LEA Advisory #40—June 30, 1997

Daily Cover Waiver

To All Local Enforcement Agencies:

The purpose of this LEA Advisory is to provide guidance on the issuance of daily cover waivers allowed under Title 14, California Code of Regulations (14 CCR), Division 7, Chapter 3, Article 4.5, Section 17258.21(c), Cover Material Requirements.  This section is being recodified under Title 27, California Code of Regulations (27 CCR), Division 2, Subdivision 1, Chapter 3, Subchapter 4, Article 2, Section 20680(b), CIWMB - Daily Cover and will be effective July 18, 1997.  In addition this section (27 CCR 20680[b]) is being revised as part of the alternative daily cover (ADC) regulation process. A copy of the old, the recodified, and the proposed regulations are included as Attachment A. (Please note that the attached regulations are an unofficial version of the regulations. The authoritative regulations are found in Barclays Official California Code of Regulations published by Barclays Law Publishers.)

Background

On October 9, 1991, the Federal Environmental Protection Agency (EPA) promulgated the final rule for the Criteria for Classification of Solid Waste Disposal Facilities and Practices (Title 40, Code of Federal Regulations [40 CFR], part 258). These rules, effective October 9, 1993, were developed in response to the 1984 Hazardous and Solid Waste Amendments to the Resource Conservation and Recovery Act (RCRA) and are commonly referred to as RCRA Subtitle D (or Subtitle D, for short).

As part of the effort to become an "Approved State" under RCRA Subtitle D, various sections of Subtitle D were added to the California Integrated Waste Management Board's (Board) State Minimum Standards on July 12, 1993. Included in these regulations was 14 CCR 17258.21 which specified requirements for daily cover, allowed for alternative daily cover materials, and allowed for the waiver of daily cover requirements under specified conditions. This language has been moved to 27 CCR 20680(b) as part of the revisions made to the Board's regulations pursuant to AB 1220 (Chapter 656, Statutes of 1993).

What Is a Daily Cover Waiver?

The regulations require that landfill operators cover disposed waste with six (6) inches of earthen material (or an approved alternative material of alternative thickness) at the end of each operating day or at more frequent intervals if necessary to control disease vectors, fires, odors, blowing litter, and scavenging. A daily cover waiver is a waiver issued by the Board (issuance has been delegated to the Deputy Director, Permitting and Enforcement Division), jointly with the Enforcement Agency, which grants a temporary reprieve from the requirements of placing daily cover (or alternative daily cover). (Please note that should the draft ADC regulations be approved as currently proposed, the daily cover waiver will then be issued by the EA with concurrence by the Deputy Director, Permitting and Enforcement Division.)

When May a Daily Cover Waiver Be Issued?

A daily cover waiver may be issued if a landfill owner or operator demonstrates that there are extreme seasonal climatic conditions that make meeting the daily cover requirements impractical. Please note that, unlike the emergency waiver of standards, a proclamation of a state of emergency or local emergency is not required for the issuance of a daily cover waiver. While the regulation does not specify what is meant by "extreme seasonal climatic conditions," EPA has provided guidance in both the Appendices to the Preamble to the Subtitle D Regulations (Attachment B; not available on line)and in a guidance manual, Solid Waste Disposal Facility Criteria - A Technical Manual (Attachment C; not available on line).

During the development of the federal Subtitle D regulations, EPA considered requests to also allow a waiver of daily cover requirements due to the types and quantities of waste received, the location of the facility, the facility design and operation, and the practicable capability of the operator. EPA rejected these considerations because daily cover is a necessary good housekeeping practice and should be required regardless of waste types, location of the facility, and the design and operation of the facility. Unlike extreme seasonal climatic conditions, which make placement of daily cover very difficult, the other considered conditions do not pose significant obstacles to daily cover operations. Furthermore, EPA concluded that the protection provided to public health and safety and the environment by daily cover outweighs any of the difficulties posed by the other considerations.

Activities that may be affected by extreme seasonal climatic conditions include: obtaining cover soil from a borrow pit; transporting cover soil to the working face; and spreading and compacting the soil to achieve the required functions. Extremely cold conditions (i.e., frozen soil) may prevent efficient excavation of soil from a borrow pit or the spreading and compaction of the soil on the waste. Extremely wet conditions (e.g., flooding) may prevent transporting cover soil to the working face and may make it impractical to excavate or spread and compact.

