N.Y. Comp. Codes R. & Regs. Tit. 6 §§ 373-2.13

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

Section 373-2.13 - Land treatment

(a)Applicability.

The regulations in this section apply to owners and operators of facilities that treat or dispose of hazardous waste in land treatment units, except as section 373-2.1(a) of this Subpart provides otherwise.

(b)Treatment program.

(1) An owner or operator subject to this section must establish a land treatment program that is designed to ensure that hazardous constituents placed in or on the treatment zone are degraded, transformed or immobilized within the treatment zone. The commissioner will specify in the facility permit the elements of the treatment program, including:

(i) the wastes that are capable of being treated at the unit, based on a demonstration under subdivision (c) of this section;

(ii) design measures and operating practices necessary to maximize the success of degradation, transformation and immobilization processes in the treatment zone in accordance with paragraph (d)(1) of this section; and

(iii) unsaturated zone monitoring provisions meeting the requirements of subdivision (f) of this section.

(2) The commissioner will specify in the facility permit the hazardous constituents that must be degraded, transformed or immobilized under this section. Hazardous constituents are constituents identified in Appendix 23 of this Title (see 6 NYCRR Part 371) that are reasonably expected to be in, or derived from, waste placed in or on the treatment zone.

(3) The commissioner will specify the vertical and horizontal dimensions of the treatment zone in the facility permit. The treatment zone is the portion of the unsaturated zone below and including the land surface in which the owner or operator intends to maintain the conditions necessary for effective degradation, transformation or immobilization of hazardous constituents. The maximum depth of the treatment zone must be:

(i) no more than 1.5 meters (five feet) from the initial soil surface; and

(ii) more than one meter (three feet) above the seasonal high-water table.

(c)Treatment demonstration.

(1) For each waste that will be applied to the treatment zone, the owner or operator must demonstrate, prior to application of the waste, that hazardous constituents in the waste can be completely degraded, transformed or immobilized in the treatment zone.

(2) In making this demonstration, the owner or operator may use field tests, laboratory analyses, available data or, in the case of existing units, operating data. If the owner or operator intends to conduct field tests or laboratory analyses in order to make this demonstration, a treatment or disposal permit must be obtained under section 373-1.9(b) of this Title. The commissioner will specify in this permit the testing, analytical, design and operating requirements (including the duration of the tests and analyses and, in the case of field tests, the horizontal and vertical dimensions of the treatment zone, monitoring procedures, closure and clean-up activities) necessary to meet the requirements in paragraph (3) of this subdivision.

(3) Any field test or laboratory analysis conducted in order to make a demonstration under paragraph (1) of this subdivision must:

(i) accurately simulate the characteristics and operating conditions for the proposed land treatment unit, including:

(a) the characteristics of the waste (including the presence of Appendix 23 [see Part 371 of this Title] constituents);

(b) the climate in the area;

(c) the topography of the surrounding area;

(d) the characteristics of the soil in the treatment zone (including depth); and

(e) the operating practices to be used at the unit;

(ii) be likely to show that hazardous constituents in the waste to be tested will be completely degraded, transformed or immobilized in the treatment zone of the proposed land treatment unit; and

(iii) be conducted in a manner that protects human health and the environment, considering:

(a) the characteristics of the waste to be tested;

(b) the operating and monitoring measures taken during the course of the test;

(c) the duration of the test;

(d) the volume of waste used in the test; and

(e) in the case of field tests, the potential for migration of hazardous constituents to ground water or surface water.

(d)Design and operating requirements.

The commissioner will specify in the facility's permit how the owner or operator will design, construct, operate and maintain the land treatment unit in compliance with this subdivision.

(1) The owner or operator must design, construct, operate and maintain the unit to maximize the degradation, transformation and immobilization of hazardous constituents in the treatment zone. The owner or operator must design, construct, operate and maintain the unit in accord with all design and operating conditions that were used in the treatment demonstration under subdivision (c) of this section. At a minimum, the commissioner will specify the following in the facility permit:

(i) the rate and method of waste application to the treatment zone;

(ii) measures to control soil pH;

(iii) measures to enhance microbial or chemical reactions (e.g., fertilization, tilling); and

(iv) measures to control the moisture content of the treatment zone.

(2) The owner or operator must design, construct, operate and maintain the treatment zone to minimize runoff of hazardous constituents during the active life of the land treatment unit.

(3) The owner or operator must design, construct, operate and maintain a run-on control system capable of preventing flow onto the treatment zone during peak discharge from at least a 25-year storm.

