N.Y. Comp. Codes R. & Regs. Tit. 6 §§ 373-2.6

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

Section 373-2.6 - Releases from solid waste management units

(a)Applicability.

(1)

(i) Except as provided in paragraph (2) of this subdivision, the regulations in this section apply to owners and operators of facilities that treat, store or dispose of hazardous waste. The owner or operator must satisfy the requirements identified in subparagraph (ii) of this paragraph for all wastes (or constituents thereof) contained in solid waste management units at the facility regardless of the time the waste was placed in such units.

(ii) All solid waste management units must comply with the requirements in subdivision (l) of this section. A surface impoundment, waste pile, land treatment unit or landfill that receives hazardous waste after July 26, 1982 (hereinafter referred to as a regulated unit) must comply with the requirements of subdivisions (b) through (k) in lieu of subdivision (l) for purposes of detecting, characterizing and responding to releases to the uppermost aquifer. The financial responsibility requirements of subdivision (l) of this section apply to regulated units.

(2) The owner or operator is not subject to regulations under this section if:

(i) the owner or operator is exempted under section 373-2.1(a) of this Subpart;

(ii) the owner or operator designs and operates a pile in compliance with section 373-2.12(a)(3) of this Subpart;

(iii) the commissioner finds, pursuant to section 373-2.13(h)(4) of this Subpart, that the treatment zone of a land treatment unit that qualifies as a regulated unit does not contain levels of hazardous constituents that are above background levels of those constituents by an amount that is statistically significant, and if an unsaturated zone monitoring program meeting the requirements of section 373-2.13(f) of this Subpart has not shown a statistically significant increase in hazardous constituents below the treatment zone during the operating life of the unit. An exemption under this paragraph can only relieve an owner or operator of responsibility to meet the requirements of this section during the post-closure care period;

(iv) the commissioner finds that there is no potential for migration of liquid from a regulated unit to the uppermost aquifer during the active life of the regulated unit (including the closure period) and the post-closure care period specified under section 373-2.7(g) of this Subpart. This demonstration must be certified by a qualified geologist or geotechnical engineer. In order to provide an adequate margin of safety in the prediction of potential migration of liquid, the owner or operator must base any predictions made under this paragraph on assumptions that maximize the rate of liquid migration; or

(v) the commissioner finds that the unit:

(a) is a structure designed by a professional engineer registered in New York State;

(b) does not receive or contain liquid waste or waste containing free liquids;

(c) is designed and operated to exclude liquid, precipitation, and other run-on and runoff;

(d) has both inner and outer layers of containment enclosing the waste;

(e) has a leak detection system built into each containment layer;

(f) has a program which will provide continuing operation and maintenance of these leak detection systems during the active life of the unit and the closure and post-closure care periods; and

(g) to a reasonable degree of certainty, will not allow hazardous constituents to migrate beyond the outer containment layer prior to the end of the post-closure care period.

(3) The regulations under this section apply during the active life of the regulated unit (including the closure period). After closure of the regulated unit, the regulations in this section:

(i) do not apply if all waste, waste residues, contaminated containment system components and contaminated subsoils are removed or decontaminated at closure;

(ii) apply during the post-closure care period under section 373-2.7(g) of this Subpart if the owner or operator is conducting a detection monitoring program under subdivision (i) of this section; or

(iii) apply during the compliance period under subdivision (g) of this section if the owner or operator is conducting a compliance monitoring program under subdivision (j) or a corrective action program under subdivision (k).

(4) Regulations in this Subpart may apply to miscellaneous units when necessary to comply with section 373-2.24(b), (c) and (d) of this Subpart.

(5) The regulations of this section apply to all owners and operators subject to the requirements of section 373-1.2(e)(3) of this Part, when the department issues either a post-closure permit or an enforceable document (as defined in section 373-1.2[e][3] of this Part), at the facility. When the department issues an enforceable document, references in this section to in the permit mean in the enforceable document.

(6) The department may replace all or part of the requirements of subdivisions (b) through (k) of this section applying to a regulated unit with alternative requirements for groundwater monitoring and corrective action for releases to groundwater set out in the permit (or in an enforceable document) (as defined in section 373-1.2[e][3] of this Part) where the department determines that:

(i) the regulated unit is situated among solid waste management units (or areas of concern), a release has occurred, and both the regulated unit and one or more solid waste management unit(s) (or areas of concern) are likely to have contributed to the release; and

(ii) it is not necessary to apply the groundwater monitoring and corrective action requirements of subdivisions (b) through (k) of this section because alternative requirements will protect human health and the environment.

(b)Required programs.

