities within a reasonable period of time taking into consideration the factors set forth in paragraphs D.7.d.(1) through D.7.d.(8) of this rule. The owner must consider the following factors in determining the schedule of remedial activities:

(1) extent and nature of contamination;

(2) practical capabilities of remedial technologies in achieving compliance with groundwater protection standards established under paragraphs D.5.g or D.5.h of this rule and other objectives of the remedy;

(3) availability of treatment or disposal capacity for wastes managed during implementation of the remedy;

(4) desirability of utilizing technologies that are not currently available, but which may offer significant advantages over already available technologies in terms of effectiveness, reliability, safety, or ability to achieve remedial objectives;

(5) potential risks to human health and the environment from exposure to contamination prior to completion of the remedy;

(6) resource value of the aquifer including:

(i) current and future uses;

(ii) proximity and withdrawal rate of users;

(iii) groundwater quantity and quality;

(iv) the potential damage to wildlife, crops, vegetation, and physical structures caused by exposure to waste constituent;

(v) the hydrogeologic characteristic of the facility and surrounding land;

(vi) groundwater removal and treatment costs; and

(vii) the cost and availability of alternative water supplies.

(7) practicable capability of the owner; and

(8) other relevant factors.

(e) The Department may determine that remediation of a release of an Appendix II constituent from a landfill is not necessary if the owner demonstrates to the Department that:

(1) the groundwater is additionally contaminated by substances that have originated from a source other than a landfill and those substances are present in concentrations such that cleanup of the release from the landfill would provide no significant reduction in risk to actual or potential receptors; or

(2) the constituent(s) is present in groundwater that:

(i) is not currently or reasonably expected to be a source of drinking water; and

(ii) is not hydraulically connected with waters to which the hazardous constituents are migrating or are likely to migrate in a concentration(s) that would exceed the groundwater protection standards established under paragraph D.5.h or D.5.i of this rule; or

(3) remediation of the release(s) is technically impracticable; or

(4) remediation results in unacceptable cross-media impacts.

(f) A determination by the Department pursuant to paragraph D.7.e of this rule shall not affect the authority of the State to require the owner to undertake source control measures or other measures that may be necessary to eliminate or minimize further releases to the groundwater, to prevent exposure to the groundwater, or to remediate the groundwater to concentrations that are technically practicable and significantly reduce threats to human health or the environment.

(8) Implementation of the Corrective Action Program

(a) Based on the schedule established under paragraph D.7.d of this rule for initiation and completion of remedial activities the owner must:

(1) establish and implement a corrective action groundwater monitoring program that:

(i) at a minimum, meets the requirements of an assessment monitoring program under paragraph D.5 of this rule;

(ii) indicates the effectiveness of the corrective action remedy; and

(iii) demonstrates compliance with groundwater protection standard pursuant to paragraph D.8.e of this rule.

(2) implement the corrective action remedy selected under paragraph D.7 of this rule; and

(3) take any interim measures necessary to ensure the protection of human health and the environment. Interim measures should, to the greatest extent practicable, be consistent with the objectives of and contribute to the performance of any remedy that may be required pursuant to paragraph D.7 of this rule. The following factors must be considered by an owner in determining whether interim measures are necessary:

(i) time required to develop and implement a final remedy;

(ii) actual or potential exposure of nearby populations or environmental receptors to hazardous constituents;

(iii) actual or potential contamination of drinking water supplies or sensitive ecosystems;

(iv) further degradation of the groundwater that may occur if remedial action is not initiated expeditiously;

(v) weather conditions that may cause hazardous constituents to migrate or be released;

(vi) risks of fire or explosion, or potential for exposure to hazardous constituents as a result of an accident or failure of a container or handling system; and

(vii) other situations that may pose threats to human health and the environment.

(b) An owner may determine, based on information developed after implementation of the remedy has begun or other information, that compliance with requirements of paragraph D.7.b of this rule are not being achieved through the remedy selected. In such cases, the owner must implement other methods or techniques that could practicably achieve compliance with the requirements, unless the owner makes the determination under paragraph D.8.c of this rule.

(c) If the owner determines that compliance with requirements under paragraph D.7.b of this rule cannot be practically achieved with any currently available methods, the owner must:

(1) obtain certification of a qualified groundwater scientist and approval by the Department that compliance with requirements under paragraph D.7.b of this rule cannot be practically achieved with any currently available methods;

(2) implement alternate measures to control exposure of humans or the environment to residual contamination, as necessary to protect human health and the environment;

(3) implement alternate measures for control of the sources of contamination, or for removal or decontamination of equipment, units, devices, or structures that are:

(i) technically practicable; and

(ii) consistent with the overall objective of the remedy.

(4) notify the Department within 14 days that a report justifying the alternative measures prior to implementing the alternative measures has been placed in the operating record.

(d) All solid wastes that are managed pursuant to a remedy required under paragraph D.7 of this rule, or an interim measure required under paragraph D.8.a.(3) of this rule, shall be managed in a manner:

(1) that is protective of human health and the environment; and

(2) that complies with applicable RCRA requirements.

(e) Remedies selected pursuant to paragraph D.7 of this rule shall be considered complete when:

(1) the owner complies with the groundwater protection standards established under paragraph D.5.h or D.5.i of this rule at all points within the plume of contamination that lie beyond the groundwater monitoring well system established under paragraph D.2.a of this rule.

(2) compliance with the groundwater protection standards established under paragraphs D.5.h or D.5.i of this rule has been achieved by demonstrating that concentrations of Appendix II constituents have not exceeded the groundwater protection standard(s) for a period of three consecutive years using the statistical procedures and performance standards in paragraph D.3.g and D.3.h of this rule. The Department may specify an alternative length of time during which the owner must demonstrate that concentrations of Appendix II constituents have not exceeded the groundwater protection standard(s) taking into consideration:

(i) Extent and concentration of the release(s);

(ii) Behavior characteristics of the hazardous constituents in the groundwater;

(iii) Accuracy of monitoring or modeling techniques, including any seasonal, meteorological, or other environmental variabilities that may affect the accuracy; and

(iv) Characteristics of the groundwater.

