N.Y. Comp. Codes R. & Regs. Tit. 6 §§ 373-1.11

Current through Register Vol. 46, No. 45, November 2, 2024

Section 373-1.11 - Remedial action plans (raps)

(a)Why is this section written in a special format?

This section is written in a special format to make it easier to understand the regulatory requirements. Like other State regulations, this establishes enforceable legal requirements. For this section, "I" and "you" refer to the owner/operator.

(b)General information.

(1) What is a RAP?

(i) A RAP is a special form of a Part 373 permit that you, as an owner or operator, may obtain, instead of a permit issued under this Subpart except section 373-1.3 of this Subpart and this section, to authorize you to treat, store, or dispose of hazardous remediation waste (as defined in section 370.2[b] of this Title) at a remediation waste management site. A RAP may only be issued for the area of contamination where the remediation wastes to be managed under the RAP originated, or areas in close proximity to the contaminated area, except as allowed in limited circumstances under paragraph (g)(1) of this section.

(ii) The requirements in this Subpart 373-1 except sections 373-1.3 of this Subpart and this section do not apply to RAPs unless those requirements for traditional Part 373 permits are specifically required under subdivisions (b) through (g) of this section. The definitions in section 370.2 of this Title apply to RAPs.

(iii) Notwithstanding any other provision of this Subpart, any document that meets the requirements in this paragraph constitutes a treatment, storage or disposal facility permit under section 27-0913 of the Environmental Conservation Law.

(iv) A RAP may be:

(a) a stand-alone document that includes only the information and conditions required by this section; or

(b) part (or parts) of another document that includes information and/or conditions for other activities at the remediation waste management site, in addition to the information and conditions required by this section.

(v) If you are treating, storing, or disposing of hazardous remediation wastes as part of a cleanup compelled by Federal or State cleanup authorities, your RAP does not affect your obligations under those authorities in any way.

(vi) If you receive a RAP at a facility operating under interim status, the RAP does not terminate your interim status.

(2) When do I need a RAP?

(i) Whenever you treat, store, or dispose of hazardous remediation wastes in a manner that requires a Part 373 permit under section 373-1.1 of this Subpart, you must either obtain:

(a) a State permit according to this Subpart except section 373-1.3 of this Subpart and this section; or

(b) a RAP according to this section.

(ii) Treatment units that use combustion of hazardous remediation wastes at a remediation waste management site are not eligible for RAPs under this section.

(iii) You may obtain a RAP for managing hazardous remediation waste at an already permitted Part 373 facility. You must have these RAPs approved as a modification to your existing permit according to the requirements of section 373-1.7 of this Subpart instead of the requirements in this section. When you submit an application for such a modification, however, the information requirements in sections 373-1.5 and 373-1.9 of this Subpart do not apply; instead, you must submit the information required under paragraph (c)(4) of this section. When your permit is modified, the RAP becomes part of the State permit.

(iv) Every application for modifications to a permit will be processed pursuant to Part 621 of this Title. When your permit (including the RAP portion) is renewed, modified, revoked or suspended or when it expires, the entire permit will be processed according to the applicable requirements in Part 621 of this Title. At that time, the applicable requirements of subdivision (e) of this section also apply to the RAP portion of the permit.

(3) Does my RAP grant me any rights or relieve me of any obligations? Compliance with a RAP issued pursuant to this section during its term constitutes compliance, for purposes of enforcement, except as described in section 373-1.6(e) of this Subpart.

(c)Applying for a RAP.

(1) How do I apply for a RAP? To apply for a RAP, you must complete an application, sign it, and submit it to the regional permit administrator according to the requirements in this section.

(2) Who must obtain a RAP? When a facility or remediation waste management site is owned by one person, but the treatment, storage or disposal activities are operated by another person, it is the operator's duty to obtain a RAP, except that the owner must also sign the RAP application.