(1) Owners and operators subject to this section must conduct a monitoring and response program as follows:

(i) Whenever hazardous constituents under subdivision (d) of this section from a regulated unit are detected at the compliance point under subdivision (f), the owner or operator must institute a compliance monitoring program under subdivision (j). Detected is defined as statistically significant evidence of contamination as described in paragraph (i)(7) of this section.

(ii) Whenever the ground-water protection standard under subdivision (c) of this section is exceeded, the owner or operator must institute a corrective action program under subdivision (k). Exceeded is defined as statistically significant evidence of increased contamination as described in paragraph (j)(8) of this section.

(iii) Whenever hazardous constituents under subdivision (d) of this section from a regulated unit exceed concentration limits under subdivision (e) in ground water between the compliance point under subdivision (f) and the downgradient facility property boundary, the owner or operator must institute a corrective action program under subdivision (k).

(iv) In all other cases, the owner or operator must institute a detection monitoring program under subdivision (i) of this section.

(2) The commissioner will specify in the facility permit the specific elements of the monitoring and response program. The commissioner may include one or more of the programs identified in paragraph (1) of this subdivision in the facility permit as may be necessary to protect human health and the environment, and will specify the circumstances under which each of the programs will be required. In deciding whether to require the owner or operator to be prepared to institute a particular program, the commissioner will consider the potential adverse effects on human health and the environment that might occur before final administrative action on a permit modification application to incorporate such a program could be taken.

(c)Ground-water protection standard.

The owner or operator must comply with conditions specified in the facility permit that are designed to ensure that hazardous constituents under subdivision (d) of this section detected in the ground water from a regulated unit do not exceed the concentration limits under subdivision (e) in the uppermost aquifer underlying the waste management area beyond the point of compliance under subdivision (f) during the compliance period under subdivision (g). The commissioner will establish this ground-water protection standard in the facility permit when hazardous constituents have been detected in the groundwater.

(d)Hazardous constituents.

(1) The commissioner will specify in the facility permit the hazardous constituents to which the ground-water protection standard of subdivision (c) of this section applies. Hazardous constituents are constituents identified in Appendix 23, infra, that have been detected in ground water in the uppermost aquifer underlying a regulated unit, and that are reasonably expected to be in or derived from waste contained in a regulated unit, unless the commissioner has excluded them under paragraph (2) of this subdivision.

(2) The commissioner will exclude an Appendix 23 constituent from the list of hazardous constituents specified in the facility permit if the commissioner finds that the constituent is not capable of posing a substantial present or potential hazard to human health or the environment. In deciding whether to grant an exemption, the commissioner will consider the following:

(i) potential adverse effects on ground-water quality, considering:

(a) the physical and chemical characteristics of the waste in the regulated unit, including its potential for migration;

(b) the hydrogeological characteristics of the facility and surrounding land;

(c) the quantity of ground water and the direction of ground-water flow;

(d) the proximity and withdrawal rates of ground-water users;

(e) the current and future uses of ground water in the area and any quality standards established for those ground waters;

(f) the existing quality of ground water, including other sources of contamination and their cumulative impact on the ground-water quality;

(g) the potential for health risks caused by human exposure to waste constituents;

(h) the potential damage to wildlife, crops, vegetation and physical structures caused by exposure to waste constituents; and

(i) the persistence and permanence of the potential adverse effects; and

(ii) potential adverse effects on hydraulically connected surface-water quality, considering:

(a) the volume and physical and chemical characteristics of the waste in the regulated unit;

(b) the hydrogeological characteristics of the facility and surrounding land;

(c) the quantity and quality of ground water, and the direction of ground-water flow;

(d) the patterns of rainfall in the region;

(e) the proximity of the regulated unit to surface waters;

(f) the current and future uses of surface waters in the area and any water quality standards established for those surface waters;

(g) the existing quality of surface water, including other sources of contamination and the cumulative impact on surface-water quality;

(h) the potential for health risks caused by human exposure to waste constituents;

(i) the potential damage to wildlife, crops, vegetation and physical structures caused by exposure to waste constituents; and

(j) the persistence and permanence of the potential adverse effects.

(3) In making any determination under paragraph (2) of this subdivision about the use of ground water in the area around the facility, the commissioner will consider any identification of underground sources of drinking water and exempted aquifers made under 40 CFR 144.8 (see section 370.1[e] of this Title).

(e)Concentration limits.

(1) The commissioner will specify in the facility permit concentration limits in the ground water for hazardous constituents established under subdivision (d) of this section. The concentration of a hazardous constituent:

(i) must not exceed the background level of that constituent in the ground water at the time that limit is specified in the permit; or

(ii) for any of the constituents listed in Table 1, must not exceed the respective value given in that table if the background level of the constituent is below the value given in Table 1; or

(iii) must not exceed an alternate limit established by the commissioner under paragraph (2) of this subdivision.

