N.Y. Comp. Codes R. & Regs. Tit. 6 §§ 373-3.7

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

Section 373-3.7 - Closure and post-closure

(a)Applicability.

Except as section 373-3.1 of this Subpart provides otherwise:

(1) subdivision (b) through paragraph (f)(1) of this section (which concern closure) apply to the owners and operators of all hazardous waste management facilities;

(2) paragraph (f)(2) through subdivision (j) of this section (which concern post-closure care) apply to the owners and operators of:

(i) all hazardous waste disposal facilities;

(ii) waste piles and surface impoundments from which the owner or operator intends to remove the wastes at closure to the extent that these sections are made applicable to such facilities in sections 373-3.11(f) and 373-3.12(g) of this Subpart;

(iii) tank systems that are required under section 373-3.10(h) of this Subpart to meet the requirements for landfills; and

(iv) start containment buildings that are required under section 373-3.30(c) of this Subpart to meet the requirement for landfills;

(3) subdivision (k) of this section applies to owners and operators of units that are subject to the requirements of section 373-1.2(e)(3) of this Part and are regulated under an enforceable document (as defined in section 373-1.2[e][3] of this Part); and

(4) the department may replace all or part of the requirements of this section (and the unit-specific standards in paragraph [b][3] of this section) applying to a regulated unit (as defined in section 373-2.6[a] of this Part), with alternative requirements for closure set out in an approved closure or post-closure plan, or in an enforceable document (as defined in section 373-1.2[e][3] of this Part), where the department determines that:

(i) a 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 closure requirements of this section (and/or those referenced herein) because the alternative requirements will protect human health and the environment, and will satisfy the closure performance standard of paragraphs (b)(1) and (2) of this section.

(b)Closure performance standard.

The owner or operator must close the facility in a manner that:

(1) minimizes the need for further maintenance;

(2) controls, minimizes or eliminates, to the extent necessary to protect human health and the environment, post-closure escape of hazardous waste, hazardous constituents, leachate, contaminated runoff, or hazardous waste decomposition products to the ground or surface waters or to the atmosphere; and

(3) complies with the closure requirements of this Subpart, including but not limited to the requirements of sections 373-3.10(h), 373-3.11(f), 373-3.12(g), 373-3.13(g), 373-3.14(d), 373-3.15(e), 373-3.16(e), 373-3.17(e) and 373-3.30(c).

(c)Closure plan; amendment of plan.

(1) Written plan.

(i) By May 19, 1981, or by six months after the effective date of the rule that first subjects a facility to provisions of this section, the owner or operator of a hazardous waste management facility must have a written closure plan. Until final closure is completed and certified in accordance with paragraph (f)(1) of this section, a copy of the most current plan must be furnished to the commissioner upon request, including request by mail. In addition, for facilities without approved plans, it must also be provided during site inspections, on the day of inspection, to any officer, employee or representative of the department who is duly designated by the commissioner.

(2) Content of plan. The plan must identify steps necessary to perform partial and/or final closure of the facility at any point during its active life. The closure plan must include, at least:

(i) a description of how each hazardous waste management unit at the facility will be closed in accordance with subdivision (b) of this section;

(ii) a description of how final closure of the facility will be conducted in accordance with subdivision (b) of this section. The description must identify the maximum extent of the operations which will be unclosed during the active life of the facility;

(iii) an estimate of the maximum inventory of hazardous wastes ever onsite over the active life of the facility and a detailed description of the methods to be used during partial closures and final closure, including but not limited to methods for removing, transporting, treating, storing or disposing of all hazardous wastes, and identification of and the types of the offsite hazardous waste management units to be used, if applicable;

(iv) a detailed description of the steps needed to remove or decontaminate all hazardous waste residues and contaminated containment system components, equipment, structures and soils during partial and final closure, including but not limited to procedures for cleaning equipment and removing contaminated soils, methods for sampling and testing surrounding soils, and criteria for determining the extent of decontamination required to satisfy the closure performance standard;

(v) a detailed description of other activities necessary during the partial and final closure periods to ensure that all partial closures and final closure satisfy the closure performance standards, including but not limited to groundwater monitoring, leachate collection, and run- on and runoff control;

(vi) a schedule for closure of each hazardous waste management unit and for final closure of the facility. The schedule must include, at a minimum, the total time required to close each hazardous waste management unit and the time required for intervening closure activities which will allow tracking of the progress of partial and final closure (for example, in the case of a landfill unit, estimates of the time required to treat or dispose of all hazardous waste inventory and of the time required to place a final cover must be included);

(vii) an estimate of the expected year of final closure for facilities that use trust funds to demonstrate financial assurance under section 373-3.8(d) or (f) of this Subpart and whose remaining operating life is less than 20 years, and for facilities without approved closure plans; and

(viii) for facilities where the department has applied alternative requirements at a regulated unit under sections 373-3.6(a)(6), and/or 373-3.8(a)(4) of this Subpart and/or paragraph (a)(4) of this section, either the alternative requirements applying to the regulated unit, or a reference to the enforceable document containing those alternative requirements.

