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Subpart 373-2: Final Status Standards For Owners and Operators Of Hazardous Waste Treatment, Storage and Disposal Facilities - Page 1

(Statutory Authority: Environmental Conservation Law Section 27-0900 et seq)

[Effective September 6, 2006]

[page 1 of 7]

Pages in this Part:
Sections 1 to Section 7
Section 8(a)-(i)
Section 8 (j)
Sections 9 to Section 13
Sections 14 to Section 27
Sections 28 to Section 29
Sections 30 to Appendix 33

Contents:

Sec.

§373-2.1 - General

(a) Purpose, Scope and Applicability.

(1) The purpose of this Subpart is to establish minimum State standards which define the acceptable management of hazardous waste.

(2) The standards in this Subpart apply to owners and operators of all facilities which treat, store, or dispose of hazardous waste, except as specifically provided otherwise in this Part or Part 371 of this Title.

(3) The requirements of this Subpart apply to a person disposing of hazardous waste by means of ocean disposal subject to a permit issued under the Marine Protection, Research, and Sanctuaries Act (see section 370.1(e) of this Title) only to the extent they are required by the exemption granted to such a person under 373-1.1(d) of this Part.

(Note: These Subpart 373-2 regulations do apply to the treatment or storage of hazardous waste before it is loaded onto an ocean vessel for incineration or disposal at sea.)

(4) The requirements of this Subpart apply to a person disposing of hazardous waste by means of underground injection subject to a permit issued under an Underground Injection Control (UIC) program approved or promulgated under the Safe Drinking Water Act only to the extent they are required by the exemption granted to such a person under section 373-1.1(d) of this Part (see section 370.1(e) of this Title).

(Note: These Subpart 373-2 regulations do apply to the above-ground treatment or storage of hazardous waste before it is injected underground.)

(5) The requirements of this Subpart apply to the owner or operator of a Publicly Owned Treatment Works which treats, stores, or disposes of hazardous waste only to the extent they are required by the exemption granted to such person under 373-1.1(d) of this Part).

(6) The requirements of this Subpart apply to those portions of a facility managing recyclable materials described in subparagraphs 371.1(g)(1)(ii) and (iv) of this Title only to the extent that the requirements of this Subpart are referred to in sections 374-1.3, 374-1.6, 374-1.7 or 374-1.8 or Subpart 374-2 of this Title.

(7) Universal waste handlers and transporters (as defined in subdivision 370.2(b) of this Title) are subject to regulation under Subpart 374-3, when handling the below listed universal wastes.

(i) Batteries as described in subdivision 374-3.1(b) of this Title;

(ii) Pesticides as described in subdivision 374-3.1 (c) of this Title;

(iii) Thermostats as described in subdivision 374-3.1(d) of this Title; and

(iv) Lamps as described in subdivision 374-3.1(e) of this Title.

(8) Subdivision 374-1.13(f) of this Title identifies when the requirements of this Subpart apply to the storage of military munitions classified as solid waste under subdivision 374-1.13(c) of this Title. The treatment and disposal of hazardous waste military munitions are subject to the applicable permitting, procedural, and technical standards in Parts 370 through 374 and 376 of this Title.

(9) The requirements of sections 373-2.2, 373-2.3, and 373-2.4 of this Subpart and subdivision 373-2.6(l) do not apply to remediation waste management sites. (However, some remediation waste management sites may be a part of a facility that is subject to a traditional RCRA permit because the facility is also treating, storing or disposing of hazardous wastes that are not remediation wastes. In these cases, sections 373-2.2, 373-2.3, and 373-2.4 of this Subpart, and subdivision 373-2.6(l) do apply to the facility subject to the traditional RCRA permit.) Instead of the requirements of sections 373-2.2, 373-2.3, and 373-2.4 of this Subpart, owners or operators of remediation waste management sites must:

(i) Obtain an EPA identification number by applying to the USEPA Region II Administrator using EPA Form 8700-12;

(ii) Obtain a detailed chemical and physical analysis of a representative sample of the hazardous remediation wastes to be managed at the site. At a minimum, the analysis must contain all of the information which must be known to treat, store or dispose of the waste according to this Subpart and Part 376 of this Title, and must be kept accurate and up to date;

(iii) Prevent people who are unaware of the danger from entering, and minimize the possibility for unauthorized people or livestock to enter onto the active portion of the remediation waste management site, unless the owner or operator can demonstrate to the Department that:

('a') Physical contact with the waste, structures, or equipment within the active portion of the remediation waste management site will not injure people or livestock who may enter the active portion of the remediation waste management site; and

('b') Disturbance of the waste or equipment by people or livestock who enter onto the active portion of the remediation waste management site, will not cause a violation of the requirements of this Subpart;

(iv) Inspect the remediation waste management site for malfunctions, deterioration, operator errors, and discharges that may be causing, or may lead to, a release of hazardous waste constituents to the environment, or a threat to human health. The owner or operator must conduct these inspections often enough to identify problems in time to correct them before they harm human health or the environment, and must remedy the problem before it leads to a human health or environmental hazard. Where a hazard is imminent or has already occurred, the owner/operator must take remedial action immediately;

(v) Provide personnel with classroom or on-the-job training on how to perform their duties in a way that ensures the remediation waste management site complies with the requirements of this part, and on how to respond effectively to emergencies;

(vi) Take precautions to prevent accidental ignition or reaction of ignitable or reactive waste, and prevent threats to human health and the environment from ignitable, reactive and incompatible waste;

(vii) For remediation waste management sites subject to regulation under sections 373-2.9 through 373-2.15 and section 373-2.24 of this Subpart, the owner/operator must design, construct, operate, and maintain a unit within a 100-year floodplain to prevent washout of any hazardous waste by a 100-year flood, unless the owner/operator can meet the demonstration of paragraph 373-2.2(j)(1);

(viii) Not place any non-containerized or bulk liquid hazardous waste in any salt dome formation, salt bed formation, underground mine or cave;

(ix) Develop and maintain a construction quality assurance program for all surface impoundments, waste piles and landfill units that are required to comply with paragraphs 373-2.11(b)(3)and (4), 373-2.12(b)(3) and (4), and paragraph 373-2.14(c)(3) and (4) at the remediation waste management site, according to the requirements of subdivision 373-2.2(k) of Subpart;

(x) Develop and maintain procedures to prevent accidents and a contingency and emergency plan to control accidents that occur. These procedures must address proper design, construction, maintenance, and operation of remediation waste management units at the site. The goal of the plan must be to minimize the possibility of, and the hazards from a fire, explosion, or any unplanned sudden or non-sudden release of hazardous waste or hazardous waste constituents to air, soil, or surface water that could threaten human health or the environment. The plan must explain specifically how to treat, store and dispose of the hazardous remediation waste in question, and must be implemented immediately whenever a fire, explosion, or release of hazardous waste or hazardous waste constituents which could threaten human health or the environment;

(xi) Designate at least one employee, either on the facility premises or on call (that is, available to respond to an emergency by reaching the facility quickly), to coordinate all emergency response measures. This emergency coordinator must be thoroughly familiar with all aspects of the facility's contingency plan, all operations and activities at the facility, the location and characteristics of waste handled, the location of all records within the facility, and the facility layout. In addition, this person must have the authority to commit the resources needed to carry out the contingency plan;

(xii) Develop, maintain and implement a plan to meet the requirements in subparagraphs (9)(ii) through (9)(vi) and (9)(ix) through (9)(x) of this subdivision; and

(xiii) Maintain records documenting compliance with subparagraphs (9)(i) through (9)(xii) of this subdivision.

(b) Relationship to interim status standards. A facility owner or operator who has fully complied with the requirements for interim status, as defined in section 373-1.3 of this Part, must comply with the regulations specified in Subpart 373-3 of this Part, in lieu of the regulations in this Subpart, until final administrative disposition of the permit application is made, except as provided under section 373-2.19 of this Subpart.

(c) Imminent hazard action. Notwithstanding any other provisions of these regulations, enforcement actions may be brought pursuant to section 71-0301 of the ECL or section 7003 of RCRA (see 370.1(e) of this Title).

§373-2.2 - General Facility Standards

(a) Applicability.

(1) The regulations in this section apply to owners and operators of all hazardous waste facilities, except as provided in section 373-2.1 of this Subpart and in paragraph (2) of this subdivision.

(2) Paragraph (j)(1) of this section applies only to facilities subject to regulations under sections 373-2.9 through 373-2.15 and 373-2.24 of this Subpart.

(b) Facility ownership transfer.

(1) The ownership or operation of a facility during its operating life or a disposal facility during the period of post-closure care shall be transferable only upon prior written approval of the department.

(2) Before transferring ownership or operation of a facility during its operating life, or of a disposal facility during the post-closure care period, the owner or operator must notify the new owner or operator in writing of the requirements of this Subpart and Subpart 373-1 of this Part.

(c) Identification Number. Every facility owner or operator must apply to EPA for an EPA identification number in accordance with the EPA notification procedures (45 FR 12746 et seq) (see section 370.1(e) of this Title).

(d) Required Notices.

(1) The owner or operator of a facility that has arranged to receive hazardous waste from a source outside of the United States must notify the Department in writing at least four (4) weeks in advance of the date on which the first shipment of a given waste is expected to arrive at the facility. The owner or operator of a facility that has arranged to receive hazardous waste from an OECD country, as defined in paragraph 372.5(h)(1) of this Title must also notify the EPA Regional Administer in writing at least four (4) weeks in advance of the date on which the first shipment of a given waste is expected to arrive at the facility. Notice of subsequent shipments of the same waste from the same foreign source is not required.

(2) The owner or operator of a facility that receives hazardous waste from an off-site source (except where the owner or operator is also the generator) must inform the generator in writing that he or she has the appropriate permit(s) for, and will accept, the waste the generator is shipping. The owner or operator must keep a copy of this written notice as Part of the operating record.