TABLE 1

MAXIMUM CONCENTRATION OF CONSTITUENTS FOR GROUND-WATER PROTECTION

Maximum
Constituent	Concentration (mg/l)
Arsenic	0.025
Barium	1.0
Cadmium	0.01
Chromium	0.05
Lead	0.025
Mercury	0.002
Selenium	0.01
Silver	0.05
Endrin (1,2,3,4,10,10-hexachloro-1, 7-epoxy-1, 4, 4a, 5, 6, 7, 8, 9a- octahydro-1, 4-endo, endo-5, 8-dimethano naphthalene)	Not detectable*
Lindane (1,2,3,4,5,6-hexachlorocyclohexane, gamma isomer)	Not detectable*
Methoxychlor [1,1,1-Trichloro-2, 2-bis (p-methoxy-phenylethane)]	0.035
Toxaphene (C10 Hl0 C6, Technical chlorinated camphene, 67-69 percent chlorine)	Not detectable*
2, 4-D (2,4-Dichlorophenoxyacetic acid)	0.0044
2,4,5-TP Silvex (2,4,5 Trichlorophenoxypropionic acid)	0.00026

Note:

Not detectable means any test or analytical determination referenced in section 703.4 of this Title.

(2) The commissioner will establish an alternate concentration limit for a hazardous constituent if the commissioner finds that the constituent will not pose a substantial present or potential hazard to human health or the environment as long as the alternate concentration limit is not exceeded. In establishing alternate concentration limits, the commissioner will consider the following factors:

(i) potential adverse effects on ground-water quality, considering:

(a) the physical and chemical characteristics of the waste in the regulated unit, including its potential for migration;

(b) the hydrogeological characteristics of the facility and surrounding land;

(c) the quantity of ground water and the direction of ground-water flow;

(d) the proximity and withdrawal rates of ground-water users;

(e) the current and future uses of ground water in the area and any water quality standards established for those ground waters;

(f) the existing quality of ground water, including other sources of contamination and their cumulative impact on the ground-water quality;

(g) the potential for health risks caused by human exposure to waste constituents;

(h) the potential damage to wildlife, crops, vegetation and physical structures caused by exposure to waste constituents; and

(i) the persistence and permanence of the potential adverse effects; and

(ii) potential adverse effects on hydraulically connected surface-water quality, considering:

(a) the volume and physical and chemical characteristics of the waste in the regulated unit;

(b) the hydrogeological characteristics of the facility and surrounding land;

(c) the quantity and quality of ground water, and the direction of ground-water flow;

(d) the patterns of rainfall in the region;

(e) the proximity of the regulated unit to surface waters;

(f) the current and future uses of surface waters in the area and any water quality standards established for those surface waters;

(g) the existing quality of surface water, including other sources of contamination and the cumulative impact on surface-water quality;

(h) the potential for health risks caused by human exposure to waste constituents;

(i) the potential damage to wildlife, crops, vegetation and physical structures caused by exposure to waste constituents; and

(j) the persistence and permanence of the potential adverse effects.

(3) In making any determination under paragraph (2) of this subdivision about the use of ground water in the area around the facility, the commissioner will consider any identification of underground sources of drinking water and exempted aquifers made under 40 CFR 144.8 (see section 370.1[e] of this Title).

(f)Point of compliance.

(1) The commissioner will specify in the facility permit the point of compliance at which the ground-water protection standard of subdivision (c) of this section applies, and at which monitoring must be conducted. The point of compliance is a vertical surface located at the hydraulically downgradient limit of the waste management area that extends down into the uppermost aquifer underlying the regulated units.

(2) The waste management area is the limit projected in the horizontal plane of the area on which waste will be placed during the active life of a regulated unit.

(i) The waste management area includes horizontal space taken up by any liner, dike or other barrier designed to contain waste in a regulated unit.

(ii) If the facility contains more than one regulated unit, the waste management area is described by an imaginary line circumscribing the several regulated units.

(g)Compliance period.

(1) The commissioner will specify in the facility permit the compliance period during which the ground-water protection standard of subdivision (c) of this section applies. The compliance period is the number of years equal to the active life of the waste management area (including any waste management activity prior to permitting) and the closure period.

(2) The compliance period begins when the owner or operator initiates a compliance monitoring program meeting the requirements of subdivision (j) of this section.

(3) If the owner or operator is engaged in a corrective action program at the end of the compliance period specified in paragraph (1) of this subdivision, the compliance period is extended until the owner or operator can demonstrate that the ground-water protection standard of subdivision (c) of this section has not been exceeded for a period of three consecutive years.

(h)General groundwater monitoring requirements.