(3) all actions required to complete the remedy have been satisfied.

(f) Upon completion of the remedy, the owner must notify the Department within 14 days that a certification that the remedy has been completed in compliance with the requirements of paragraph D.8.e of this rule has been placed in the operating record. The certification must be signed by the owner and by a qualified groundwater scientist and approved by the Department.

(g) When, upon completion of the certification, the owner determines that the corrective action remedy has been completed in accordance with the requirements under paragraph D.8.e of this rule, the owner shall be released from the requirements for financial assurance for corrective action under paragraph F of this rule.

E. Closure and Post-Closure Care

(1) Closure/Post-Closure Plan.

(a) Owners of MSWLF units must prepare a written closure/post-closure plan that describes the steps necessary to close all MSWLF units at any point during its active life in accordance with the requirements of paragraph E.2 of this rule, to monitor and care for the facility during the post-closure period in accordance with the requirements of paragraph E.3 of this rule, and to reclaim any on-site borrow areas used for obtaining daily or final cover. The plan, at a minimum, must include the following information:

(1) a description of the final cover, designed in accordance with paragraph E.2.a or E.2.b of this rule, and the methods and procedures to be used to install the cover;

(2) an estimate of the largest area of the MSWLF unit ever requiring a final cover as required in paragraph E.2.a of this rule at any time during the active life;

(3) an estimate of the maximum inventory of wastes ever on-site over the active life of the landfill facility;

(4) a schedule for completing all activities necessary to satisfy the closure requirements in paragraph E.2 of this rule.

(5) a description of the monitoring and maintenance activities required in paragraph E.3 of this rule for each MSWLF unit, and frequency at which these activities will be performed;

(6) name, address, and telephone number of the person or office to contact about the facility during the post-closure period; and

(7) a description of the planned use of the property during the post-closure period. Post-closure use of the property shall not disturb the integrity of the final cover, liner(s), or any other components of the containment system, or the function of the monitoring systems unless necessary to comply with any other state or federal regulations. The Department may approve any other disturbance if the owner 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.

(b) Owners of MSWLF units must notify the Department that a closure/post-closure plan has been prepared and placed in the operating record no later than the effective date of these regulations, or by the initial receipt of waste, whichever is later.

(c) Closure and post-closure activities at an MSWLF unit must be conducted in accordance with the closure/post-closure plan after approval of the plan is granted by the Department. Any proposed change to the plan must be submitted to the Department for approval. No changes to the plan may be made without approval by the Department. A copy of the approved plan must be kept at the landfill or another approved site until the owner has been released from the requirements for closure and post-closure care.

(2) Closure Requirements.

(a) Owners of MSWLF units and all other landfills must install a final cover system that is designed to minimized infiltration and erosion. The final cover system must be comprised of an erosion layer underlain by an infiltration layer as follows:

(1) The infiltration layer must be comprised of a minimum of 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

(2) The erosion layer must consist of a minimum of 6 inches of earthen material that is capable of sustaining native plant growth.

(b) The Department may approve an alternative final cover design that includes:

(1) an infiltration layer that achieves an equivalent reduction in infiltration as the infiltration layer specified in paragraph E.2.a.(1) of this rule, and

(2) an erosion layer that provides equivalent protection from wind and water erosion as the erosion layer specified in paragraph E.2.a.(2) of this rule.

(c) The final cover gradient on landfills that receive waste on or after the effective date of these regulations shall be a minimum of four percent (4%) and a maximum of twenty-five percent (25%), unless otherwise approved by the Department.

(d) The final cover gradient on MSWLF units that stop receiving waste before the effective date of these regulations shall not exceed twenty-five percent (25%), unless otherwise approved by the Department.

(e) A native grass seed or other shallow-rooted vegetation suitable to minimize soil erosion, as approved by the Department, must be planted and maintained over each closed unit. Trees may not be used in lieu of or in addition to the grass cover.

(f) Following closure of each MSWLF unit or other landfill, the owner must notify the Department that a certification, signed by an independent registered professional engineer, verifying that the final cover system has been completed in accordance with paragraphs E.2.a through E.2.e of this rule, has been placed in the operating record. Such certification must be placed in the operating record within sixty (60) days after planting the grass seed in accordance with paragraph E.2.e of this rule.

(g)

(1) Within ninety (90) days after all landfill units are closed, the owner must record on the deed to the landfill facility property, or some other instrument that is normally examined during title search, a notation and survey plat, prepared by a registered land surveyor, indicating the location and dimensions of the actual filled area with respect to permanently surveyed benchmarks or Section corners, and notify the Department that the notation and survey plat have been recorded and a copy of each has been placed in the operating record.

(2) The notation on the deed must in perpetuity notify any potential purchaser of the property of the following information:

(i) the land has been used as a landfill facility;

(ii) the name of the landfill owner(s);

(iii) the year the landfill started and ended disposal operations; and

(iv) its use is restricted under paragraph E.1.a.(7) of this rule.

(h) The owner of a landfill may request permission from the Department to remove the notation and survey plat from the deed if all wastes are removed from the facility.

(i) Prior to beginning closure of each MSWLF unit or other landfill as specified in paragraph E.2.j of this rule, an owner must notify the Department that a notice of intent to close the unit or landfill has been placed in the operating record.

(j) The owner must begin closure activities of each MSWLF unit or other landfill no later than 30 days after the date on which the unit receives the known final receipt of wastes or, if the unit has remaining capacity and there is a reasonable likelihood that the unit will receive additional wastes, no later than one year after the most recent receipt of wastes. Extensions beyond the one-year deadline for beginning closure may be granted by the Department if the owner demonstrates that the unit has the capacity to receive additional wastes and the owner has taken and will continue to take all steps necessary to prevent threats to human health and the environment from the unclosed unit.

(k) The owner must complete closure activities of each MSWLF unit or other landfill within 180 days following the beginning of closure as specified in paragraph E.2.j of this rule. Extensions of the closure period may be granted by the Department if the owner demonstrates that closure will, of necessity, take longer than 180 days and he has taken and will continue to take all steps to prevent threats to human health and the environment from the unclosed unit.