(e) General Waste Analysis.

(1) (i) Before an owner or operator treats, stores, or disposes of any hazardous wastes, or non-hazardous wastes if applicable under 373-2.7(d)(4), a detailed chemical and physical analysis of a representative sample of the wastes must be obtained. At a minimum, this analysis must contain all the information which must be known to treat, store, or dispose of the waste in accordance with the requirements of this Subpart and Part 376 of this Title.

(ii) The analysis may include data developed under Part 371 of this Title, and existing published or documented data on the hazardous waste or on hazardous waste generated from similar processes.

(Note: For example, the facility's records of analyses performed on the waste before the effective date of these regulations, or studies conducted on hazardous waste generated from processes similar to that which generated the waste to be managed at the facility, may be included in the data base required to comply with subparagraph (i) of this paragraph. The owner or operator of an off-site facility may arrange for the generator of the hazardous waste to supply part of the information required by subparagraph (i) of this paragraph, except as otherwise specified in paragraphs 376.1(g)(2) and (3). If the generator does not supply the information, and the owner or operator chooses to accept a hazardous waste, the owner or operator is responsible for obtaining the information required to comply with this section.)

(iii) The analysis must be repeated as necessary to ensure that it is accurate and up to date. At a minimum, the analysis must be repeated:

('a') when the owner or operator is notified, or has reason to believe, that the process or operation generating the hazardous wastes, or non-hazardous wastes if applicable under 373-2.7(d)(4), has changed; and

('b') for off-site facilities, when the results of the inspection required in subparagraph (iv) of this paragraph indicate that the hazardous waste received at the facility does not match the waste designated on the accompanying manifest or shipping paper.

(iv) The owner or operator of an off-site facility must inspect and, if necessary, analyze each hazardous waste movement received at the facility to determine whether it matches the identity of the waste specified on the accompanying manifest or shipping paper.

(2) The owner or operator must develop and follow a written waste analysis plan which describes the procedures which will be carried out to comply with paragraph (1) of this subdivision. This plan must be kept at the facility. At a minimum, the plan must specify:

(i) the parameters for which each hazardous waste, or non-hazardous waste if applicable under 373-2.7(d)(4), will be analyzed and the rationale for the selection of these parameters (i.e., how analysis of these parameters will provide sufficient information on the waste's properties to comply with paragraph (1) of this subdivision);

(ii) the test methods which will be used to test for these parameters;

(iii) the sampling method which will be used to obtain a representative sample of the waste to be analyzed. A representative sample may be obtained using either:

('a') one of the sampling methods described in Appendix 19 of this Title; or

('b') an equivalent sampling method;

(iv) the frequency with which the initial analysis of the waste will be reviewed or repeated to ensure that the analysis is accurate and up to date;

(v) for off-site facilities, the waste analyses that hazardous waste generators have agreed to supply;

(vi) where applicable, the methods that will be used to meet the additional waste analysis requirements for specific waste management methods as specified in subdivisions 373-2.2(i), 373-2.14(j), and 373-2.15(b), paragraphs 373-2.27(e)(4) and 373-2.28(n)(4), subdivision 373-2.29(d) of this Subpart, and subdivision 376.1(g) of this Title;

(vii) for surface impoundments exempted from land disposal restrictions under paragraph 376.1(d)(1), the procedures and schedules for:

('a') the sampling of impoundment contents;

('b') the analysis of test data; and

('c') the annual removal of residues which are not delisted under subdivision 370.3(c) of this Title and do exhibit a characteristic of hazardous waste, and which do not meet the treatment standards of section 376.4 of this Title.

(viii) For owners and operators seeking an exemption to the air emission standards of section 373-2.29 of this Subpart in accordance with subdivision 373-2.29(c) of this Subpart:

('a') If direct measurement is used for the waste determination, the procedures and schedules for waste sampling and analysis, and the results of the analysis of the test data to verify the exemption.

('b') If knowledge of the waste is used for the waste determination, any information prepared by the facility owner or operator or by the generator of the hazardous waste, if the waste is received from off-site, that is used as the basis for knowledge of the waste.

(3) For off-site facilities, the waste analysis plan required in paragraph (2) of this subdivision must also specify the procedures which will be used to inspect and, if necessary, analyze each movement of hazardous waste received at the facility to ensure that it matches the identity of the waste designated on the accompanying manifest or shipping paper. At a minimum, the plan must describe:

(i) the procedures which will be used to determine the identity of each movement of waste managed at the facility;

(ii) the sampling method which will be used to obtain a representative sample of the waste to be identified, if the identification method includes sampling; and

(iii) the procedures that the owner or operator of an off-site landfill receiving containerized hazardous waste will use to determine whether a hazardous waste generator or treater has added a biodegradable sorbent to the waste in the container.

(f) Security.

(1) The owner or operator must prevent the unknowing entry, and minimize the possibility for the unauthorized entry, of persons or livestock onto the active portion of the facility, unless the owner or operator can demonstrate to the commissioner that:

(i) physical contact with the waste, structures, or equipment within the active portion of the facility will not inure unknowing or unauthorized persons or livestock which may enter the active portion of a facility; and

(ii) disturbance of the waste or equipment, by the unknowing or unauthorized entry of persons or livestock onto the active portion of a facility, will not cause a violation of the requirements of this Part.

(2) Unless the owner or operator has made a successful demonstration under subparagraphs (1)(i) and (1)(ii) of this subdivision, a facility must have:

(i) a 24-hour surveillance system (e.g., television monitoring or surveillance by guards or facility personnel) which continuously monitors and controls entry onto the active portion of the facility; or

(ii) ('a') an artificial or natural barrier (e.g., a fence in good repair or a fence combined with a cliff), which completely surrounds the active portion of the facility; and

('b') a means to control entry, at all times, through the gates or other entrances to the active portion of the facility (e.g., an attendant, television monitors, locked entrance, or controlled roadway access to the facility).

(3) Unless the owner or operator has made a successful demonstration under subparagraphs (1)(i) and (1)(ii) of this subdivision, a sign with the legend "Danger-Unauthorized Personnel Keep Out", must be posted at each entrance of the active portion of a facility, and at other locations, in sufficient numbers to be seen from any approach to this active portion. The legend must be written in English and written in French in counties bordering the Canadian province of Quebec. The legend must be legible from a distance of at least 25 feet. Existing signs with a legend other than "Danger-Unauthorized Personnel Keep Out: may be used if the legend on the sign indicates that only authorized personnel are allowed to enter the active portion, and that entry onto the active portion can be dangerous.

(g) General inspection requirements.

(1) The owner or operator must inspect the facility for malfunctions and deterioration, operator errors, and discharges which may be causing or may lead to:

(i) release of hazardous waste constituents to the environment; or

(ii) a threat to human health. The owner or operator must conduct these inspections often enough or identify problems in time to correct them before they harm human health or the environment.

(2) (i) The owner or operator must develop and follow a written schedule for inspecting monitoring equipment, safety and emergency equipment, security devices, and operating and structural equipment (such as dikes and sump pumps) that are important to preventing, detecting, or responding to environmental or human health hazards.

(ii) This schedule must be kept at the facility.

(iii) The schedule must identity the types of problems (e.g., malfunctions or deterioration) which are to be looked for during the inspection (e.g., inoperative sump pump, leaking fitting, eroding dike, etc.)

(iv) The frequency of inspection may vary for the items on the schedule. However, the frequency should be based on the rate of deterioration of the equipment and the probability of an environmental or human health incident if the deterioration, malfunction, or any operator error goes undetected between inspections. Areas subject to spills, such as loading and unloading areas, must be inspected daily when in use. At a minimum, the inspection schedule must include the items and frequencies called for in subdivisions 373-2.9(e), 373-2.10(d) and (f), 373-2.11(d), 373-2.12(e), 373-2.13(f), 373-2.14(e), 373-2.15(g), 373-2.24(c), 373-2.27 (d), 373-2.28(c), (d) and (i), and 373-2.29(d) through (j) of this Subpart, where applicable.

(3) The owner or operator must remedy any deterioration or malfunction of equipment or structures which the inspection reveals on a schedule which ensures that the problem does not lead to an environmental or human health hazard. Where a hazard is imminent or has already occurred, remedial action must be taken immediately.

(4) The owner or operator must record inspections in an inspection log or summary. These records must be kept for at least three years from the date of inspection. At a minimum, these records must include the date and time of the inspection, the name of the inspector, a notation of the observations made, and the date and nature of any repairs or other remedial actions.

(h) Personnel training.

(1) (i) Facility personnel must successfully complete a program of classroom instruction or on-the-job training that teaches them to perform their duties in a way that ensures the facility's compliance with the requirements of this Part. The owner or operator must ensure that this program includes all the elements described in the document required under subparagraph (4)(iii) of this subdivision.

(ii) This program must be directed by a person trained in hazardous waste management procedures, and must include instruction which teaches facility personnel hazardous waste management procedures (including contingency plan implementation) relevant to the positions in which they are employed.

(iii) At a minimum, the training program must be designed to ensure that facility personnel are able to respond effectively to emergencies by familiarizing them with emergency procedures, emergency equipment, and emergency systems, including where applicable:

('a') procedures for using, inspecting, repairing, and replacing facility emergency and monitoring equipment;

('b') key parameters for automatic waste feed cut-off systems;

('c') communication or alarm systems;

('d') response to fires or explosions;

('e') response to groundwater contamination incidents; and

('f') shutdown of operations.

(2) Facility personnel must successfully complete the program required in subdivision (a) of this section within six months after the effective date of these regulations or six months after the date of their employment or an assignment to a facility, whichever is later. Employees hired after the effective date of these regulations must not work in unsupervised positions until they have completed the training requirements of paragraph (1) of this subdivision.

(3) Facility personnel must take part in an annual review of the initial training required in paragraph (1) of this subdivision.