The owner or operator must comply with the following requirements for any groundwater monitoring program developed to satisfy subdivision (i), (j) or (k) of this section:

(1) The groundwater monitoring system must consist of a sufficient number of wells, installed at appropriate locations and depths to yield groundwater samples from the uppermost aquifer that:

(i) represent the quality of background groundwater that has not been affected by leakage from a regulated unit;

(a) a determination of background groundwater quality may include sampling of wells that are not hydraulically upgradient of the waste management area where:

(1) hydrogeologic conditions do not allow the owner or operator to determine what wells are hydraulically upgradient; and

(2) sampling at other wells will provide an indication of background ground-water quality that is representative or more representative than that provided by the upgradient wells; and

(ii) represent the quality of groundwater passing the point of compliance; and

(iii) allow for the detection of contamination when hazardous waste or hazardous constituents have migrated from the waste management area to the uppermost aquifer.

(2) If a facility contains more than one regulated unit, separate ground-water monitoring systems are not required for each regulated unit, provided that provisions for sampling the ground water in the uppermost aquifer will enable detection and measurement at the compliance point of hazardous constituents from the regulated units that have entered the ground water in the uppermost aquifer. The commissioner may require separate monitoring systems for separate waste management components.

(3) All monitoring wells must be cased in a manner that maintains the integrity of the monitoring-well bore hole. This casing must be screened or perforated and packed with gravel or sand, where necessary, to enable collection of ground-water samples. The annular space (i.e., the space between the bore hole and well casing) above the sampling depth must be sealed to prevent contamination of samples and the ground water.

(4) The ground-water monitoring program must include consistent sampling and analysis procedures that are designed to ensure monitoring results that provide a reliable indication of ground-water quality below the waste management area. At a minimum, the program must include procedures and techniques for:

(i) sample collection;

(ii) sample preservation and shipment;

(iii) analytical procedures; and

(iv) chain of custody control.

(5) The ground-water monitoring program must include sampling and analytical methods that are appropriate for ground-water sampling and that accurately measure hazardous constituents in ground-water samples.

(6) The ground-water monitoring program must include a determination of the ground-water surface elevation each time ground water is sampled.

(7) In detection monitoring or where appropriate in compliance monitoring, data on each hazardous constituent specified in the permit will be collected from background wells and wells at the compliance point(s). The number and kinds of samples collected to establish background shall be appropriate for the form of statistical test employed, following generally accepted statistical principles. The sample size shall be as large as necessary to ensure with reasonable confidence that a contaminant release to groundwater from a facility will be detected. The owner or operator will determine an appropriate sampling procedure and interval for each hazardous constituent listed in the facility permit which shall be specified in the unit permit upon approval by the commissioner. This sampling procedure shall be:

(i) a sequence of at least four samples, taken at an interval that assures, to the greatest extent technically feasible, that an independent sample is obtained, by reference to the uppermost aquifer's effective porosity, hydraulic conductivity, and hydraulic gradient, and the fate and transport characteristics of the potential contaminants; or

(ii) an alternate sampling procedure proposed by the owner or operator and approved by the commissioner; or

(iii) in developing the data base used to determine a background value for each parameter or constituent, the owner or operator must take a minimum of one sample from each well and a minimum of four samples from the entire system used to determine background ground-water quality, each time the system is sampled.

(8) The owner or operator will specify one of the following statistical methods to be used in evaluating groundwater monitoring data for each hazardous constituent which, upon approval by the commissioner, will be specified in the unit permit. The statistical test chosen shall be conducted separately for each hazardous constituent in each well. Where practical quantification limits (pql's) are used in any of the following statistical procedures to comply with subparagraph (9)(v) of this subdivision, the pql must be proposed by the owner or operator and approved by the commissioner. Use of any of the following statistical methods must be protective of human health and the environment and must comply with the performance standards outlined in paragraph (9) of this subdivision.

(i) A parametric analysis of variance (ANOVA) followed by multiple comparisons procedures to identify statistically significant evidence of contamination. The method must include estimation and testing of the contrasts between each compliance well's mean and the background mean levels for each constituent.

(ii) An analysis of variance (ANOVA) based on ranks followed by multiple comparisons procedures to identify statistically significant evidence of contamination. The method must include estimation and testing of the contrasts between each compliance well's median and the background median levels for each constituent.

(iii) A tolerance or prediction interval procedure in which an interval for each constituent is established from the distribution of the background data, and the level of each constituent in each compliance well is compared to the upper tolerance or prediction limit.

(iv) A control chart approach that gives control limits for each constituent.

(v) Another statistical test method submitted by the owner or operator and approved by the commissioner.