As can be discerned from the guidance, the intent of the daily cover waiver is to only grant the waiver when extreme seasonal climatic conditions directly affect (1) the daily cover material by making it unavailable (e.g., frozen) or unspreadable (e.g., too fluid) or (2) the ability to transport the daily cover material (e.g., flooded or impassable access roads). This waiver should not be encouraged nor normally be granted for rain conditions, even above-average rain conditions. Operators should employ measures to prepare for the rainy season, including preparation of a wet weather area, stockpiling of cover material, and proper drainage controls. A lack of proper winterization procedures and measures should not produce a daily cover waiver.

How Long Does a Waiver Remain In Effect?

There is no specific minimum or maximum timeline specified in the regulations. Therefore, depending on the reason(s) for the daily cover waiver, the waiver may be as short as one day for unusual rain storms or as long as several months for extreme seasonal climatic conditions. However, the waiver should be granted for the shortest period of time absolutely necessary to provide for the greatest protection of public health and safety and the environment. Moreover, the operator should take all appropriate actions to alleviate the conditions which necessitated the waiver.

For example, should a waiver be granted because a borrow pit was flooded due to extreme rainfall/flood conditions, the operator should pump out the standing water in the pit and not wait for the water in the pit to naturally percolate and/or evaporate. Likewise, should an access road be damaged, the road should be repaired as soon as possible. Also, alternative daily cover (ADC) materials could be considered while the waiver was in effect if conventional earthen materials will not be accessible for a significant period of time. However, the use of ADC materials must comply with current ADC approval processes.

How Is a Daily Cover Waiver Issued?

There are no specific procedures specified in the regulation for requesting and/or granting a daily cover waiver. However, the process of obtaining a waiver should follow the generalized protocol for obtaining other waivers from Subtitle D requirements. The operator would contact (in writing, probably by fax due to the time restraint of the request) the EA who would make the initial assessment. The initial assessment should consist of a site visit to verify the conditions which necessitated the operator's request. Should a site visit be impractical, the EA should attempt to verify the information provided by the operator by other available means including phone calls and information gathering from other agency personnel. If the EA concurs with the operator's request, a brief letter from the EA transmitting the request and a description of the problem would be submitted to the Board's Enforcement Branch in the Permitting and Enforcement Division. Upon concurrence by the Deputy Director, Permitting and Enforcement Division, the waiver would be granted jointly by the Board and EA (or by the EA only should the regulation be modified as currently proposed). The approval would contain a specified time period for which the waiver is granted and a date after which daily cover must again be applied.

Board staff are available for consultation and assistance when reviewing operators' requests for waivers. General questions on the issuance of daily cover waivers should be directed to the Permitting and Enforcement Division Disaster Coordinator (Michael B. Wochnick) at (916) 341-6318. Site specific concerns should be discussed with the appropriate Enforcement Branch contact.

What Are the Reporting Requirements?

There are no specific reporting requirements contained in the regulations. However, the operator should maintain records of the day(s) daily cover was not applied and the efforts taken to alleviate the condition(s) that led to the issuance of the waiver.

Should you have any questions or comments concerning this advisory, please contact Michael Wochnick of my staff.

Sincerely,

Original signed by:

Deputy Director
Permitting and Enforcement Division

Attachments

Attachment A

Old, Recodified, and Proposed Regulations

Attachment B (not available on line)

40 CFR - Appendices to the Preamble to the Subtitle D Regulations

Attachment C (not available on line)

Solid Waste Disposal Facility Criteria - A Technical Manual

Publication #232-97-012

The intent of the advisories is to provide guidance to Local Enforcement Agencies (LEA) in performing their duties. Guidance, for this purpose, is defined as providing explanation of the Board’s regulations and statutes.

Unless included by reference in the LEA's Enforcement Program Plan (EPP), advisories are not enforceable in the same manner as regulations because they have not been adopted through the formal rulemaking process (see Government Code sections 11340.5 and 11342.6). Advisories do not take precedence over statute or regulation.

Advisories Home | LEA Central