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Subpart 373-2: Final Status Standards For Owners and Operators Of Hazardous Waste Treatment, Storage and Disposal Facilities - Page 4

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

[Effective September 6, 2006]

[page 4 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.

§373-2.9 - Use and Management of Containers

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

(Note: Under sections 371.1(h) and 371.4(d)(3) of this Title, if a hazardous waste is emptied from a container the residue remaining in the containers is not considered hazardous waste if the container is "empty" as defined in section 371.1(h). In that event, management of the container is exempt from the requirements of this section.)

(b) Condition of containers. If a container holding hazardous waste is not in good condition (e.g., severe rusting, apparent structural defects) or if it begins to leak, the owner or operator must transfer the hazardous waste from this container to a container that is in good condition or manage the waste in some other way that complies with the requirements of this Subpart.

(c) Compatibility of waste with containers. The owner or operator must use a container made of or lined with materials which will not react with, and are otherwise compatible with, the hazardous waste to be stored, so that the ability of the container to contain the waste is not impaired.

(d) Management of containers.

(1) A container holding hazardous waste must always be closed during storage, except when it is necessary to add or remove waste.

(2) A container holding hazardous waste must not be opened, handled, or stored in a manner which may rupture the container or cause it to leak.

(3) Containers holding hazardous waste must be marked with the words "Hazardous Waste" and with other words identifying their contents.

(Note: The use of containers in transportation is governed by U.S. Department of Transportation regulations including those set forth in 49 CFR 173.28) (see 6 NYCRR 370.1(e)).

(e) Inspections. At least weekly, the owner or operator must inspect areas where containers are stored, looking for leaking containers and for deterioration of containers and the containment system caused by corrosion or other factors.

(Note: See section 373-2.2(g)(3)of this Subpart and subdivision (b) of this section for remedial action required if deterioration or leaks are detected.)

(f) Containment.

(1) Container storage areas, other than those described in paragraph (2) of this subdivision, must have a containment system that is designed and operated as follows:

(i) A base must underlay the containers which is free of cracks or gaps and is sufficiently impervious to contain leaks, spills, and accumulated precipitation until the collected material is detected and removed;

(ii) The base must be sloped or the containment system must be otherwise designed and operated to drain and remove liquid resulting from leaks, spills, or precipitation, unless the containers are elevated or are otherwise protected from contact with accumulated liquids.

(iii) The containment system must have sufficient capacity to contain 10 percent of the volume of containers or the volume of the largest container, whichever is greater. Containers that do not contain free liquids need not be considered in this determination.

(iv) Run-on into the containment system must be prevented unless the collection system has sufficient excess capacity in addition to that required in subparagraph (iii) of this paragraph to contain any run-on which might enter the system.

(v) Spilled or leaked waste and accumulated precipitation must be removed from the sump or collection area in a timely a manner as is necessary to prevent overflow of the collection system.

(Note: If the collected material is a hazardous waste under Part 371 of this Title, it must be managed as a hazardous waste in accordance with all applicable requirements of Parts 372 and 373 of this Title. If the collected material is discharged through a point source to waters of the New York State, it is subject to the requirements of Title 17 of Article 17 of the ECL.)

(2) Storage areas that store containers holding only wastes that do not contain free liquids need not have a containment system defined by paragraph (1) of this subdivision, except as provided by paragraph (3) of this subdivision or provided that:

(i) the storage area is sloped or is otherwise designed and operated to drain and remove liquid resulting from precipitation; or

(ii) the containers are elevated or are otherwise protected from contact with accumulated liquid.

(3) Storage areas that store containers holding the wastes listed below that do not contain free liquids must have a containment system defined by paragraph (1) of this subdivision.

(i) F020, F021, F022, F023, F026, and F027.

(g) Special requirements for ignitable or reactive waste. Containers holding ignitable or reactive waste must be located at least 15 meters (50 feet) from the facility's property line.

(Note: See section 373-2.2(i)(1) of this Subpart for additional requirements.)

(h) Special requirements for incompatible wastes.

(1) Incompatible wastes, or incompatible wastes and materials (see Appendix 29 of this Title for examples), must not be placed in the same container, unless section 373-2.2(i)(2) of this Subpart is complied with.

(2) Hazardous waste must not be placed in an unwashed container that previously held an incompatible waste or material.

(Note: As required by sections 373-2.2(e) of this Subpart, the waste analysis plan must include analyses needed to comply with this subdivision. Also section 373-2.2(i)(3) of this Subpart requires waste analyses, trial tests or other documentation to assure compliance with paragraph (i)(2) of such section. As required by section 373-2.5(c) of this Subpart, the owner or operator must place the results of each waste analysis and trial test, and any documented information, in the operating record for the facility.)

(3) A storage container holding a hazardous waste that is incompatible with any waste or other material stored nearby in other containers, piles, open tanks, or surface impoundments must be separated from other materials or protected from them by means of a dike, berm, wall, or other device.

(Comment: The purpose of this section is to prevent fires, explosions, gaseous emission, leaching, or other discharge of hazardous waste or hazardous waste constituents which could result from the mixing of incompatible wastes or materials if containers break or leak.)

(i) Closure. At closure, all hazardous waste and hazardous waste residues must be removed from the containment system. Remaining containers, liners, bases, and soil containing or contaminated with hazardous waste or hazardous waste residues must be decontaminated or removed.

(Note: At closure, as throughout the operation period, unless the owner or operator can demonstrate in accordance with section 371.1(d)(4) of this Title that the solid waste removed from the containment system 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 Parts 372 and 373 of this Title).

(j) Air Emission Standards. The owner or operator shall manage all hazardous waste placed in a container in accordance with the applicable requirements of sections 373-2.27, 373-2.28 and 373-2.29 of this Subpart.

§373-2.10 - Tank Systems

(a) Applicability. The requirements of this section apply to owners and operators of facilities that use tank systems for storing or treating hazardous waste except as otherwise provided in paragraphs (1), (2) and (3) of this subdivision or subdivision 373-2.1(a) of this Subpart.

(1) Tank systems that are used to store or treat hazardous waste which contains no free liquids and are situated inside a building with an impermeable floor are exempted for the requirements in subdivision (d) of this section. To demonstrate the absence or presence of free liquids in the stored/treated waste, the following test must be used: Method 9095 (Paint Filter Liquids Test) as described in "Test Methods for Evaluating Solid Waste, Physical/Chemical Methods," EPA publication SW-846, as incorporated by reference in subdivision 370.1(e) of this Title.

(2) Tank systems, including sumps, as defined in subdivision 370.2(b) of this Title, that serve as part of a secondary containment system to collect or contain releases of hazardous wastes are exempted from the requirements of paragraph (d)(1) of this section.

(3) Tanks, sumps, and other such collection devices or systems used in conjunction with drip pads, as defined in subdivision 370.2(b) of this Title and regulated under section 373-2.23, must meet the requirements of this section.

(b) Assessment of existing tank system's integrity.

(1) For each existing tank system that does not have secondary containment meeting the requirements of subdivision 373-2.10(d), the owner or operator must determine that the tank system is not leaking or is unfit for use. Except as provided in paragraph (3) of this subdivision, the owner or operator must obtain and keep on file at the facility a written assessment reviewed and certified by an independent, qualified, professional engineer registered in New York that attests to the tank system's integrity by December 25, 1989. The certification must be consistent with the applicable provisions of subparagraph 373-1.4(a)(5)(iv) of this Title.

(2) This assessment must determine that the tank system is adequately designed and has sufficient structural strength and compatibility with the wastes to be stored or treated, to ensure that it will not collapse, rupture or fail. At a minimum, this assessment must consider the following:

(i) design standards, if available, according to which the tanks and ancillary equipment were constructed;

(ii) hazardous characteristics of the wastes that have been and will be handled;

(iii) existing corrosion protection measures;

(iv) documented age of the tank system, if available (otherwise an estimate of the age); and

(v) results of a leak test, internal inspection, or other tank integrity examination such that:

('a') for non-enterable underground tanks, the assessment must include a leak test that is capable of taking into account the effects of temperature variation, tank end deflection, vapor pockets, and high water table effects; and

('b') for other than non-enterable underground tanks and for ancillary equipment, this assessment must include either a leak test, as described above, or other tank integrity examination, that is certified by an independent, qualified, professional engineer registered in New York, that addresses cracks, leaks, corrosion, and erosion. The certification must be consistent with the applicable provisions of subparagraph 373-1.4(a)(5)(iv) of this Title.

(Note: The practices described in the American Petroleum Institute (API) Publication, Guide for Inspection of Refinery Equipment, Chapter XIII, "Atmospheric and Low-Pressure Storage Tanks," 4th edition, 1981, may be used, where applicable, as guidelines in conducting an integrity examination.)

(3) Tank systems that store or treat materials that become hazardous wastes after December 25, 1988, must conduct this assessment within 12 months after the date that the waste becomes a hazardous waste.

(4) If, as a result of the assessment conducted in accordance with paragraph (1) of this subdivision, a tank system is found to be leaking or unfit for use, the owner or operator must comply with the requirements of subdivision (g) of this section.

(c) Design and installation of new tank systems or components.