(3) Amendment of plan. The owner or operator may amend the closure plan at any time prior to the notification of partial or final closure of the facility. An owner or operator with an approved closure plan must submit a written request to the commissioner to authorize a change to the approved closure plan. The written request must include a copy of the amended closure plan for approval by the commissioner.

(i) The owner or operator must amend the closure plan whenever:

(a) changes in operating plans or facility design affect the closure plan;

(b) there is a change in the expected year of closure, if applicable;

(c) in conducting partial or final closure activities, unexpected events require a modification of the closure plan; or

(d) the owner or operator request the department to apply alternative requirements to a regulated unit under sections 373-3.6(a)(6), and/or 373-3.8(a)(4) of this Subpart and/or paragraph (a)(4) of this section.

(ii) The owner or operator must amend the closure plan at least 60 days prior to the proposed change in facility design or operation, or no later than 60 days after an unexpected event has occurred which has affected the closure plan. If an unexpected event occurs during the partial or final closure period, the owner or operator must amend the closure plan no later than 30 days after the unexpected event. These provisions also apply to owners or operators of surface impoundments or waste piles who intend to remove all hazardous waste at closure but are required to close as landfills in accordance with section 373-3.14(d) of this Subpart.

(iii) An owner or operator with an approved closure plan must submit the modified plan to the commissioner at least 60 days prior to the proposed change in facility design or operation, or no more than 60 days after an unexpected event has occurred which has affected the closure plan. If an unexpected event has occurred during the partial or final closure period, the owner or operator must submit the modified plan no more than 30 days after the unexpected event. These provisions also apply to owners or operators of surface impoundments and waste piles who intended to remove all hazardous waste at closure but are required to close as landfills in accordance with section 373-3.14(d) of this Subpart. If the amendment to the plan is a major modification according to the criteria in Subpart 373-1 of this Part, the modification to the plan will be approved according to the procedures in paragraph (4) of this subdivision.

(iv) The commissioner may request modifications to the plan under the conditions described in subparagraph (i) of this paragraph. An owner or operator with an approved closure plan must submit the modified plan within 60 days of the commissioner's request, or within 30 days if the unexpected event occurs during partial or final closure. If the amendment is considered a major modification according to the criteria in Subpart 373-1 of this part, the modification to the plan will be approved in accordance with the procedures in paragraph (4) of this subdivision.

(4) Notification of partial closure and final closure.

(i) The owner or operator must submit the closure plan to the commissioner at least 180 days prior to the date on which the owner or operator expects to begin closure of the first surface impoundment, waste pile, land treatment or landfill unit, or final closure if it involves such a unit, whichever is earlier. The owner or operator must submit the closure plan to the commissioner at least 45 days prior to the date on which the owner or operator expects to begin partial or final closure of a boiler or industrial furnace. The owner or operator must submit the closure plan to the commissioner at least 45 days prior to the date on which the owner or operator expects to begin final closure of a facility with only tanks, container storage, or incinerator units. Owners or operators with approved closure plans must notify the commissioner in writing at least 60 days prior to the date on which the owner or operator expects to begin closure of a surface impoundment, waste pile, landfill, or land treatment unit, or final closure of a facility involving such a unit. Owners and operators with approved closure plans must notify the commissioner in writing at least 45 days prior to the date on which the owner or operator expects to begin partial or final closure of a boiler or industrial furnace. Owners or operators with approved closure plans must notify the commissioner in writing at least 45 days prior to the date on which the owner or operator expects to begin final closure of a facility with only tanks, container storage, or incinerator units.

(ii) The date when the owner or operator "expects to begin closure" must be either:

(a) within 30 days after the date on which any hazardous waste management unit receives the known final volume of hazardous wastes, or, if there is a reasonable possibility that the hazardous waste management unit will receive additional hazardous wastes, no later than one year after the date on which the unit received the most recent volume of hazardous waste. If the owner or operator of a hazardous waste management unit can demonstrate to the commissioner that the hazardous waste management unit or facility has the capacity to receive additional hazardous wastes and the owner or operator has taken, and will continue to take, all steps to prevent threats to human health and the environment, including compliance with all interim status requirements, the commissioner may approve an extension to this one-year limit; or

(b) for units meeting the requirements of paragraph (d)(4) of this section, no later than 30 days after the date on which the hazardous waste management unit receives the known final volume of nonhazardous wastes, or if there is a reasonable possibility that the hazardous waste management unit will receive additional nonhazardous wastes, no later than one year after the date on which the unit received the most recent volume of nonhazardous wastes. If the owner or operator can demonstrate to the commissioner that the hazardous waste management unit has the capacity to receive additional nonhazardous wastes and the owner or operator has taken, and will continue to take, all steps to prevent threats to human health and the environment, including compliance with all interim status requirements, the commissioner may approve an extension to this one-year limit.