(4) The owner or operator must design, construct, operate and maintain a runoff management system to collect and control at least the water volume resulting from a 24-hour, 25-year storm.

(5) Collection and holding facilities (e.g., tanks or basins) associated with run-on and runoff control systems must be emptied or otherwise managed expeditiously after storms to maintain the design capacity of the system.

(6) If the treatment zone contains particulate matter which may be subject to wind dispersal, the owner or operator must manage the unit to control wind dispersal.

(7) The owner or operator must inspect the unit weekly and after storms to detect evidence of:

(i) deterioration, malfunctions, or improper operation of run-on and runoff control systems; and

(ii) improper functioning of wind dispersal control measures.

(e)Food-chain crops and agricultural land.

(1) No land treatment facility shall be located on agricultural soil groups 1, 2, 3 and 4 (Land Classification System as certified by the commissioner of the Department of Agriculture and Markets).

(2) No food chain crops may be grown on any facility that is or has been used as a land treatment facility for hazardous wastes.

(3) Any person receiving a permit to operate a land treatment facility for hazardous waste shall, as a condition of such permit, place or cause to be placed a restrictive covenant, which shall run with the land to the deed or deeds to all real property subject to the permit, which prohibits the use of such real property for the growing of food-chain crops.

(f)Unsaturated zone monitoring.

An owner or operator subject to this section must establish an unsaturated zone monitoring program to discharge the following responsibilities:

(1) The owner or operator must monitor the soil and soil-pore liquid to determine whether hazardous constituents migrate out of the treatment zone.

(i) The commissioner will specify the hazardous constituents to be monitored in the facility permit. The hazardous constituents to be monitored are those specified under paragraph (b)(2) of this section.

(ii) The commissioner may require monitoring for principal hazardous constituents (PHC's) in lieu of constituents specified under paragraph (b)(2) of this section. PHC's are hazardous constituents contained in the wastes to be applied at the unit that are the most difficult to treat, considering the combined effects of degradation, transformation and immobilization. The commissioner will establish PHC's if it is found, based on waste analyses, treatment demonstrations or other data, that effective degradation, transformation or immobilization of the PHC's will assure treatment at least equivalent to levels for the other hazardous constituents in the wastes.

(2) The owner or operator must install an unsaturated zone monitoring system that includes soil monitoring using soil cores, and soil-pore liquid monitoring using devices such as lysimeters. The unsaturated zone monitoring system must consist of a sufficient number of sampling points at appropriate locations and depths to yield samples that:

(i) represent the quality of background soil-pore liquid quality and the chemical make-up of soil that has not been affected by leakage from the treatment zone; and

(ii) indicate the quality of soil-pore liquid and the chemical make-up of the soil below the treatment zone.

(3) The owner or operator must establish a background value for each hazardous constituent to be monitored under paragraph (1) of this subdivision. The permit will specify the background values for each constituent or specify the procedures to be used to calculate the background values.

(i) Background soil values may be based on a one-time sampling at a background plot having characteristics similar to those of the treatment zone.

(ii) Background soil-pore liquid values must be based on at least quarterly sampling for one year at a background plot having characteristics similar to those of the treatment zone.

(iii) The owner or operator must express all background values in a form necessary for the determination of statistically significant increases under paragraph (6) of this subdivision.

(iv) In taking samples used in the determination of all background values, the owner or operator must use an unsaturated zone monitoring system that complies with subparagraph (2)(i) of this subdivision.

(4) The owner or operator must conduct soil monitoring and soil-pore liquid monitoring immediately below the treatment zone. The commissioner will specify the frequency and timing of soil and soil-pore liquid monitoring in the facility permit after considering the frequency, timing and rate of waste application, and the soil permeability. The owner or operator must express the results of soil and soil-pore liquid monitoring in a form necessary for the determination of statistically significant increases under paragraph (6) of this subdivision.

(5) The owner or operator must use consistent sampling and analysis procedures that are designed to ensure sampling results that provide a reliable indication of soil-pore liquid quality and the chemical make-up of the soil below the treatment zone. At a minimum, the owner or operator must implement procedures and techniques for:

(i) sample collection;

(ii) sample preservation and shipment;

(iii) analytical procedures; and

(iv) chain of custody control.

(6) The owner or operator must determine whether there is a statistically significant change over background values for any hazardous constituent to be monitored, under paragraph (1) of this subdivision, below the treatment zone each time soil monitoring is conducted under paragraph (4) of this subdivision.