(1) Owners or operators of new tank systems or components must obtain and submit to the commissioner at time of submittal of the Part 373 permit application, a written assessment, reviewed and certified by an independent, qualified, professional engineer registered in New York attesting that the tank system has sufficient structural integrity and is acceptable for storing and treating of hazardous waste. The certification must be consistent with the applicable provisions of subparagraph 373-1.4(a)(5)(iv) of this Title. The Assessment must show that the foundation, structural support, seams, connections, and pressure controls (if applicable) are adequately designed and that the tank system has sufficient structural strength, compatibility with the wastes to be stored or treated, and corrosion protection to ensure that it will not collapse, rupture or fail. This assessment, which will be used by the commissioner to review and approve or disapprove the acceptability of the tank system design, must include, at a minimum, the following information:

(i) design standards according to which tanks and/or the ancillary equipment are constructed;

(ii) hazardous characteristics of the wastes to be handled;

(iii) for new tank systems or components in which the external shell of a metal tank or any other external metal component of the tank system will be in contact with the soil or with water, a determination by a corrosion expert of:

('a') factors affecting the potential for corrosion, including but not limited to:

('1') soil moisture content;

('2') soil pH;

('3') soil sulfides level;

('4') soil resistivity;

('5') structure to soil potential;

('6') influence of nearby underground metal structures (e.g., piping);

('7') existence of stray electric current; and

('8') existing corrosion-protection measures (e.g., coating, cathodic protection); and

('b') the type and degree of external corrosion protection that are needed to ensure the integrity of the tank system during the use of the tank system or component, consisting of one or more of the following:

('1') corrosion-resistant materials of construction such as special alloys, fiberglass reinforced plastic, etc.;

('2') corrosion-resistant coating (such as epoxy, fiberglass, etc.) with cathodic protection (e.g. impressed current or sacrificial anodes); and

('3') electrical isolation devices such as insulating joints, flanges, etc.;

(Note: The practices described in the National Association of Corrosion Engineers (NACE) standard, "Recommended Practice (RP-02-85) Control of External Corrosion on Metallic Buried, Partially Buried, or Submerged Liquid Storage Systems," and the American Petroleum Institute (API) Publication 1632, "Cathodic Protection of Underground Petroleum Storage Tanks and Piping Systems," may be used, where applicable, as guidelines in providing corrosion protection for tank systems.)

(iv) for underground tank system components that are likely to be adversely affected by vehicular traffic, a determination of design or operational measures that will protect the tank system against potential damage; and

(v) design considerations to ensure that:

('a') tank foundations will maintain the load of a full tank;

('b') tank systems will be anchored to prevent flotation or dislodgement where the tank system is placed in a saturated zone, or is located within a seismic fault zone; and

('c') tank systems will withstand the effects of frost heave.

(2) The owner or operator of a new tank system must ensure that proper handling procedures are followed to prevent damage to the system during installation. Prior to covering, enclosing, or placing a new tank system or component in use, an independent, qualified, installation inspector or an independent, qualified, professional engineer registered in New York, either of whom is trained and experienced in the proper installation of tank systems or components, must inspect the system for the presence of any of the following items:

(i) weld breaks;

(ii) punctures;

(iii) scrapes of protective coatings;

(iv) cracks;

(v) corrosion, and

(vi) other structural damage or inadequate construction/installation.

All discrepancies must be remedied before the tank system is covered, enclosed, or placed in use.

(3) New tank systems or components that are placed underground and that are backfilled must be provided with a backfill material that is a non-corrosive, porous, homogeneous substance and that is installed so that the backfill is placed completely around the tank and compacted to ensure that the tank and piping are fully and uniformly supported.

(4) All new tanks and ancillary equipment must be tested for tightness prior to being covered, enclosed or placed in use. If a tank system is found not to be tight, all repairs necessary to remedy the leaks in the system must be performed prior to the tank system being covered, enclosed or placed into use.

(5) Ancillary equipment must be supported and protected against physical damage and excessive stress due to settlement, vibration, expansion, or contraction.

(Note: The piping system installation procedures described in American Petroleum Institute (API) Publication 1615 (November 1979), "Installation of Underground Petroleum Storage Systems," or ANSI Standard B31.3, Petroleum Refinery Piping," and ANSI Standard B31.4 "Liquid Petroleum Transportation Piping System," may be used, where applicable, as guide lines for proper installation of piping systems.)

(6) The owner or operator must provide the type and degree of corrosion protection recommended by an independent corrosion expert, based on the information provided under subparagraph (1)(iii) of this subdivision, or other corrosion protection if the commissioner believes other corrosion protection is necessary to ensure the integrity of the tank system during use of the tank system. The installation of a corrosion protection system that is field fabricated must be supervised by an independent corrosion expert to ensure proper installation.

(7) The owner or operator must obtain and keep on file at the facility written statements by those persons required to certify the design of the tank system and supervise the installation of the tank system in accordance with the requirements of paragraphs (2) through (6) of this subdivision that attest that the tank system was properly designed and installed and that repairs, pursuant to paragraphs (2) and (4) of this subdivision were performed. These written statements must also include the certification statement as required in subparagraph 373-1.4(a)(5)(iv) of this Title.

(d) Containment and detection of releases.

(1) In order to prevent the release of hazardous waste or hazardous constituents to the environment, secondary containment that meets the requirements of this subdivision must be provided (except as provided in paragraphs (6) and (7) of this subdivision):

(i) for all new tank systems or components, prior to their being put into service;

(ii) for all existing tank systems used to store or treat Hazardous Wastes Nos. F020, F021, F022, F023, F026, and F027, within two years after January 12, 1987;

(iii) for those existing non-enterable underground tanks and tank systems of known and documented age within two years after January 12, 1987 or when the tank system has reached 15 years of age, whichever comes later;

(iv) for those existing non-enterable underground tanks and tanks systems for which the age cannot be documented within eight years of January 12, 1987; but if the age of the facility is greater than seven years, secondary containment must be provided by the time the facility reaches 15 years of age, or within two years of January 12, 1987, whichever comes later; and

(v) for all other tanks systems, within the time intervals required in subparagraphs (iii) and (iv) of this paragraph; and

(vi) for tank systems that store or treat materials that become hazardous wastes after the effective date of these regulations, within the time intervals required in subparagraphs (i) through (v) of this paragraph, except that the date a material becomes a hazardous waste must be used in place of January 12, 1987.

(2) Secondary containment systems must be:

(i) designed, installed, and operated to prevent any migration of wastes or accumulated liquid out of the system to the soil, groundwater, or surface water at any time during the use of the tank system; and

(ii) capable of detecting and collecting releases and accumulated liquids until the collected material is removed.

(3) To meet the requirements of paragraph (2) of this subdivision, secondary containment systems must be at a minimum:

(i) constructed of or lined with materials that are compatible with the wastes to be placed in the tank system and must have sufficient strength and thickness to prevent failure owing to pressure gradients (including static head and external hydrological forces), physical contact with the waste to which it is exposed, climatic conditions, and the stress of daily operation (including stresses from nearby vehicular traffic);

(ii) placed on a foundation or base capable of providing support to the secondary containment system, providing resistance to pressure gradients above and below the system, and preventing failure due to settlement, compression, or uplift;

(iii) provided with a leak-detection system that is designed and operated so that it will detect the failure of either the primary or secondary containment structure or the presence of any release of hazardous waste or accumulated liquid in the secondary containment system within 24 hours, or at the earliest practicable time, if the owner or operator can demonstrate to the commissioner that existing detection technologies or site conditions will not allow detection of a release within 24 hours; and

(iv) sloped or otherwise designed or operated to drain and remove liquids resulting from leaks, spills, or precipitation. Spilled or leaked waste and accumulated precipitation must be removed from the secondary containment system within 24 hours, or in as timely a manner as is possible to prevent harm to human health and the environment, if the owner or operator can demonstrate to the commissioner that removal of the released waste or accumulated precipitation cannot be accomplished within 24 hours.

(Note: If the collected material is a hazardous waste under Part 371 of this Title, it is subject to management as a hazardous waste in accordance with all applicable requirements of Parts 370 through 373 of this Title. If the collected material is discharged through a point source to waters of the United States, it is subject to the requirements of Parts 701, 702, and 752 of this Title. If discharged to a Publicly Owned Treatment Works (POTW), it is subject to the requirements of section 307 of the Clean Water Act, as amended. If the collected material is released to the environment, it may be subject to the reporting requirements of 40 CFR Part 302.)

(4) Secondary containment for tanks must include one or more of the following devices:

(i) a liner (external to the tank);

(ii) a vault;

(iii) a double-walled tank; or

(iv) an equivalent device as approved by the commissioner.

(5) In addition to the requirements of paragraphs (2), (3) and (4) of this subdivision, secondary containment systems must satisfy the following requirements:

(i) external liner systems must be:

('a') designed or operated to contain 100 percent of the capacity of the largest tank or the volume of all interconnected tanks, whichever is greater, within its boundary;

('b') designed or operated to prevent run-on or infiltration of precipitation into the secondary containment system unless the collection system has sufficient excess capacity to contain run-on or infiltration. Such additional capacity must be sufficient to contain precipitation from a 25-year, 24-hour rainfall event;

('c') free of cracks or gaps;

('d') designed and installed to surround the tank completely and to cover all surrounding earth likely to come into contact with the waste if the waste is released from the tank (i.e. capable of preventing lateral as well as vertical migration of the waste. For on ground and in ground tanks, the external liner system must also encompass the bottom of the tank);

('e') external concrete liners must be constructed with chemical-resistant water stops in place at all joints (if any); and

('f') external concrete liners must be provided with an impermeable coating that is compatible with the stored waste and that will prevent migration of waste into the concrete.