(3) Post-Closure Requirements

(a) Following closure of each MSWLF unit or other landfill, the owner must conduct post-closure care. Post-closure care must be conducted for 30 years, except as provided under paragraph E.3.b of this rule.

(b) The length of the post-closure care period may be:

(1) decreased by the Department if the owner demonstrates that the reduced period is sufficient to protect human health and the environment and this demonstration is approved by the Department; or

(2) increased by the Department if the Department determines that the lengthened period is necessary to protect human health and the environment.

(1) 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, preventing run-on and run-off from eroding or otherwise damaging the final cover, and preventing the growth of trees on the landfill cover.

(2) maintaining and operating any required leachate collection system in accordance with paragraph C of this rule. The Department may allow the owner to stop managing leachate if the owner demonstrates that leachate no longer poses a threat to human health and the environment;

(3) monitoring the groundwater in accordance with paragraph D of this rule and maintaining the groundwater monitoring system, if applicable;

(4) maintaining and operating any required gas monitoring system in accordance with paragraph B.4 of this rule.

(d) Following completion of the post-closure care period for each MSWLF unit or other landfill, the owner must notify the Department that a certification, signed by an independent registered professional engineer, verifying that post-closure care has been completed in accordance with paragraph E.3 of this rule, has been placed in the operating record. Such certification must be placed in the operating record within sixty (60) days after the completion of the post-closure care period.

F. Financial Assurance. Financial assurance requirements under paragraph F apply to owners of MSWLF units and other commercial landfills, except owners who are State or Federal government entities whose debts and liabilities are the debts and liabilities of the State of Mississippi or the United States. The requirements of this paragraph may be applicable to other landfills as determined necessary by the Permit Board.

(1) Financial Assurance for Closure

(a) The owner must have a detailed written estimate, in current dollars, of the cost of hiring a third party to close the largest area ever requiring a final cover as required under paragraph E of this rule, at any time during the active life. The owner must notify the Department that the estimate has been placed in the operating record.

(1) The cost estimate must equal the cost of closing the largest area ever requiring a final cover at any time during the active life when the extent and manner of its operation would make closure the most expensive.

(2) During the active life of the landfill, the owner must annually adjust the closure cost estimate for inflation.

(3) The owner must increase the closure cost estimate and the amount of financial assurance provided under paragraph F.1.b of this rule if changes to any applicable closure plan or landfill conditions increase the maximum cost of closure at any time during the remaining active life.

(4) Upon approval of the Department and notification in the operating record, the owner may reduce the closure cost estimate and the amount of financial assurance provided under paragraph F.1.b of this rule if the cost estimate exceeds the maximum cost of closure at any time during the remaining life of the landfill.

(b) The owner must establish financial assurance for closure in compliance with paragraph F.4 of this rule. The owner must provide continuous coverage for closure until released from financial assurance requirements by demonstrating compliance with paragraph E.2 of this rule.

(2) Financial Assurance for Post-Closure Care

(a) The owner must have a detailed written estimate, in current dollars, of the cost of hiring a third party to conduct post-closure care for the landfill in compliance with paragraph E. of this rule. The post-closure cost estimate used to demonstrate financial assurance in paragraph F.2.b of this rule must account for the total costs of conducting post-closure care, including annual and periodic costs over the entire post-closure care period. The owner must notify the Department that the estimate has been placed in the operating record.

(1) The cost estimate for post-closure care must be based on the most expensive costs of post-closure care during the post-closure care period.

(2) During the active life of the landfill and during the post-closure care period, the owner must annually adjust the post-closure cost estimate for inflation.

(3) The owner must increase the post-closure care cost estimate and the amount of financial assurance provided under paragraph F.2.b of this rule if changes in any applicable post-closure plan or landfill conditions increase the maximum costs of post-closure care.

(4) The owner may reduce the post-closure cost estimate and the amount of financial assurance provided under paragraph F.2.b of this rule if the cost estimate exceeds the maximum costs of post-closure care remaining over the post-closure care period. The owner must notify the Department that the justification for the reduction of the post-closure cost estimate and the amount of financial assurance has been placed in the operating record.

(b) The owner must establish, in a manner in accordance with paragraph F.4 of this rule, financial assurance for the costs of post-closure care as required under paragraph E.3.c of this rule. The owner must provide continuous coverage for post-closure care until released from financial assurance requirements for post-closure care by demonstrating compliance with paragraph E.3.d of this rule.

(3) Financial Assurance for Corrective Action

(a) An owner required to undertake a corrective action program under paragraph D.8 of this rule must have a detailed written estimate, in current dollars, of the cost of hiring a third party to perform the corrective action in accordance with the program required under paragraph D.8 of this rule. The corrective action cost estimate must account for the total costs of corrective action activities as described in the corrective action plan for the entire corrective action period. The owner must notify the Department that the estimate has been placed in the operating record.

(1) The owner must annually adjust the estimate for inflation until the corrective action program is completed in accordance with paragraph D.8.f of this rule.

(2) The owner must increase the corrective action cost estimate and the amount of financial assurance provided under paragraph F.3.b of this rule if changes in the corrective action program or landfill conditions increase the maximum costs of corrective action.

(3) The owner may reduce the amount of the corrective action cost estimate and the amount of financial assurance provided under paragraph F.3.b of this rule if the cost estimate exceeds the maximum remaining costs of corrective action. The owner must notify the Department that the justification for the reduction of the corrective action cost estimate and the amount of financial assurance has been placed in the operating record.

(b) The owner required to undertake a corrective action program under paragraph D.8 of this rule must establish, in a manner in accordance with paragraph F.4 of this rule, financial assurance for the most recent corrective action program. The owner must provide continuous coverage for corrective action until released from financial assurance requirements for corrective action by demonstrating compliance with paragraphs D.8.(f) and D.8.(g) of this rule.

(4) Criteria for Allowable Mechanisms

The mechanisms used to demonstrate financial assurance under this section must ensure that the funds necessary to meet the costs of closure, post-closure care, and corrective action for known releases will be available whenever they are needed. Owners must choose from the options specified in paragraphs F.4.a through F.4.i of this rule.