(4) The owner or operation must maintain the following documents and records at the facility:

(i) the job title for each position at the facility related to hazardous waste management, and the name of the employee filling each job;

(ii) a written job description for each position listed under subparagraph (i) of this paragraph. This description may be consistent in its degree of specificity with descriptions for other similar positions in the same company location or bargaining unit, but must include the requisite skill, education or other qualifications, and duties of employees assigned to each position;

(iii) a written description of the type and amount of both introductory and continuing training that will be given to each person filling a position listed under subparagraph (i) of this paragraph; and

(iv) records that document that the training or job experience required under paragraphs (1), (2), and (3) of this subdivision has been given to, and completed by, facility personnel.

(5) Training records on current personnel must be kept until closure of the facility; training records on former employees must be kept for at least three years from the date the employee last worked at the facility. Personnel training records may accompany personnel transferred within the same company.

(Note: Owners and operators are required to submit with the permit application, an outline of the training program used (or to be used) at the facility and brief description of how the training program is designed to meet actual job tasks).

(i) General requirements for ignitable, reactive, or incompatible wastes.

(1) The owner or operator must take precautions to prevent accidental ignition or reaction of ignitable or reactive waste. This waste must be separated and protected from sources of ignition or reaction including, but not limited to: open flames, smoking, cutting and welding, hot surfaces, frictional heat, sparks (static, electrical, or mechanical), spontaneous ignition (e.g., from heat-producing chemical reactions), and radiant heat. While ignitable or reactive waste is being handled, the owner or operator must confine smoking and open flame to specially designated locations. "No Smoking" signs must be conspicuously placed wherever there is a hazard from ignitable or reactive waste.

(2) Where specifically required by other sections of this Part, the owner or operator of a facility that treats, stores or disposes of ignitable or reactive waste, or mixes incompatible wastes or incompatible wastes and other materials, must take precautions to prevent reactions which:

(i) generate extreme heat or pressure, fire or explosions, or violent reactions;

(ii) produce uncontrolled toxic mists, fumes, dusts, or gases in sufficient quantities to threaten human health or the environment;

(iii) produce uncontrolled flammable fumes or gases in sufficient quantities to pose a risk of fire or explosions;

(iv) damage the structural integrity of the device or facility; or

(v) through other like means threaten human health or the environment.

(3) When required to comply with paragraphs (1) or (2) of this subdivision, the owner or operator must document that compliance. This documentation may be based on references to published scientific or engineering waste analyses (as specified in subdivision (e) of this section), or the results of the treatment of similar wastes by similar treatment processes and under similar operating conditions.

(j) Location standards.

(1) (i) Floodplains. A facility located in a 100-year floodplain must be designed, constructed, operated, and maintained to prevent washout of any hazardous waste by a 100-year flood, unless the owner or operator can demonstrate to the commissioner's satisfaction that:

('a') procedures are in effect which will cause the waste to be removed safely, before flood waters can reach the facility, to a location where the wastes will not be vulnerable to flood waters; or

('b') for existing surface impoundments, waste piles, land treatment units, landfills, and miscellaneous units, no adverse effects on human health or the environment will result if washout occurs, considering:

('1') the volume and physical and chemical characteristics of the waste in the facility;

('2') the concentration of hazardous constituents that would potentially affect surface waters as a result of washout;

('3') the impact of such concentrations on the current or potential uses of and water quality standards established for the affected surface waters; and

('4') the impact of hazardous constituents on the sediments of affected surface waters or the soils of the 100-year floodplain that could result from washout.

(Comment: The location where wastes are moved must be a facility which is either permitted by EPA under 40 CFR Part 270, authorized to manage hazardous waste by the State under 6 NYCRR Part 373, authorized to manage hazardous waste by another state with a hazardous waste management program authorized under 40 CFR Part 271, or in interim status under 40 CFR Parts 270 and 265 (see section 370.1(e) of this Title)).

(ii) As used in subparagraph (1)(i) of this subdivision:

('a') "100-year floodplain" means any land area which is subject to a one percent or greater chance of flooding in any given year from any source.

('b') "Washout" means the movement of hazardous waste from the active portion of the facility as a result of flooding.

('c') "100-year flood" means a flood that has a one percent change of being equaled or exceeded in any given year.

(2) Salt dome formations, salt bed formations, underground mines, and caves. The placement of any non-containerized or bulk liquid hazardous waste in any salt dome formation, salt bed formation, underground mine or cave is prohibited.

(k) Construction quality assurance program.

(1) CQA program.

(i) A construction quality assurance (CQA) program is required for all surface impoundment, waste pile, and landfill units that are required to comply with paragraphs 373-2.11(b)(3) and (4), 373-2.12(b)(3) and (4), and 373-2.14(c)(3) and (4). The program must ensure that the constructed unit meets or exceeds all design criteria and specifications in the permit. The program must be developed and implemented under the direction of a CQA officer who is a professional engineer registered in New York State.

(ii) The CQA program must address the following physical components, where applicable:

('a') foundations;

('b') dikes;

('c') low-permeability soil liners;

('d') geomembranes (flexible membrane liners);

('e') leachate collection and removal systems and leak detection systems; and

('f') final cover systems.

(2) Written CQA plan. The owner or operator of units subject to the CQA program under paragraph (1) of this subdivision must develop and implement a written CQA plan. The plan must identify steps that will be used to monitor and document the quality of materials and the condition and manner of their installation. The CQA plan must include:

(i) Identification of applicable units, and a description of how they will be constructed.

(ii) Identification of key personnel in the development and implementation of the CQA plan, and CQA officer qualifications.

(iii) A description of inspection and sampling activities for all unit components identified in subparagraph (1)(ii) of this subdivision, including observations and tests that will be used before, during, and after construction to ensure that the construction materials and the installed unit components meet the design specifications. The description must cover: sampling size and locations; frequency of testing; data evaluation procedures; acceptance and rejection criteria for construction materials; plans for implementing corrective measures; and data or other information to be recorded and retained in the operating record under subdivision 373-2.5(c).

(3) Contents of program.

(i) The CQA program must include observations, inspections, tests, and measurements sufficient to ensure:

('a') Structural stability and integrity of all components of the unit identified in subparagraph (1)(ii) of this subdivision;

('b') Proper construction of all components of the liners, leachate collection and removal system, leak detection system, and final cover system, according to permit specifications and good engineering practices, and proper installation of all components (e.g., pipes) according to design specifications;

('c') Conformity of all materials used with design and other material specifications under subdivisions 373-2.11(b), 373-2.12(b), and 373-2.14(c).

(ii) The CQA program shall include test fills for compacted soil liners, using the same compaction methods as in the full scale unit, to ensure that the liners are constructed to meet the hydraulic conductivity requirements of subclauses 373-2.11(b)(3)(i)('a')('2'), 373-2.12(b)(3)(i)('a')('2'), and 373-2.14(c)(3)(i)('a')('2') in the field. Compliance with the hydraulic conductivity requirements must be verified by using in-situ testing on the constructed test fill. The Commissioner may accept an alternative demonstration, in lieu of a test fill, where data are sufficient to show that a constructed soil liner will meet the hydraulic conductivity requirements of subclauses 373-2.11(b)(3)(i)('a')('2'), 373-2.12(b)(3)(i) ('a')('2'), and 373-2.14(c)(3)(i)('a')('2') in the field.

(4) Certification. Waste shall not be received in a unit subject to subdivision 373-2.2(k) until the owner or operator has submitted to the Commissioner by certified mail or hand delivery a certification signed by the CQA officer that the approved CQA plan has been successfully carried out and that the unit meets the requirements of paragraphs 373-2.11(b)(3) or (4), 373-2.12(b)(3) or (4), or 373-2.14(c)(3) or (4); and the procedure in clause 373-1.6(a)(12)(ii)('b') of this Title has been completed. Documentation supporting the CQA officer's certification must be furnished to the Commissioner upon request.

§373-2.3 - Preparedness and Prevention

(a) Applicability. The regulations in this section apply to owners and operators of all hazardous waste facilities, except as section 373-2.1(a) of this Subpart provides otherwise.

(b) Design and operation of facility. Facilities must be designed, constructed, maintained, and operated to minimize the possibility of a fire, explosion or any unplanned sudden or non-sudden release of hazardous waste or hazardous waste constituents to air, soil, or surface water which could threaten human health or the environment.

(c) Required equipment. All facilities must be equipped with the following, unless it can be demonstrated to the commissioner that none of the hazards posed by waste handled at the facility could require a particular kind of equipment specified below:

(1) an internal communications or alarm system capable of providing immediate emergency instruction (voice or signal) to facility personnel;

(2) a device, such as a telephone (immediately available at the scene of operations) or a hand-held two-way radio, capable of summoning emergency assistance from local police departments, fire departments, or State or local emergency response teams;

(3) portable fire extinguishers, fire control equipment (including special extinguishing equipment, such as that using foam, inert gas, or dry chemicals), spill control equipment, and decontamination equipment; and

(4) water at adequate volume and pressure to supply water hose streams, foam producing equipment, automatic sprinklers, or water spray systems.

(Note: Subpart 373-1 of this Part requires that an owner or operator who wishes to make the demonstration referred to above must do so with the permit application.)

(d) Testing and maintenance of equipment. All facility communications or alarm systems, fire protection equipment, spill control equipment, and decontamination equipment, where required, must be tested and maintained as necessary to assure its proper operation in time of emergency.

(e) Access to communications or alarm system.

(1) Whenever hazardous waste is being poured, mixed, spread, or otherwise handled, all personnel involved in the operation must have immediate access to an internal alarm or emergency communication device either directly or through visual or voice contact with another employee, unless the commissioner has ruled that such a device is not required under subdivision (c) of this section.

(2) If there is ever just one employee on the premises while the facility is operating, the employee must have immediate access to a device, such as a telephone (immediately available at the scene of operation) or a hand-held two-way radio, capable of summoning external emergency assistance, unless the commissioner has ruled that such a device is not required under subdivision (c) of this section.