(ii) vault systems must be:

('a') designed or operated to contain 100 percent of the capacity of the largest tank or the volume of all interconnected tanks, whichever is greater, within its boundary;

('b') designed or operated to prevent run-on or infiltration of precipitation into the secondary containment system unless the collection system has sufficient excess capacity to contain run-on or infiltration. Such additional capacity must be sufficient to contain precipitation from a 25-year, 24-hour rainfall event;

('c') constructed with chemical-resistant water stops in place at all joints (if any);

('d') provided with an impermeable interior coating or lining that is compatible with the stored waste and that will prevent migration of waste into the concrete;

('e') provided with a means to protect against the formation of and ignition of vapors within the vault, if the waste being stored or treated:

('1') meets the definition of ignitable waste under subdivision 371.3(b) of this Title; or

('2') meets the definition of reactive waste under subdivision 371.3(d) of this Title and may form an ignitable or explosive vapor; and

('f') provided with an exterior moisture barrier or be otherwise designed or operated to prevent migration of moisture into the vault if the vault is subject to hydraulic pressure;

(iii) double-walled tanks must be:

('a') designed as an integral structure (i.e. an inner tank completely enveloped within an outer shell) so that any release from the inner tank is contained by the outer shell;

('b') protected, if constructed of metal, from both corrosion of the primary tank interior and of the external surface of the outer shell; and

('c') provided with a built-in continuous leak detection system capable of detecting a release within 24 hours, or at the earliest practicable time, if the owner or operator can demonstrate to the commissioner, and the commissioner concludes, that the existing detection technology or site conditions would not allow detection of a release within 24 hours.

(Note: The provisions outlined in the Steel Tank Institute's (STI) "Standard for Dual Wall Underground Steel Storage Tanks" may be used as guidelines for aspects of the design of underground steel double-walled tanks.)

(6) Ancillary equipment must be provided with secondary containment (e.g., trench, jacketing, double-walled piping) that meets the requirements of paragraphs (2) and (3) of this subdivision except for:

(i) aboveground piping (exclusive of flanges, joints, valves, and other connections) that are visually inspected for leaks on a daily basis;

(ii) welded flanges, welded joints, and welded connections, that are visually inspected for leaks on a daily basis;

(iii) sealless or magnetic coupling pumps and sealless valves, that are visually inspected for leaks on a daily basis; and

(iv) pressurized aboveground piping systems with automatic shut-off devices (e.g. excess flow check valves, flow metering shutdown devices, loss of pressure activated shut-off devices) that are visually inspected for leaks on a daily basis.

(7) The owner or operator may obtain a variance from the requirements of this subdivision if the commissioner finds, as a result of a demonstration by the owner or operator, that alternative design and operating practices together with location characteristics will prevent the migration of any hazardous waste or hazardous constituents into the groundwater or surface water at least as effectively as secondary containment during the active life of the tanks system; or if the commissioner finds that in the event of a release that does migrate to groundwater or surface water, no substantial present or potential hazard will be posed to human health or the environment. New underground tank systems may not, per a demonstration in accordance with subparagraph (ii) of this paragraph, be exempted from the secondary containment requirements of this subdivision.

(i) In deciding whether to grant a variance based on a demonstration of equivalent protection of groundwater and surface water, the commissioner will consider:

('a') the nature and quantity of the wastes;

('b') the proposed alternate design and operation;

('c') the hydrogeologic setting of the facility, including the thickness of soils present between the tank system and groundwater; and

('d') all other factors that would influence the quality and mobility of the hazardous constituents and the potential for them to migrate to groundwater or surface water.

(ii) In deciding whether to grant a variance based on a demonstration of no substantial present or potential hazard, the commissioner will consider:

('a') the potential adverse effects on groundwater, surface water, and land quality, taking into account:

('1') the physical and chemical characteristics of the waste in the tank system, including its potential for migration;

('2') the hydrogeological characteristics of the facility and surrounding land;

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

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

('5') the persistence and permanence of the potential adverse effects;

('b') the potential adverse effects of a release on groundwater quality, taking into account:

('1') the quantity and quality of groundwater and the direction of groundwater flow;

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

('3') the current and future uses of groundwater in the area; and

('4') the existing quality of groundwater, including other sources of contamination and their cumulative impact on the groundwater quality;

('c') the potential adverse effects of a release on surface water quality, taking into account:

('1') the quantity and quality of groundwater and the direction of groundwater flow;

('2') the patterns of rainfall in the region;

('3') the proximity of the tank system to surface waters;

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

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

('d') the potential adverse effects of a release on the land surrounding the tank system, taking into account:

('1') the patterns of rainfall in the region; and

('2') the current and future uses of the surrounding land.

(iii) The owner or operator of a tank system, for which a variance from secondary containment had been granted in accordance with the requirements of subparagraph (i) of this paragraph, at which a release of hazardous waste has occurred from the primary tank system but has not migrated beyond the zone of engineering control (as established in the variance), must:

('a') comply with the requirements of subdivision (g) of this section, except paragraph (g)(4); and

('b') decontaminate or remove contaminated soil to the extent necessary to:

('1') enable the tank system for which the variance was granted to resume operation with the capability for the detection of releases at least equivalent to the capability it had prior to the release; and

('2') prevent the migration of hazardous waste or hazardous constituents to groundwater or surface water; and

('c') if contaminated soil cannot be removed or decontaminated in accordance with clause ('b') of this subparagraph, comply with the requirement of paragraph (h)(2) of this section.

(iv) The owner or operator of a tank system, for which a variance from secondary containment had been granted in accordance with the requirements of subparagraph (i) of this paragraph, at which a release of hazardous waste has occurred from the primary tank system and has migrated beyond the zone of engineering control (as established in the variance), must:

('a') comply with the requirements of paragraphs (g)(1), (2), (3), and (4) of this section;

('b') prevent the migration of hazardous waste or hazardous constituents to groundwater or surface water, if possible, and decontaminate or remove contaminated soil. If contaminated soil cannot be decontaminated or removed or if groundwater has been contaminated, the owner or operator must comply with the requirements of paragraph (h)(2) of this section; and

('c') provide secondary containment in accordance with the requirements of paragraphs (1) through (6) of this subdivision if repairing, replacing, or reinstalling the tank system, or reapply for a variance from secondary containment and meet the requirements for new tank systems in subdivision (c) of this section if the tank system is replaced. The owner or operator must comply with these requirements even if contaminated soil can be decontaminated or removed and groundwater or surface water has not been contaminated.

(8) The following procedures must be followed in order to request a variance from secondary containment:

(i) The commissioner must be notified, in writing, by the owner or operator that he or she intends to conduct and submit a demonstration for a variance from secondary containment as allowed in paragraph (7) of this subdivision according to the following schedule:

('a') for existing tank systems, at least 24 months prior to the date that secondary containment must be provided in accordance with paragraph (1) of this subdivision;

('b') for new tanks systems, at least 30 days prior to entering into a contract for installation.

(ii) As part of the notification, the owner or operator must also submit to the commissioner a description of the steps necessary to conduct the demonstration and a timetable for completing each of the steps. The demonstration must address each of the factors listed in subparagraph (7)(i) or (ii) of this subdivision.

(iii) The demonstration for a variance must be completed within 180 days after notifying the commissioner of an intent to conduct the demonstration.

(iv) If a variance is granted under this paragraph, the commissioner will require the permittee to construct and operate the tank system in the manner that was demonstrated to meet the requirements for the variance.

(9) All tank systems, until such time as secondary containment that meets the requirements of this section is provided, must comply with the following:

(i) for non-enterable underground tanks, a leak test that meets the requirements of subparagraph (b)(2)(v) of this section or other tank integrity method, as approved or required by the commissioner, must be conducted at least annually;

(ii) for other than non-enterable underground tanks, the owner or operator must either conduct a leak test as in subparagraph (i) of this paragraph or develop a schedule and procedure for an assessment of the overall condition of the tank system by an independent, qualified professional engineer registered in New York. The schedule and procedure must be adequate to detect obvious cracks, leaks, and corrosion or erosion that may lead to cracks and leaks. The owner or operator must remove the stored waste from the tank, if necessary, to allow the condition of all internal tank surfaces to be assessed. The frequency of these assessments must be based on the material of construction of the tank and its ancillary equipment, the age of the system, the type of corrosion or erosion protection used, the rate of corrosion or erosion observed during the previous inspection, and the characteristics of the waste being stored or treated;

(iii) for ancillary equipment, a leak test or other integrity assessment as approved by the commissioner must be conducted at least annually;

(Note: The practices described in the American Petroleum Institute (API) Publication Guide for Inspection of Refinery Equipment, Chapter XIII, "Atmospheric and Low-Pressure Storage Tanks," 4th edition, 1981, may be used, where applicable, as guidelines for assessing the overall condition of the tank system.)

(iv) the owner or operator must maintain on file at the facility a record of the results of the assessments conducted in accordance with subparagraphs (i) through (iii) of this paragraph;

(v) if a tank system or component is found to be leaking or unfit for use as a result of the leak test or assessment in subparagraphs (i) through (iii) of this paragraph, the owner or operator must comply with the requirements of subdivision (g) of this section.

