and coastal waters, including floodprone areas of offshore islands, which are inundated by the base flood.

(3) Washout means the carrying away of solid waste by waters of the base flood.

[44 FR 53460, Sept. 13, 1979; 44 FR 54708, Sept. 21, 1979]

§ 257.3-2 Endangered species.

(a) Facilities or practices shall not cause or contribute to the taking of any endangered or threatened species of plants, fish, or wildlife.

(b) The facility or practice shall not result in the destruction or adverse modification of the critical habitat of endangered or threatened species as identified in 50 CFR part 17.

(c) As used in this section:

(1) Endangered or threatened species means any species listed as such pursuant to section 4 of the Endangered Species Act.

(2) Destruction or adverse modification means a direct or indirect alteration of critical habitat which appreciably diminishes the likelihood of the survival and recovery of threatened or endangered species using that habitat.

(3) Taking means harassing, harming, pursuing, hunting, wounding, killing, trapping, capturing, or collecting or attempting to engage in such conduct.

$257.3-3 Surface water.

(a) For purposes of section 4004(a) of the Act, a facility shall not cause a discharge of pollutants into waters of the United States that is in violation of the requirements of the National Pollutant Discharge Elimination System (NPDES) under section 402 of the Clean Water Act, as amended.

(b) For purposes of section 4004(a) of the Act, a facility shall not cause a discharge of dredged material or fill material to waters of the United States that is in violation of the requirements under section 404 of the Clean Water Act, as amended.

(c) A facility or practice shall not cause non-point source pollution of waters of the United States that violates applicable legal requirements implementing an areawide or Statewide water quality management plan that has been approved by the Adminis

trator under section 208 of the Clean Water Act, as amended.

(d) Definitions of the terms "Discharge of dredged material", "Point source", "Pollutant", "Waters of the United States", and "Wetlands" can be found in the Clean Water Act, as amended, 33 U.S.C. 1251 et seq., and implementing regulations, specifically 33 CFR part 323 (42 FR 37122, July 19, 1977).

[44 FR 53460, Sept. 13, 1979, as amended at 46 FR 47052, Sept. 23, 1981]

$257.3-4 Ground water.

(a) A facility or practice shall not contaminate an underground drinking water source beyond the solid waste boundary or beyond an alternative boundary specified in accordance with paragraph (b) of this section.

(b)(1) For purposes of section 1008(a)(3) of the Act or section 405(d) of the CWA, a party charged with open dumping or a violation of section 405(e) with respect to sewage sludge that is not used or disposed through a practice regulated in 40 CFR part 503 may demonstrate that compliance should be determined at an alternative boundary in lieu of the solid waste boundary. The court shall establish an alternative boundary only if it finds that such a change would not result in contamination of ground water which may be needed or used for human consumption. This finding shall be based on analysis and consideration of all of the following factors that are relevant:

(i) The hydrogeological characteristics of the facility and surrounding land, including any natural attenuation and dilution characteristics of the aquifer;

(ii) The volume and physical and chemical characteristics of the leachate;

(iii) The quantity, quality, and direction of flow of ground water underlying the facility;

(iv) The proximity and withdrawal rates of ground-water users;

(v) The availability of alternative drinking water supplies;

(vi) The existing quality of the ground water, including other sources of contamination and their cumulative impacts on the ground water;

(vii) Public health, safety, and welfare effects.

(2) For purposes of sections 4004(a) and 1008(a)(3), the State may establish an alternative boundary for a facility to be used in lieu of the solid waste boundary only if it finds that such a change would not result in the contamination of ground water which may be needed or used for human consumption. Such a finding shall be based on an analysis and consideration of all of the factors identified in paragraph (b)(1) of this section that are relevant. (c) As used in this section:

(1) Aquifer means a geologic formation, group of formations, or portion of a formation capable of yielding usable quantities of ground water to wells or springs.

