Subpart 373-2: Final Status Standards For Owners and Operators Of Hazardous Waste Treatment, Storage and Disposal Facilities - Page 5

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

[Effective September 6, 2006]

[page 5 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

§373-2.14 - Secure Landburial Facilities.

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

(b) Site Characteristics.

(1) The soil beneath the facility shall have a hydraulic conductivity of 10-5 centimeters per second or less as determined by in situ hydraulic conductivity test methods and shall be subject to the approval of the department.

(2) No waste shall be closer than 10 feet to an aquifer or bedrock.

(3) No facility shall be located over groundwater recharge areas serving public water supplies.

(4) Facilities shall be located at an elevation not less than five feet above a flood plain unless provisions have been made to prevent the encroachment of flood waters.

(5) All fill areas or excavations shall terminate no closer than fifty feet from the boundary lines of the property on which the secure landburial facility is operated.

(6) The required horizontal separation between deposited hazardous waste and any surface waters shall be determined for each secure landburial facility by reference to soil attenuation characteristics, drainage, and natural or man-made barriers.

(c) Design and operating requirements.

(1) Any landfill that is not covered by paragraph (3) of this subdivision or paragraph 373-3.14(j)(1) of this Part must have a liner system for all portions of the landfill (except for existing portions of such landfill). The liner system must have:

(i) a liner that is designed, constructed, and installed to prevent any migration of wastes out of the landfill into the adjacent subsurface soil or groundwater or surface water at any time during the active life (including the closure period) of the landfill. The liner must be constructed of materials that prevent wastes from passing into the liner during the active life of the facility. The composition and thickness of the liner, and the hydraulic conductivity of any natural material required as part of the liner, shall be subject to approval of the department. In no case, shall the hydraulic conductivity of any approved liner consisting of natural material be greater than 10-7 centimeters per second. 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 landfill. 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 landfill 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 landfill; and

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

(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 landfill 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 landfill unit on which construction commences after January 29, 1992, each lateral expansion of a landfill unit on which construction commences after July 29, 1992, and each replacement of an existing landfill 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) 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 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 landfill 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 landfill 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 landfill;

('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) 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

(ii) ('a') ('1') the monofill has at least one liner for which there is no evidence that such liner is leaking;

('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 landfill 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 landfill during peak discharge from at least a 25-year storm.

(8) 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.

(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 landfill contains any particulate matter which may be subject to wind dispersal, the owner or operator must cover or otherwise manage the landfill 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.

(d) Double-lined landfills are not exempt from section 373-2.6 groundwater protection requirements.

(e) Monitoring and inspection.

(1) During construction or installation, liners 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 admixed 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 landfill 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) (i) An owner or operator required to have a leak detection system under paragraphs 373-2.14(c)(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 liquid in the sump 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 liquid in the sump 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 amount of liquid 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.

(f) Surveying and recordkeeping. The owner or operator of a landfill must maintain the following items in the operating record required under subdivision 373-2.5(c) of this Subpart:

(1) on a map, the exact location and dimensions, including depth, of each cell with respect to permanently surveyed benchmarks; and

(2) the contents of each cell and the approximate location of each hazardous waste type within each cell.

(g) Closure and post-closure care.

(1) At final closure of the landfill or upon closure of any cell, the owner or operator must cover the landfill or cell with a final over designed and constructed to:

(i) provide long-term minimization of migration of liquids through the closed landfill;

(ii) function with minimum maintenance;

(iii) promote drainage and minimize erosion or abrasion of the cover;

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

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

(2) After 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 373-2.14(c)(3)(iii)('d') and subparagraph (iv), and paragraph 373-2.14(e)(3), and comply with all other applicable leak detection system requirements of this Subpart;

(iii) continue to operate the leachate collection and removal system until leachate is no longer detected;

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

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

(vi) protect and maintain surveyed benchmarks used in complying with subdivision (f) of this section.

(3) During the post-closure care period, if liquid leaks into a leak detection system, the owner or operator must notify the commissioner of the leak in writing within seven days after detecting the leak. The commissioner will modify the permit to require compliance with the requirements of section 373-2.6 of this Subpart.