(3) Who must sign the application and any required reports for a RAP? Both the owner and the operator must sign the RAP application and any required reports according to section 373-1.4(a)(5) of this Subpart. In the application, both the owner and the operator must also make the certification required under section 373-1.4(a)(5)(iv) (a) of this Subpart. However, the owner may choose the alternative certification under section 373-1.4(a)(5)(iv) (b) of this Subpart if the operator certifies under section 373-1.4(a)(5)(iv) (a) of this Subpart.

(4) What must I include in my application for a RAP? You must include the following information in your application for a RAP:

(i) the name, address, and EPA identification number of the remediation waste management site;

(ii) the name, address, and telephone number of the owner and operator;

(iii) the latitude and longitude of the site;

(iv) the United States Geological Survey (USGS) or county map showing the location of the remediation waste management site;

(v) a scaled drawing of the remediation waste management site showing:

(a) the remediation waste management site boundaries;

(b) any significant physical structures; and

(c) the boundary of all areas on-site where remediation waste is to be treated, stored or disposed;

(vi) a specification of the hazardous remediation waste to be treated, stored or disposed of at the facility or remediation waste management site. This must include information on:

(a) constituent concentrations and other properties of the hazardous remediation wastes that may affect how such materials should be treated and/or otherwise managed;

(b) an estimate of the quantity of these wastes; and

(c) a description of the processes you will use to treat, store, or dispose of this waste including technologies, handling systems, design and operating parameters you will use to treat hazardous remediation wastes before disposing of them according to the LDR standards of Part 376 of this Title, as applicable;

(vii) enough information to demonstrate that operations that follow the provisions in your RAP application will ensure compliance with applicable requirements of Subparts 373-2, 374-1, and Part 376 of this Title;

(viii) such information as may be necessary to enable the department to carry out the department's duties under other State laws as is required for traditional Part 373 permits under Part 621 of this Title; and

(ix) any other information the department decides is necessary for demonstrating compliance with this Subpart or for determining any additional RAP conditions that are necessary to protect human health and the environment.

(5) What if I want to keep this information confidential? Section 616.7 of this Title allows you to claim as confidential any or all of the information you submit to the department under this section. You must assert any such claim at the time that you submit your RAP application or other submissions by stamping the words "confidential business information" on each page containing such information. If you do assert a claim at the time you submit the information, the department will treat the information according to the procedures in Part 616 of this Title. If you do not assert a claim at the time you submit the information, the department may make the information available to the public without further notice to you. The department will deny any requests for confidentiality of your name and/or address.

(6) To whom must I submit my RAP application? You must submit your application for a RAP to the regional permit administrator for approval.

(7) If I submit my RAP application as part of another document, what must I do? If you submit your application for a RAP as a part of another document, you must clearly identify the components of that document that constitute your RAP application.

(d)Getting a RAP approved.

(1) What is the process for approving or denying my application for a RAP?

(i) If the department tentatively finds that your RAP application includes all of the information required by paragraph (c)(4) of this section and that your proposed remediation waste management activities meet the regulatory standards, the department will make a tentative decision to approve your RAP application. The department will then prepare a draft RAP and provide an opportunity for public comment before making a final decision on your RAP application, according to this section.

(ii) If the department tentatively finds that your RAP application does not include all of the information required by paragraph (c)(4) of this section or that your proposed remediation waste management activities do not meet the regulatory standards, the department may request additional information from you or ask you to correct deficiencies in your application. If you fail or refuse to provide any additional information the department requests, or to correct any deficiencies in your RAP application, the department may make a tentative decision to deny your RAP application. After making this tentative decision, the department will prepare a notice of intent to deny your RAP application (notice of intent to deny) and provide an opportunity for public comment before making a final decision on your RAP application, according to the requirements in this section. The department may deny the RAP application either in its entirety or in part.

(iii) The processes outlined in this subdivision are consistent with and are to be read in conjunction with Part 621 of this Title.