(e) General operating requirements.

(1) Hazardous wastes or treatment reagents must not be placed in a tank system if they could cause the tank, its ancillary equipment, or the containment system to rupture, leak, corrode or otherwise fail.

(2) The owner or operator must use appropriate controls and practices to prevent spills and overflows from tank or containment systems. These include at a minimum:

(i) spill prevention controls (e.g., check valves, dry disconnect couplings);

(ii) overfill prevention controls (e.g., level sensing devices, high level alarms, automatic feed cutoff, or bypass to a standby tank); and

(iii) maintenance of sufficient freeboard in uncovered tanks to prevent overtopping by wave or wind action or by precipitation.

(3) The owner or operator must comply with the requirements of subdivision (g) if a leak or spill occurs in the tank system.

(4) The owner operator must mark all tanks with the words "Hazardous Waste" and with other words that identify the contents of the tanks. For underground tanks, the markings must be placed on sign in the area above the tank.

(f) Inspections.

(1) The owner or operator must develop and follow a schedule and procedure for inspecting overfill controls.

(2) The owner or operator must inspect at least once each operating day:

(i) aboveground portions of the tank system, if any, to detect corrosion or releases of waste;

(ii) data gathered from monitoring and leak detection equipment (e.g., pressure or temperature gauges, monitoring wells) to ensure that the tank system is being operated according to its design; and

(iii) the construction materials and the area immediately surrounding the externally accessible portion of the tank system, including the secondary containment system (e.g., dikes) to detect erosion or signs of releases of hazardous waste (e.g., wet spots, dead vegetation).

(Note: Paragraph 373-2.2(g)(3) of this Part requires the owner or operator to remedy any deterioration or malfunction the owner or operator finds. Subdivision (g) of this section requires the owner or operator to notify the commissioner within 24 hours of confirming a leak. Also, 40 CFR Part 302 may require the owner or operator to notify the National Response Center of a release.)

(3) The owner or operator must inspect cathodic protection systems, if present, according to, at a minimum, the following schedule to ensure that they are functioning properly:

(i) the proper operation of the cathodic protection system must be confirmed within six months after initial installation and annually thereafter; and

(ii) all sources of impressed current must be inspected and/or tested, as appropriate, at least bimonthly (i.e. every other month).

(Note: The practices described in the National Association of Corrosion Engineers (NACE) standard, "Recommended Practice (RP-02-85) Control of External Corrosion on Metallic Buried, Partially Buried, or Submerged Liquid Storage Systems," and the American Petroleum Institute (API) Publication 1632 "Cathodic Protection of Underground Petroleum Storage Tanks and Piping Systems," may be used, where applicable, as guidelines in maintaining and inspecting cathodic protection systems.)

(4) The owner or operator must document in the operating record of the facility an inspection of those items in paragraphs (1) through (3) of this subdivision.

(g) Response to leaks or spills and disposition of leaking or unfit-for-use tank systems. A tank system or secondary containment system from which there has been a leak or spill, or which is unfit for use, must be removed from service immediately, and the owner or operator must satisfy the following requirements:

(1) Cessation of use; prevent flow or addition of wastes. The owner or operator must immediately stop the flow of hazardous waste into the tank system or secondary containment system and inspect the system to determine the cause of the release.

(2) Removal of waste from tank system or secondary containment system.

(i) If the release was from the tank system, the owner or operator must, within 24 hours after detection of the leak or, if the owner or operator demonstrates that it is not possible, at the earliest practicable time, remove as much of the waste as is necessary to prevent further release of hazardous waste to the environment and to allow inspection and repair of the tanks system.

(ii) If material was released to a secondary containment system all released materials must be removed within 24 hours or in as timely a manner as is possible to prevent harm to human health and the environment.

(3) Containment of visible releases to the environment. The owner or operator must immediately conduct a visual inspection of the release and, based upon that inspection:

(i) prevent further migration of the leak or spill to soils or surface water; and

(ii) remove, and properly dispose of, any visible contamination of the soil or surface water.

(4) Notifications, reports.

(i) Any release to the environment, except as provided in subparagraph (ii) of this paragraph, must be reported to the commissioner within 24 hours of its detection. If the release has been reported pursuant to 6 NYCRR Part 595, that report will satisfy this requirement. (Note: The DEC spill hotline number is (800) 457-7362; outside of New York State (518) 457-7362).

(ii) A leak or spill of hazardous waste is exempted from the requirements of this paragraph if it is:

('a') less than or equal to a quantity of one pound; and

('b') immediately contained and cleaned-up.

(iii) Within 30 days of detection of a release to the environment, a report containing the following information must be submitted to the commissioner:

('a') likely route of migration of the release;

('b') characteristics of the surrounding soil (soil composition, geology, hydrogeology, climate);

('c') results of any monitoring or sampling conducted in connection with the releases (if available). If sampling or monitoring data relating to the release are not available within 30 days, these data must be submitted to the commissioner as soon as they become available;

('d') proximity to downgradient drinking water, surface water, and populated areas; and

('e') description of response actions taken or planned.

(5) Provision of secondary containment, repair, or closure.

(i) Unless the owner or operator satisfies the requirements of subparagraphs (ii) through (iv) of this paragraph, the tank system must be closed in accordance with subdivision (h) of this section.

(ii) If the cause of the release was a spill that has not damaged the integrity of the system, the owner or operator may return the system to service as soon as the released waste is removed and repairs, if necessary, are made.

(iii) If the cause of the release was a leak from the primary tank system into the secondary containment system, the system must be repaired prior to returning the tank system to service.

(iv) If the source of the release was a leak to the environment from a component of a tank system without secondary containment, the owner or operator must provide the component of the system from which the leak occurred with secondary containment that satisfies the requirements of subdivision (d) of this section before it can be returned to service, unless the source of the leak is an aboveground portion of a tank system that can be inspected visually. If the source is an aboveground component that can be inspected visually, the component must be repaired and may be returned to service without secondary containment as long as the requirements of paragraph (6) of this subdivision are satisfied. If a component is replaced to comply with the requirements of this subparagraph, that component must satisfy the requirements for new tank systems or components in subdivisions (c) and (d) of this section. Additionally, if a leak has occurred in any portion of a tank system component that is not readily accessible for visual inspection (e.g., the bottom of an inground or onground tank), the entire component must be provided with secondary containment in accordance with subdivision (d) of this section prior to being returned to use.

(6) Certification of major repairs. If the owner or operator has repaired a tank system in accordance with paragraph (5) of this subdivision, and the repair has been extensive (e.g., installation of an internal liner; repair of a ruptured primary containment or secondary containment vessel), the tank system must not be returned to service unless the owner/operator has obtained a certification by an independent, qualified, professional engineer registered in New York in accordance with subparagraph 373-1.4(a)(5)(iv) of this Title that the repaired system is capable of handling hazardous wastes without release for the intended life of the system. This certification must be submitted to the commissioner within seven days after returning the tank system to use.

(Note: The commissioner may, on the basis of any information received that there is or has been a release of hazardous waste or hazardous constituents into the environment, issue an order under ECL Article 71 requiring corrective action or such other response as deemed necessary to protect human health or the environment.)

(Note: See paragraph 373-2.2(g)(3) of this Part for the requirements necessary to remedy a failure. Also, 40 CFR Part 302 may require the owner or operator to notify the National Response Center of certain releases.)

(h) Closure and post-closure care.

(1) At closure of a tank system, the owner or operator must remove or decontaminate all waste residues, contaminated containment system components (liners, etc.), contaminated soils, and structures and equipment contaminated with waste, and manage them as hazardous waste, unless paragraph 371.1(d)(4) of this Title applies. The closure plan, closure activities, cost estimates for closure, and financial responsibility for tank systems must meet all of the requirements specified in sections 373-2.7 and 2.8 of this Subpart.

(2) If the owner or operator demonstrates that not all contaminated soils can be practicably removed or decontaminated as required in paragraph (1) of this subdivision, then the owner or operator must close the tank system and perform post-closure care in accordance with the closure and post-closure care requirements that apply to landfills (see subdivision 373-2.14(g) of this Subpart). In addition, for the purposes of closure, post-closure, and financial responsibility, such a tank system is then considered to be a landfill, and the owner or operator must meet all of the requirements for landfills specified in sections 373-2.7 and 2.8 of this Subpart.

(3) If an owner or operator has a tank system that does not have secondary containment that meets the requirements of paragraphs (d)(2) through (6) of this section and has not been granted a variance from the secondary containment requirements in accordance with paragraph (d)(7) of this section, then:

(i) the closure plan for the tank system must include both a plan for complying with paragraph (1) of this subdivision and a contingent plan for complying with paragraph (2) of this subdivision;

(ii) a contingent post-closure plan for complying with paragraph (2) of this subdivision must be prepared and submitted as part of the permit application;

(iii) the cost estimates calculated for closure and post-closure care must reflect the costs of complying with the contingent closure plan and the contingent post-closure plan, if those costs are greater than the costs of complying with the closure plan prepared for the expected closure under paragraph (1) of this subdivision;

(iv) financial assurance must be based on the cost estimates in subparagraph (iii) of this paragraph; and

(v) for the purposes of the contingent closure and post-closure plans, such a tank system is considered to be a landfill, and the contingent plans must meet all of the closure, post-closure and financial responsibility requirements for landfills under sections 373-2.7 and 2.8 of this Subpart.