(iii) The owner or operator must submit the closure plan to the commissioner no later than 15 days after:

(a) issuance of a judicial decree or final order, under article 71 of ECL, to cease receiving hazardous wastes or to close; or

(b) termination of interim status except when a permit is issued simultaneously with termination of interim status.

(iv) The commissioner will provide the owner or operator and the public, through a newspaper notice, the opportunity to submit written comments on the plan and request modifications of the plan within 30 days of the date of the notice. The commissioner will also, in response to a request or at his or her own discretion, hold a public hearing whenever such a hearing might clarify one or more issues concerning a closure plan. The commissioner will give public notice of the hearing at least 30 days before it occurs. (Public notice of the hearing may be given at the same time as notice of the opportunity for the public to submit written comments, and the two notices may be combined.) The commissioner will approve, modify or disapprove the plan within 90 days of its receipt. If the commissioner does not approve the plan, the owner or operator shall be provided with a detailed written statement of the reasons for refusal, and the owner or operator must modify the plan or submit a new plan for approval within 30 days after receiving such written statement. The commissioner will approve or modify this plan in writing within 60 days. If the commissioner modifies the plan, this modified plan becomes the approved closure plan. The commissioner must assure that the approved closure plan is consistent with subdivisions (b)-(f) of this section and the applicable requirements of sections 373-3.6, 373-3.10(h), 373-3.11(f), 373-3.12(g), 373-3.13(g), 373-3.14(d), 373-3.15(e), 373-3.16(e), 373-3.17(e) and 373-3.30(c) of this Subpart. A copy of this modified plan with a detailed statement of reasons for the modifications must be mailed to the owner or operator.

(5) Removal of wastes and decontamination or dismantling of equipment. Nothing in this subdivision shall preclude the owner or operator from removing hazardous wastes and decontaminating or dismantling equipment in accordance with the approved partial or final closure plan at any time before or after notification of partial or final closure.

(d)Closure; time allowed for closure.

(1) Within 90 days after receiving the final volume of hazardous wastes, or the final volume of nonhazardous wastes if the owner or operator complies with all applicable requirements in paragraphs (4) and (5) of this subdivision, at a hazardous waste management unit or facility, or within 90 days after approval of the closure plan, whichever is later, the owner or operator must treat, remove from the unit or facility, or dispose of onsite, all hazardous wastes in accordance with the approved closure plan. The commissioner may approve a longer period if the owner or operator demonstrates that:

(i)

(a) the activities required to comply with this paragraph will, of necessity, take longer than 90 days to complete; or

(b)

(1) the hazardous waste management unit or facility has the capacity to receive additional hazardous wastes, or has the capacity to receive nonhazardous wastes if the facility owner or operator complies with paragraphs (4) and (5) of this subdivision; and

(2) there is a reasonable likelihood that the owner or operator or another person will recommence operation of the hazardous waste management unit or the facility within one year; and

(3) closure of the hazardous waste management unit or facility would be incompatible with continued operation of the site; and

(ii) the owner or operator has taken and will continue to take all steps to prevent threats to human health and the environment, including compliance with all applicable interim status requirements.

(2) The owner or operator must complete partial and final closure activities in accordance with the approved closure plan and within 180 days after receiving the final volume of hazardous wastes, or the final volume of nonhazardous wastes if the owner or operator complies with all applicable requirements in paragraphs (4) and (5) of this subdivision, at the hazardous waste management unit or facility, or 180 days after approval of the closure plan, if that is later. The commissioner may approve an extension to the closure period if the owner or operator demonstrates that:

(i)

(a) the partial or final closure activities will, of necessity, take longer than 180 days to complete; or

(b)

(1) the hazardous waste management unit or facility has the capacity to receive additional hazardous wastes, or nonhazardous wastes if the facility owner or operator complies with paragraphs (4) and (5) of this subdivision; and

(2) there is reasonable likelihood that the owner or operator or another person will recommence operation of the hazardous waste management unit or the facility within one year; and

(3) closure of the hazardous waste management unit or facility would be incompatible with continued operation of the site; and

(ii) the owner or operator has taken and will continue to take all steps to prevent threats to human health and the environment from the unclosed but not operating hazardous waste management unit or facility, including compliance with all applicable interim status requirements.