(h) Special requirements for ignitable or reactive waste.

(1) Except as provided in paragraph (2) of this subdivision, and in subdivision 373-2.14(l), ignitable or reactive waste must not be placed in a landfill, unless the waste and the landfill meet all applicable requirements of Part 376 of this Title and the waste is treated, rendered, or mixed before or immediately after placement in a landfill so that:

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

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

(2) Except for prohibited wastes which remain subject to treatment standards in section 376.4 of this Title, ignitable wastes in containers may be landfilled without meeting the requirements of paragraph (1) of this subdivision, provided that the wastes are disposed of in such a way that they are protected from any material or conditions which may cause them to ignite. At a minimum, ignitable wastes must be disposed of in non-leaking containers which are carefully handled and placed so as to avoid heat, sparks, rupture, or any other condition that might cause ignition of the wastes; must be covered daily with soil or other noncombustible material to minimize the potential for ignition of the wastes; and must not be disposed of in cells that contain or will contain other wastes which may generate heat sufficient to cause ignition of the waste.

(i) 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 landfill cell, unless paragraph 373-2.2(i)(2) of this Subpart is complied with.

(j) Special requirements for liquid waste.

(1) Bulk or non-containerized liquid waste or waste containing free liquids (whether or not sorbents have been added) must not be placed in a landfill.

(2) Containers holding free liquids must not be placed in a landfill unless:

(i) all free-standing liquid:

('a') has been removed by decanting, or other methods;

('b') has been mixed with sorbent or solidified so that free-standing liquid is no longer observed; or

('c') has been otherwise eliminated; or

(ii) the container is very small, such as an ampule; or

(iii) the container is designed to hold free liquids for use other than storage, such as a battery or capacitor; or

(iv) the container is a lab pack as defined in subdivision (l) of this section, and is disposed of in accordance with subdivision (l) of this section.

(3) To demonstrate the absence or presence of free liquids in either a containerized or a bulk waste, the following test must be used: Method 9095 (Paint Filter Liquids Test) as described in "Test Methods for Evaluating Solid Wastes, Physical/Chemical Methods" (EPA Publication No. SW-846 (see subdivision 370.1(e) of this Title)).

(4) Sorbents used to treat free liquids to be disposed of in landfills must be nonbiodegradable. Nonbiodegradable sorbents are: materials listed or described in subparagraph (4)(i) of this subdivision; materials that pass one of the tests in subparagraph (4)(ii) of this subdivision; or materials that are determined by the Department to be nonbiodegradable through the Part 370 petition process.

(i) Nonbiodegradable sorbents.

('a') Inorganic minerals, other inorganic materials, and elemental carbon (e.g., aluminosilicates, clays, smectites, Fuller's earth, bentonite, calcium bentonite, montmorillonite, calcined montmorillonite, kaolinite, micas (illite), vermiculites, zeolites; calcium carbonate (organic free limestone); oxides/hydroxides, alumina, lime, silica (sand), diatomaceous earth; perlite (volcanic glass); expanded volcanic rock; volcanic ash; cement kiln dust; fly ash; rice hull ash; activated charcoal/activated carbon); or

('b') High molecular weight synthetic polymers (e.g., polyethylene, high density polyethylene (HDPE), polypropylene, polystyrene, polyurethane, polyacrylate, polynorborene, polyisobutylene, ground synthetic rubber, cross-linked allylstyrene and tertiary butyl copolymers). This does not include polymers derived from biological material or polymers specifically designed to be degradable; or

('c') Mixtures of these nonbiodegradable materials.

(ii) Tests for nonbiodegradable sorbents.

('a') The sorbent material is determined to be nonbiodegradable under ASTM Method G21-70 (1984a) - Standard Practice for Determining Resistance of Synthetic Polymer Materials to Fungi (see subdivision 370.1(e) of this Title); or

('b') The sorbent material is determined to be nonbiodegradable under ASTM Method G22-76 (1984b) - Standard Practice for Determining Resistance of Plastics to Bacteria (see subdivision 370.1(e) of this Title); or

('c') The sorbent materials is determined to be nonbiodegradable under OECD test 301B: (CO₂ Evolution (Modified Sturm Test)) as incorporated by reference in 370.1(e) of this Title.