(2) What must the department include in a draft RAP? If the department prepares a draft RAP, it must include the:

(i) information required in subparagraphs (c)(4)(i) through (vi) of this section;

(ii) the following terms and conditions:

(a) terms and conditions necessary to ensure that the operating requirements specified in your RAP comply with applicable requirements of Subparts 373-2, 374-1, and Part 376 of this Title (including any recordkeeping and reporting requirements). In satisfying this provision, the department may incorporate, expressly or by reference, applicable requirements of Subparts 373-2, 374-1, and Part 376 of this Title into the RAP or establish site- specific conditions as required or allowed by Subparts 373-2, 374-1, and Part 376 of this Title;

(b) terms and conditions in section 373-1.6(a) of this Subpart;

(c) terms and conditions for modifying, revoking, suspending, and renewing your RAP, as provided in paragraph (e)(1) of this section; and

(d) any additional terms or conditions that the department determines are necessary to protect human health and the environment, including any terms and conditions necessary to respond to spills and leaks during use of any units permitted under the RAP; and

(iii) if the draft RAP is part of another document, as described in clause (b)(1)(iv)(b) of this section, the department must clearly identify the components of that document that constitute the draft RAP.

(3) What else must the department prepare in addition to the draft RAP or notice of intent to deny? Once the department has prepared the draft RAP or notice of intent to deny, the department must then:

(i) prepare a statement of basis that briefly describes the derivation of the conditions of the draft RAP and the reasons for them, or the rationale for the notice of intent to deny;

(ii) compile an administrative record, including:

(a) the RAP application, and any supporting data furnished by the applicant;

(b) the draft RAP or notice of intent to deny;

(c) the statement of basis and all documents cited therein (material readily available at the issuing office or published material that is generally available need not be physically included with the rest of the record, as long as it is specifically referred to in the statement of basis); and

(d) any other documents that support the decision to approve or deny the RAP; and

(iii) make information contained in the administrative record available for review by the public upon request.

(4) What are the procedures for public comment on the draft RAP or notice of intent to deny?

(i) Consistent with the requirements of Part 621 of this Title, the following must be done:

(a) the department must send notice to you of the department's intention to approve or deny your RAP application, and send you a copy of the statement of basis;

(b) you must publish a notice of the department's intention to approve or deny your RAP application in a major local newspaper of general circulation;

(c) you must broadcast the department's intention to approve or deny your RAP application over a local radio station;

(d) the department shall send a notice of the department's intention to approve or deny your RAP application to each unit of local government having jurisdiction over the area in which your site is located, and to each State agency having any authority under State law with respect to any construction or operations at the site and to individuals who have requested to be notified of completeness for your application or for all RAPS. The department shall also publish notice of complete application in the Environmental Notice Bulletin, pursuant to Part 621 of this Title; and

(e) the department may provide or require you to provide other reasonable public notice of complete application and opportunity for public comment, pursuant to Part 621 of this Title.

(ii) The notice required by subparagraph (i) of this paragraph must provide at least 45 days from the date of publication for the submittal of written public comment to the department.

(iii) The notice required by subparagraph (i) of this paragraph must include:

(a) the name and address of the office processing the RAP application;

(b) the name and address of the RAP applicant, and if different, the remediation waste management site or activity the RAP will regulate;

(c) a brief description of the activity the RAP will regulate;

(d) the name, address and telephone number of a person from whom interested persons may obtain further information, including copies of the draft RAP or notice of intent to deny, statement of basis, and the RAP application;

(e) a brief description of the comment procedures in this subdivision, and any other procedures by which the public may participate in the RAP decision;

(f) if a legislative hearing is scheduled, the date, time, location and purpose of the legislative hearing;

(g) if a legislative hearing is not scheduled, a statement of procedures to request a legislative hearing;

(h) the location of the administrative record, and times when it will be open for public inspection; and

(i) any additional information the department considers necessary or proper.