(3) The demonstrations referred to in subparagraphs (1)(i) and (2)(i) of this subdivision must be made as follows:

(i) the demonstrations in subparagraph (1)(i) must be made at least 30 days prior to the expiration of the 90-day period in paragraph (1); and

(ii) the demonstration in subparagraph (2)(i) must be made at least 30 days prior to the expiration of the 180-day period in paragraph (2), unless the owner or operator is otherwise subject to the deadlines in paragraph (4).

(4) The commissioner may allow an owner or operator to receive nonhazardous wastes in a landfill, land treatment, or surface impoundment unit after the final receipt of hazardous wastes at that unit if:

(i) the owner or operator submits an amended Part 373 application, or a Part 373 application, if not previously required, and demonstrates that:

(a) the unit has the existing design capacity as indicated on the Part A application to receive nonhazardous wastes; and

(b) there is a reasonable likelihood that the owner or operator or another person will receive nonhazardous wastes in the unit within one year after the final receipt of hazardous wastes; and

(c) the nonhazardous wastes will not be incompatible with any remaining wastes in the unit or with the facility design and operating requirements of the unit or facility under this Part; and

(d) closure of the hazardous waste management unit would be incompatible with continued operation of the unit or facility; and

(e) the owner or operator is operating and will continue to operate in compliance with all interim status requirements; and

(ii) the Part 373 application includes an amended waste analysis plan, groundwater monitoring and response program, human exposure assessment required under section 373-1.5(d) and (h) of this Part, and closure and post-closure plans, and updated cost estimates and demonstrations of financial assurance for closure and post-closure care as necessary and appropriate to reflect any changes due to the presence of hazardous constituents in the nonhazardous wastes, and changes in closure activities, including the expected year of closure if applicable under subparagraph (c)(2)(vii) of this section, as a result of the receipt of nonhazardous wastes following the final receipt of hazardous wastes; and

(iii) the Part 373 application is amended, as necessary and appropriate, to account for the receipt of nonhazardous wastes following receipt of the final volume of hazardous wastes; and

(iv) the Part 373 application and the demonstrations referred to in subparagraphs (i) and (ii) of this paragraph are submitted to the commissioner no later than 180 days prior to the date on which the owner or operator of the facility receives the known final volume of hazardous wastes, or no later than 90 days after the effective date of this rule in New York State, whichever is later.

(5) In addition to the requirements in paragraph (4) of this subdivision, an owner or operator of a hazardous waste surface impoundment that is not in compliance with the liner and leachate collection system requirements in sections 373-2.11 and 373-2.14 of this Part, or section 373-3.11 or 373-3.14 of this Subpart must:

(i) submit with the Part 373 application:

(a) a contingent corrective measures plan; and

(b) a plan for removing hazardous wastes in compliance with subparagraph (ii) of this paragraph; and

(ii) remove all hazardous wastes from the unit by removing all hazardous liquids and removing all hazardous sludges to the extent practicable without impairing the integrity of the liner(s), if any;

(iii) removal of hazardous wastes must be completed no later than 90 days after the final receipt of hazardous wastes. The commissioner may approve an extension to this deadline if the owner or operator demonstrates that the removal of hazardous wastes will, of necessity, take longer than the allotted period to complete and that an extension will not pose a threat to human health and the environment;

(iv) if a release that is a statistically significant increase (or decrease in the case of pH) in hazardous constituents over background levels is detected in accordance with the requirements in section 373-3.6 of this Subpart, the owner or operator of the unit:

(a) must implement corrective measures in accordance with the approved contingent corrective measures plan required by subparagraph (i) of this paragraph no later than one year after detection of the release, or approval of the contingent corrective measures plan, whichever is later;

(b) may receive wastes at the unit following detection of the release only if the approved corrective measures plan includes a demonstration that continued receipt of wastes will not impede corrective action; and

(c) may be required by the commissioner to implement corrective measures in less than one year or to cease receipt of wastes until corrective measures have been implemented if necessary to protect human health and the environment.

(v) during the period of corrective action, the owner or operator shall provide annual reports to the commissioner describing the progress of the corrective action program, compile all groundwater monitoring data, and evaluate the effect of the continued receipt of nonhazardous wastes on the effectiveness of the corrective action. The department may require the owner or operator to report semi-annually as needed to evaluate the progress of the corrective action program;

(vi) the commissioner may require the owner or operator to commence closure of the unit if the owner or operator fails to implement corrective action measures in accordance with the approved contingent corrective measures plan within one year as required in subparagraph (iv) of this paragraph, or fails to make substantial progress in implementing corrective action and achieving the facility's background levels; and

(vii) if the owner or operator fails to implement corrective measures as required in subparagraph (iv) of this paragraph, or if the commissioner determines that substantial progress has not been made pursuant to subparagraph (vi) of this paragraph the comissioner shall:

(a) notify the owner or operator in writing that the department is terminating interim status, pursuant to Part 621 of this Title, to require the initiation of closure in accordance with the deadline in paragraphs (1) and (2) of this subdivision and provide a detailed statement of reasons for this determination.