(f) Required aisle space. The owner or operator must maintain aisle space to allow the unobstructed movement of personnel, fire protection equipment, spill control equipment, and decontamination equipment to any area of facility operation in an emergency unless it can be demonstrated to the commissioner that aisle space is not needed for any of these purposes.

(Comment: Subpart 373-1 of this Part requires that an owner or operator who wishes to make the demonstration referred to above must do so with the permit application.)

(g) Arrangements with local authorities.

(1) The owner or operator must attempt to make the following arrangements as appropriate for the type of waste handled at the facility and the potential need for the services of these organizations:

(i) arrangements to familiarize police, fire departments, and emergency response teams with the layout of the facility, properties of hazardous waste handled at the facility and associated hazards, places where facility personnel would normally be working, entrances to and roads inside the facility, and possible evacuation routes;

(ii) where more than one police and fire department might respond to an emergency, agreements designating primary emergency authority to a specific police and a specific fire department, and agreements with any others to provide support to the primary emergency authority;

(iii) agreements with State emergency response teams, emergency response contractors, and equipment suppliers; and

(iv) arrangements to familiarize local hospitals with the properties of hazardous waste handled at the facility and the types of injuries or illnesses which could result from fires, explosions, or releases at the facility.

(2) Where local authorities decline to enter into such arrangements, the owner or operator must document the refusal in the operating record.

§373-2.4 - Contingency Plan and Emergency Procedures

(a) Applicability. The regulations in this section apply to owners and operators of all hazardous waste facilities, except as section 373-2.1(a) of this Subpart provides otherwise.

(b) Purpose and implementation of contingency plan.

(1) Each owner or operator must have a contingency plan for this facility. The contingency plan must be designed to minimize hazards to human health or the environment from fires, explosions, or any unplanned sudden or non-sudden release of hazardous waste or hazardous waste constituents to air, soil, or surface water.

(2) The provisions of the plan must be carried out immediately whenever there is a fire, explosion, or release of hazardous waste or hazardous waste constituents which could threaten human health or the environment.

(c) Content of contingency plan.

(1) The contingency plan must describe the actions facility personnel must take to comply with subdivision (b) and (g) of this section in response to fires, explosions, or any unplanned sudden or non-sudden release of hazardous waste or hazardous waste constituents to air, soil, or surface water at the facility.

(2) If the owner or operator has already prepared a Spill Prevention, Control, and Countermeasures (SPCC) Plan as defined in section 610.2(j) of this Title and 40 CFR Part 300, or some other emergency or contingency plan, that plan need only be amended to incorporate hazardous waste management provisions that are sufficient to comply with the requirements of this Subpart (see section 370.1(e) of this Title).

(3) The plan must describe arrangements agreed to by local police departments, fire departments, hospitals, contractors, and State and local emergency response teams to coordinate emergency services, pursuant to section 373-2.3(g) of this Subpart.

(4) The plan must list names, addresses, and phone numbers (office and home) of all persons qualified to act as emergency coordinator (see subdivision (f) of this section) and this list must be kept up to date. Where more than one person is listed, one must be named as primary emergency coordinator and others must be in the order in which they will assume responsibility as alternates. For new facilities, this information must be supplied to the commissioner at the time of certification, rather than at the time of permit application.

(5) The plan must include a list of all emergency equipment at the facility (such as fire extinguishing systems, spill control equipment, communications and alarm systems (internal and external), and decontamination equipment), where this equipment is required. This list must be kept up to date. In addition, the plan must include the location and a physical description of each item on the list, and a brief outline of its capabilities.

(6) The plan must include an evacuation plan for facility personnel where there is a possibility that evacuation could be necessary. This plan must describe signal(s) to be used to begin evacuation, evacuation routes, and alternate evacuation routes (in cases where the primary routes could be blocked by releases of hazardous waste or fires).

(d) Copies of contingency plan. A copy of the contingency plan and all revisions to the plan must be:

(1) maintained at the facility; and

(2) submitted to all local police departments, fire departments, hospitals, and State and local emergency response teams that may be called upon to provide emergency services.

(Note: The contingency plan must be submitted to the commissioner with the permit application and, after modification or approval, will become a condition of any permit issued.)

(e) Amendment of contingency plan. All amendments to the contingency plans must be approved by the commissioner in accordance with section 373-1.7 of this Part (permit modifications). The contingency plan must be reviewed, and immediately amended, if necessary, whenever:

(1) the facility permit is revised;

(2) the plan fails in an emergency;

(3) the facility changes - in its design, construction, operation, maintenance, or other circumstances - in a way that materially increases the potential for fires, explosions, or releases of hazardous waste or hazardous waste constituents, or changes the response necessary in an emergency;

(4) the list of emergency coordinators changes; or

(5) the list of emergency equipment changes.

(Note: A change in the lists of facility emergency coordinators or equipment in the contingency plan constitutes a minor modification to the facility permit to which the plan is a condition.)

(f) Emergency coordinator. At all times, there must be at least one employee either on the facility premises or on call (i.e., available to respond to an emergency by reaching the facility within a short period of time) with the responsibility for coordinating all emergency response measures. This emergency coordinator must be thoroughly familiar with all aspects of the facility's contingency plan, all operations and activities at the facility, the location and characteristics of waste handled, the location of all records within the facility, and the facility layout. In addition, this person must have the authority to commit the resources needed to carry out the contingency plan.

(Note: The emergency coordinator's responsibilities are more fully spelled out in subdivision (g) of this section. Applicable responsibilities for the emergency coordinator vary, depending on factors such as type and variety of waste(s) handled by the facility, and type and complexity of the facility.)

(g) Emergency Procedures.

(1) Whenever there is an imminent or actual emergency situation, the emergency coordinator (or the emergency coordinator's designee when the emergency coordinator is on call) must immediately:

(i) activate internal facility alarms or communication systems, where applicable, to notify all facility personnel; and

(ii) notify appropriate State or local agencies with designated response roles if their help is needed.

(2) Whenever there is a release, fire, or explosion, the emergency coordinator must immediately identify the character, exact source, amount and aerial extent of any released materials. The emergency coordinator may do this by observation or review of facility records or manifests and, if necessary, by chemical analysis.

(3) Concurrently, the emergency coordinator must assess possible hazards to human health or the environment that may result from the release, fire, or explosion. This assessment must consider both direct and indirect effects of the release, fire, or explosion (e.g., the effects of any toxic, irritating, or asphyxiating gases that are generated, or the effects of any hazardous surface water run-off from water or chemical agents used to control fire and heat-induced explosions).

(4) If the emergency coordinator determines that the facility has had a release, fire, or explosion which could threaten human health or the environment outside the facility, the findings must be reported as follows:

(i) If the emergency coordinator's assessment indicates that evacuation of local areas may be advisable, appropriate local authorities must be immediately notified. The emergency coordinator must be available to help appropriate officials decide whether local areas should be evacuated.

(ii) The emergency coordinator must immediately notify both the department (using the New York State 24-hour oil and hazardous material spill notification number (518) 457-7362) and either the government official designated as the on-scene coordinator for that geographical area (in the applicable regional contingency plan under 40 CFR Part 300 (see 6 NYCRR 370.1(e)), or the National Response Center (using their 24-hour toll free number 800/424-8802). The report must include:

('a') name and telephone number of reporter;

('b') name and address of facility;

('c') time and type of incident (e.g., release, fire);

('d') name and quantity of material(s) involved, to the extent known;

('e') the extent of injuries, if any; and

('f') the possible hazards to human health, or the environment, outside the facility.

(5) During an emergency, the emergency coordinator must take all reasonable measures necessary to ensure that fires, explosions, and releases do not occur, recur, or spread to other hazardous waste at the facility. These measures must include, where applicable, stopping processes and operations, collecting and containing released waste, and removing or isolating containers.

(6) If the facility stops operations in response to a fire, explosion, or release, the emergency coordinator must monitor for leaks, pressure buildup, gas generation or ruptures in valves, pipes, or other equipment, wherever this is appropriate.

(7) Immediately after an emergency, the emergency coordinator must provide for treating, storing, or disposing of recovered waste, contaminated soil or surface water, or any other material that results from a release, fire, or explosion at the facility.

(Comment: Unless the owner or operator can demonstrate, in accordance with section 371.1(d)(3) or (4) of this Title, that the recovered material is not a hazardous waste, the owner or operator becomes a generator of hazardous waste and must manage it in accordance with all applicable requirements of Part 372 of this Title and this Subpart).

(8) The emergency coordinator must ensure that, in the affected area(s) of the facility:

(i) no waste that may be incompatible with the released material is treated, stored, or disposed of until cleanup procedures are completed; and

(ii) all emergency equipment listed in the contingency plan is cleaned and fit for its intended use before operations are resumed.

(9) The owner or operator must notify the commissioner, and appropriate State and local authorities, that the facility is in compliance with paragraph (8) of this subdivision before operations are resumed in the affected area(s) of the facility.

(10) The owner or operator must note in the operating record the time, date, and details of any incident that requires implementing the contingency plan. Within 15 days after the incident, the owner or operator must submit a written report on the incident to the commissioner. The report must include:

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

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

(iii) date, time, and type of incident (e.g., fire, explosion);

(iv) name and quantity of material(s) involved;

(v) the extent of injuries, if any;

(vi) an assessment of actual or potential hazards to human health or the environment, where this is applicable; and

(vii) estimated quantity and disposition of recovered material that resulted from the incident.

§373-2.5 - Manifest System, Recordkeeping and Reporting

(a) Applicability. The regulations in this section apply to owners and operators of both on-site and off-site facilities, except as subdivision 373-2.1(a) of this Subpart provides otherwise. Subdivisions (b) and (f) of this section do not apply to owners and operators of on-site facilities that do not receive any hazardous waste from off-site sources. Subparagraph 373-2.5(c)(2)(ix) only applies to permittees of facilities that treat, store, or dispose of hazardous waste on-site where such wastes are generated.