(a) Trust Fund.

(1) An owner may satisfy the requirements of this rule by establishing a trust fund, which conforms to the requirements of this paragraph. The trustee must be an entity, which has the authority to act as a trustee and whose trust operations are regulated and examined by a Federal or State of Mississippi agency. A copy of the trust agreement must be placed in the facility's operating record.

(2) Payments into the trust fund must be made annually by the owner over the term of the initial permit or over the remaining life of the MSWLF unit or other landfill, whichever is shorter, in the case of a trust fund for closure or post-closure care, or over one-half of the estimated length of the corrective action program in the case of corrective action for known releases. This period is referred to as the pay-in period.

(3) For a trust fund used to demonstrate financial assurance for closure and post-closure care, the first payment into the fund must be at least equal to the current cost estimate for closure or post-closure care, divided by the number of years in the pay-in period as defined in paragraph F.4.a.(2) of this rule. The amount of subsequent payments must be determined by the following formula:

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where CE is the current cost estimate for closure or post-closure care (updated for inflation or other changes), CV is the current value of the trust fund, and Y is the number of years remaining in the pay-in period.

(4) For a trust fund used to demonstrate financial assurance for corrective action, the first payment into the trust fund must be at least equal to one-half of the current cost estimate for corrective action, divided by the number of years in the corrective action pay-in period as defined in paragraph F.4.a.(2) of this rule. The amount of subsequent payments must be determined by the following formula:

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where RB is the most recent estimate of the required trust fund balance for corrective action (i.e., the total costs that will be incurred during the second half of the corrective action period), CV is the current value of the trust fund, and Y is the number of years remaining on the pay-in period.

(5) The initial payment into the trust fund must be made before the initial receipt of waste or before April 9, 1994, whichever is later, in the case of closure and post-closure care, or no later than 120 days after the corrective action remedy has been selected in accordance with the requirements of paragraph D.8 of this rule.

(6) If the owner establishes a trust fund after having used one or more alternate mechanisms specified in this section, the initial payment into the trust fund must be at least the amount that the fund would contain if the trust fund were established initially and annual payments made according to the specifications of paragraph F.4.a of this rule, as applicable.

(7) The owner or other person authorized to conduct closure, post-closure care, or corrective action activities may request reimbursement from the trustee for these expenditures. Requests for reimbursement will be granted by the trustee only if sufficient funds are remaining in the trust fund to cover the remaining costs of closure, post-closure care, or corrective action, and if justification and documentation of the cost is placed in the operating record. The owner must notify the Department that the documentation of the justification for reimbursement has been placed in the operating record and that reimbursement has been received.

(8) The trust fund may be terminated by the owner only if the owner substitutes alternate financial assurance as specified in this section or if he is no longer required to demonstrate financial responsibility in accordance with the requirements of paragraphs F.1.b, F.2.b, or F.3.b of this rule.

(b) Surety Bond Guaranteeing Payment or Performance.

(1) An owner may demonstrate financial assurance for closure or post-closure care by obtaining a payment or performance surety bond which conforms to the requirements of this paragraph. An owner may demonstrate financial assurance for corrective action by obtaining a performance bond which conforms to the requirements of this paragraph. The bond must be effective before the initial receipt of waste in the case of closure and post-closure care, or no later than 120 days after the corrective action remedy has been selected in accordance with the requirements of paragraph D.8. of this rule. The owner must notify the Department that a copy of the bond has been placed in the operating record. The surety company issuing the bond must, at a minimum, be among those listed as acceptable sureties on Federal bonds in Circular 570 of the U.S. Department of the Treasury.

(2) The penal sum of the bond must be in an amount at least equal to the current closure, post-closure care or corrective action cost estimate, whichever is applicable, except as provided in paragraph F.4.j of this rule.

(3) Under the terms of the bond, the surety will become liable on the bond obligation when the owner fails to perform as guaranteed by the bond.

(4) The owner must establish a standby trust fund. The standby trust fund must meet the requirements of paragraph F.4.a of this rule except the requirements for initial payment and subsequent annual payments specified in paragraphs F.4.(a)(2), F.4.(a)(3), F.4.(a)(4) and F.4.(a)(5) of this rule.

(5) Payments made under the terms of the bond will be deposited by the surety directly into the standby trust fund. Payments from the trust fund must be approved by the trustee.

(6) Under the terms of the bond, the surety may cancel the bond by sending notice of cancellation by certified mail to the owner and to the Department 120 days in advance of cancellation. If the surety cancels the bond, the owner must obtain alternate financial assurance as specified in this section.

(7) The owner may cancel the bond only if alternate financial assurance is substituted as specified in this section or if the owner is no longer required to demonstrate financial responsibility in accordance with paragraphs F.1.b, F.2.b or F.3.b of this rule.

(1) An owner may satisfy the requirements of this rule by obtaining an irrevocable standby letter of credit, which conforms to the requirements of this paragraph. The letter of credit must be effective before the initial receipt of waste in the case of closure and post-closure care, or no later than 120 days after the corrective action remedy has been selected in accordance with the requirements of paragraph D.8 of this rule. The owner must notify the Department that a copy of the letter of credit has been placed in the operating record. The issuing institution must be an entity, which has the authority to issue letters of credit and whose letter-of-credit operations are regulated and examined by a Federal or State of Mississippi agency.

(2) A letter from the owner referring to the letter of credit by number, issuing institution, and date, and providing the following information: name, and address of the facility, and the amount of funds assured, must be included with the letter of credit in the operating record.

(3) The letter of credit must be irrevocable and issued for a period of at least one year in an amount at least equal to the current cost estimate for closure, post-closure care or corrective action, whichever is applicable, except as provided in paragraph F.4.j of this rule. The letter of credit must provide that the expiration date will be automatically extended for a period of at least one year unless the issuing institution has canceled the letter of credit by sending notice of cancellation by certified mail to the owner and to the Department 120 days in advance of cancellation. If the letter of credit is canceled by the issuing institution, the owner must obtain alternate financial assurance.