(e)Disposal or decontamination of equipment, structures and soils.

During the partial and final closure periods, all contaminated equipment, structures and soils must be properly disposed of or decontaminated unless otherwise specified in sections 373-3.10(h), 373-3.11(f), 373-3.12(g), 373-3.13(g) and 373-3.14(d) of this Subpart. By removing any hazardous wastes or hazardous constituents during partial and final closure, the owner or operator may become a generator of hazardous waste and must handle that waste in accordance with all applicable requirements of Part 372 of this Title.

(f)Certification of closure and survey plat.

(1) Certification of closure. Within 60 days of completion of final closure of a facility, or within 60 days of partial closure of any hazardous waste management unit, the owner or operator must submit to the commissioner, by registered mail, a certification that the hazardous waste management unit or facility, as applicable, has been closed in accordance with the specifications in the approved closure plan. The certification must be signed by the owner or operator and by an independent professional engineer registered in New York. Documentation supporting the independent registered professional engineer's certification must be furnished to the commissioner upon request until the commissioner releases the owner or operator from the financial assurance requirements for closure under section 373-3.8(d) of this Subpart.

(2) Survey plat. No later than the submission of the certification of closure of each hazardous waste disposal unit, the owner or operator must submit to the local zoning authority, or the authority with jurisdiction over local land use, and to the county clerk in the county in which the facility is located, and to the commissioner, a survey plat indicating the location and dimensions of landfill cells or other hazardous waste disposal units with respect to permanently surveyed benchmarks. This plat must be prepared and certified by a professional land surveyor registered in New York. The plat filed with the local zoning authority, or the authority with jurisdiction over local land use, and with the county clerk in the county in which the facility is located, must contain a note, prominently displayed, which states the owner's or operator's obligation to restrict disturbance of the hazardous waste disposal unit in accordance with the applicable regulations of this section.

(g)Post-closure care and use of property.

(1)

(i) Post-closure care for each hazardous waste management unit subject to the requirements of subdivisions (g) through (j) of this section must begin after completion of closure of the unit and continue for 30 years after that date, and must consist of at least the following:

(a) monitoring and reporting in accordance with the requirements of sections 373-3.6, 373-3.11, 373-3.12, 373-3.13 and 373-3.14 of this Subpart; and

(b) maintenance and monitoring of waste containment systems in accordance with the requirements of sections 373-3.6, 373-3.11, 373-3.12, 373-3.13 and 373-3.14 of this Subpart.

(ii) Any time preceding closure of a hazardous waste management unit subject to post-closure care requirements or final closure, or any time during the post-closure period for a particular hazardous waste disposal unit, the commissioner may:

(a) shorten the post-closure care period applicable to the hazardous waste management unit, or facility (if all disposal units have been closed), if the commissioner finds that the reduced period is sufficient to protect human health and the environment (e.g., leachate or groundwater monitoring results, characteristics of the hazardous wastes, application of advanced technology, or alternative disposal, treatment or reuse techniques indicate that the hazardous waste management unit or facility is secure); or

(b) extend the post-closure care period applicable to the hazardous waste management unit or facility if the commissioner finds that the extended period is necessary to protect human health and the environment (e.g.,leachate or groundwater monitoring results indicate a potential for migration of hazardous wastes at levels which may be harmful to human health and the environment).

(2) The commissioner may require, at partial and final closure, continuation of any of the security requirements of section 373-3.2(e) of this Subpart during part or all of the post-closure period when:

(i) hazardous wastes may remain exposed after completion of partial or final closure; or

(ii) access by the public or domestic livestock may pose a hazard to human health.

(3) Post-closure use of property on or in which hazardous wastes remain after partial or final closure must never be allowed to disturb the integrity of the final cover, liners, or any other components of the containment system, or the function of the facility's monitoring system, unless the commissioner finds that the disturbance:

(i) is necessary to the proposed use of the property, and will not increase the potential hazard to human health or the environment; or

(ii) is necessary to reduce a threat to human health or the environment.

(4) All post-closure care activities must be in accordance with the provisions of the approved post-closure plan as specified in subdivision (h) of this section.

(h)Post-closure plan; amendment of plan.