(b) Manifest requirements. A treatment, storage or disposal facility shipping hazardous wastes off-site or offering hazardous wastes for shipment off-site must comply with all generator standards as specified in section 372.2 of this Title. If a facility receives hazardous waste accompanied by a manifest, the owner or operator, or his or her agent, must comply with the requirements of this subdivision.

(1) Use of manifest system.

(i) ('a') If a facility receives hazardous waste accompanied by a manifest, the owner, operator or his/her agent must:

('1') complete line 19 of the manifest, Hazardous Waste Report Management Method Codes, for each waste received and accepted, using the codes established in the annual report instructions and forms referenced in subdivision 373-2.5(e) of this section; and

('2') sign and date the manifest as indicated in clause (i)('b') of this subparagraph to certify that the hazardous waste covered by the manifest was received, that the hazardous waste was received except as noted in the discrepancy space of the manifest, or that the hazardous waste was rejected as noted in the manifest discrepancy space.

('b') If a facility receives a hazardous waste shipment accompanied by a manifest, the owner, operator or his/her agent must:

('1') determine that all portions of the manifest, except that portion filled out by the owner or operator of the facility, have been completed. For example, if the facility is not providing a hazardous waste management code in item 19 that reflects the ultimate disposal method for the hazardous waste, the owner, operator or his/her agent must ensure that the state code in Box 13 designating the ultimate disposal method for the hazardous waste is completed. A completed form includes signatures and all certifications required from the generator and the initial and delivering transporters. In those cases where the owner or operator completes any of the generator's portions of the manifest (items 1-14), the owner or operator assumes joint responsibility with the generator for the accuracy and completeness of those portions he or she completed;

('2') Sign and date, by hand, each copy of the manifest;

('3') Note any discrepancies (as defined in clause ('d') of this subparagraph) on each copy of the manifest;

('4') immediately give the transporter at least one copy of the manifest;

('5') within 10 calendar days of delivery, mail a copy of the manifest to the generator, the generator State and the destination State (if different from the generator State), making legible photocopies as necessary. Mail the Department copy to: New York State Department of Environmental Conservation, Division of Solid & Hazardous Materials, Manifest Section, 625 Broadway, Albany, New York 12233-7252. Facilities do not need to distribute manifest copies to states other than New York, if those states do not require such a copy be submitted to them; and

('6') retain at the facility a copy of each manifest for at least three years from the date of delivery.

('c') If a facility receives hazardous waste imported from a foreign source, the receiving facility must also mail a copy of the manifest to the following address within 30 days of delivery:

International Compliance Assurance Division
OFA/OECA (2254A), U.S. Environmental Protection Agency
Ariel Rios Building
1200 Pennsylvania Avenue, NW, Washington, DC 20460

('d') Manifest discrepancies are:

('1') significant differences between the quantity (as defined by clause ('e') of this subparagraph) or type (as defined by clause ('f') of this subparagraph) of hazardous waste designated on the manifest or shipping paper, and the quantity or type of hazardous waste a facility actually receives;

('2') rejected wastes, which may be a full or partial shipment of hazardous waste that the facility cannot accept; or

('3') container residues, which are residues that exceed the quantity limits for "empty" containers set forth in paragraph 371.1(h)(2) of this Title.

('e') Significant differences in quantity are:

('1')for bulk waste, variations greater than 10 percent in weight, and

('2')for batch waste, any variation in piece count, such as a discrepancy of one drum in a truckload.

('f') Significant differences in type are obvious differences which can be discovered by inspections or waste analysis, such as waste solvent substituted for waste acid, or toxic constituents not reported on the manifest or shipping paper.

(ii) The facility owner or operator must perform or obtain an analysis of a representative sample of each hazardous waste shipment as specified in the waste analysis plan required by paragraph 373-2.2(e)(2) of this Subpart. The purpose of this analysis is to identify discrepancies between the actual composition of the waste and its description on the manifest.

(iii) Upon discovering a significant difference in quantity or type, the owner or operator of the facility must attempt to reconcile the discrepancy with the waste generator or transporter (e.g., with telephone conversations). If the discrepancy is not resolved within 15 days after receiving the waste, the owner or operators must immediately submit a letter to the generator state and the disposer state describing the discrepancy and attempts to reconcile it, and a copy of the manifest or shipping paper at issue.

(iv) ('a') Upon rejecting waste or identifying a container residue that exceeds the quantity limits for "empty" containers set forth in paragraph 371.1(h)(2) of this Title, the facility must consult with the generator prior to forwarding the waste to another facility that can manage the waste. If it is impossible to locate an alternative facility that can receive the waste, the facility may return the rejected waste or residue to the generator. The facility must send the waste to the alternative facility or to the generator within 60 days of the rejection or the container residue identification.

('b') While the facility is making arrangements for forwarding rejected wastes or residues to another facility under this subparagraph, it must ensure that either the delivering transporter retains custody of the waste, or, the facility must provide for secure, temporary custody of the waste, pending delivery of the waste to the first transporter designated on the manifest prepared under subparagraph (v) or (vi) of this paragraph.

(v) Except as provided in clause ('g') of this subparagraph, for full or partial load rejections and residues that are to be sent off-site to an alternate facility, the facility is required to prepare a new manifest in accordance with subdivision 372.2(b) of this Title and the following instructions:

('a') Write the generator's U.S. EPA ID number in Item 1 of the new manifest. Write the generator's name and mailing address in Item 5 of the new manifest. If the mailing address is different from the generator's site address, then write the generator's site address in the designated space for Item 5.

('b') Write the name of the alternate designated facility and the facility's U.S. EPA ID number in the designated facility block (Item 8) of the new manifest.

('c') Copy the manifest tracking number found in Item 4 of the old manifest to the Special Handling and Additional Information Block of the new manifest (Item 14), and indicate that the shipment is a residue or rejected waste from the previous shipment

('d') Copy the manifest tracking number found in Item 4 of the new manifest to the manifest reference number line in the Discrepancy Block of the old manifest (Item 18a).

('e') Write the DOT description for the rejected load or the residue in Item 9 (U.S.DOT Description) of the new manifest and write the container types, quantity and volume(s) of waste.

('f') Sign the Generator's/Offeror's Certification to certify, as the offeror of the shipment, that the waste has been properly packaged, marked and labeled and is in proper condition for transportation.

('g') For full load rejections that are made while the transporter remains present at the facility, the facility may forward the rejected shipment to the alternate facility by completing Item 18b of the original manifest and supplying the information on the next destination facility in the Alternate Facility space. The facility must retain a copy of this manifest for its records, and then give the remaining copies of the manifest to the transporter to accompany the shipment. If the original manifest is not used, then the facility must use a new manifest and comply with clauses ('a'), ('b'), ('c'), ('d'), ('e'), and ('f') of this subparagraph.

(vi) Except as provided in clause ('g') of this subparagraph, for rejected wastes and residues that must be sent back to the generator, the facility is required to prepare a new manifest in accordance with subdivision 372.2(b) of this Title and the following instructions:

('a') Write the facility's U.S. EPA ID number in Item 1 of the new manifest. Write the generator's name and mailing address in Item 5 of the new manifest. If the mailing address is different from the generator's site address, then write the generator's site address in the designated space for Item 5.

('b') Write the name of the initial generator and the generator's U.S. EPA ID number in the designated facility block (Item 8) of the new manifest.

('c') Copy the manifest tracking number found in Item 4 of the old manifest to the Special Handling and Additional Information Block of the new manifest (Item 14), and indicate that the shipment is a residue or rejected waste from the previous shipment.

('d') Copy the manifest tracking number found in Item 4 of the new manifest to the manifest reference number line in the Discrepancy Block of the old manifest (Item 18a).

('e') Write the DOT description for the rejected load or the residue in Item 9 (U.S.DOT Description) of the new manifest and write the container types, quantity and volume(s) of waste.

('f') Sign the Generator's/Offeror's Certification to certify, as offeror of the shipment, that the waste has been properly packaged, marked and labeled and is in proper condition for transportation.

('g') For full load rejections that are made while the transporter remains at the facility, the facility may return the shipment to the generator with the original manifest by completing Item 18a and 18b of the manifest and supplying the generator's information in the Alternate Facility space. The facility must retain a copy for its records and then give the remaining copies of the manifest to the transporter to accompany the shipment. If the original manifest is not used, then the facility must use a new manifest and comply with clauses ('a'), ('b'), ('c'), ('d'), ('e'), and ('f') of this subparagraph.

(vii) If a facility rejects a waste or identifies a container residue that exceeds the quantity limits for "empty" containers set forth in paragraph 371.1(h)(2) of this Title after it has signed, dated, and returned a copy of the manifest to the delivering transporter, the generator, the generator state, or the destination state, the facility must amend its copy of the manifest to indicate the rejected wastes or residues in the discrepancy space of the amended manifest. The facility must also copy the manifest tracking number from Item 4 of the new manifest to the Discrepancy space (Item 18a) of the amended manifest, and must re-sign and date the manifest to certify to the information as amended. The facility must retain the amended manifest for at least three years from the date of amendment, and must within 10 calendar days, send a copy of the amended manifest to the transporter, generator, generator state and destination state that received copies prior to their being amended. The facility must retain a copy of the new manifest for at least three years from the date of shipment, and must within 10 calendar days, send a copy of the new manifest to their state, the generator, generator state and destination state.

(viii) The requirements of this subdivision do not apply to hazardous waste produced by generators of greater than 100 kilograms but less than 1000 kilograms in a calendar month where:

('a') the waste is being transported pursuant to a reclamation agreement as provided in paragraph 372.2(b)(7) of this Title provided that:

('1') the owner or operator records the following for each shipment:

('i') the name, address and U.S.E.P.A. Identification Number of the generator of the waste;

('ii') the hazardous waste number and quantity of waste accepted; and

('iii') the date the waste is accepted;

('2') the owner or operator retains these records for a period of at least three years after termination or expiration of the agreement; and

('3') quarterly summaries (unless otherwise specified by the department) of these records must be submitted to the department. These summaries must include the waste types and quantities received from each generator.