(9) Any statistical method chosen under paragraph (8) of this subdivision for specification in the unit permit shall comply with the following performance standards, as appropriate:

(i) The statistical method used to evaluate ground-water monitoring data shall be appropriate for the distribution of chemical parameters or hazardous constituents. If the distribution of the chemical parameters or hazardous constituents is shown by the owner or operator to be inappropriate for a normal theory test, then the data should be transformed or a distribution-free theory test should be used. If the distributions for the constituents differ, more than one statistical method may be needed.

(ii) If an individual well comparison procedure is used to compare an individual compliance well constituent concentration with background constituent concentrations or a ground-water protection standard, the test shall be done at a Type I error level no less than 0.01 for each testing period. If a multiple comparisons procedure is used, the Type I experimentwise error rate for each testing period shall be no less than 0.05; however, the Type I error of no less than 0.01 for individual well comparisons must be maintained. This performance standard does not apply to tolerance intervals, prediction intervals or control charts.

(iii) If a control chart approach is used to evaluate ground-water monitoring data, the specific type of control chart and its associated parameter values shall be proposed by the owner or operator and approved by the commissioner if he or she finds it to be protective of human health and the environment.

(iv) If a tolerance interval or a prediction interval is used to evaluate ground-water monitoring data, the levels of confidence and, for tolerance intervals, the percentage of the population that the interval must contain, shall be proposed by the owner or operator and approved by the commissioner if he or she finds these parameters to be protective of human health and the environment. These parameters will be determined after considering the number of samples in the background data base, the data distribution, and the range of the concentration values for each constituent of concern.

(v) The statistical method shall account for data below the limit of detection with one or more statistical procedures that are protective of human health and the environment. Any practical quantification limit (pql) approved by the commissioner under paragraph (8) of this subdivision that is used in the statistical method shall be the lowest concentration level that can be reliably achieved within specified limits of precision and accuracy during routine laboratory operating conditions that are available to the facility.

(vi) If necessary, the statistical method shall include procedures to control or correct for seasonal and spatial variability as well as temporal correlation in the data.

(10) Ground-water monitoring data collected in accordance with paragraph (7) of this subdivision including actual levels of constituents must be maintained in the facility operating record. The commissioner will specify in the permit when the data must be submitted for review.

(i)Detection monitoring program.

An owner or operator required to establish a detection monitoring program under this section must, at a minimum, discharge the following responsibilities:

(1) The owner or operator must monitor for indicator parameters (e.g., specific conductance, total organic carbon or total organic halogen waste constituents, or reaction products that provide a reliable indication of the presence of hazardous constituents in groundwater. The department will specify the parameters or constituents to be monitored in the facility permit, after considering the following factors:

(i) the types, quantities and concentrations of constituents in wastes managed at the regulated unit;

(ii) the mobility, stability and persistence of waste constituents or their reaction products in the unsaturated zone beneath the waste management area;

(iii) the detectability of indicator parameters, waste constituents and reaction products in ground water; and

(iv) the concentrations or values and coefficients of variation of proposed monitoring parameters or constituents in the ground-water background.

(2) The owner or operator must install a ground-water monitoring system at the compliance point as specified under subdivision (f) of this section. The ground-water monitoring system must comply with subparagraph (h)(1)(ii), and paragraphs (h)(2)-(3) of this section.

(3) The owner or operator must conduct a ground-water monitoring program for each chemical parameter and hazardous constituent specified in the permit pursuant to paragraph (1) of this subdivision in accordance with paragraph (h)(7) of this section. The owner or operator must maintain a record of ground-water analytical data as measured and in a form necessary for the determination of statistical significance under paragraph (h)(8) of this section.

(4) The department will specify the frequencies for collecting samples and conducting statistical tests to determine whether there is statistically significant evidence of contamination for any parameter or hazardous constituent specified in the permit under paragraph (1) of this subdivision in accordance with paragraph (h)(7) of this section.

(5) The owner or operator must determine the ground-water flow rate and direction in the uppermost aquifer at least annually.

(6) The owner or operator must use procedures and methods for sampling and analysis that meet the requirements of paragraphs (h)(4)-(5) of this section.

(7) The owner or operator must determine whether there is statistically significant evidence of contamination for any chemical parameter or hazardous constituent specified in the permit pursuant to paragraph (1) of this subdivision at a frequency specified under paragraph (4) of this subdivision.

(i) In determining whether statistically significant evidence of contamination exists, the owner or operator must use the method(s) specified in the permit under paragraph (h)(8) of this section. These method(s) must compare data collected at the compliance point(s) to the background ground-water quality data.

(ii) The owner or operator must determine whether there is statistically significant evidence of contamination at each monitoring well at the compliance point 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 ground-water samples.