(1) Written plan. By May 19, 1981, the owner or operator of a hazardous waste disposal unit must have a written post-closure plan. An owner or operator of a surface impoundment or waste pile from which the owner or operator intends to remove all hazardous wastes at closure must prepare a post-closure plan and submit it to the commissioner within 90 days of the date that the owner or operator or commissioner determines that the hazardous waste management unit or facility must be closed as a landfill, subject to the requirements of subdivisions (g) through (j) of this section.

(2) Until final closure of the facility, a copy of the most current post-closure plan must be furnished to the commissioner upon request, including request by mail. In addition, for facilities without approved post-closure plans, it must also be provided during site inspections, on the day of inspection, to any officer, employee or representative of the department who is duly designated by the commissioner. After final closure has been certified, the person or office specified in paragraph (3) of this subdivision must keep the approved post-closure plan during the post-closure period.

(3) For each hazardous waste management unit subject to the requirements of this subdivision, the post-closure plan must identify the activities that will be carried on after closure of each disposal unit and the frequency of these activities, and include at least:

(i) a description of the planned monitoring activities and frequencies at which they will be performed to comply with sections 373-3.6, 373-3.11, 373-3.12, 373-3.13 and 373-3.14 of this Subpart during the post-closure care period;

(ii) a description of the planned maintenance activities, and frequencies at which they will be performed, to ensure:

(a) the integrity of the cap and final cover or other containment systems in accordance with the requirements of sections 373-3.11, 373-3.12, 373-3.13 and 373-3.14 of this Subpart; and

(b) the function of the monitoring equipment in accordance with the requirements of sections 373-3.6, 373-3.11, 373-3.12, 373-3.13 and 373-3.14 of this Subpart;

(iii) the name, address and phone number of the person or office to contact about the hazardous waste disposal unit or facility during the post-closure care period;

(iv) for facilities subject to subdivision (k) of this section, provisions that satisfy the requirements of subparagraphs (k)(1)(i) and (iii) of this section; and

(v) for facilities where the department has applied alternative requirements at a regulated unit under sections 373-3.6(a)(6), and/or 373-3.8(a)(4) of this Subpart and/or paragraph (a)(4) of this section, either the alternative requirements that apply to the regulated unit, or a reference to the enforceable document containing those requirements.

(4) Amendment of plan. The owner or operator may amend the post-closure plan at any time during the active life of the facility or during the post-closure care period. An owner or operator with an approved post-closure plan must submit a written request to the commissioner to authorize a change in the approved post-closure plan. The written request must include a copy of the amended post-closure plan for approval by the commissioner.

(i) The owner or operator must amend the post-closure plan whenever:

(a) changes in operating plans or facility design affect the post-closure plan;

(b) events which occur during the active life of the facility, including partial and final closures, affect the post-closure plan; or

(c) the owner or operator requests the department to apply alternative requirements to a regulated unit under sections 373-3.6(a)(6), and/or 373-3.8(a)(4) of this Subpart and/or paragraph (a)(4) of this section.

(ii) The owner or operator must amend the post-closure plan at least 60 days prior to the proposed change in facility design or operation, or no later than 60 days after an unexpected event has occurred which has affected the post-closure plan.

(iii) An owner or operator with an approved post-closure plan must submit the modified plan to the commissioner at least 60 days prior to the proposed change in facility design or operation, or no later than 60 days after an unexpected event has occurred which has affected the post-closure plan. If an owner or operator of a surface impoundment or waste pile who intended to remove all hazardous waste at closure in accordance with sections 373-3.11(f) and 373-3.12(g) of this Subpart is required to close as a landfill in accordance with section 373-3.14(d), the owner or operator must submit a post-closure plan to the commissioner within 90 days of the determination by the owner or operator or commissioner that the unit must be closed as a landfill. If the amendment to the post-closure plan is a major modification according to the criteria in Subpart 373-1 of this Part, the modification to the plan will be approved according to the procedures in paragraph (6) of this subdivision and Part 621 of this Title.

(iv) The commissioner may request modifications to the plan under the conditions described in subparagraph (i) of this paragraph. An owner or operator with an approved post- closure plan must submit the modified plan no later than 60 days after the commissioner's request. If the amendment to the plan is considered a major modification according to the criteria in Subpart 373-1 of this Part, the modifications to the post-closure plan will be approved in accordance with the procedures in paragraph (6) of this subdivision. If the commissioner determines that an owner or operator of a surface impoundment or waste pile who intended to remove all hazardous wastes at closure must close the facility as a landfill, the owner or operator must submit a post-closure plan for approval to the commissioner within 90 days of the determination.