(i) In determining whether a statistically significant increase has occurred, the owner or operator must compare the value of each hazardous constituent, as determined under paragraph (4) of this subdivision, to the background value for that constituent according to the statistical procedure specified in the facility permit.

(ii) The owner or operator must determine whether there has been a statistically significant increase below the treatment zone within a reasonable time period after completion of sampling. The commissioner will specify that time period in the facility permit after considering the complexity of the statistical test and the availability of laboratory facilities to perform the analysis of soil and soil-pore liquid samples.

(iii) The owner or operator must determine whether there is a statistically significant increase below the treatment zone using a statistical procedure that provides reasonable confidence that migration from the treatment zone will be identified. The commissioner will specify a statistical procedure in the facility permit that the commissioner finds:

(a) is appropriate for the distribution of the data used to establish background values; and

(b) provides a reasonable balance between the probability of falsely identifying migration from the treatment zone and the probability of failing to identify real migration from the treatment zone.

(7) If the owner or operator determines, pursuant to paragraph (6) of this subdivision, that there is a statistically significant increase of hazardous constituents below the treatment zone, the owner or operator must:

(i) notify the commissioner of this finding, in writing, within seven days. The notification must indicate what constituents have shown statistically significant increases; and

(ii) within 90 days, submit to the commissioner an application for a permit modification to modify the operating practices at the facility in order to maximize the success of degradation, transformation or immobilization processes in the treatment zone.

(8) If the owner or operator determines, pursuant to paragraph (6) of this subdivision, that there is a statistically significant increase of hazardous constituents below the treatment zone, the owner or operator may demonstrate that a source other than regulated units caused the increase or that the increase resulted from an error in sampling, analysis or evaluation. While the owner or operator may make a demonstration under this paragraph in addition to, or in lieu of, submitting a permit modification application under subparagraph (7)(ii) of this subdivision, the owner or operator is not relieved of the requirement to submit a permit modification application within the time specified in subparagraph (7)(ii), unless the demonstration made under this paragraph successfully shows that a source other than regulated units caused the increase or that the increase resulted from an error in sampling, analysis or evaluation. In making a demonstration under this paragraph, the owner or operator must:

(i) notify the commissioner, in writing, within seven days of determining a statistically significant increase below the treatment zone, that the owner or operator intends to make a determination under this paragraph;

(ii) within 90 days, submit a report to the commissioner demonstrating that a source other than the regulated units caused the increase, or that the increase resulted from error in sampling, analysis or evaluation;

(iii) within 90 days, submit to the commissioner an application for a permit modification to make any appropriate changes to the unsaturated zone monitoring program established; and

(iv) continue to monitor in accordance with the unsaturated zone monitoring program established under this subdivision.

(g)Recordkeeping.

The owner or operator must include hazardous waste application dates and rates in the operating record required under section 373-2.5(c) of this Subpart.

(h)Closure and post-closure care.

(1) During the closure period, the owner or operator must:

(i) continue all operations (including pH control) necessary to maximize degradation, transformation or immobilization of hazardous constituents within the treatment zone as required under paragraph (d)(1) of this section, except to the extent such measures are inconsistent with subparagraph (viii) of this paragraph;

(ii) continue all operations in the treatment zone to minimize runoff of hazardous constituents as required under paragraph (d)(2) of this section;

(iii) maintain the run-on control system required under paragraph (d)(3) of this section;

(iv) maintain the runoff management system required under paragraph (d)(4) of this section;

(v) control wind dispersal of hazardous waste if required under paragraph (d)(6) of this section;

(vi) continue to comply with any prohibitions or conditions concerning growth of food-chain crops under subdivision (e) of this section;

(vii) continue unsaturated zone monitoring in compliance with subdivision (f) of this section, except that soil-pore liquid monitoring may be terminated 90 days after the last application of waste to the treatment zone; and

(viii) establish a vegetative cover on the portion of the facility being closed at such time that the cover will not substantially impede degradation, transformation or immobilization of hazardous constituents in the treatment zone. The vegetative cover must be capable of maintaining growth without extensive maintenance.

(2) For the purpose of complying with section 373-2.7(f) of this Subpart, when closure is completed, the owner or operator may submit to the commissioner certification by an independent qualified soil scientist, in lieu of an independent registered professional engineer, that the facility has been closed in accordance with the specifications in the approved closure plan.