(iv) If, within the comment period, the department receives written notice of opposition to the department's intention to approve or deny your RAP application and a request for a hearing, the department must, in accordance with Part 621 of this Title, hold a legislative hearing in accordance with the process as set forth in Part 624 of this Title to receive unsworn statements relating to the approval or denial of your RAP application. The department may also determine on the department's own initiative that a legislative hearing is appropriate. The legislative hearing must include an opportunity for any person to present written or oral comments. Whenever possible, the department must schedule this legislative hearing at a location convenient to the nearest population center to the remediation waste management site and give notice according to the requirements in subparagraph (i) of this paragraph. This notice must, at a minimum, include the information required by subparagraph (iii) of this paragraph and:

(a) reference to the date of any previous public notices relating to the RAP application;

(b) the date, time and place of the hearing; and

(c) a brief description of the nature and purpose of the hearing, including the applicable rules and procedures.

(v) The determination to hold an adjudicatory public hearing will be made pursuant to Part 621 of this Title. Public notice for an adjudicatory hearing must be given according to the requirements in subparagraph (i) of this paragraph. This notice must, at a minimum, include the information required by subparagraph (iii) of this paragraph.

(5) How will the department make a final decision on my RAP application?

(i) The department must consider and respond to any significant comments raised during the public comment period, or during any hearing on the draft RAP or notice of intent to deny, and revise your draft RAP based on those comments, as appropriate.

(ii) If the department determines that your RAP includes the information and terms and conditions required in paragraph (2) of this subdivision, then the department will issue a final decision approving your RAP and, in writing, notify you and all commenters on your draft RAP that your RAP application has been approved.

(iii) If the department determines that your RAP does not include the information required in paragraph (2) of this subdivision, then the department will issue a final decision denying your RAP and, in writing, notify you and all commenters on your draft RAP that your RAP application has been denied.

(iv) If the department's final decision is that the tentative decision to deny the RAP application was incorrect, the department will withdraw the notice of intent to deny and proceed to prepare a draft RAP, according to the requirements in this section.

(v) When the department issues its final RAP decision, it shall include notice of opportunity and procedures for requesting an adjudicatory hearing pursuant to Part 621 of this Title if an adjudicatory hearing has not been held. If an adjudicatory hearing is held, public notice for an adjudicatory hearing must be given according to the requirements in subparagraph (4)(i) of this subdivision. This notice must, at a minimum, include the information required by subparagraph (4)(iii) of this subdivision. The final decision on the RAP application will be made pursuant to and using the procedures of Part 624 of this Title.

(vi) Before issuing the final RAP decision, the department must compile an administrative record. Material readily available at the issuing office or published materials which are generally available and which are included in the administrative record need not be physically included with the rest of the record as long as it is specifically referred to in the statement of basis or the response to comments. The administrative record for the final RAP must include information in the administrative record for the draft RAP (see subparagraph [3][ii] of this subdivision) and:

(a) all comments received during the public comment period;

(b) tapes or transcripts of any hearings;

(c) any written materials submitted at these hearings;

(d) the responses to comments;

(e) any new material placed in the record since the draft RAP was issued;

(f) any other documents supporting the RAP; and

(g) a copy of the final RAP.

(vii) The department must make information contained in the administrative record available for review by the public upon request.

(6) May the decision to approve or deny my RAP application be administratively appealed?

(i) If an adjudicatory hearing has been held, the decision on your RAP application is final. If an adjudicatory hearing has not been held, you can request an adjudicatory hearing after the department's decision to approve or deny your RAP application, pursuant to Part 621 of this Title. Public notice for an adjudicatory hearing must be given according to the requirements in subparagraph (4)(i) of this subdivision. This notice must, at a minimum, include the information required by subparagraph (4)(iii) of this subdivision. The process for adjudicatory hearings for RAPs is set forth in Part 624 of this Title.