(i) Special requirements for ignitable or reactive wastes.

(1) Ignitable or reactive waste must not be placed in tank systems, unless:

(i) the waste is treated, rendered, or mixed before or immediately after placement in the tank system so that:

('a') the resulting waste, mixture, or dissolved material no longer meets the definition of ignitable or reactive waste under subdivision 371.3(b) or (d) of this Title, and

('b') paragraph 373-2.2(i)(2) of this Subpart is complied with; or

(ii) the waste is stored or treated in such a way that it is protected from any material or conditions that may cause the waste to ignite or react; or

(iii) the tank system is used solely for emergencies.

(2) The owner or operator of a facility where ignitable or reactive wastes are stored or treated in a tank must comply with the requirements for the maintenance of protective distances between the waste management area and any public ways, streets, alleys, or an adjoining property line that can be built upon as required in Tables 2-1 through 2-6 of the National Fire Protection Association's "Flammable and Combustible Liquids Code" (see subdivision 370.1(e) of this Title).

(j) Special requirements for incompatible wastes.

(1) Incompatible wastes, or incompatible wastes and materials, must not be placed in the same tank system, unless paragraph 373-2.2(i)(2) of this Subpart is complied with.

(2) Hazardous waste must not be placed in a tank system that has not been decontaminated and that previously held an incompatible waste or material, unless paragraph 373-2.2(i)(2) of this Subpart is complied with.

(k) Air Emission Standards. The owner or operator shall manage all hazardous waste placed in a tank in accordance with the applicable requirements of sections 373-2.27, 373-2.28 and 373-2.29 of this Subpart.

§373-2.11 - Surface Impoundments

(a) Applicability. The regulations in this section apply to owners and operators of facilities that use surface impoundments to treat, store, or dispose of hazardous waste except as subdivision 373-2.1(a) of this Subpart provides otherwise.

(b) Design and operating requirements.

(1) Any surface impoundment that is not covered by paragraph (3) of this subdivision or subdivision 373-3.11(i) of this Part must have a liner for all portions of the impoundment (except for existing portions of such impoundments). The liner must be designed, constructed, and installed to prevent any migration of wastes out of the impoundment to the adjacent subsurface soil or groundwater or surface water at any time during the active life (including the closure period) of the impoundment. The liner may be constructed of materials that may allow wastes to migrate into the liner (but not into the adjacent subsurface soil or groundwater or surface water) during the active life of the facility, provided that the impoundment is closed in accordance with subparagraph (f)(1)(i) of this section. For impoundments that will be closed in accordance with subparagraph (f)(1)(ii) of this section, the liner must be constructed of materials that can prevent wastes from migrating into the liner during the active life of the facility. The liner must be:

(i) constructed of materials that have appropriate chemical properties and sufficient strength and thickness to prevent failure due to pressure gradients (including static head and external hydrogeologic forces), physical contact with the wastes or leachate to which they are exposed, climatic conditions, the stress of installation, and the stress of daily operations;

(ii) placed upon a foundation or base capable of providing support to the liner and resistance to pressure gradients above and below the liner to prevent failure of the liner due settlement, compression, or uplift; and

(iii) installed to cover all surrounding earth likely to be in contact with the waste or leachate.

(2) The owner or operator will be exempted from the requirements of paragraph (1) of this subdivision if the commissioner finds, based on a demonstration by the owner or operator, that alternate design and operating practices, together with location characteristics, will prevent the migration of any hazardous constituents (see subdivision 373-2.6(d) of this Subpart) into the groundwater or surface water at any future time. In deciding whether to grant an exception, the commissioner will consider:

(i) the nature and quantity of the wastes;

(ii) the proposed alternate design and operation;

(iii) the hydrogeologic setting of the facility, including the attenuate capacity and thickness of the liners and soils present between the impoundment and groundwater or surface water; and

(iv) all other factors which would influence the quality and mobility of the leachate produced and the potential for it to migrate to groundwater or surface water.

(3) The owner or operator of each new surface impoundment unit on which construction commences after January 29, 1992, each lateral expansion of a surface impoundment unit on which construction commences after July 29, 1992, and each replacement of an existing surface impoundment unit that is to commence reuse after July 29, 1992, must install two or more liners and a leachate collection and removal system between such liners. "Construction commences" is as defined in subdivision 370.2(b) of this Title under "existing facility".

(i) ('a') The "liner system" must include:

('1') A top liner designed and constructed of materials (e.g., a geomembrane) to prevent the migration of hazardous constituents into such liner during the active life and post-closure care period; and

('2') A composite bottom liner, consisting of at least two components. The upper component must be designed and constructed of materials (e.g., a geomembrane) to prevent the migration of hazardous constituents into this component during the active life and post-closure care period. The lower component must be designed and constructed of materials to minimize the migration of hazardous constituents if a breach in the upper component were to occur. The lower component must be constructed of at least 3 feet (91 cm) of compacted soil material with a hydraulic conductivity of no more than 1 X 10-7 cm/sec.

('b') The liners must comply with subparagraphs (1)(i), (ii), and (iii) of this subdivision.

(ii) The "leachate collection and removal system" between the liners, and immediately above the bottom composite liner in the case of multiple leachate collection and removal systems, is also a "leak detection system". This leak detection system must be capable of detecting, collecting, and removing leaks of hazardous constituents at the earliest practicable time through all areas of the top liner likely to be exposed to waste or leachate during the active life and post-closure care period. The requirements for a leak detection system in this paragraph are satisfied by installation of a system that is, at a minimum:

('a') constructed with a bottom slope of one percent or more;

('b') constructed of granular drainage materials with a hydraulic conductivity of 1 X 10-1 cm/sec or more and a thickness of 12 inches (30.5 cm) or more; or constructed of synthetic or geonet drainage materials with a transmissivity of 3 X 10-4 m2/sec or more;

('c') constructed of materials that are chemically resistant to the waste managed in the surface impoundment and the leachate expected to be generated, and of sufficient strength and thickness to prevent collapse under the pressures exerted by overlying wastes and any waste cover materials or equipment used at the surface impoundment;

('d') designed and operated to minimize clogging during the active life and post-closure care period; and

('e') constructed with sumps and liquid removal methods (e.g., pumps) of sufficient size to collect and remove liquids from the sump and prevent liquids from backing up into the drainage layer. Each unit must have its own sump(s). The design of each sump and removal system must provide a method for measuring and recording the volume of liquids present in the sump and of liquids removed.

(iii) The owner or operator shall collect and remove pumpable liquids in the sumps to minimize the head on the bottom liner.

(iv) The owner or operator of a leak detection system that is not located completely above the seasonal high water table must demonstrate that the operation of the leak detection system will not be adversely affected by the presence of ground water.

(4) The Commissioner may approve alternative design or operating practices to those specified in paragraph (3) of this subdivision if the owner or operator demonstrates to the commissioner that such design and operating practices, together with location characteristics:

(i) will prevent the migration of any hazardous constituent into the ground water or surface water at least as effectively as the liners and leachate collection and removal system specified in paragraph (3) of this subdivision; and

(ii) will allow detection of leaks of hazardous constituents through the top liner at least as effectively.

(5) The double liner requirements set forth in paragraph (3) of this subdivision may be waived by the commissioner for any monofill, if:

(i) the monofill contains only hazardous wastes from foundry furnace emission controls or metal casting molding sand, and such wastes do not contain constituents which would render the wastes hazardous for reasons other than the Toxicity Characteristic in subdivision 371.3(e) of this Title with EPA Hazardous Waste Numbers D004 through D017; and

('a') ('1') the monofill has at least one liner for which there is no evidence of leaking. For the purposes of this paragraph, the term "liner" means a liner designed, constructed, installed, and operated to prevent hazardous waste from passing into the liner at any time during the active life of the facility, or a liner designed, constructed, installed, and operated to prevent hazardous waste from migrating beyond the liner to adjacent subsurface soil, groundwater, or surface water at any time during the active life of the facility. At the closure of any surface impoundment which has been exempted from the requirements of paragraph (3) of this subdivision on the basis of a liner designed, constructed, installed, and operated to prevent hazardous waste from passing beyond the liner, the owner or operator must remove or decontaminate all waste residues, all contaminated liner material,and contaminated soil to the extent practicable. If all contaminated soil is not removed or decontaminated, the owner or operator of such impoundment will comply with appropriate post-closure requirements, including but not limited to groundwater monitoring and corrective action;

('2') the monofill is located more than one-quarter mile from an underground source of drinking water (as that term is defined in 40 CFR 144.3 (see subdivision 370.1(e) of this Title)); and

('3') the monofill is in compliance with generally applicable groundwater monitoring requirements for facilities with Part 373 permits; or

('b') the owner or operator demonstrates that the monofill is located, designed and operated to assure that there will be no migration of any hazardous constituent into groundwater or surface water at any future time.

(6) The owner or operator of any replacement surface impoundment unit is exempt from paragraph (3) of this subdivision if:

(i) The existing unit was constructed in compliance with the design standards of sections 3004 (o)(1)(A)(i) and (o)(5) of the Resource Conservation and Recovery Act (see 6 NYCRR 370.1(e)); and

(ii) There is no reason to believe that the liner is not functioning as designed.