(2) Contaminate means introduce a substance that would cause:

(i) The concentration of that substance in the ground water to exceed the maximum contaminant level specified in appendix I, or

(ii) An increase in the concentration of that substance in the ground water where the existing concentration of that substance exceeds the maximum contaminant level specified in appendix I.

(3) Ground water means water below the land surface in the zone of saturation.

(4) Underground drinking water source

means:

(i) An aquifer supplying drinking water for human consumption, or

(ii) An aquifer in which the ground water contains less than 10,000 mg/1 total dissolved solids.

(5) Solid waste boundary means the outermost perimeter of the solid waste (projected in the horizontal plane) as it would exist at completion of the disposal activity.

[44 FR 53460, Sept. 13, 1979, as amended at 46 FR 47052, Sept. 23, 1981; 58 FR 9386, Feb. 19, 1993]

§ 257.3-5 Application to land used for the production of food-chain crops (interim final).

(a) Cadmium. A facility or practice concerning application of solid waste to within one meter (three feet) of the surface of land used for the production of food-chain crops shall not exist or

occur, unless in compliance with all requirements of paragraphs (a)(1) (i) through (iii) of this section or all requirements of paragraphs (a)(2) (i) through (iv) of this section.

(1)(i) The pH of the solid waste and soil mixture is 6.5 or greater at the time of each solid waste application, except for solid waste containing cadmium at concentrations of 2 mg/kg (dry weight) or less.

(ii) The annual application of cadmium from solid waste does not exceed 0.5 kilograms per hectare (kg/ha) on land used for production of tobacco, leafy vegetables or root crops grown for human consumption. For other food-chain crops, the annual cadmium application rate does not exceed:

(ii) The pH of the solid waste and soil mixture is 6.5 or greater at the time of solid waste application or at the time the crop is planted, whichever occurs later, and this pH level is maintained whenever food-chain crops are grown.

(iii) There is a facility operating plan which demonstrates how the animal feed will be distributed to preclude ingestion by humans. The facility operating plan describes the measures to be taken to safeguard against possible health hazards from cadmium entering the food chain, which may result from alternative land uses.

(iv) Future property owners are notified by a stipulation in the land record or property deed which states that the property has received solid waste at high cadmium application rates and that food-chain crops should not be grown, due to a possible health hazard.

(b) Polychlorinated Biphenyls (PCBs). Solid waste containing concentrations of PCBs equal to or greater than 10 mg/ kg (dry weight) is incorporated into the soil when applied to land used for producing animal feed, including pasture crops for animals raised for milk. Incorporation of the solid waste into the soil is not required if it is assured that the PCB content is less than 0.2 mg/kg (actual weight) in animal feed or less than 1.5 mg/kg (fat basis) in milk. (c) As used in this section:

(1) Animal feed means any crop grown for consumption by animals, such as pasture crops, forage, and grain.

(2) Background soil pH means the pH of the soil prior to the addition of substances that alter the hydrogen ion concentration.

(3) Cation exchange capacity means the sum of exchangeable cations a soil can absorb expressed in milli-equivalents per 100 grams of soil as determined by sampling the soil to the depth of cultivation or solid waste placement, whichever is greater, and analyzing by the summation method for distinctly acid soils or the sodium acetate method for neutral, calcareous or saline soils ("Methods of Soil Analysis, Agronomy Monograph No. 9." C. A. Black, ed., American Society of Agronomy, Madison, Wisconsin. pp 891-901, 1965).

(4) Food-chain crops means tobacco, crops grown for human consumption,

and animal feed for animals whose products are consumed by humans.

(5) Incorporated into the soil means the injection of solid waste beneath the surface of the soil or the mixing of solid waste with the surface soil.

(6) Pasture crops means crops such as legumes, grasses, grain stubble and stover which are consumed by animals while grazing.

(7) pH means the logarithm of the reciprocal of hydrogen ion concentration. (8) Root crops means plants whose edible parts are grown below the surface of the soil.

(9) Soil pH is the value obtained by sampling the soil to the depth of cultivation or solid waste placement, whichever is greater, and analyzing by the electrometric method. ("Methods of Soil Analysis, Agronomy Monograph No. 9," C.A. Black, ed., American Society of Agronomy, Madison, Wisconsin, pp. 914-926, 1965.)