(4) The owner may cancel the letter of credit only if alternate financial assurance is substituted as specified in this section or if the owner is released from the requirements of this rule in accordance with paragraphs F.1.b, F.2.b or F.3.b of this rule.

(d) Insurance.

(1) An owner may demonstrate financial assurance for closure and post-closure care by obtaining insurance, which conforms to the requirements of this paragraph. The insurance must be effective before the initial receipt of waste. At a minimum, the insurer must be licensed to transact the business of insurance, or eligible to provide insurance as an excess or surplus lines insurer, in the State of Mississippi. The owner must notify the Department that a copy of the insurance policy has been placed in the operating record.

(2) The closure or post-closure care insurance policy must guarantee that funds will be available to close the MSWLF unit or other landfill whenever final closure occurs or to provide post-closure care for the MSWLF unit or other landfill whenever the post-closure care period begins, whichever is applicable. The policy must also guarantee that once closure or post-closure care begins, the insurer will be responsible for the paying out of funds to the owner or other person authorized to conduct closure or post-closure care, up to an amount equal to the face amount of the policy.

(3) The insurance policy must be issued for a face amount at least equal to the current cost estimate for closure or post-closure care, whichever is applicable, except as provided in paragraph F.4.a. of this rule. The term "face amount" means the total amount the insurer is obligated to pay under the policy. Actual payments by the insurer will not change the face amount, although the insurer's future liability will be lowered by the amount of the payments.

(4) An owner, or any other person authorized to conduct closure or post-closure care, may receive reimbursements for closure or post-closure expenditures, whichever is applicable. Requests for reimbursement will be granted by the insurer only if the remaining value of the policy is sufficient to cover the remaining costs of closure or post-closure care, and if justification and documentation of the cost is placed in the operating record. The owner must notify the Department that the documentation of the justification for reimbursement has been placed in the operating record and that reimbursement has been received.

(5) Each policy must contain a provision allowing assignment of the policy to a successor owner. Such assignment may be conditional upon consent of the insurer, provided that such consent is not unreasonably refused.

(6) The insurance policy must provide that the insurer may not cancel, terminate or fail to renew the policy except for failure to pay the premium. The automatic renewal of the policy must, at a minimum, provide the insured with the option of renewal at the face amount of the expiring policy. If there is a failure to pay the premium, the insurer may cancel the policy by sending notice of cancellation by certified mail to the owner and to the Department 120 days in advance of cancellation. If the insurer cancels the policy, the owner must obtain alternate financial assurance as specified in this section.

(7) For insurance policies providing coverage for post-closure care, commencing on the date that liability to make payments pursuant to the policy accrues, the insurer will thereafter annually increase the face amount of the policy. Such increase must be equivalent to the face amount of the policy, less any payments made, multiplied by an amount equivalent to 85 percent of the most recent investment rate or of the equivalent coupon-issue yield announced by the U.S. Treasury for 26-week Treasury securities.

(8) The owner may cancel the insurance policy only if alternate financial assurance is substituted as specified in this section or if the owner is no longer required to demonstrate financial responsibility in accordance with the requirements of paragraphs F.1.b, F.2.b or F.3.b of this rule.

(e) Corporate Financial Test

An owner may satisfy the requirements of this rule by demonstrating financial assurance up to the amount specified in this section:

(1) Financial component.

(i) The owner must satisfy one of the following three conditions:

(A) A current rating for its senior unsubordinated debt of AAA, AA, A, or BBB as issued by Standard and Poor's or Aaa, Aa, A or Baa as issued by Moody's;

(B) A ratio of less than 1.5 comparing total liabilities to net worth; or

(C) A ratio of greater than 0.10 comparing the sum of net income plus depreciation, depletion and amortization, minus $10 million, to total liabilities.

(ii) The tangible net worth of the owner must be greater than:

(A) The sum of the current closure, post-closure care, corrective action cost estimates and any other environmental obligations, including guarantees, covered by a financial test plus $10 million except as provided in paragraph F.4.e.1.ii.B of this rule.

(B) $10 million in net worth plus the amount of any guarantees that have not been recognized as liabilities on the financial statements provided all of the current closure, post-closure care, and corrective action costs and any other environmental obligations covered by a financial test are recognized as liabilities on the owner's audited financial statements, and subject to the approval of the State Director.

(iii) The owner must have assets located in the United States amounting to at least the sum of current closure, post-closure care, corrective action cost estimates and any other environmental obligations covered by a financial test as described in paragraph F.4.e.3 of this rule.

(2) Recordkeeping and Reporting Requirements.

(i) The owner or operator must place the following items into the facility's operating record:

(A) A letter signed by the owner's chief financial officer that:

(1) Lists all the current cost estimates covered by a financial test, including, but not limited to, cost estimates required for municipal solid waste management facilities under these regulations, cost estimates required for UIC facilities under 40 CFR part 144, if applicable, cost estimates required for petroleum underground storage tank facilities under 40 CFR part 280, if applicable, cost estimates required for PCB storage facilities under 40 CFR part 761, if applicable, and cost estimates required for hazardous waste treatment, storage, and disposal facilities under 40 CFR parts 264 and 265, if applicable; and

(2) Provides evidence demonstrating that the firm meets the conditions of either paragraph F.4.e.1.i.A or F.4.e.1.i.B or F.4.e.1.i.C of this rule and paragraphs F.4.e.1.ii and F.4.e.1.iii of this rule.

(B) A copy of the independent certified public accountant's unqualified opinion of the owner's financial statements for the latest completed fiscal year. To be eligible to use the financial test, the owner's financial statements must receive an unqualified opinion from the independent certified public accountant. An adverse opinion, disclaimer of opinion, or other qualified opinion will be cause for disallowance, with the potential exception for qualified opinions provided in the next sentence. The Director of an approved State may evaluate qualified opinions on a case-by-case basis and allow use of the financial test in cases where the Director deems that the matters which form the basis for the qualification are insufficient to warrant disallowance of the test. If the Director of an approved State does not allow use of the test, the owner must provide alternate financial assurance that meets the requirements of this rule.