(ii) Once the decision on your RAP application is final, you or an interested party could seek judicial review of the department's actions, pursuant to article 78 of Civil Practice Law and Rules (CPLR).

(7) When does my RAP become effective? Your RAP becomes effective 30 days after the department notifies you and all commenters that your RAP is approved unless the department specifies a later effective date in the decision.

(8) When may I begin physical construction of new units permitted under the RAP? You must not begin physical construction of new units permitted under the RAP for treating, storing or disposing of hazardous remediation waste before receiving a finally effective RAP.

(e)How may my RAP be renewed, modified, revoked, or suspended?

(1) After my RAP is issued, how may it be renewed, modified, revoked or suspended?

(i) The procedures for renewing, modifying, revoking, or suspending a RAP are set forth in Part 621 of this Title.

(ii) Any interested party may request that the remedial action plan permit be modified, revoked, or suspended at any time at the request of the interested party, including the applicant, or upon the initiative of the department, on any of the grounds set forth in Part 621 of this Title.

(iii) In addition to subparagraph (ii) of this paragraph, the department may modify your final RAP if one or more of the following exist:

(a) you made material and substantial alterations or additions to the activity that justify applying different conditions;

(b) the department finds new information that was not available at the time of RAP issuance and would have justified applying different RAP conditions at the time of issuance;

(c) the standards or regulations on which the RAP was based have changed because of new or amended statues, standards or regulations, or by judicial decision after the RAP was issued;

(d) if your RAP includes any schedules of compliance, the department may find reasons to modify your compliance schedule, such as an act of God, strike, flood, or materials shortage or other events over which you as owner/operator have little or no control and for which there is no reasonably available remedy;

(e) you are not in compliance with the conditions of your RAP;

(f) you failed in the application or during the RAP issuance process to disclose fully all relevant facts, or you misrepresented any relevant facts at the time;

(g) the department has determined that the activity authorized by your RAP endangers human health or the environment and can only be remedied by modifying; or

(h) you have notified the department (as required in the RAP under section 373-1.7[a][1] of this Subpart) of a proposed transfer of a RAP.

(iv) In addition to subparagraph (ii) of this paragraph, the department may revoke or suspend your final RAP if one or more of the reasons listed in clauses (iii)(e) through (h) of this paragraph exist.

(v) Notwithstanding any other provision in this paragraph, when the department reviews a RAP for a land disposal facility under paragraph (3) of this subdivision, the department may modify the permit as necessary to assure that the facility continues to comply with the currently applicable requirements in Parts 370 through 374, 376 and 621 of this Title.

(vi) The department will not reevaluate the suitability of the facility location at the time of RAP modification unless new information or standards indicate that a threat to human health or the environment exists that was unknown when the RAP was issued.

(vii) To renew an existing RAP, a complete application for permit renewal must be submitted at least 180 days before the expiration date of the existing RAP as required by Part 621 of this Title.

(2) May the decision to approve or deny a modification, revocation, suspension, or renewal of my RAP be administratively appealed?

(i) Paragraph (d)(6) of this section applies to modification, revocation, suspension, or renewal of your RAP. The process to request an adjudicatory hearing is provided in Part 621 of this Title. Public notice for an adjudicatory hearing must be given according to the requirements in subparagraph (d)(4)(i) of this section. This notice must, at a minimum, include the information required by subparagraph (d)(4)(iii) of this section. The process for adjudicatory hearings for RAPs is set forth in Part 624 of this Title.

(ii) Once the decision on your RAP application is final, you or an interested party could seek judicial review of the department's action pursuant to article 78 of Civil Practice Law and Rules (CPLR).

(3) When will my RAP expire? RAPs must be issued for a fixed term, not to exceed 10 years, although they may be renewed upon approval by the department in fixed increments of no more than 10 years. In addition, the department must review any RAP for hazardous waste land disposal five years after the date of issuance or reissuance and you or the department must follow the requirements for modifying your RAP as necessary to assure that you continue to comply with currently applicable requirements in RCRA sections 3004 and 3005.