(7) A surface impoundment must be designed, constructed, maintained, and operated to prevent overtopping resulting from normal or abnormal operations, overfilling, wind and wave action, rainfall, run-on, malfunctions of level controllers, alarms, other equipment, and human error.

(8) A surface impoundment must have dikes that are designed constructed, and maintained with sufficient structural integrity to prevent massive failure of the dikes. In ensuring structural integrity, it must not be presumed that the liner system will function without leakage during the active life of the unit.

(9) The commissioner will specify in the permit all design and operating practices that are necessary to ensure that the requirements of this subdivision are satisfied.

(c) Double-lined surface impoundments are not exempt from section 373-2.6 groundwater protection requirements.

(d) Monitoring and inspection.

(1) During construction and installation, liners (except in the case of existing portions of surface impoundments exempt from paragraph 373-2.11(b)(1) and cover systems (e.g. membranes, sheets, or coatings) must be inspected for uniformity, damage, and imperfections (e.g., holes, cracks, thin spots, or foreign materials). Immediately after construction or installation:

(i) synthetic liners and covers must be inspected to ensure tight seams and joints and the absence of tears, punctures, or blisters; and

(ii) soil-based and mixed liners and covers must be inspected for imperfections including lenses, cracks, channels, root holes or other structural non-uniformities that may cause an increase in the permeability of the liner or cover.

(2) While a surface impoundment is in operation, it must be inspected weekly and after storms to detect evidence of any of the following:

(i) deterioration, malfunctions, or improper operation of overtopping control systems;

(ii) sudden drops in the level of the impoundment's contents; and

(iii) severe erosion or other signs of deterioration in dikes or other containment devices.

(3) Prior to the issuance of a permit, and after any extended period of time (at least six months) during which the impoundment was not in service, the owner or operator must obtain a certification from a professional engineer registered in New York State, that the impoundment's dike, including that portion of any dike which provides freeboard, has structural integrity. The certification must establish in particular, that the dike:

(i) deterioration, malfunctions, or improper operation of overtopping control systems;

(ii) will not fail due to scouring or piping, without dependence on any liner system included in the surface impoundment construction.

(4) (i) An owner or operator required to have a leak detection system under paragraphs 373-2.11(b)(3) or (4) must record the amount of liquids removed from each leak detection system sump at least once each week during the active life and closure period.

(ii) After the final cover is installed, the amount of liquid removed from each leak detection system sump must be recorded at least monthly. If the liquid level in any sump stays below its pump operating level for two consecutive months, the amount of liquids in the sumps must be recorded at least quarterly. If the liquid level in the sump stays below its pump operating level for two consecutive quarters, the amount of liquids in the sumps must be recorded at least semi-annually. If at any time during the post-closure care period the pump operating level is exceeded at units on quarterly or semi-annual recording schedules, the owner or operator must return to monthly recording of the amounts of liquids removed from each sump until the liquid level again stays below the pump operating level for two consecutive months.

(iii) "Pump operating level" is a liquid level proposed by the owner or operator and approved by the commissioner based on pump activation level, sump dimensions, and level that avoids backup into the drainage layer and minimizes head in the sump.

(e) Emergency repairs; contingency plans.

(1) A surface impoundment must be removed from service in accordance with paragraph (2) of this subdivision when:

(i) the level of liquids in the impoundment suddenly drops and the drop is not known to be caused by changes in the flows into or out of the impoundment; or

(ii) the dike leaks.

(2) When a surface impoundment must be removed from service as required by paragraph (1) of this subdivision, the owner or operator must:

(i) immediately shut off the flow or stop the addition of wastes into the impoundment;

(ii) immediately contain any surface leakage which has occurred or is occurring;

(iii) immediately stop the leak;

(iv) take any other necessary steps to stop or prevent catastrophic failure;

(v) if a leak cannot be stopped by any other means, empty the impoundment; and

(vi) notify the commissioner of the problem in writing within seven days after detecting the problem.

(3) As part of the contingency plan required in section 373-2.4 of this Subpart, the owner or operator must specify a procedure for complying with the requirements of paragraph (2) of this subdivision.

(4) No surface impoundment that has been removed from service in accordance with the requirements of this subdivision may be restored to service unless the portion of the impoundment which was failing is repaired and the following steps are taken:

(i) If the impoundment was removed from service as a result of the actual or imminent dike failure, the dike's structural integrity must be recertified in accordance with paragraph 373-2.11(d)(3).

(ii) If the impoundment was removed from service as a result of sudden drop in the liquid level, then:

('a') for any existing portion of the impoundment, a liner must be installed in compliance with paragraph (b)(1) of this section; and

('b') for any other portion of the impoundment, the repaired liner system must be certified by a professional engineer, registered in New York State, as meeting the design specifications approved in the permit.

(5) A surface impoundment that has been removed from service in accordance with the requirements of this subdivision and that is not being repaired must be closed in accordance with the provisions of subdivision (f) of this section.

(f) Closure and post-closure care.

(1) At closure, the owner or operator must:

(i) remove or decontaminate all waste residues, contaminated system components (liners, etc.) contaminated subsoils, and structures and equipment contaminated with waste and leachate, and manage them as hazardous waste unless paragraph 371.1(d)(4) of this Title applies; or

(ii) ('a') eliminate free liquids by removing liquid wastes or solidifying the remaining wastes and waste residues;

('b') stabilize remaining wastes to a bearing capacity sufficient to support final cover; and

('c') cover the surface impoundment with a final cover designed and constructed to:

('1') provide long-term minimization of the migration of liquids through the impoundment;

('2') function with minimum maintenance;

('3') promote drainage and minimize erosion or abrasion of the final cover;

('4') accommodate settling and subsidence so that the cover's integrity is maintained; and

('5') have a permeability less than or equal to the permeability of any bottom liner system or subsoils present.

(2) If some waste residues or contaminated materials are left in place at final closure, the owner or operator must comply with all post-closure requirements contained in subdivisions 373-2.7(g) through (j) of this Subpart, including maintenance and monitoring throughout the post-closure care period (specified in the permit under subdivision 373-2.7(g)). The owner or operator must:

(i) maintain the integrity and effectiveness of the final cover, including making repairs to the cap as necessary to correct the effects of settling, subsidence, erosion, or other events;

(ii) maintain and monitor the leak detection system in accordance with clause 373-2.11(b)(3)(ii)('d') and subparagraph (iii), and paragraph 373-2.11(d)(4), and comply with all other applicable leak detection system requirements of this Subpart;

(iii) maintain and monitor the groundwater monitoring system and comply with all other applicable requirements of section 373-2.6 of this Subpart; and

(iv) prevent run-on and run-off from eroding or otherwise damaging the final cover.

(3) (i) If an owner or operator plans to close a surface impoundment in accordance with subparagraph (f)(1)(i) of this section, and the impoundment does not comply with the liner requirements of paragraph (b)(1) of this section and is not exempt from them in accordance with paragraph (b)(2), then:

('a') the closure plan for the impoundment under subdivision 373-2.7(c) of this Subpart must include both a plan for complying with subparagraph (1)(i) of this subdivision and a contingency plan for complying with subparagraph (1)(ii) in case not all contaminated subsoils can be practicably removed at closure; and

('b') the owner or operator must prepare a contingent post-closure plan under subdivision 373-2.7(h) of this Subpart for complying with paragraph (2) of this subdivision in case not all contaminated subsoils can be practicably removed at closure.

(ii) The cost estimates calculated under subdivisions 373-2.8(c) and (e) of this Subpart for closure and post-closure care of an impoundment subject to this paragraph must include the cost of complying with the contingent closure plan and the contingent post-closure plan, but are not required to include the cost of expected closure under subparagraph (1)(i) of this subdivision.

(g) Special requirements for ignitable or reactive waste. Ignitable or reactive waste must not be placed in a surface impoundment, unless the waste and impoundment satisfy all applicable requirements of Part 376 and:

(1) the waste is treated, rendered, or mixed before or immediately after placement in the impoundment so that:

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

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

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

(3) the surface impoundment is used solely for emergencies.

(h) Special requirements for incompatible wastes. Incompatible wastes, or incompatible wastes and materials, (see Appendix 29 of this Title for examples) must not be placed in the same surface impoundment, unless paragraph 373-2.2(i)(2) of this Subpart is complied with.

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

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

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

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

(iii) the mobilizing properties of other materials co-disposed with these wastes; and

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

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

(j) Action leakage rate.

(1) The commissioner shall approve an action leakage rate for surface impoundment units subject to paragraphs 373-2.11 (b)(3) or (4). The action leakage rate is the maximum design flow rate that the leak detection system (LDS) can remove without the fluid head on the bottom liner exceeding 1 foot. The action leakage rate must include an adequate safety margin to allow for uncertainties in the design (e.g., slope, hydraulic conductivity, thickness of drainage material), construction, operation, and location of the LDS, waste and leachate characteristics, likelihood and amounts of other sources of liquids in the LDS, and proposed response actions (e.g., the action leakage rate must allow for decreases in the flow capacity of the system over time resulting from siltation and clogging, rib layover and creep of synthetic components of the system, overburden pressures, etc.).