(5) The owner or operator of a facility with hazardous waste management units subject to these requirements must submit the post-closure plan to the commissioner at least 180 days before the date the owner or operator expects to begin partial or final closure of the first hazardous waste disposal unit. The date the owner or operator "expects to begin closure" of the first hazardous waste disposal unit must be either within 30 days after the date on which the hazardous waste management unit receives the known final volume of hazardous waste or, if there is a reasonable possibility that the hazardous waste management unit will receive additional hazardous wastes, no later than one year after the date on which the unit received the most recent volume of hazardous wastes. The owner or operator must submit the post-closure plan to the commissioner no later than 15 days after:

(i) termination of interim status (except when a permit is issued to the facility simultaneously with termination of interim status); or

(ii) issuance of a judicial decree or final orders under article 71 of ECL to cease receiving wastes or close.

(6) The commissioner will provide the owner or operator and the public, through a newspaper notice, the opportunity to submit written comments on the post-closure plan and request modifications to the plan no later than 30 days from the date of the notice. The commissioner will also, in response to a request or at his or her own discretion, hold a public hearing whenever such a hearing might clarify one or more issues concerning a post-closure plan. The commissioner will give public notice of the hearing at least 30 days before it occurs. (Public notice of the hearing may be given at the same time as notice of the opportunity for the public to submit written comments, and the two notices may be combined.) The commissioner will approve, modify or disapprove the plan within 90 days of its receipt. If the commissioner does not approve the plan, the owner or operator shall be provided with a detailed written statement of reasons for the refusal, and the owner or operator must modify the plan or submit a new plan for approval within 30 days after receiving such written statement. The commissioner will approve or modify this plan in writing within 60 days. If the commissioner modifies the plan, this modified plan becomes the approved post-closure plan. The commissioner must ensure that the approved post-closure plan is consistent with subdivisions (g)-(j) of this section. A copy of the modified plan with a detailed statement of reasons for the modifications must be mailed to the owner or operator.

(7) The post-closure plan and length of the post-closure care period may be modified any time prior to the end of the post-closure care period in either of the following two ways:

(i) The owner or operator or any member of the public may petition the commissioner to extend or reduce the post-closure care period applicable to a hazardous waste management unit or facility based on cause, or alter the requirements of the post-closure care period based on cause.

(a) The petition must include evidence demonstrating that:

(1) the secure nature of the hazardous waste management unit or facility makes the post-closure care requirements unnecessary or supports reduction of the post-closure care period specified in the current post-closure plan (e.g., leachate or groundwater monitoring results, characteristics of the wastes, application of advanced technology, or alternative disposal, treatment or reuse techniques indicating that the facility is secure); or

(2) the requested extension in the post-closure care period or alteration of post- closure care requirements is necessary to prevent threats to human health and the environment (e.g., leachate or groundwater monitoring results indicate a potential for migration of hazardous wastes at levels which may be harmful to human health and the environment).

(b) These petitions will be considered by the commissioner only when they present new and relevant information not previously considered by the commissioner. Whenever the commissioner is considering a petition, the commissioner will provide the owner or operator and the public, through a newspaper notice, the opportunity to submit written comments within 30 days of the date of the notice. The commissioner will also, in response to a request or at his or her own discretion, hold a public hearing whenever a hearing might clarify one or more issues concerning the post-closure plan. The commissioner will give the public notice of the hearing at least 30 days before it occurs. (Public notice of the hearing may be given at the same time as notice of the opportunity for written public comments, and the two notices may be combined.) After considering the comments, the commissioner will issue a final determination, based upon the criteria set forth in subparagraph (i) of this paragraph.

(c) If the commissioner denies the petition, the commissioner will send the petitioner a brief written response giving a reason for the denial.

(ii) The commissioner may tentatively decide to modify the post-closure plan if the commissioner deems it necessary to prevent threats to human health and the environment. The commissioner may propose to extend or reduce the post-closure care period applicable to a hazardous waste management unit or facility based on cause, or alter the requirements of the post-closure care period based on cause.

(a) The commissioner will provide the owner or operator and the affected public, through a newspaper notice, the opportunity to submit written comments within 30 days of the date of the notice and the opportunity for a public hearing as in clause (i)(b) of this paragraph. After considering the comments, the commissioner will issue a final determination.

(b) The commissioner will base the final determination upon the same criteria as required for petitions under clause (i)(a) of this paragraph. A modification of the post- closure plan may include, where appropriate, the temporary suspension rather than permanent deletion of one or more post-closure care requirements. At the end of the specified period of suspension, the commissioner would then determine whether the requirements should be permanently discontinued or reinstated to prevent threats to human health and the environment.

(i)Post-closure notices.

(1) No later than 60 days after certification of closure of each hazardous waste disposal unit, the owner or operator must submit to the local zoning authority, or the authority with jurisdiction over local land use, and to the county clerk in the county in which the facility is located, and to the commissioner, a record of the type, location and quantity of hazardous wastes disposed of within each cell or other disposal unit of the facility. For hazardous wastes disposed of before January 12, 1981, the owner or operator must identify the type, location and quantity of the hazardous wastes to the best of his or her knowledge and in accordance with any records the owner or operator has kept.