(3) During the post-closure care period, the owner or operator must:

(i) continue all operations (including pH control) necessary to enhance degradation and transformation and sustain immobilization of hazardous constituents in the treatment zone to the extent that such measures are consistent with other post-closure care activities;

(ii) maintain a vegetative cover over closed portions of the facility;

(iii) maintain the run-on control system required under paragraph (d)(3) of this section;

(iv) maintain the runoff management system required under paragraph (d)(4) of this section;

(v) control wind dispersal of hazardous waste if required under paragraph (d)(6) of this section;

(vi) continue to comply with any prohibitions or conditions concerning growth of food-chain crops under subdivision (e) of this section; and

(vii) continue unsaturated zone monitoring in compliance with subdivision (f) of this section, except that soil-pore liquid monitoring may be terminated 90 days after the last application of waste to the treatment zone.

(4) The owner or operator is not subject to regulation under subparagraph (1)(viii) and paragraph (3) of this subdivision if the commissioner finds that the level of hazardous constituents in the treatment zone soil does not exceed the background value of those constituents by an amount that is statistically significant when using the test specified in subparagraph (iii) of this paragraph. The owner or operator may submit such a demonstration to the commissioner at any time during the closure or post-closure care periods. For the purposes of this paragraph:

(i) The owner or operator must establish background soil values and determine whether there is a statistically significant increase over those values for all hazardous constituents specified in the facility permit under paragraph (b)(2) of this section.

(a) Background soil values may be based on a one-time sampling of a background plot having characteristics similar to those of the treatment zone.

(b) The owner or operator must express background values and values for hazardous constituents in the treatment zone in a form necessary for the determination of statistically significant increases under subparagraph (iii) of this paragraph.

(ii) In taking samples used in the determination of background and treatment zone values, the owner or operator must take samples at a sufficient number of sampling points and at appropriate locations and depths to yield samples that represent the chemical make-up of soil that has not been affected by leakage from the treatment zone and the soil within the treatment zone, respectively.

(iii) In determining whether a statistically significant increase has occurred, the owner or operator must compare the value of each constituent in the treatment zone to the background value for that constituent using a statistical procedure that provides reasonable confidence that constituent presence in the treatment zone will be identified. The owner or operator must use a statistical procedure that:

(a) is appropriate for the distribution of the data used to establish background values; and

(b) provides a reasonable balance between the probability of falsely identifying hazardous constituent presence in the treatment zone and the probability of failing to identify real presence in the treatment zone.

(5) The owner or operator is not subject to regulation under section 373-2.6 of this Subpart if the commissioner finds that the owner or operator satisfies paragraph (4) of this subdivision and if unsaturated zone monitoring under subdivision (f) of this section indicates that hazardous constituents have not migrated beyond the treatment zone during the active life of the land treatment unit.

(i)Special requirements for ignitable or reactive waste.

The owner or operator must not apply ignitable or reactive waste to the treatment zone, unless the waste and the treatment zone meet all applicable requirements of Part 376 of this Title and:

(1) the waste is immediately incorporated into the soil so that:

(i) the resulting waste, mixture or dissolution of material no longer meets the definition of ignitable or reactive waste under section 371.3(b) or (d) of this Title; and

(ii) section 373-2.2(i)(2) of this Subpart is complied with; or

(2) the waste is managed in such a way that it is protected from any material or conditions which may cause it to ignite or react.

(j)Special requirements for incompatible wastes.

The owner or operator must not place incompatible wastes, or incompatible wastes and materials (see Appendix 29 of this Title for examples), in or on the same treatment zone, unless section 373-2.2(i)(2) of this Subpart is complied with.

(k)Special requirements for hazardous wastes F020, F021, F022, F023, F026 and F027.

(1) Hazardous wastes F020, F021, F022, F023, F026 and F027 must not be placed in a land treatment unit unless the owner or operator operates the facility in accordance with a management plan for these wastes that is approved by the commissioner pursuant to the standards set out in this paragraph, and in accord with all other applicable requirements of this Subpart. The factors to be considered are:

(i) the volume and the physical and chemical characteristics of the wastes, including their potential to migrate through soil or to volatilize or escape into the atmosphere;

(ii) the attenuative properties of underlying and surrounding soils or other materials;

(iii) the mobilizing properties of other materials codisposed with these wastes; and

(iv) the effectiveness of additional treatment, design or monitoring techniques.

(2) The commissioner may determine that additional design, operating and monitoring requirements are necessary for land treatment facilities managing hazardous wastes F020, F021, F022, F023, F026 and F027 to reduce the possibility of migration of these wastes to ground water, surface water or air to protect human health and the environment.

N.Y. Comp. Codes R. & Regs. Tit. 6 §§ 373-2.13

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