40 C.F.R. § 258.40

Design criteria

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(a) New MSWLF units and lateral expansions shall be constructed:

(1) In accordance with a design approved by the Director of an approved State or as specified in § 258.40(e) for unapproved States. The design must ensure that the concentration values listed in Table 1 of this section will not be exceeded in the uppermost aquifer at the relevant point of compliance, as specified by the Director of an approved State under paragraph (d) of this section, or

(2) With a composite liner, as defined in paragraph (b) of this section and a leachate collection system that is designed and constructed to maintain less than a 30-cm depth of leachate over the liner.

(b) For purposes of this section, composite liner means a system consisting of two components; the upper component must consist of a minimum 30-mil flexible membrane liner (FML), and the lower component must consist of at least a two-foot layer of compacted soil with a hydraulic conductivity of no more than 1 × 10−7 cm/sec. FML components consisting of high density polyethylene (HDPE) shall be at least 60-mil thick. The FML component must be installed in direct and uniform contact with the compacted soil component.

(c) When approving a design that complies with paragraph (a)(1) of this section, the Director of an approved State shall consider at least the following factors:

(1) The hydrogeologic characteristics of the facility and surrounding land;

(2) The climatic factors of the area; and

(3) The volume and physical and chemical characteristics of the leachate.

(d) The relevant point of compliance specified by the Director of an approved State 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 MSWLF unit. In determining the relevant point of compliance State Director shall consider at least the following factors:

(1) The hydrogeologic characteristics of the facility and surrounding land;

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

(3) The quantity, quality, and direction, of flow of ground water;

(4) The proximity and withdrawal rate of the ground-water users;

(5) The availability of alternative drinking water supplies;

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

(7) Public health, safety, and welfare effects; and

(8) Practicable capability of the owner or operator.

(e) If EPA does not promulgate a rule establishing the procedures and requirements for State compliance with RCRA section 4005(c)(1)(B) by October 9, 1993, owners and operators in unapproved States may utilize a design meeting the performance standard in § 258.40(a)(1) if the following conditions are met:

(1) The State determines the design meets the performance standard in § 258.40(a)(1);

(2) The State petitions EPA to review its determination; and

(3) EPA approves the State determination or does not disapprove the determination within 30 days.

Note to subpart D:

40 CFR part 239 is reserved to establish the procedures and requirements for State compliance with RCRA section 4005(c)(1)(B).

Table 1
Chemical	MCL (mg/l)
Arsenic	0.05
Barium	1.0
Benzene	0.005
Cadmium	0.01
Carbon tetrachloride	0.005
Chromium (hexavalent)	0.05
2,4-Dichlorophenoxy acetic acid	0.1
1,4-Dichlorobenzene	0.075
1,2-Dichloroethane	0.005
1,1-Dichloroethylene	0.007
Endrin	0.0002
Fluoride	4
Lindane	0.004
Lead	0.05
Mercury	0.002
Methoxychlor	0.1
Nitrate	10
Selenium	0.01
Silver	0.05
Toxaphene	0.005
1,1,1-Trichloromethane	0.2
Trichloroethylene	0.005
2,4,5-Trichlorophenoxy acetic acid	0.01
Vinyl Chloride	0.002

Notes of Decisions

Cited in 10 cases, 1994–2012 · leading case: Yankton Sioux Tribe v. S. Missouri Waste Mgmt. Dist., 890 F. Supp. 878 (D.S.D. 1995).

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Yankton Sioux Tribe v. S. Missouri Waste Mgmt. Dist., 890 F. Supp. 878 (D.S.D. 1995). · cites it 4× “The evidence shows that the EPA takes the position that a synthetic liner is required in addition to the compacted clay finer to bring Southern Missouri’s design into compliance with Subpart D, 40 C.F.R. § 258.40 . The Court will require Southern Missouri to install a composite…”

South Dakota v. Yankton Sioux Tribe, 522 U.S. 329 (1998). “The Tribe also sought a declaratory judgment that the permit did not comport with Federal Environmental Protection Agency (EPA) regulations mandating the installation of a composite liner in the landfill.”

Beavers v. Cnty. of Walker, 645 So. 2d 1365 (Ala. 1994). “3 Subtitle D of RCRA ordered the EPA to promulgate new regulations on solid waste management, resulting in the promulgation of 40 C.F.R. § 258.40 , "Criteria for Municipal Solid Waste Landfills.”

Carter v. City of Haleyville, 669 So. 2d 812 (Ala. 1995). “See Criteria for Municipal Solid Waste Landfills , 40 C.F.R. § 258.40 (1994). 2 The Northwest Alabamian is the local newspaper for the City of Haleyville and Winston County.”

Yankton Sioux Tribe v. U.S. Env't Prot. Agency, 950 F. Supp. 1471 (D.S.D. 1996). · cites it 10× “final administrative decision at issue, the EPA granted the request of Southern Missouri Recycling and Waste Management District, the owner/operator of a Subtitle D municipal solid waste landfill under construction on non-Indian land within the exterior boundaries of the Yankton…”

Max Schwartzman & Sons v. Minnesota Pollution Control Agency, 670 N.W.2d 746 (Minn. Ct. App. 2003). “40 C.F.R. § 258.40 (2002); 40 C.F.R. § 761.”

Catawba Cnty. v. Wyant, 677 S.E.2d 567 (N.C. Ct. App. 2009). “Pursuant to 40 C.F.R. § 258.40 , which was adopted in 1991, all new MSWLF units and lateral expansions require a leachate 1 collection system.”

Waste Mgmt. of Texas, Inc.// Texas Disposal Sys. Landfill, Inc. v. Texas Disposal Sys. Landfill, Inc.// Cross-Appellee, Waste Mgmt. of Texas, Inc. (Tex. App. 2012). · cites it 3× “EPA Design Criteria for Municipal Solid Waste Landfills, 40 C.F.R. § 258.40 (1997). Finally, Waste Management argues that the evidence was legally insufficient to find actual malice because the principal author of the Action Alert testified to his "honest belief in the accuracy…”

Waste Mgmt. of Texas, Inc.// Texas Disposal Sys. Landfill, Inc. v. Texas Disposal Sys. Landfill, Inc.// Cross-Appellee, Waste Mgmt. of Texas, Inc. (Tex. App. 2012). · cites it 3× “6 Second, it appears that the purpose of Texas Disposal’s evidence was to establish the falsity of 6 The specific EPA rule referred to here is found at 40 C.F.R. § 258.40 (1997) (EPA Design Criteria for Municipal Solid Waste Landfills).”

Legal Env't Assistance Found. v. Env't Prot. Agency, 70 F.3d 638 (D.C. Cir. 1995). “6941-49 (a), EPA issued regulations governing inter alia design criteria for municipal solid waste landfills, 40 C.F.R. Part 258.40. Part 258 allows states to submit landfill permit programs for EPA approval.”

— 40 C.F.R. § 258.40(a)(1) — 1 case

Yankton Sioux Tribe v. U.S. Env't Prot. Agency, 950 F. Supp. 1471 (D.S.D. 1996). “final administrative decision at issue, the EPA granted the request of Southern Missouri Recycling and Waste Management District, the owner/operator of a Subtitle D municipal solid waste landfill under construction on non-Indian land within the exterior boundaries of the Yankton…”

— 40 C.F.R. § 258.40(e) — 1 case

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