(2) Within 60 days of certification of closure of the first hazardous waste disposal unit, and within 60 days of certification of closure of the last hazardous waste disposal unit, the owner or operator must:

(i) record with the county clerk, in the county in which the facility is located, a notation on the deed to the facility property-or on some other instrument which is normally examined during title search-that will in perpetuity notify any potential purchaser of the property that:

(a) the land has been used to manage hazardous wastes;

(b) its use is restricted under 6 NYCRR 373-3.7; and

(c) the survey plat and record of the type, location and quantity of hazardous wastes disposed of within each cell or other hazardous waste disposal unit of the facility required by this subdivision and subdivision (f) of this section have been filed with the local zoning authority, or the authority with jurisdiction over local land use, and with the county clerk in the county in which the facility is located, and with the commissioner; and

(ii) submit a certification, signed by the owner or operator, that the notation specified in subparagraph (i) of this paragraph has been made, including a copy of the document in which the notation has been placed, to the commissioner.

(3) If the owner or operator, or any subsequent owner or operator, of the land upon which a hazardous waste disposal unit is located wishes to remove hazardous wastes and hazardous waste residues, the liner, if any, and all contaminated structures, equipment and soils, the owner or operator must request a modification to the approved post-closure plan in accordance with the requirements of paragraph (h)(7) of this section. The owner or operator must demonstrate that the removal of hazardous wastes will satisfy the criteria of paragraph (g)(3) of this section. By removing hazardous waste, the owner or operator may become a generator of hazardous waste and must manage it in accordance with all applicable requirements of Parts 372 and 373 of this Title. If the owner or operator is granted a permit modification or otherwise granted approval to conduct such removal activities, the owner or operator may request that the commissioner approve either:

(i) the removal of the notation on the deed to the facility property or other instrument normally examined during title search; or

(ii) the addition of a notation to the deed or instrument, indicating the removal of the hazardous waste.

(j)Certification of completion of post-closure care.

No later than 60 days after completion of the established post-closure care period for each hazardous waste disposal unit, the owner or operator must submit to the commissioner, by registered mail, a certification that the post-closure care period for the hazardous waste disposal unit was performed in accordance with the specifications in the approved post-closure plan. The certification must be signed by the owner or operator and an independent professional engineer registered in New York. Documentation supporting the professional engineer's certification must be furnished to the commissioner upon request until the commissioner releases the owner or operator from the financial assurance requirements for post- closure care under section 373-3.8(f)(8) of this Subpart.

(k)Post-closure requirements for facilities that obtain enforceable documents in lieu of post-closure permits.

(1) Owners and operators who are subject to the requirement to obtain a post-closure permit under section 373-1.2(e) of this Part, but who obtain enforceable documents in lieu of post-closure permits, as provided under section 373-1.2(e)(3) of this Part, must comply with the following requirements:

(i) the requirements to submit information about the facility in section 373-1.5(o) of this Part;

(ii) the requirements for facility-wide corrective action in section 373-2.6(l) of this Part;

(iii) the requirements of section 373-2.6(b) through (k) of this Part.

(2)

(i) The department, in issuing enforceable documents under this subdivision in lieu of permits, will assure a meaningful opportunity for public involvement which, at a minimum, includes public notice and opportunity for public comment:

(a) when the department becomes involved in a remediation at the facility as a regulatory or enforcement matter;

(b) on the proposed preferred remedy and the assumptions upon which the remedy is based, in particular those related to land use and site characterization; and

(c) at the time of a proposed decision that remedial action is complete at the facility. These requirements must be met before the department may consider that the facility has met the requirements of section 373-1.2(e)(3) of this Part, unless the facility qualifies for a modification to these public involvement procedures under subparagraph (ii) or (iii) of this paragraph.

(ii) If the department determines that even a short delay in the implementation of a remedy would adversely affect human health or the environment, the department may delay compliance with the requirements of subparagraph (i) of this paragraph and implement the remedy immediately. However, the department must assure involvement of the public at the earliest opportunity, and, in all cases, upon making the decision that additional remedial action is not needed at the facility.

(iii) The department may allow a remediation initiated prior to October 22, 1998 to substitute for corrective action required under a post-closure permit even if the public involvement requirements of subparagraph (i) of this paragraph have not been met so long as the department assures that notice and comment on the decision that no further remediation is necesssary to protect human health and the environment takes place at the earliest reasonable opportunity after October 22, 1998.

N.Y. Comp. Codes R. & Regs. Tit. 6 §§ 373-3.7

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