(8) If the owner or operator determines, pursuant to paragraph (7) of this subdivision, that there is statistically significant evidence of contamination for chemical parameters or hazardous constituents specified pursuant to paragraph (1) of this subdivision at any monitoring well at the compliance point, he or she must:

(i) notify the commissioner of this finding in writing within seven days. The notification must indicate what chemical parameters or hazardous constituents have shown statistically significant evidence of contamination;

(ii) immediately sample the groundwater in all monitoring wells at the compliance point and determine whether constituents in the list of Appendix 33 of this Title are present and, if so, at what concentration. However, the department, on a discretionary basis, may allow sampling for a site-specific subset of constituents from the Appendix 33 list of this part and other representative/related waste constituents;

(iii) for any Appendix 33 compounds found in the analysis pursuant to subparagraph (ii) of this paragraph, the owner or operator may resample within one month or at an alternative site-specific schedule approved by the department and repeat the analysis for those compounds detected. If the results of the second analysis confirm the initial results, then these constituents will form the basis for compliance monitoring. If the owner or operator does not resample for the compounds in subparagraph (ii) of this paragraph, the hazardous constituents found during this initial Appendix 33 analysis will form the basis for compliance monitoring.

(iv) within 90 days, submit to the commissioner an application for a permit modification to establish a compliance monitoring program meeting the requirements of subdivision (j) of this section. The application must include the following information:

(a) an identification of the concentration of any Appendix 33 constituent detected in the ground water at each monitoring well at the compliance point;

(b) any proposed changes to the ground-water monitoring system at the facility necessary to meet the requirements of subdivision (j) of this section;

(c) any proposed additions or changes to the monitoring frequency, sampling and analysis procedures or methods, or statistical methods used at the facility necessary to meet the requirements of subdivision (j) of this section;

(d) for each hazardous constituent detected at the compliance point, a proposed concentration limit under subparagraph (e)(1)(i) or (ii) of this section, or a notice of intent to seek an alternate concentration limit under paragraph (e)(2) of this section; and

(v) within 180 days, submit to the commissioner:

(a) all data necessary to justify an alternate concentration limit sought under paragraph (e)(2) of this section; and

(b) an engineering feasibility plan for a corrective action program necessary to meet the requirements of subdivision (k) of this section, unless:

(1) all hazardous constituents identified under subparagraph (ii) of this paragraph are listed in Table 1 in subdivision (e) of this section and their concentrations do not exceed the respective values given in that Table; or

(2) the owner or operator has sought an alternate concentration limit under paragraph (e)(2) of this section for every hazardous constituent identified under subparagraph (ii) of this paragraph.

(9) If the owner or operator determines, pursuant to paragraph (7) of this subdivision, that there is a statistically significant difference for chemical parameters or hazardous constituents specified pursuant to paragraph (1) of this subdivision at any monitoring well at the compliance point, he or she may demonstrate that a source other than a regulated unit caused the contamination or that the detection is an artifact caused by an error in sampling, analysis, or statistical evaluation or natural variation in the groundwater. 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 (8)(iv) 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 (8)(iv) of this subdivision unless the demonstration made under this paragraph successfully shows that a source other than a regulated unit caused the increase, or that the increase resulted from 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 statistically significant evidence of contamination at the compliance point, that he or she intends to make a demonstration under this paragraph;

(ii) within 90 days, submit a report to the commissioner which demonstrates that a source other than a regulated unit caused the contamination, or that the contamination 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 detection monitoring program at the facility; and

(iv) continue to monitor in accordance with the detection monitoring program established under this section.

(10) If the owner or operator determines that the detection monitoring program no longer satisfies the requirements of this section, he or she must, within 90 days, submit an application for a permit modification to make any appropriate changes to the program.

(j)Compliance monitoring program.

An owner or operator required to establish a compliance monitoring program under this section must, at a minimum, discharge the following responsibilities:

(1) The owner or operator must monitor the ground water to determine whether regulated units are in compliance with the ground-water protection standard under subdivision (c) of this section. The commissioner will specify the ground-water protection standard in the facility permit, including:

(i) a list of the hazardous constituents identified under subdivision (d) of this section;

(ii) concentration limits under subdivision (e) for each of those hazardous constituents;

(iii) the compliance point under subdivision (f); and

(iv) the compliance period under subdivision (g).

(2) The owner or operator must install a ground-water monitoring system at the compliance point as specified under subdivision (f) of this section. The ground-water monitoring system must comply with subparagraph (h)(1)(ii) and paragraphs (h)(2)-(3) of this section.

(3) The commissioner will specify the sampling procedures and statistical methods appropriate for the constituents and the facility, consistent with paragraphs (h)(7) and (8) of this section.

(i) The owner or operator must conduct a sampling program for each chemical parameter or hazardous constituent in accordance with paragraph (h)(7) of this section.