(ix) A facility must determine whether the consignment state for a shipment regulates any additional wastes (beyond those regulated Federally) as hazardous wastes under its state hazardous waste program. Facilities must also determine whether the consignment state or generator state requires the facility to submit any copies of the manifest to these states.

(2) Unmanifested shipments. Upon receipt of an unmanifested shipment of hazardous waste, the owner or operator of the facility must:

(i) where possible determine the reason why the shipment is not accompanied by a manifest (e.g., small generator exemption, rail transportation).

(ii) accept the waste for treatment, storage or disposal if:

('a') the reason the shipment is unmanifested is that it originated from a conditionally exempt small quantity generator (see subdivision 371.1(f)); or

('b') the shipment is transported in whole or in part by a rail or water (bulk) transporter and the requirements of section 372.7 of this Title are satisfied.

(iii) ('a') accept the waste for treatment, storage and disposal and file an unmanifested waste report with the Department in accordance with subparagraph (3)(ii) of this subdivision within fifteen (15) calendar days of receipt of the shipment if the shipment was transported in whole or in part by a rail or water (bulk) transporter and the manifest is not received by the facility within fifteen (15) calendar days of receipt of the shipment; or

('b') accept the waste for treatment, storage and disposal and file an unmanifested waste report with the Department in accordance with subparagraph (3)(ii) of this subdivision within ten (10) calendar days of receipt of the shipment if the situation is not specifically set forth in subparagraph (ii) and clause (iii)('a') of this paragraph and the conditions of paragraph (5) of this subdivision are met.

(iv) reject the shipment of hazardous waste, and instruct the transporter to return the hazardous waste to the generator, and file an unmanifested waste report in accordance with subparagraph (3)(ii) of this subdivision.

(3) Recordkeeping and reporting requirements.

(i) Manifest discrepancy reports. The facility owner or operator must report to the disposer state and generator state concerning any manifest discrepancies in accordance with subparagraph (1)(iii) of this subdivision.

(ii) Unmanifested waste report. In those situations requiring submission of an unmanifested waste report, as identified in paragraph (2) of this subdivision, the report must include the following information:

('a') the EPA identification number, name, and address of the facility;

('b') the date the facility received the waste;

('c') the EPA identification number, name, and address of the generator and of the transporter, if available;

('d') the transporter's license plate number;

('e') the transporter's Part 364 permit number if available;

('f') a description of and the quantity of each unmanifested hazardous waste the facility received, including EPA waste type;

('g') the method of treatment, storage, or disposal for each hazardous waste (if accepted);

('h') a brief explanation of why the waste was unmanifested, if known; and

('i') certification signed by the owner or operator of the facility or his/her authorized representative.

(iii) Availability, retention and disposition of records.

('a') Reports and records required by this subdivision must be retained for a period of three years from the date of submittal.

('b') All records required under this subdivision must be furnished to the Department upon request and must be postmarked within five (5) business days of receipt of a written request. These records must be made available at all reasonable times for inspection by any officer, employee, or representative of the Department who is duly designated by the Commissioner.

('c') The three year retention period for all records required under this subdivision is extended automatically for the duration of any unresolved enforcement action regarding the facility, or as requested by the Commissioner.

(4) Special conditions. Rail and water (bulk) shipments. Facilities which receive shipments of hazardous waste transported in whole or in part by rail or water (bulk) must comply with the treatment, storage, or disposal facility requirements in section 372.7 of this Title.

(5) Prohibitions. No facility shall:

(i) accept a particular hazardous waste unless it is authorized to accept such waste; or

(ii) accept a hazardous waste for which it does not have adequate treatment, storage or disposal capacity available.

(c) Operating record.

(1) The owner or operator must keep a written operating record at the facility.

(2) The following information must be recorded, as it becomes available, and maintained in the operating record until closure of the facility:

(i) a description and the quantity of each hazardous waste received, and the method(s) and date(s) of its treatment, storage, or disposal at the facility as required by Appendix 25 of this Title;

(ii) the location of each hazardous waste within the facility and the quantity at each location. For disposal facilities, the location and quantity of each hazardous waste must be recorded on a map or diagram of each cell or disposal area. For all facilities, this information must include cross-references to specific manifest document numbers, if the waste was accompanied by a manifest.

(iii) records and results of waste analyses and waste determinations performed as specified in subdivisions 373-2.2(e) and (i), 373-2.14(j), 373-2.15(b), 373-2.27(e), 373-2.28(n) and 373-2.29(d) of this Subpart, and paragraph 376.1(d)(1) and subdivision 376.1(g) of this Title;

(iv) summary reports and details of all incidents that require implementing the contingency plan as specified in section 373-2.4(g)(10) of this Subpart;

(v) records and results of inspections as required by section 373-2.2(g)(4) of this Subpart (except these data need be kept only three years);

(vi) monitoring, testing, or analytical data, and corrective action where required by section 373-2.6, subdivisions 373-2.2(k), 373-2.10(b), (d) and (f), 373-2.11(d), (j), and (k), 373-2.12(e), (j) and (k), 373-2.13(e), (f) and (h), 373-2.14(e), (f), (n), and (o), 373-2.15(g) and 373-2.24(c), paragraphs 373-2.27(e)(3) through (e)(6), subdivision 373-2.27(f), paragraphs 373-2.28(n)(4) through (n)(9), and subdivisions 373-2.28(o) and 373-2.29(c) through (k) of this Subpart;

(vii) for off-site facilities, notices to generators as specified in section 373-2.2(d)(2) of this Subpart;

(viii) all closure cost estimates under section 373-2.8(c) of this Subpart and, for disposal facilities, all post-closure cost estimates under section 373-2.8(e); and

(ix) certification by the permittee, no less often than annually, that a program is in place to reduce the volume and toxicity of hazardous waste that is generated to the degree determined by the permittee to be economically practicable; and certification that the proposed method of treatment, storage or disposal is the most practicable method currently available to the permittee which minimizes the present and future threat to human health and the environment.

(x) records of the quantities (and date of placement) for each shipment of hazardous waste placed in land disposal units under an extension to the effective date of any land disposal restriction granted pursuant to subdivision 376.1(e), a petition pursuant to subdivision 376.1(f), and the applicable notice required by a generator under paragraph 376.1(g)(1);

(xi) for an off-site treatment facility, copy of the notice, and the certification and demonstration, if applicable, required by the generator or the owner or operator under subdivision 376.1(g);

(xii) for an on-site treatment facility, the information contained in the notice (except the manifest number), and the certification and demonstration if applicable, required by the generator or the owner or operator under subdivision 376.1(g);

(xiii) for an off-site land disposal facility, a copy of the notice, and the certification and demonstration if applicable, required by the generator or the owner or operator of a treatment facility under subdivision 376.1(g);

(xiv) for an on-site land disposal facility, the information contained in the notice required by the generator or owner or operator of a treatment facility under subdivision 376.1(g);

(xv) for an off-site storage facility, a copy of the notice, and the certification and demonstration if applicable, required by the generator or the owner or operator under subdivision 376.1(g); and

(xvi) for an on-site storage facility, the information contained in the notice (except the manifest number), and the certification and demonstration if applicable, required by the generator or the owner or operator under subdivision 376.1(g).

(xvii) Any records required under subparagraph 373-2.1(9)(xiii) of this Subpart.

(d) Availability, retention, and disposition of records.

(1) All records, including plans, required under this Part must be kept at the facility and furnished upon request, and made available at all reasonable times for inspection by any officer, employee, or representative of the department who is duly designated by the commissioner.

(2) The retention period for all records required under this Part is extended automatically during the course of any unresolved enforcement action regarding the facility or as requested by the commissioner.

(3) A copy of the records of waste disposal locations and quantities under subparagraph (c)(2)(ii) of this section must be submitted to the commissioner upon closure of the facility.

(e) Annual report. The owner or operator must prepare and submit one copy of an annual report to the commissioner by March 1 of each year. The report forms and instructions as designated by the commissioner must be used for this report. The report must cover facility activities during the previous calendar year and must include, at a minimum, the following information:

(1) the EPA identification number, name, and address of the facility;

(2) the calendar year covered by the report;

(3) for off-site facilities, the EPA identification number of each hazardous waste generator from which the facility received a hazardous waste during the year; for imported shipments, the report must give the name and address of the foreign generator;

(4) a description and the quantity of each hazardous waste the facility received during the year. For off-site facilities, this information must be listed by EPA identification number of each generator;

(5) the method of treatment, storage, or disposal for each hazardous waste;

(6) monitoring data as required by sections 373-2.6 and 373-3.6 of this Title;

(7) the most recent closure cost estimate under section 373-2.8(c) of this Subpart, and, for disposal facilities, the most recent post-closure cost estimate under section 373-2.8(e); and

(8) for generators who treat, store, or dispose of hazardous waste on-site, a description of the efforts undertaken during the year to reduce the volume and toxicity of waste generated;

(9) for generators who treat, store, or dispose of hazardous waste on-site, a description of the changes in volume and toxicity of waste actually achieved during the year in comparison to previous years to the extent such information is available for the years prior to 1984; and

(10) the certification signed by the owner or operator of the facility or an authorized representative.

(f) Unmanifested waste report. The facility must comply with the requirements for unmanifested wastes specified in paragraphs 373-2.5(b)(2) and (3) of this Subpart.

(g) Additional reports. In addition to submitting the annual report described in subdivision (e) of this section, the owner or operator must also report to the commissioner:

(1) releases, fires, and explosions as specified in section 373-2.4(g)(10) of this Subpart;

(2) facility closures specified in section 373-2.7(f); and

(3) as otherwise required by sections 373-2.6, 373-2.11 through 373-2.14, 373-2.27, 373-2.28 and 373-2.29 of this Subpart.