[44 FR 53460, Sept. 13, 1979; 44 FR 54708, Sept. 21, 1979]

$257.3-6 Disease.

(a) Disease Vectors. The facility or practice shall not exist or occur unless the on-site population of disease vectors is minimized through the periodic application of cover material or other techniques as appropriate so as to protect public health.

(b) Sewage sludge and septic tank pumpings (Interim Final). A facility or practice involving disposal of sewage sludge or septic tank pumpings shall not exist or occur unless in compliance with paragraphs (b) (1), (2) or (3) of this section.

(1) Sewage sludge that is applied to the land surface or is incorporated into the soil is treated by a Process to Significantly Reduce Pathogens prior to application or incorporation. Public access to the facility is controlled for at least 12 months, and grazing by animals whose products are consumed by humans is prevented for at least one month. Processes to Significantly Reduce Pathogens are listed in appendix II, section A. (These provisions do not apply to sewage sludge disposed of by a trenching or burial operation.)

(2) Septic tank pumpings that are applied to the land surface or incorporated into the soil are treated by a Process to Significantly Reduce Pathogens (as listed in appendix II, section A), prior to application or incorporation, unless public access to the facility is controlled for at least 12 months and unless grazing by animals whose products are consumed by humans is prevented for at least one month. (These provisions do not apply to septic tank pumpings disposed of by a trenching or burial operation.)

(3) Sewage sludge or septic tank pumpings that are applied to the land surface or are incorporated into the soil are treated by a Process to Further Reduce Pathogens, prior to application or incorporation, if crops for direct human consumption are grown within 18 months subsequent to application or incorporation. Such treatment is not required if there is no contact between the solid waste and the edible portion of the crop; however, in this case the solid waste is treated by a Process to Significantly Reduce Pathogens, prior to application; public access to the facility is controlled for at least 12 months; and grazing by animals whose products are consumed by humans is prevented for at least one month. If crops for direct human consumption are not grown within 18 months of application or incorporation, the requirements of paragraphs (b) (1) and (2) of this section apply. Processes to Further Reduce Pathogens are listed in appendix II, section B.

(c) As used in this section:

(1) Crops for direct human consumption means crops that are consumed by humans without processing to minimize pathogens prior to distribution to the

consumer.

(2) Disease vector means rodents, flies, and mosquitoes capable of transmitting disease to humans.

(3) Incorporated into the soil means the injection of solid waste beneath the surface of the soil or the mixing of solid waste with the surface soil.

(4) Periodic application of cover material means the application and compaction of soil or other suitable material over disposed solid waste at the end of each operating day or at such frequencies and in such a manner as to re

duce the risk of fire and to impede vectors access to the waste.

(5) Trenching or burial operation means the placement of sewage sludge or septic tank pumpings in a trench or other natural or man-made depression and the covering with soil or other suitable material at the end of each operating day such that the wastes do not migrate to the surface.

[44 FR 53460, Sept. 13, 1979; 44 FR 54708, Sept. 21, 1979]

$257.3-7 Air.

(a) The facility or practice shall not engage in open burning of residential, commercial, institutional or industrial solid waste. This requirement does not apply to infrequent burning of agricultural wastes in the field, silvicultural wastes for forest management purposes, land-clearing debris, diseased trees, debris from emergency clean-up operations, and ordnance.

(b) For purposes of section 4004(a) of the Act, the facility shall not violate 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.

(c) As used in this section "open burning" means the combustion of solid waste without (1) control of combustion air to maintain adequate temperature for efficient combustion, (2) containment of the combustion reaction in an enclosed device to provide sufficient residence time and mixing for complete combustion, and (3) control of the emission of the combustion products.

[44 FR 53460, Sept. 13, 1979; 44 FR 54708, Sept. 21, 1979, as amended at 46 FR 47052, Sept. 23, 1981]

$257.3-8 Safety.