(C) If the chief financial officer's letter providing evidence of financial assurance includes financial data showing that owner satisfies paragraph F.4.e.(1)(i)(B) or F.4.e.(1)(i)(C) of this rule that are different from data in the audited financial statements referred to in paragraph F.4.e.(2)(i)(B) of this rule or any other audited financial statement or data filed with the SEC, then a special report from the owner's independent certified public accountant to the owner is required. The special report shall be based upon an agreed upon procedures engagement in accordance with professional auditing standards and shall describe the procedures performed in comparing the data in the chief financial officer's letter derived from the independently audited, year-end financial_statements for the latest fiscal year with the amounts in such financial statements, the findings of that comparison, and the reasons for any differences.

(D) If the chief financial officer's letter provides a demonstration that the firm has assured for environmental obligations as provided in paragraph F.4.e.(1)(ii)(B) of this rule, then the letter shall include a report from the independent certified public accountant that verifies that all of the environmental obligations covered by a financial test have been recognized as liabilities on the audited financial statements, how these obligations have been measured and reported, and that the tangible net worth of the firm is at least $10 million plus the amount of any guarantees provided.

(ii) An owner must place the items specified in paragraph F.4.e.(2)(i) of this rule in the operating record and notify the State Director that these items have been placed in the operating record before the initial receipt of waste in the case of closure, and post-closure care, or no later than 120 days after the corrective action remedy has been selected in accordance with the requirements of paragraph D.8 of this rule.

(iii) After the initial placement of items specified in paragraph F.4.e.2(i) of this rule in the operating record, the owner must annually update the information and place updated information in the operating record within 90 days following the close of the owner's fiscal year. The Director of a State may provide up to an additional 45 days for an owner who can demonstrate that 90 days is insufficient time to acquire audited financial statements. The updated information must consist of all items specified in paragraph F.4.e.(2)(i) of this rule.

(iv) The owner is no longer required to submit the items specified in this paragraph F.4.e.(2) or comply with the requirements of this rule when:

(A) He substitutes alternate financial assurance as specified in this section that is not subject to these recordkeeping and reporting requirements; or

(B) He is released from the requirements of this rule in accordance with paragraphs F.1.b, F.2.b or F.3.b of this rule.

(v) If the owner no longer meets the requirements of paragraph F.4.e.(1) of this rule, the owner must, within 120 days following the close of the owner's fiscal year, obtain alternative financial assurance that meets the requirements of this rule, place the required submissions for that assurance in the operating record, and notify the State Director that the owner no longer meets the criteria of the financial test and that alternate assurance has been obtained.

(vi) The Director of an approved State may, based on a reasonable belief that the owner or operator may no longer meet the requirements of paragraph F.4.e.(1) of this rule, require at any time the owner to provide reports of its financial condition in addition to or including current financial test documentation as specified in paragraph F.2.e.(2) of this rule. If the Director of an approved State finds that the owner no longer meets the requirements of paragraph F.4.e.(1) of this rule, the owner must provide alternate financial assurance that meets the requirements of this rule.

(3) Calculation of costs to be assured. When calculating the current cost estimates for closure, post-closure care, corrective action, or the sum of the combination of such costs to be covered, and any other environmental obligations assured by a financial test referred to in this section, the owner must include cost estimates required for municipal solid waste management facilities under this part, as well as cost estimates required for the following environmental obligations, if it assures them through a financial test: obligations associated with UIC facilities under 40 CFR part 144, petroleum underground storage tank facilities under 40 CFR part 280, PCB storage facilities under 40 CFR part 761, and hazardous waste treatment, storage, and disposal facilities under 40 CFR parts 264 and 265.

(f) Local Government Financial Test.

An owner may satisfy the requirements of paragraphs F.4.f. (1) through F.4.f.(3) of this rule by demonstrating financial assurance up to the amount specified in paragraph F.4.f.(4) of this rule:

(1) Financial component.

(i) The owner must satisfy paragraph F.4.f.(1)(i)(A) or (B) of this rule as applicable:

(A) If the owner has outstanding, rated, general obligation bonds that are not secured by insurance, a letter of credit, or other collateral or guarantee, it must have a current rating of Aaa, Aa, A, or Baa, as issued by Moody's, or AAA, AA, A, or BBB, as issued by Standard and Poor's on all such general obligation bonds; or

(B) The owner must satisfy each of the following financial ratios based on the owner's most recent audited annual financial statement:

(1) A ratio of cash plus marketable securities to total expenditures greater than or equal to 0.05; and

(2) A ratio of annual debt service to total expenditures less than or equal to 0.20.

(ii) The owner must prepare its financial statements in conformity with Generally Accepted Accounting Principles for governments and have its financial statements audited by an independent certified public accountant (or appropriate State agency).

(iii) A local government is not eligible to assure its obligations under paragraph F.4.f of this rule, if it:

(A) Is currently in default on any outstanding general obligation bonds; or

(B) Has any outstanding general obligation bonds rated lower than Baa as issued by Moody's or BBB as issued by Standard and Poor's; or

(D) Receives an adverse opinion, disclaimer of opinion, or other qualified opinion from the independent certified public accountant (or appropriate State agency) auditing its financial statement as required under paragraph F.4.(f)(1)(ii) of this rule. However, the Director of an approved State may evaluate qualified opinions on a case-by-case basis and allow use of the financial test in cases where the Director deems the qualification insufficient to warrant disallowance of use of the test.

(iv) The following terms used in this paragraph are defined as follows:

(A) Deficit equals total annual revenues minus total annual expenditures;

(B) Total revenues include revenues from all taxes and fees but does not include the proceeds from borrowing or asset sales, excluding revenue from funds managed by local government on behalf of a specific third party;

(D) Cash plus marketable securities is all the cash plus marketable securities held by the local government on the last day of a fiscal year, excluding cash and marketable securities designated to satisfy past obligations such as pensions; and

(E) Debt service is the amount of principal and interest due on a loan in a given time period, typically the current year.