§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 (a)(1)(ii) of this section 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 run-off;

('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 subdivisions 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 paragraph 373-1.2(e)(3) of this Title, when the Department issues either a post-closure permit or an enforceable document (as defined in paragraph 373-1.2(e)(3) of this Title), 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 373-2.6(b) through (k) 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 paragraph 373-1.2(e)(3) of this Title) 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 373-2.6(b) through 373-2.6(k) 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 groundwater 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 groundwater 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) Groundwater 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 groundwater 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 groundwater 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 groundwater protection standard of subdivision (c) of this section applies. Hazardous constituents are constituents identified in Appendix 23 of this Title that have been detected in groundwater 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 groundwater 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 groundwater and the direction of groundwater flow;

('d') the proximity and withdrawal rates of groundwater users;

('e') the current and future uses of groundwater in the area and any quality standards established for those groundwaters;

('f') the existing quality of groundwater, including other sources of contamination and their cumulative impact on the groundwater 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 groundwater, and the direction of groundwater 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 areas 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 groundwater 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 groundwater 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 groundwater 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 GROUNDWATER PROTECTION

Constituent Maximum 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-methoxyphenylethane)
0.035
Toxaphene (C10H10C6, 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 groundwater 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 groundwater and the direction of groundwater flow;

('d') the proximity and withdrawal rates of groundwater users;

('e') the current and future uses of groundwater in the area and any quality standards established for those groundwaters;

('f') the existing quality of groundwater, including other sources of contamination and their cumulative impact on the groundwater 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 groundwater, and the direction of groundwater 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 areas 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 section about the use of groundwater 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 groundwater 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 groundwater 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 groundwater 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 subdivisions (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 water that has not been affected by leakage from a regulated unit;

('a') a determination of background 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 groundwater 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 groundwater monitoring systems are not required for each regulated unit provided that provisions for sampling the groundwater in the uppermost aquifer will enable detection and measurement at the compliance point of hazardous constituents from the regulated units that have entered the groundwater 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 groundwater samples. The annular space (i.e., the space between the borehole and well casing) above the sampling depth must be sealed to prevent contamination of samples and the groundwater.

(4) The groundwater monitoring program must include consistent sampling and analysis procedures that are designed to ensure monitoring results that provide a reliable indication of groundwater 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 groundwater monitoring program must include sampling and analytical methods that are appropriate for groundwater sampling and that accurately measure hazardous constituents in groundwater samples.

(6) The groundwater monitoring program must include a determination of the groundwater surface elevation each time groundwater 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.

(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 groundwater 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 groundwater 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 groundwater 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 groundwater 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 groundwater 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) Groundwater 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 commissioner 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 groundwater; and

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

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

(3) The owner or operator must conduct a groundwater 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 groundwater analytical data as measured and in a form necessary for the determination of statistical significance under paragraph (h)(8) of this section.

(4) The Commissioner 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. A sequence of at least four samples from each well (background and compliance wells) must be collected at least semi-annually during detection monitoring.

(5) The owner or operator must determine the groundwater 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) and (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 groundwater 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 groundwater 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 and determine whether constituents identified in Appendix 33 of this Title are present and, if so, at what concentration;

(iii) For any Appendix 33 compounds found in the analysis pursuant to subparagraph (8)(ii) of this subdivision, the owner or operator may resample within one month 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 found pursuant to subparagraph (8)(ii) of this subdivision, 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 groundwater at each monitoring well at the compliance point;

('b') any proposed changes to the groundwater 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 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 groundwater to determine whether regulated units are in compliance with the groundwater protection standard under subdivision (c) of this section. The commissioner will specify the groundwater 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 groundwater monitoring system at the compliance point as specified under subdivision (f) of this section. The groundwater monitoring system must comply with subparagraph (h)(1)(ii) and paragraphs (h)(2) and (3) of this section.

(3) The Commissioner will specify the sampling procedures and statistical methods appropriate for the constituents and the facility, consistent with 373-2.6(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 groundwater 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 groundwater flow rate and direction in the uppermost aquifer at least annually.

(5) The Commissioner 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. A sequence of at least four samples from each well (background and compliance wells) must be collected at least semi-annually during the compliance period of the facility.

(6) The owner or operator must analyze samples from all monitoring wells at the compliance point for all constituents contained in Appendix 33 of this Title at least annually to determine whether additional Appendix 33 constituents are present in the uppermost aquifer and, if so, at what concentration pursuant to procedures in paragraph (i)(7) of this section. If the owner or operator finds constituents from Appendix 33 in the groundwater that are not already identified in the permit as monitoring constituents, the owner or operator may resample within one month and repeat the Appendix 33 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 commissioner 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 Commissioner within seven days after completion of the initial analysis and add them to the monitoring list.

(7) The owner or operator must use procedures and methods for sampling and analysis that meet the requirements of paragraphs (h)(4) and (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 groundwater 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 groundwater protection standard specified in the permit under paragraph (1) of this subdivision; and

('b') A plan for a groundwater monitoring program that will demonstrate the effectiveness of the corrective action. Such a groundwater 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 groundwater 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 groundwater. 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 groundwater protection standard under subdivision (c) of this section. The commissioner will specify the groundwater 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 groundwater 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 groundwater 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 groundwater 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 groundwater:

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

(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 groundwater 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 groundwater 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 groundwater monitoring program under paragraph (4) of this subdivision, that the groundwater 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 commissioner on the effectiveness of the corrective action program. The owner or operator must submit these 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 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 in accordance with this subdivision and section 373-2.19 of this Subpart. The permit will contain schedules of compliance for such corrective action (where such corrective action cannot be completed prior to issuance of the permit) and assurances of financial responsibility 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 373-2.6(l) of this section 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.

§373-2.7 - Closure and Post-Closure

(a) Applicability. Except as section 373-2.1(a) of this Part 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; and

(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 373-2.11(f) and 373-2.12(h) of this Subpart;

(iii) tank systems that are required under section 373-2.10(h) of this Subpart to meet the requirements for landfills; and

(iv) containment buildings that are required under subdivision 373-2.30(c) of this Subpart to meet the requirement for landfills.

(3) The Department may replace all or part of the requirements of this Subpart (and the unit-specific standards referenced in paragraph 373-2.7(b)(3) applying to a regulated unit), with alternative requirements set out in a permit or in an enforceable document (as defined in paragraph 373-1.2(e)(3)), 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 closure requirements of this section (and those referenced herein) because the alternative requirements will protect human health and the environment and will satisfy the closure performance standard of paragraphs 373- 2.7(b)(1) and (2).

(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 run-off, 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 subdivisions 373-2.9(i), 373-2.10(h), 373-2.11(f), 373-2.12(h), 373-2.13(h), 373-2.14(g), 373-2.15(h), 373-2.24(b), (c) and (d), and 373-2.30(c) of this Subpart.

(c) Closure plan; amendment to plan.

(1) Written plan.

(i) The owner or operator of a hazardous waste management facility must have a written closure plan. In addition, certain surface impoundments and waste piles from which the owner or operator intends to remove or decontaminate the hazardous waste at partial or final closure are required by section 373-2.11(f) and 373-2.12(h) of this Subpart to have contingent closure plans. The plans must be submitted with the permit application, in accordance with section 373-1.5(a)(2)(xiii) of this Part, and approved by the commissioner as part of the permit issuance procedures under Part 621 of this Title. In accordance with section 373-1.6(c) of this Part, the approved closure plan will become a condition of any Part 373 permit.

(ii) The commissioner's approval of the plan must ensure that the approved closure plan is consistent with subdivisions (b) through (f) of this section and the applicable requirements of section 373-2.6, and subdivisions 373-2.9(i), 373-2.10(h), 373-2.11(f), 373-2.12(h), 373-2.13(h), 373-2.14(g), 373-2.15(h), 373-2.24(b) and 373-2.30(c) of this Subpart. Until final closure is completed and certified in accordance with paragraph (f)(1) of this section, a copy of the approved plan and all approved revisions must be furnished to the commissioner upon request, including requests by mail.

(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 operation which will be unclosed during the active life of the facility;

(iii) an estimate of the maximum inventory of hazardous wastes ever on-site 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 the types of the off-site hazardous waste management units to be used, it 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 closure period to ensure that all partial closures and final closure satisfy the closure performance standards, including but not limited to, a 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.); and

(vii) for facilities that use trust funds to establish financial assurance under section 373-2.8(d) or (f) of this Subpart and that are expected to close prior to the expiration of the permit, an estimate of the expected year of final closure.

(viii) For facilities where the Department has applied alternative requirements at a regulated unit under paragraphs 373-2.6(a)(6), 373-2.7(a)(3), and/or 373-2.8(a)(4), 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 must submit a written request for a permit modification to authorize a change in operating plans, facility design, or the approved closure plan in accordance with the procedures in Subpart 373-1 of this Part and Part 621 of this Title. The written request must include a copy of the amended closure plan for approval by the commissioner.

(i) The owner or operator may submit a written request to the commissioner for a permit modification to amend the closure plan at any time prior to the notification of partial or final closure of the facility.

(ii) The owner or operator must submit a written request for a permit modification to authorize a change in the approved 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; or

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

('d') The owner or operator requests the Department to apply alternative requirements to a regulated unit under 373-2.6(a)(6), 373-2.7(a)(3) and/or 373-2.8(a)(4).