(4) What happens if I have applied correctly for a RAP renewal and met timely submittal requirements but have not received approval by the time my old RAP expires? If you have submitted a timely and complete application for a RAP renewal pursuant to Part 621 of this Title, but the department, through no fault of yours, has not issued a new RAP with an effective date on or before the expiration date of your previous RAP, your previous RAP conditions continue in force until the effective date of your new RAP or RAP denial.

(f)Operating under your RAP.

(1) What records must I maintain concerning my RAP? You are required to keep records of:

(i) all data used to complete RAP applications and any supplemental information that you submit for a period of at least three years from the date the application is signed; and

(ii) any operating and/or other records the department requires you to maintain as a condition of your RAP.

(2) How are time periods in the requirements in this Subpart and my RAP computed?

(i) Any time period scheduled to begin on the occurrence of an act or event must begin on the day after the act or event.

(ii) Any time period scheduled to begin before the occurrence of an act or event must be computed so that the period ends on the day before the act or event.

(iii) If the final day of any time period falls on a weekend or legal holiday, the time period must be extended to the next working day.

(iv) Whenever a party or interested person has the right to or is required to act within a prescribed period after the service of notice or other paper upon the party or interested person by mail, three days must be added to the prescribed term.

(3) How may I transfer my RAP to a new owner or operator?

(i) If you wish to transfer your RAP to a new owner or operator, you must follow the requirements specified in section 373-1.7(a) of this Subpart, and incorporate any other necessary requirements. These modifications do not constitute significant modifications for purposes of paragraph (e)(1) of this section. The new owner/operator must submit a revised RAP application no later than 180 days before the scheduled change along with a written agreement containing a specific date for transfer of RAP responsibility between you and the new permittees.

(ii) When a transfer of ownership or operational control occurs, you as the old owner or operator must comply with the applicable requirements in section 373-2.8 (Financial requirements) of this Part until the new owner or operator has demonstrated that the new owner or operator is complying with the requirements in that section. The new owner or operator must demonstrate compliance with section 373-2.8 of this Part within six months of the date of the change in ownership or operational control of the facility or remediation waste management site. When the new owner/operator demonstrates compliance with section 373-2.8 of this Part to the department, the department will notify you that you no longer need to comply with section 373-2.8 of this Part as of the date of demonstration.

(g)Obtaining a RAP for an off-site location.

(1) May I perform remediation waste management activities under a RAP at a location removed from the area where the remediation wastes originated?

(i) You may request a RAP for remediation waste management activities at a location removed from the area where the remediation wastes originated if you believe such a location would be more protective than the contaminated area or areas in close proximity.

(ii) If the department determines that an alternative location, removed from the area where the remediation waste originated, is more protective than managing remediation waste at the area of contamination or areas in close proximity, then the department may approve a RAP for this alternative location.

(iii) You must request the RAP, and the department will approve or deny the RAP, according to the procedures and requirements in this section and Part 621 of this Title.

(iv) A RAP for an alternative location must also meet the following requirements, which the department must include in the RAP for such locations:

(a) the RAP for the alternative location must be issued to the person responsible for the cleanup from which the remediation wastes originated;

(b) the RAP is subject to the expanded public participation requirements in section 373-1.10(a), (b), and (c) of this Subpart;

(c) the RAP is subject to the public notice requirements in Part 621 of this Title.

(v) These alternative locations are remediation waste management sites, and retain the following benefits of remediation waste management sites:

(a) exclusion from facility-wide corrective action under section 373-2.6(l) of this Part; and

(b) application of section 373-2.1(a)(9) of this Part in lieu of sections 373-2.2, 373-2.3, and 373-2.4 of this Part.

N.Y. Comp. Codes R. & Regs. Tit. 6 §§ 373-1.11

Amended New York State Register March 4, 2020/Volume XLII, Issue 09, eff. 4/18/2020