(ii) The owner or operator must record ground-water analytical data as measured and in the form necessary for the determination of statistical significance under paragraph (h)(8) of this section for the compliance period of the facility.

(4) The owner or operator must determine the ground-water flow rate and direction in the uppermost aquifer at least annually.

(5) The department will specify the frequencies for collecting samples and conducting statistical tests to determine statistically significant evidence of increased contamination in accordance with paragraph (h)(7) of this section.

(6) Annually, the owner or operator must determine whether additional hazardous constituents from Appendix 33, which could possibly be site-related compounds, but are not on the detection monitoring list in the permit, are actually present in the uppermost aquifer and, if so, at what concentration pursuant to procedures in paragraph (i)(7) of this section. To accomplish this, the owner or operator must consult with the department. The department will determine on a case-by-case basis: which sample collection event during the year will involve enhanced sampling; the number of monitoring wells at the compliance point to undergo enhanced sampling; the number of samples to be collected from each of these monitoring wells; and, the specific constituents from Appendix 33 of this Title for which these samples must be analyzed. If the enhanced sampling event indicates that Appendix 33 constituents are present in the groundwater that are not already identified in the permit as monitoring constituents, the owner or operator may resample within one month or at an alternative site-specific schedule approved by the department, and repeat the analysis. If the second analysis confirms the presence of new constituents, the owner or operator must report the concentration of these additional constituents to the department within seven days after completion of the second analysis and add them to the monitoring list. If the owner or operator chooses not to resample, then he or she must report the concentrations of these additional constituents to the department within seven days after completion of the initial analysis and add them to the monitoring list. Notwithstanding the above reporting requirements, any other applicable statutory and regulatory reporting requirements apply.

(7) The owner or operator must use procedures and methods for sampling and analysis that meet the requirements of paragraphs (h)(4)-(5) of this section.

(8) The owner or operator must determine whether there is statistically significant evidence of increased contamination for any chemical parameter or hazardous constituent specified in the permit, pursuant to paragraph (1) of this subdivision, at a frequency specified under paragraph (5) of this subdivision.

(i) In determining whether statistically significant evidence of increased contamination exists, the owner or operator must use the method(s) specified in the permit under paragraph (h)(8) of this section. The method(s) must compare data collected at the compliance point(s) to the concentration limit for that constituent developed in accordance with subdivision (e) of this section.

(ii) The owner or operator must determine whether there is statistically significant evidence of increased contamination at each monitoring well at the compliance point, 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 ground-water samples.

(9) If the owner or operator determines, pursuant to paragraph (8) of this subdivision, that any concentration limits under subdivision (e) of this section are being exceeded at any monitoring well at the point of compliance, he or she must:

(i) notify the commissioner of this finding in writing within seven days. The notification must indicate what concentration limits have been exceeded; and

(ii) submit to the commissioner an application for a permit modification to establish a corrective action program meeting the requirements of subdivision (k) of this section within 180 days, or within 90 days if an engineering feasibility study has been previously submitted to the commissioner under subparagraph (i)(8)(v) of this section. The application must, at a minimum, include the following information:

(a) a detailed description of corrective actions that will achieve compliance with the ground-water protection standard specified in the permit under paragraph (1) of this subdivision; and

(b) a plan for a ground-water monitoring program that will demonstrate the effectiveness of the corrective action. Such a ground-water monitoring program may be based on a compliance monitoring program developed to meet the requirements of this section.

(10) If the owner or operator determines, pursuant to paragraph (8) of this subdivision, that the ground-water concentration limits under this section are being exceeded at any monitoring well at the point of compliance, he or she may demonstrate that a source other than a regulated unit caused the contamination or that the detection is an artifact caused by an error in sampling, analysis or statistical evaluation or natural variation in the ground water. In making a demonstration under this paragraph, the owner or operator must:

(i) notify the commissioner in writing, within seven days, that he or she intends to make a demonstration under this paragraph;

(ii) within 90 days, submit a report to the commissioner which demonstrates that a source other than a regulated unit caused the standard to be exceeded or that the apparent noncompliance with the standards 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 compliance monitoring program at the facility; and

(iv) continue to monitor in accordance with the compliance monitoring program established under this section.

(11) If the owner or operator determines that the compliance monitoring program no longer satisfies the requirements of this section, the owner or operator must, within 90 days, submit an application for a permit modification to make any appropriate changes to the program.

(k)Corrective action program.

An owner or operator required to establish a corrective action program under this section must, at a minimum, do the following:

(1) The owner or operator must take corrective action to ensure that regulated units are in compliance with the ground-water protection standard under subdivision (c) of this section. The commissioner will specify the ground-water protection standard in the facility permit, including:

(i) a list of the hazardous constituents identified under subdivision (d) of this section;

(ii) concentration limits under subdivision (e) for each of those hazardous constituents;

(iii) the compliance point under subdivision (f); and

(iv) the compliance period under subdivision (g).