(2) To determine if the action leakage rate has been exceeded, the owner or operator must convert the weekly or monthly flow rate from the monitoring data obtained under paragraph 373-2.11(d)(4) to an average daily flow rate (gallons per acre per day) for each sump. Unless the commissioner approves a different calculation, the average daily flow rate for each sump must be calculated weekly during the active life and closure period, and if the unit is closed in accordance with paragraph 373-2.11(f)(2), monthly during the post-closure care period when monthly monitoring is required under paragraph 373-2.11(d)(4).

(k) Response actions.

(1) The owner or operator of surface impoundment units subject to paragraph 373-2.11(b)(3) or (4) must have an approved response action plan before receipt of waste. The response action plan must set forth the actions to be taken if the action leakage rate has been exceeded. At a minimum, the response action plan must describe the actions specified in paragraph (2) of this subdivision.

(2) If the flow rate into the leak detection system exceeds the action leakage rate for any sump, the owner or operator must:

(i) notify the commissioner in writing of the exceedence within 7 days of the determination;

(ii) submit a preliminary written assessment to the commissioner within 14 days of the determination, as to the amount of liquids, likely sources of liquids, possible location, size, and cause of any leaks, and short-term actions taken and planned;

(iii) determine to the extent practicable the location, size, and cause of any leak;

(iv) determine whether waste receipt should cease or be curtailed, whether any waste should be removed from the unit for inspection, repairs, or controls, and whether or not the unit should be closed;

(v) determine any other short-term and longer-term actions to be taken to mitigate or stop any leaks; and

(vi) within 30 days after the notification that the action leakage rate has been exceeded, submit to the commissioner the results of the analyses specified in subparagraphs (2)(iii), (iv), and (v) of this subdivision, the results of actions taken, and actions planned. Monthly thereafter, as long as the flow rate in the leak detection system exceeds the action leakage rate, the owner or operator must submit to the commissioner a report summarizing the results of any remedial actions taken and actions planned.

(3) To make the leak and/or remediation determinations in subparagraphs (2)(iii), (iv), and (v) of this subdivision, the owner or operator must:

(i) ('a') assess the source of liquids and amounts of liquids by source;

('b') conduct a fingerprint, hazardous constituent, or other analyses of the liquids in the leak detection system to identify the source of liquids and possible location of any leaks, and the hazard and mobility of the liquid; and

('c') assess the seriousness of any leaks in terms of potential for escaping into the environment; or

(ii) document why such assessments are not needed.

(l) Air Emission Standards. The owner or operator shall manage all hazardous waste placed in a surface impoundment in accordance with the applicable requirements of sections, 373-2.28 and 373-2.29 of this Subpart.

§373-2.12 - Waste Piles

(a) Applicability.

(1) The regulations in this section apply to owners and operators of facilities that place or treat hazardous waste in piles, except as subdivision 373-2.1(a) of this Subpart provides otherwise.

(2) The regulations in this section do not apply to owners and operators of waste piles that are closed with wastes left in place. Such waste piles are subject to regulations under section 373-2.14 of this Subpart (Secure Landburial Facilities).

(3) The owner or operator of any waste pile that is inside or under a structure that provides protection from precipitation so that neither run-off nor leachate is generated is not subject to regulation under subdivision (b) of this section or under section 373-2.6 of this Subpart, provided that:

(i) liquids or materials containing free liquids are not placed in the pile;

(ii) the pile is protected from surface water run-on by the structure or in some other manner;

(iii) the pile is designed and operated to control dispersal of waste by wind, where necessary, by means other than wetting; and

(iv) the pile will not generate leachate through decomposition or other reactions.

(Note: Operation of a waste pile may be subject to Part 376 Land Disposal Restrictions.)

(b) Design and operating requirements.

(1) A waste pile (except for an existing portion of a waste pile) must have:

(i) a liner that is designed, constructed, and installed to prevent any migration of wastes out of the pile into the adjacent subsurface soil or groundwater or surface water at any time during the active life (including the closure period) of the waste pile. The liner may be constructed of materials that may allow waste to migrate into the liner itself (but not into the adjacent subsurface soil or groundwater or surface water) during the active life of the facility. The liner must be:

('a') constructed of materials that have appropriate chemical properties and sufficient enough strength and thickness to prevent failure due to pressure gradients (including static head and external hydrogeologic forces), physical contact with the waste or leachate to which they are exposed, climatic conditions, the stress of installation, and the stress of daily operations;

('b') placed upon a foundation or base capable of providing support to the liner and resistance to pressure gradients above and below the liner to prevent failure of the liner due to settlement, compression, or uplift; and

('c') installed to over all surrounding earth likely to be in contact with the waste or leachate; and

(ii) a leachate collection and removal system immediately above the liner that is designed constructed, maintained, and operated to collect and remove leachate from the pile. The commissioner will specify design and operating conditions in the permit to ensure that the leachate depth over the liner does not exceed 30 cm (one foot). The leachate collection and removal system must be:

('a') constructed of materials that are:

('1') chemically resistant to the waste managed in the pile and the leachate expected to be generated; and

('2') of sufficient strength and thickness to prevent collapse under the pressure exerted by overlaying wastes, waste cover materials, and by any equipment used at the pile; and

('b') designed and operated to function without clogging through the scheduled closure of the waste pile.

(2) The owner or operator will be exempt from the requirements of paragraph (1) of this subdivision if the commissioner finds, based on a demonstration by the owner or operator, that alternate design and operating practices, together with location characteristics, will prevent the migration of any hazardous constituents (see subdivision 373-2.6(d) of this Subpart) into the groundwater or surface water at any future time. In deciding whether to grant an exemption, the commissioner will consider:

(i) the nature and quantity of the wastes;

(ii) the proposed alternate design and operation;

(iii) the hydrogeologic setting of the facility, including alternative capacity and thickness of the liners and soils present between the pile and groundwater or surface water; and

(iv) all other factors which would influence the quality and mobility of the leachate produced and the potential for it to migrate to groundwater or surface water.

(3) The owner or operator of each new waste pile unit on which construction commences after January 29, 1992, each lateral expansion of a waste pile unit on which construction commences after July 29, 1992, and each replacement of an existing waste pile unit that is to commence reuse after July 29, 1992 must install two or more liners and a leachate collection and removal system above and between such liners. "Construction commences" is as defined in subdivision 370.2(b) under "existing facility".

(i) ('a') The liner system must include:

('1') a top liner designed and constructed of materials (e.g., a geomembrane) to prevent the migration of hazardous constituents into such liner during the active life and post-closure care period; and

('2') a composite bottom liner, consisting of at least two components. The upper component must be designed and constructed of materials (e.g., a geomembrane) to prevent the migration of hazardous constituents into this component during the active life and post-closure care period. The lower component must be designed and constructed of materials to minimize the migration of hazardous constituents if a breach in the upper component were to occur. The lower component must be constructed of at least 3 feet (91 cm) of compacted soil material with a hydraulic conductivity of no more than 1 X 10-7 cm/sec.

('b') The liners must comply with clauses (1)(i)('a'), ('b'), and ('c') of this subdivision.

(ii) The "leachate collection and removal system" immediately above the top liner must be designed, constructed, operated, and maintained to collect and remove leachate from the waste pile during the active life and post-closure care period. The commissioner will specify design and operating conditions in the permit to ensure that the leachate depth over the liner does not exceed 30 cm (one foot). The leachate collection and removal system must comply with clauses (3)(iii)('c') and ('d') of this subdivision.

(iii) The "leachate collection and removal system" between the liners, and immediately above the bottom composite liner in the case of multiple leachate collection and removal systems, is also a "leak detection system". This leak detection system must be capable of detecting, collecting, and removing leaks of hazardous constituents at the earliest practicable time through all areas of the top liner likely to be exposed to waste or leachate during the active life and post-closure care period. The requirements for a leak detection system in this paragraph are satisfied by installation of a system that is, at a minimum:

('a') constructed with a bottom slope of one percent or more;

('b') constructed of granular drainage materials with a hydraulic conductivity of 1 X 10-2 cm/sec or more and a thickness of 12 inches (30.5 cm) or more; or constructed of synthetic or geonet drainage materials with a transmissivity of 3 X 10-5 m2/sec or more;

('c') constructed of materials that are chemically resistant to the waste managed in the waste pile and the leachate expected to be generated, and of sufficient strength and thickness to prevent collapse under the pressures exerted by overlying wastes, waste cover materials, and equipment used at the waste pile;

('d') designed and operated to minimize clogging during the active life and post-closure care period; and

('e') constructed with sumps and liquid removal methods (e.g., pumps) of sufficient size to collect and remove liquids from the sump and prevent liquids from backing up into the drainage layer. Each unit must have its own sump(s). The design of each sump and removal system must provide a method for measuring and recording the volume of liquids present in the sump and of liquids removed.

(iv) The owner or operator shall collect and remove pumpable liquids in the leak detection system sumps to minimize the head on the bottom liner.

(v) The owner or operator of a leak detection system that is not located completely above the seasonal high water table must demonstrate that the operation of the leak detection system will not be adversely affected by the presence of ground water.

(4) The commissioner may approve alternative design or operating practices to those specified in paragraph (3) of this subdivision if the owner or operator demonstrates to the commissioner that such design and operating practices, together with location characteristics:

(i) will prevent the migration of any hazardous constituent into the ground water or surface water at least as effectively as the liners and leachate collection and removal systems specified in paragraph (3) of this subdivision; and

(ii) will allow detection of leaks of hazardous constituents through the top liner at least as effectively.