(a) Explosive gases. The concentration of explosive gases generated by the facility or practice shall not exceed:

(1) Twenty-five percent (25%) of the lower explosive limit for the gases in facility structures (excluding gas control or recovery system components); and

(2) The lower explosive limit for the gases at the property boundary.

(b) Fires. A facility or practice shall not pose a hazard to the safety of persons or property from fires. This may be accomplished through compliance with $257.3-7 and through the periodic application of cover material or other techniques as appropriate.

(c) Bird hazards to aircraft. A facility or practice disposing of putrescible wastes that may attract birds and which occurs within 10,000 feet (3,048 meters) of any airport runway used by turbojet aircraft or within 5,000 feet (1,524 meters) of any airport runway used by only piston-type aircraft shall not pose a bird hazard to aircraft.

(d) Access. A facility or practice shall not allow uncontrolled public access so as to expose the public to potential health and safety hazards at the disposal site.

(e) As used in this section:

(1) Airport means public-use airport open to the public without prior permission and without restrictions within the physical capacities of available facilities.

(2) Bird hazard means an increase in the likelihood of bird/aircraft collisions that may cause damage to the aircraft or injury to its occupants.

(3) Explosive gas means methane (CH4).

structures

(4) Facility means any buildings and sheds or utility or drainage lines on the facility.

(5) Lower explosive limit means the lowest percent by volume of a mixture of explosive gases which will propagate a flame in air at 25 °C and atmospheric pressure.

(6) Periodic application of cover material means the application and compaction of soil or other suitable material over disposed solid waste at the end of each operating day or at such frequencies and in such a manner as to reduce the risk of fire and to impede disease vectors' access to the waste.

(7) Putrescible wastes means solid waste which contains organic matter capable of being decomposed by microorganisms and of such a character and proportion as to be capable of attracting or providing food for birds.

§ 257.4 Effective date.

These criteria become effective October 15, 1979.

Subpart B-Disposal Standards for the Receipt of Conditionally Exempt Small Quantity Generator (CESQG) Wastes at NonMunicipal Non-Hazardous

Waste Disposal Units

SOURCE: 61 FR 34269, July 1, 1996, unless otherwise noted.

EFFECTIVE DATE NOTE: At 61 FR 34269, July 1, 1996, subpart B to part 257 was added, effective Jan. 1, 1998, with the exception of §§ 257.21-257.28, which will become effective July 1, 1998, and §§ 257.24, 257.25, and 257.27, which contain information collection and recordkeeping requirements and are pending OMB approval.

§ 257.5 Disposal standards for owners/ operators of non-municipal nonhazardous waste disposal units that receive Conditionally Exempt Small Quantity Generator (CESQG) waste. (a) Applicability. (1) The requirements in this section apply to owners/operators of any non-municipal non-hazardous waste disposal unit that receives CESQG hazardous waste, as defined in 40 CFR 261.5. Non-municipal non-hazardous waste disposal units that meet the requirements of this section may receive CESQG wastes. Any owner/operator of a non-municipal non-hazardous waste disposal unit that receives CESQG hazardous waste continues to be subject to the requirements in §§ 257.3-2, 257.3-3, 257.3-5, 257.3–6, 257.3-7, and 257.3-8 (a), (b), and (d).

(2) Any non-municipal non-hazardous waste disposal unit that is receiving CESQG hazardous waste as of January 1, 1998, must be in compliance with the requirements in §§ 257.7 through 257.13 and §257.30 by January 1, 1998, and the requirements in §§ 257.21 through 257.28 by July 1, 1998.

(3) Any non-municipal non-hazardous waste disposal unit that does not meet the requirements in this section may not receive CESQG wastes.

(4) Any non-municipal non-hazardous waste disposal unit that is not receiving CESQG Hazardous waste as of January 1, 1998, continues to be subject to the requirements in §§257.1 through 257.4.

(5) Any non-municipal non-hazardous waste disposal unit that first receives CESQG hazardous waste after January