(2) The owner or operator must implement a corrective action program that prevents hazardous constituents from exceeding their respective concentration limits at the compliance point by removing the hazardous waste constituents or treating them in place. The permit will specify the specific measures that will be taken.

(3) The owner or operator must begin corrective action within a reasonable time period after the ground-water protection standard is exceeded. The commissioner will specify that time period in the facility permit. If a facility permit includes a corrective action program in addition to a compliance monitoring program, the permit will specify when the corrective action will begin and such a requirement will operate in lieu of subparagraph (j)(9)(ii) of this section.

(4) In conjunction with a corrective action program, the owner or operator must establish and implement a ground-water monitoring program to demonstrate the effectiveness of the corrective action program. Such a monitoring program may be based on the requirements for a compliance monitoring program under subdivision (j) of this section and must be as effective as the program in determining compliance with the ground-water protection standard under subdivision (c) and in determining the success of a corrective action program under paragraph (5) of this subdivision, where appropriate.

(5) In addition to the other requirements of this subdivision, the owner or operator must conduct a corrective action program to remove or treat in place any hazardous constituents under subdivision (d) of this section that exceed concentration limits under subdivision (e) of this section in ground water:

(i) Between the compliance point under subdivision (f) of this section and the downgradient facility property boundary.

(ii) Beyond the facility boundary, where necessary to protect human health and the environment, unless the owner or operator demonstrates to the satisfaction of the commissioner that, despite the owner's or operator's best efforts, the owner or operator was unable to obtain the necessary permission to undertake such action. The owner or operator is not relieved of responsibility to clean up a release that has migrated beyond the facility boundary where off-site access is denied. On-site measures to address such releases will be determined on a case-by-case basis. The permit will specify the measures to be taken.

(iii) Corrective action measures under this paragraph must be initiated and completed within a reasonable period of time, considering the extent of contamination.

(iv) Corrective action measures under this paragraph may be terminated once the concentration of hazardous constituents under subdivision (d) of this section is reduced to levels below their respective concentration limits under subdivision (e) of this section.

(6) The owner or operator must continue corrective action measures during the compliance period to the extent necessary to ensure that the ground-water protection standard is not exceeded. If the owner or operator is conducting corrective action at the end of the compliance period, that corrective action must be continued for as long as necessary to achieve compliance with the ground-water protection standard. The owner or operator may terminate corrective action measures taken beyond the period equal to the active life of the waste management area (including the closure period) if the owner or operator can demonstrate, based on data from the ground-water monitoring program under paragraph (4) of this subdivision, that the ground- water protection standard of subdivision (c) of this section has not been exceeded for a period of three consecutive years.

(7) The owner or operator must report in writing to the department on the effectiveness of the corrective action program. The owner or operator must submit these reports annually unless directed by the department to submit the reports semi-annually.

(8) If the owner or operator determines that the corrective action program no longer satisfies the requirements of this section, the owner or operator must, within 90 days, submit an application for a permit modification to make any appropriate changes to the program.

(l)Corrective action for solid waste management units.

(1) The owner or operator of a facility which has, had, should have had, or is seeking a permit for the treatment, storage or disposal of hazardous waste must institute corrective action as necessary to protect human health and the environment for all releases of hazardous waste or constituents from any solid waste management unit at the facility, regardless of the time the waste was placed in such unit.

(2) Corrective action will be specified in the permit or order in accordance with this subdivision and section 373-2.19 of this Subpart. The permit or order will contain schedules of compliance for such corrective action (where such corrective action cannot be completed prior to issuance of the permit or order) and assurances of financial responsibility as defined in section 373-2.8 of this Subpart, except that language is added to the financial assurance mechanism to include corrective action; or as specified in the Part 373 permit for completing such corrective action.

(3) The owner or operator must implement corrective actions beyond the facility property boundary, where necessary to protect human health and the environment, unless the owner or operator demonstrates to the satisfaction of the commissioner that, despite the owner's or operator's best efforts, the owner or operator was unable to obtain the necessary permission to undertake such actions. The owner or operator is not relieved of responsibility to clean up a release that has migrated beyond the facility boundary where off-site access is denied. On-site measures to address such releases will be determined on a case-by-case basis. Assurances of financial responsibility for such corrective action must be provided.

(4) This subdivision does not apply to remediation waste management sites unless they are part of a facility subject to a permit for treating, storing or disposing of hazardous wastes that are not remediation wastes.

N.Y. Comp. Codes R. & Regs. Tit. 6 §§ 373-2.6

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