(5) Paragraph (3) of this subdivision does not apply to monofills that are granted a waiver by the commissioner in accordance with paragraph 373-2.11(b)(5).

(6) The owner or operator of any replacement waste pile unit is exempt from paragraph (3) of this subdivision if:

(i) the existing unit was constructed in compliance with the design standards of section 3004(o)(1)(A)(i) and (o)(5) of the Resource Conservation and Recovery Act (see 6 NYCRR 370.1(e)); and

(ii) there is no reason to believe that the liner is not functioning as designed.

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

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

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

(10) If the pile contains any particulate matter which may be subject to wind dispersal, the owner or operator must cover or otherwise manage the pile to control wind dispersal.

(11) The commissioner will specify in the permit all design and operating practices that are necessary to ensure that the requirements of this subdivision are satisfied.

(c) Double-lined piles which are not applicable to paragraph (a)(3) of this section are not exempt from section 373-2.6 groundwater protection requirements.

(d) Reserved.

(e) Monitoring and inspection.

(1) During construction or installation, liners (except in the case of existing portions of piles exempt from paragraph (b)(1) of this section) and cover systems (e.g. membranes, sheets or coatings) must be inspected for uniformity, damage, and imperfections (e.g. holes, cracks, thin spots, or foreign materials). Immediately after construction or installation:

(i) synthetic liners and covers must be inspected to ensure tight seams and joints and the absence of tears, punctures and blisters.

(ii) soil-based and mixed liners and covers must be inspected for imperfections including lenses, cracks, channels, root holes, or other structural non-uniformities that may cause an increase in the permeability of the liner or cover.

(2) While a waste pile is in operation, it must be inspected weekly and after storms to detect evidence of any of the following:

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

(ii) proper functioning of wind dispersal control systems, where present; and

(iii) the presence of leachate in and proper functioning of leachate collection and removal systems, where present.

(3) An owner or operator required to have a leak detection system under paragraph 373-2.12(b)(3) must record the amount of liquids removed from each leak detection system sump at least once each week during the active life and closure period.

(f) Special requirements for ignitable or reactive waste. Ignitable or reactive waste must not placed in a waste pile unless the waste and waste pile satisfy all applicable requirements of Part 376 and:

(1) the waste is treated, rendered, or mixed before or immediately after placement in the pile so that:

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

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

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

(g) Special requirements for incompatible wastes.

(1) Incompatible wastes, or incompatible wastes and materials, (see Appendix 29 of this Title for examples) must not be placed in the same pile, unless paragraph 373-2.2(i)(2) of this Subpart is complied with.

(2) A pile of hazardous waste that is incompatible with any waste or other material placed nearby in containers, other piles, open tanks, or surface impoundments must be separated from the other materials, or protected from them by means of a dike, berm, wall, or other device.

(3) Hazardous waste must not be piled on the same base where incompatible wastes or materials were previously piled, unless the base has been decontaminated sufficiently to ensure compliance with paragraph 373-2.2(i)(2) of this Subpart.

(h) Closure and post-closure care.

(1) At closure, the owner or operator must remove or decontaminate all waste residues, contaminated containment system components (liners, etc.) contaminated subsoils, structures, and equipment contaminated with waste and leachate and manage them as hazardous waste unless paragraph 371.1(d)(4) of this Title applies.

(2) If, after removing or decontaminating all residues and making all reasonable efforts to effect removal or decontamination of contaminated components, subsoils, structures, and equipment as required in paragraph (1) of this subdivision, the owner or operator finds that not all contaminated subsoils can be practicably removed or decontaminated, the owner or operator must close the facility and perform post-closure care in accordance with the closure and post-closure care requirements that apply to landfills (see subdivision 373-2.14(f) of this Subpart).

(3) (i) The owner or operator of a waste pile that does not comply with the liner requirements of subparagraph (b)(1)(i) of this section, and is not exempt from them in accordance with paragraph (a)(3) or (b)(2) of this section, must:

('a') include, in the closure plan for the pile under subdivision 373-2.7(c) of this Subpart, both a plan for complying with paragraph (1) of this subdivision and a contingent plan for complying with paragraph (2) in case not all contaminated subsoils can be practicably removed at closure; and

('b') prepare a contingent post-closure plan under subdivision 373-2.7(h) of this Subpart for complying with paragraph (2) of this section in case not all contaminated subsoils can be practicably removed at closure.

(ii) The cost estimates calculated under subdivisions 373-2.8(c) and (e) of this Subpart for closure and post-closure care of a pile subject to this section must include the costs of complying with the contingent closure plan and the contingent post-closure plan, but are not required to include the cost of expected closure under paragraph (1) of this subdivision.

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

(1) Hazardous wastes F020, F021, F022, F023, F026, and F027 must not be placed in waste piles that are not enclosed (the requirements for an enclosed waste pile are described in paragraph (a)(3) of this section) unless the owner or operator operates the waste pile in accordance with a management plan for these wastes that is approved by the commissioner pursuant to the standards set out in this paragraph, and in accord with all other applicable requirements of this Subpart. The factors to be considered are:

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

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

(iii) the mobilizing properties of other materials co-disposed with these wastes; and

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

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

(j) Action leakage rate.

(1) The commissioner shall approve an action leakage rate for waste pile units subject to paragraphs 373-2.12(b)(3) or (4). The action leakage rate is the maximum design flow rate that the leak detection system (LDS) can remove without the fluid head on the bottom liner exceeding 1 foot. The action leakage rate must include an adequate safety margin to allow for uncertainties in the design (e.g., slope, hydraulic conductivity, thickness of drainage material), construction, operation, and location of the LDS, waste and leachate characteristics, likelihood and amounts of other sources of liquids in the LDS, and proposed response actions (e.g., the action leakage rate must allow for decreases in the flow capacity of the system over time resulting from siltation and clogging, rib layover and creep of synthetic components of the system, overburden pressures, etc.).

(2) To determine if the action leakage rate has been exceeded, the owner or operator must convert the weekly flow rate from the monitoring data obtained under paragraph 373-2.12(e)(3) to an average daily flow rate (gallons per acre per day) for each sump. Unless the commissioner approves a different calculation, the average daily flow rate for each sump must be calculated weekly during the active life and closure period.

(k) Response actions.

(1) The owner or operator of waste pile units subject to paragraph 373-2.12(b)(3) or (4) must have an approved response action plan before receipt of waste. The response action plan must set forth the actions to be taken if the action leakage rate has been exceeded. At a minimum, the response action plan must describe the actions specified in paragraph (2) of this subdivision.

(2) If the flow rate into the leak detection system exceeds the action leakage rate for any sump, the owner or operator must:

(i) notify the commissioner in writing of the exceedence within 7 days of the determination;

(ii) submit a preliminary written assessment to the commissioner within 14 days of the determination, as to the amount of liquids, likely sources of liquids, possible location, size, and cause of any leaks, and short-term actions taken and planned;

(iii) determine to the extent practicable the location, size, and cause of any leak;

(iv) determine whether waste receipt should cease or be curtailed, whether any waste should be removed from the unit for inspection, repairs, or controls, and whether or not the unit should be closed;

(v) determine any other short-term and long-term actions to be taken to mitigate or stop any leaks; and

(vi) within 30 days after the notification that the action leakage rate has been exceeded, submit to the commissioner the results of the analyses specified in subparagraphs (2)(iii), (iv), and (v) of this subdivision, the results of actions taken, and actions planned. Monthly thereafter, as long as the flow rate in the leak detection system exceeds the action leakage rate, the owner or operator must submit to the commissioner a report summarizing the results of any remedial actions taken and actions planned.

(3) To make the leak and/or remediation determinations in subparagraphs (2)(iii), (iv), and (v) of this subdivision, the owner or operator must:

(i) ('a') assess the source of liquids and amounts of liquids by source;

('b') conduct a fingerprint, hazardous constituent, or other analyses of the liquids in the leak detection system to identify the source of liquids and possible location of any leaks, and the hazard and mobility of the liquid; and

('c') assess the seriousness of any leaks in terms of potential for escaping into the environment; or

(ii) document why such assessments are not needed.

§373-2.13 - Land Treatment

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

(b) Treatment program.

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

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

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

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

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

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

(i) no more than 1.5 meters (5 feet) from the initial soil surface; and

(ii) more than 1 meter (3 feet) above the seasonal high-water table.

(c) Treatment demonstration.

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

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

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

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

('a') the characteristics of the waste (including the presence of Appendix 23 (see 6 NYCRR Part 371) constituents);

('b') the climate in the area;

('c') the topography of the surrounding area;

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

('e') the operating practices to be used at the unit.

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

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

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

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

('c') the duration of the test;

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

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

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

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

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

(ii) measures to control soil pH;

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

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

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

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

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

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

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

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

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

(ii) improper functioning of wind dispersal control measures.

(e) Food-chain crops and agricultural land.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(i) sample collection;

(ii) sample preservation and shipment;

(iii) analytical procedures; and

(iv) chain of custody control.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(h) Closure and post-closure care.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(i) Special requirements for ignitable or reactive waste. The owner or operator must not apply ignitable or reactive waste to the treatment zone unless the waste and the treatment zone meet all applicable requirements of Part 376 and:

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

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

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

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

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

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

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

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

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

(iii) the mobilizing properties of other materials co-disposed with these wastes; and

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

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