(2) Public notice component. The local government owner must place a reference to the closure and post-closure care costs assured through the financial test into its next comprehensive annual financial report (CAFR) prior to the initial receipt of waste at the facility. Disclosure must include the nature and source of closure and post-closure care requirements, the reported liability at the balance sheet date, the estimated total closure and post-closure care cost remaining to be recognized, the percentage of landfill capacity used to date, and the estimated landfill life in years. A reference to corrective action costs must be placed in the CAFR not later than 120 days after the corrective action remedy has been selected in accordance with the requirements of paragraph D.8 of this rule. For the first year the financial test is used to assure costs at a particular facility, the reference may instead be placed in the operating record until issuance of the next available CAFR if timing does not permit the reference to be incorporated into the most recently issued CAFR or budget. For closure and post-closure costs, conformance with Government Accounting Standards Board Statement 18 assures compliance with this public notice component.

(3) Recordkeeping and Reporting Requirements.

(i) The local government owner must place the following items in the facility's operating record:

(A) A letter signed by the local government's chief financial officer that:

(1) Lists all the current cost estimates covered by a financial test, as described in paragraph F.4.f.(4) of this rule;

(2) Provides evidence and certifies that the local government meets the conditions of paragraphs F.4.f.(1)(i), F.4.f.(1)(ii), and F.4.f.(1)(iii) of this rule; and

(3) Certifies that the local government meets the conditions of paragraphs F.2.f.(2) and F.4.f.(4) of this rule.

(B) The local government's independently audited year-end financial statements for the latest fiscal year (except for local governments where audits are required every two years where unaudited statements may be used in years when audits are not required), including the unqualified opinion of the auditor who must be an independent, certified public accountant or an appropriate State agency that conducts equivalent comprehensive audits;

(C) A report to the local government from the local government's independent certified public accountant (CPA) or the appropriate State agency based on performing an agreed upon procedures engagement relative to the financial ratios required by paragraph F.4.f(1)(i)(B) of this rule, if applicable, and the requirements of paragraphs F.4.f(1)(ii) and F.4.f.(1)(iii)(C)and(D) of this rule. The CPA or State agency's report should state the procedures performed and the CPA or State agency's findings; and

(D) A copy of the comprehensive annual financial report (CAFR) used to comply with paragraph F.4.f.(2) of this rule or certification that the requirements of General Accounting Standards Board Statement 18 have been met.

(ii) The items required in paragraph F.4.f.(3)(i) of this rule must be placed in the facility operating record as follows:

(A) In the case of closure and post-closure care, prior to the initial receipt of waste at the facility; or

(B) In the case of corrective action, not later than 120 days after the corrective action remedy is selected in accordance with the requirements of paragraph D.8 of this rule.

(iii) After the initial placement of the items in the facility's operating record, the local government owner must update the information and place the updated information in the operating record within 180 days following the close of the owner's fiscal year.

(iv) The local government owner is no longer required to meet the requirements of paragraph F.4.f.(3) of this rule when:

(A) The owner substitutes alternate financial assurance as specified in this section; or

(B) The owner is released from the requirements of this rule in accordance with paragraphs F.1.b, F.2.b, or F.3.b of this rule.

(v) A local government must satisfy the requirements of the financial test at the close of each fiscal year. If the local government owner or operator no longer meets the requirements of the local government financial test it must, within 210 days following the close of the owner fiscal year, obtain alternative financial assurance that meets the requirements of this rule, place the required submissions for that assurance in the operating record, and notify the State Director that the owner no longer meets the criteria of the financial test and that alternate assurance has been obtained.

(vi) The Director of an approved State, based on a reasonable belief that the local government owner may no longer meet the requirements of the local government financial test, may require additional reports of financial condition from the local government at any_time. If the Director of an approved State finds, on the basis of such reports or other information, that the owner no longer meets the requirements of the local government financial test, the local government must provide alternate financial assurance in accordance with this section.

(4) Calculation of costs to be assured. The portion of the closure, post-closure, and corrective action costs for which an owner can assure under this paragraph is determined as follows:

(i) If the local government owner does not assure other environmental obligations through a financial test, it may assure closure, post-closure, and corrective action costs that equal up to 43 percent of the local government's total annual revenue.

(ii) If the local government assures other environmental obligations through a financial test, including those associated with UIC facilities under 40 CFR 144.62, petroleum underground storage tank facilities under 40 CFR Part 280, PCB storage facilities under 40 CFR Part 761, and hazardous waste treatment, storage, and disposal facilities under 40 CFR Parts 264 and 265, it must add those costs to the closure, post-closure, and corrective action costs it seeks to assure under this paragraph. The total that may be assured must not exceed 43 percent of the local government's total annual revenue.

(iii) The owner must obtain an alternate financial assurance instrument for those costs that exceed the limits set in paragraphs F.4.f.(4) (i) and (ii) of this rule.

(g) Corporate Guarantee

(1) An owner may meet the requirements of this rule by obtaining a written guarantee. The guarantor must be the direct or higher-tier parent corporation of the owner, a firm whose parent corporation is also the parent corporation of the owner, or a firm with a "substantial business relationship" with the owner. The guarantor must meet the requirements for owners in paragraph F.4.e of this rule and must comply with the terms of the guarantee. A certified copy of the guarantee must be placed in the facility's operating record along with copies of the letter from the guarantor's chief financial officer and accountants' opinions. If the guarantor's parent corporation is also the parent corporation of the owner, the letter from the guarantor's chief financial officer must describe the value received in consideration of the guarantee. If the guarantor is a firm with a "substantial business relationship" with the owner, this letter must describe this "substantial business relationship" and the value received in consideration of the guarantee.

(2) The guarantee must be effective and all required submissions placed in the operating record before the initial receipt of waste or before the effective date of the requirements of this rule, in the case of closure and post-closure care, or in the case of corrective action no later than 120 days after the corrective action remedy has been selected in accordance with the requirements of paragraph D.8 of this rule.

(3) The terms of the guarantee must provide that:

(i) If the owner fails to perform closure, post-closure care, and/or corrective action of a facility covered by the guarantee, the guarantor will:

(A) Perform, or pay a third party to perform, closure, post-closure care, and/or corrective action as required (performance guarantee); or

(B) Establish a fully funded trust fund as specified in paragraph F.4.a of this rule in the name of the owner (payment guarantee).