(iii) The owner or operator must submit a written request for a permit modification including a copy of the amended closure plan for approval 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 request a permit modification no later than 30 days after the unexpected event. An owner or operator of a surface impoundment or waste pile who intends to remove all hazardous waste at closure and is not otherwise required to prepare a contingent closure plan under section 373-2.11(f) or 373-2.12(h) of this Subpart must submit an amended closure plan to the commissioner no later than 60 days from the date that the owner or operator or commissioner determines that the hazardous waste management unit must be closed as a landfill subject to the requirements of section 373-2.14(g) of this Subpart, or no later than 30 days from that date if the determination is made during partial or final closure. The commissioner will approve, disapprove or modify this amended plan in accordance with the procedures in Subpart 373-1 of this Part and Part 621 of this Title. In accordance with section 373-1.6 of this Part, the approved closure plan will become a condition of any Part 373 permit issued.

(iv) The commissioner may request modification to the plan under the conditions described in subparagraph (ii) of this paragraph. The owner or operator must submit the modified plan within 60 days of the commissioner's request, or within 30 days if the change in facility conditions occurs during partial or final closure. Any modifications requested by the commissioner will be approved in accordance with the procedures in Subpart 373-1 of this Part and Part 621 of this Title.

(4) Notification of partial closure and final closure.

(i) The owner or operator 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, land treatment or landfill unit, or final closure of a facility with such a unit. The owner or operator 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 treatment or storage tanks, container storage, or incinerator units to be closed. The owner or operator 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, whichever is earlier.

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

('a') no later than 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 wastes. 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 applicable permit requirements, the commissioner may approve an extension to this one-year limit; or

('b') for units meeting the requirements of 373-2.7(d)(4), no later than 30 days after the date on which the hazardous waste management unit receives the known final volume of non-hazardous wastes, or if there is a reasonable possibility that the hazardous waste management unit will receive additional non-hazardous wastes, no later than one year after the date on which the unit received the most recent volume of non-hazardous wastes. 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 non-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 applicable permit requirements, the Commissioner may approve an extension to this one-year limit.

(iii) If the facility's permit is terminated, or if the facility is otherwise ordered, by judicial decree or final order under Article 71 of ECL, to cease receiving hazardous wastes or to close, then the requirements of this paragraph do not apply. However, the owner or operator must close the facility in accordance with the deadlines established in subdivision (d) of this section.

(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 non-hazardous 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, the owner or operator must treat, remove from the unit or facility, or dispose of on-site, all hazardous wastes in accordance with the approved closure plan. The commissioner may approve a longer period if the owner or operator complies with all applicable requirements for requesting a modification to the permit and demonstrates that:

(i) ('a') the activities required to comply with this subdivision 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 non-hazardous wastes if the 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 a person other than the owner or operator 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 permit 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. The commissioner may approve an extension to the closure period if the owner or operator complies with all applicable requirements for requesting a modification to the permit and 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 has the capacity to receive non-hazardous wastes if the 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 a person other than the owner or operator 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 permit requirements.

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

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

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

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

(i) The owner or operator requests a permit modification in compliance with all applicable requirements in Subpart 373-1 and Part 621 of this Title and in the permit modification request demonstrates that:

('a') the unit has the existing design capacity as indicated on the Part 373 application to receive non-hazardous wastes; and

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

('c') the non-hazardous 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 applicable permit requirements; and

(ii) The request to modify the permit includes an amended waste analysis plan, groundwater monitoring and response program, human exposure assessment required under subdivisions 373-1.5(d) and (h), 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 non-hazardous wastes, and changes in closure activities, including the expected year of closure if applicable under subparagraph 373-2.7(c)(2)(vii), as a result of the receipt of non-hazardous wastes following the final receipt of hazardous wastes; and

(iii) The request to modify the permit includes revisions, as necessary and appropriate, to affected conditions of the permit to account for the receipt of non-hazardous wastes following receipt of the final volume of hazardous wastes; and

(iv) The request to modify the permit and the demonstrations referred to in subparagraphs (i) and (ii) of this paragraph are submitted to the Commissioner no later than 120 days prior to the date on which the owner or operator of the facility receives the known final volume of hazardous wastes at the unit, or no later than 90 days after the effective date of this rule, 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, or 373-3.11 or 373-3.14 must:

(i) Submit with the request to modify the permit:

('a') a contingent corrective measures plan, unless a corrective action plan has already been submitted under 373-2.6(j) of this Part; and

('b') a plan for removing hazardous wastes in compliance with subparagraph (5)(ii) of this subdivision; 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) over background values for detection monitoring parameters or constituents specified in the permit or that exceeds the facility's groundwater protection standard at the point of compliance, if applicable, is detected in accordance with the requirements in section 373-2.6 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 continue to 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 the 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 semi-annual reports to the Commissioner that describe the progress of the corrective action program, compile all groundwater monitoring data, and evaluate the effect of the continued receipt of non-hazardous wastes on the effectiveness of the corrective action.

(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 groundwater protection standard or background levels if the facility has not yet established a groundwater protection standard.

(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 Commissioner shall:

('a') notify the owner or operator in writing that the Department is initiating a modification to the Permit, pursuant to Part 621, to require the initiation of closure in accordance with the deadlines 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 subdivisions 373-2.10(h), 373-2.11(f), 373-2.12(h), 373-2.13(h), or 373-2.14(g), or under the authority of subdivisions 373-2.24(b) and (d) of this Subpart. By removing any hazardous waste 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 owner or operator is released from the financial assurance requirements for closure under section 373-2.8(d)(8) 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 373-2.6, 373-2.11, 373-2.12, 373-2.13, 373-2.14 and 373-2.24 of this Subpart; and

('b') maintenance and monitoring of waste containment systems in accordance with the requirements of sections 373-2.6, 373-2.11, 373-2.12, 373-2.13, 373-2.14 and 373-2.24 of this Subpart.

(ii) Any time preceding partial 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 unit, the commissioner may, in accordance with the permit modification procedures in Subpart 373-1 of this Part and Part 621 of this Title:

('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 373-2.2(f) 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 systems, 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. The owner or operator of a hazardous waste disposal unit must have a written post-closure plan. In addition, certain surface impoundments and waste piles from which the owner or operator intends to remove or decontaminate the hazardous wastes at partial or final closure are required by section 373-2.11(f) and 373-2.12(h) of this Subpart to have contingent post-closure plans. Owners or operators of surface impoundments and waste piles not otherwise required to prepare contingent post-closure plans under sections 373-2.11(f) and 373-2.12(h) must submit a post-closure plan to the commissioner within 90 days from the date that the owner or operator or commissioner determines that the hazardous waste management unit must be closed as a landfill, subject to the requirements of subdivisions (g), (h), (i) and (j) of this section. The plan must be submitted with the permit application, in accordance with section 373-1.5(a)(2)(xiii) of this Part, and approved by the commissioner as part of the permit issuance procedures under Part 621 of this Title. In accordance with section 373-1.6(c) of this Part, the approved post-closure plan will become a condition of any Part 373 permit issued.

(2) 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 373-2.6, 373-2.11, 373-2.12, 373-2.13, 373-2.14 and 373-2.24 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 373-2.6, 373-2.11, 373-2.12, 373-2.13, 373-2.14 and 373-2.24 of this Subpart; and

('b') the function of the monitoring equipment in accordance with the requirements of sections 373-2.6, 373-2.11, 373-2.12, 373-2.13, 373-2.14 and 373-2.24 of this Subpart; and

(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 where the Department has applied alternative requirements at a regulated unit under paragraphs 373-2.6(a)(6), 373-2.7(a)(3), and/or 373-2.8(a)(4), either the alternative requirements that apply to the regulated unit, or a reference to the enforceable document containing those requirements.

(3) Until final closure of the facility, a copy of the approved post-closure plan must be furnished to the commissioner upon request, including a request by mail. After final closure has been certified, the person or office specified in subparagraph (2)(iii) of this subdivision must keep the approved post-closure plan during the remainder of the post-closure period.

(4) Amendment of plan. The owner or operator must request a permit modification to authorize a change in the approved post-closure plan in accordance with the applicable requirements of Subpart 373-1 of this Part and Part 621 of this Title. The written request must include a copy of the amended post-closure plan for approval by the commissioner.

(i) The owner or operator may submit a written request to the commissioner for a permit modification to amend the post-closure plan at any time during the active life of the facility or during the post-closure care period.

(ii) The owner or operator must submit a written request for a permit modification to authorize a change in the approved post-closure plan whenever:

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

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

('c') events which occur during the active life of the facility, including partial and final closures, affect the approved post-closure plan.

('d') The owner or operator requests the Department to apply alternative requirements to a regulated unit under 373-2.6(a)(6), 373-2.7(a)(3) and/or 373-2.8(a)(4).

(iii) The owner or operator must submit a written request for a permit modification 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. An owner or operator of a surface impoundment or waste pile that intends to remove all hazardous waste at closure and is not otherwise required to submit a contingent post-closure plan under sections 373-2.11(f) and 373-2.12(h) of this Subpart must submit a post-closure plan to the commissioner no later than 90 days after the date that the owner or operator or commissioner determines that the hazardous waste management unit must be closed as a landfill, subject to the requirements of section 373-2.14(g) of this Subpart. The commissioner will approve, disapprove or modify this plan in accordance with the procedures in Subpart 373-1 of this Part and Part 621 of this Title. In accordance with section 373-1.6 of this Part, the approved post-closure plan will become a permit condition.

(iv) The commissioner may request modifications to the plan under the conditions described in subparagraph (ii) of this paragraph. The owner or operator must submit the modified plan no later than 60 days after the commissioner's request, or no later than 90 days if the unit is a surface impoundment or waste pile not previously required to prepare a contingent post-closure plan. Any modifications requested by the commissioner will be approved, disapproved, or modified in accordance with the procedures in Subpart 373-1 of this Part and Part 621 of this Title.

(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 373-2.7; 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 recorded, 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, or contaminated soils, the owner or operator must request a modification to the post-closure permit in accordance with the applicable requirements in Subpart 373-1 of this Part and Part 621 of this Title. 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 Part 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 specification 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 owner or operator is released from the financial assurance requirements for post-closure care under section 373-2.8(f)(8) of this Subpart.