(ii) The guarantee will remain in force for as long as the owner must comply with the applicable financial assurance requirements of this Subpart unless the guarantor sends prior notice of cancellation by certified mail to the owner and to the State Director. Cancellation may not occur, however, during the 120 days beginning on the date of receipt of the notice of cancellation by both the owner and the State Director, as evidenced by the return receipts.

(iii) If notice of cancellation is given, the owner must, within 90 days following receipt of the cancellation notice by the owner and the State Director, obtain alternate financial assurance, place evidence of that alternate financial assurance in the facility operating record, and notify the State Director. If the owner fails to provide alternate financial assurance within the 90-day period, the guarantor must provide that alternate assurance within 120 days of the cancellation notice, obtain alternative assurance, place evidence of the alternate assurance in the facility operating record, and notify the State Director.

(4) If a corporate guarantor no longer meets the requirements of paragraph F.4.g.1 of this rule, the owner or operator must, within 90 days, obtain alternative assurance, place evidence of the alternate assurance in the facility operating record, and notify the State Director. If the owner fails to provide alternate financial assurance within the 90-day period, the guarantor must provide that alternate assurance within the next 30 days.

(5) The owner is no longer required to meet the requirements of this paragraph F.4.g when:

(i) The owner substitutes alternate financial assurance as specified in this section; or

(ii) The owner is released from the requirements of this rule in accordance with paragraphs F.1.b, F.2.b or F.3.b of this rule.

(h) Local Government Guarantee.

An owner may demonstrate financial assurance for closure, post-closure, and corrective action, as required by paragraphs F.1.b, F.2.b, and F.3.b of this rule by obtaining a written guarantee provided by a local government. The guarantor must meet the requirements of the local government financial test in paragraph F.4.f of this rule, and must comply with the terms of a written guarantee.

(1) Terms of the written guarantee. The guarantee must be effective before the initial receipt of waste or before the effective date of this rule, whichever is later, in the case of closure, post-closure care, or no later than 120 days after the corrective action remedy has been selected in accordance with the requirements of paragraph D.8 of this rule. The guarantee must provide that:

(i) If the owner fails to perform closure, post-closure care, and/or corrective action of a facility covered by the guarantee, the guarantor will:

(A) Perform, or pay a third party to perform, closure, post-closure care, and/or corrective action as required; or

(B) Establish a fully funded trust fund as specified in paragraph F.4.a of this rule in the name of the owner.

(ii) The guarantee will remain in force unless the guarantor sends notice of cancellation by certified mail to the owner and to the State Director. Cancellation may not occur, however, during the 120 days beginning on the date of receipt of the notice of cancellation by both the owner and the State Director, as evidenced by the return receipts.

(iii) If a guarantee is cancelled, the owner must, within 90 days following receipt of the cancellation notice by the owner and the State Director, obtain alternate financial assurance, place evidence of that alternate financial assurance in the facility operating record, and notify the State Director. If the owner fails to provide alternate financial assurance within the 90-day period, the guarantor must provide that alternate assurance within 120 days following the guarantor's notice of cancellation, place evidence of the alternate assurance in the facility operating record, and notify the State Director.

(2) Recordkeeping and Reporting.

(i) The owner must place a certified copy of the guarantee along with the items required under paragraph F.4.f.(3) of this rule into the facility's operating record before the initial receipt of waste or before the effective date of this rule, whichever is later, in the case of closure, post-closure care, or no later than 120 days after the corrective action remedy has been selected in accordance with the requirements of paragraph D.8 of this rule.

(ii) The owner is no longer required to maintain the items specified in paragraph F.4.h(2) of this rule when:

(A) The owner substitutes alternate financial assurance as specified in this section; or

(B) The owner is released from the requirements of this rule in accordance with paragraphs F.1.b, F.2.b or F.3.b of this rule.

(iii) If a local government guarantor no longer meets the requirements of paragraph F.4.f of this rule, the owner, must, within 90 days, obtain alternative assurance, place evidence of the alternate assurance in the facility operating record, and notify the State Director. If the owner fails to obtain alternate financial assurance within that 90-day period, the guarantor must provide that alternate assurance within the next 30 days.

(i) Other Mechanisms. An owner may satisfy the requirements of this rule by providing evidence of financial assurance through the use of any mechanism that is adopted by the U.S. Environmental Protection Agency under Part 258, Subpart G, of Title 40 of the Code of Federal Regulations, or any other mechanism that meets the criteria specified in paragraph F.4.k of this rule and that is approved by the Commission.

(j) Use of Multiple Financial Mechanisms. An owner may satisfy the requirements of this rule by establishing more than one financial mechanism per facility. The mechanisms must be as specified in paragraphs F.4.a through F.4.i of this rule, except that it is the combination of mechanisms, rather than the single mechanism, which must provide financial assurance for an amount at least equal to the current cost estimate for closure, post-closure care or corrective action, whichever is applicable. The financial test and a guarantee provided by a corporate parent, sibling, or grandparent may not be combined if the financial statements of the two firms are consolidated.

(k) The language of the mechanisms listed in paragraphs F.4.a through F.4.i of this rule must ensure that the instruments satisfy the following criteria:

(1) the financial assurance mechanisms must ensure that the amount of funds assured is sufficient to cover the costs of closure, post-closure care, and corrective action for known releases when needed;

(2) the financial assurance mechanisms must ensure that funds will be available in a timely fashion when needed;

(3) the financial assurance mechanisms must be obtained by the owner by the effective date of these regulations in the case of closure and post-closure care, and no later than 120 days after the corrective action remedy has been selected in accordance with the requirements of paragraph D.8. of this rule, until the owner is released from the financial assurance requirements under paragraphs F.1, F.2 and F.3 of this rule; and

(4) the financial assurance mechanisms must be legally valid, binding, and enforceable under State of Mississippi and Federal law.

Miss. Code Ann. §§ 17-17-1, et seq., 17-17-201, et seq., 17-17-501, et seq., 49-2-9(1)(b), 49-17-17(i), 21-27-201, et seq., 49-2-1, et seq. and 49-17-1, et seq.

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