(k) Special requirements for containers. Unless they are very small, such as an ampule, containers must be either:

(1) at least 90 percent full when placed in the landfill; or

(2) crushed, shredded, or similarly reduced in volume to the maximum practical extent before burial in the landfill.

(l) Disposal of small containers of hazardous waste in overpacked drums (lab packs). Small containers of hazardous waste in overpacked drums (lab packs) may be placed in a landfill if the following requirements are met:

(1) Hazardous waste must be packaged in non-leaking inside containers. The inside containers must be of a design and constructed of a material that will not react dangerously with, be decomposed by, or be ignited by the contained waste. Inside containers must be tightly and securely sealed. The inside containers must be of the size and type specified in the Federal Department of Transportation (DOT) hazardous materials regulations (49 CFR Parts 173, 178 and 179; see 6 NYCRR 370.1(e)), if those regulations specify a particular inside container for the waste.

(2) The inside containers must be overpacked in an open-head Federal DOT-specification metal shipping container (49 CFR Parts 178 and 179; see 6 NYCRR 370.1(e)) of no more than 416-liter (110-gallon) capacity and surrounded by, at a minimum, a sufficient quantity of sorbent material, determined to be nonbiodegradable in accordance with paragraph 373-2.14(j)(4), to completely sorb all of the liquid contents of the inside containers. The metal outer container must be full after it has been packed with inside containers and sorbent material.

(3) The sorbent material used must not be capable of reacting dangerously with, being decomposed by, or being ignited by the contents of the inside containers in accordance with paragraph 373-2.2(i)(2) of this Subpart.

(4) Incompatible wastes, as defined in 6 NYCRR 370.2(b), must not be placed in the same outside container.

(5) Reactive wastes, other than cyanide or sulfide-bearing waste as defined in 6 NYCRR 371.3(d)(1)(v), must be treated or rendered non-reactive prior to packaging in accordance with paragraphs (1) through (4) of this subdivision. Cyanide and sulfide-bearing reactive waste may be packed in accordance with paragraphs (1) through (4) of this subdivision without first being treated or rendered non-reactive.

(6) Such disposal is in compliance with the requirements of Part 376 of this Title.

(i) Persons who incinerate lab packs according to the requirements in subparagraph 376.4(c)(3)(i) of this Title may use fiber drums in place of metal outer containers. Such fiber drums must meet all USDOT specifications and be overpacked according to the requirements in paragraph (2) of this subdivision.

(m) 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 landfill unless the owner or operator operates the landfill 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 accordance 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 attenuative 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 requirements.

(2) The commissioner may determine that additional design, operating, and monitoring requirements are necessary for landfills 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.

(n) Action leakage rate.

(1) The commissioner shall approve an action leakage rate for landfill units subject to paragraphs 373-2.14(c)(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 l (one) 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 373-2.14(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, and monthly during the post-closure care period when monthly monitoring is required under paragraph 373-2.14(e)(3).

(o) Response actions.

(1) The owner or operator of landfill units subject to paragraph 373-2.14(c)(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.

§373-2.15 Incinerators.

(a) Applicability.

(1) The regulations of this section apply to owners and operators of hazardous waste incinerators (as defined in subdivision 370.2(b) of this Title), except as subdivision 373-2.1(a) of this Subpart provides otherwise.

(2) Additional regulations governing construction and operation of incinerators for purposes of air pollution control are set forth in Parts 200, 201, 212, 219, 225, 227 and 257 of this Title.

(3) After consideration of the waste analysis included with the permit application, the commissioner, in establishing the permit conditions, must exempt the applicant from all requirements of this section except subdivision (b) (waste analysis) and (h) (closure):

(i) if the commissioner finds that the waste to be burned is:

('a') listed as a hazardous waste in section 371.4 of this Title solely because it is ignitable (Hazard Code I), corrosive (Hazard Code C), or both; or

('b') listed as a hazardous waste in section 371.4 of this Title solely because it is reactive (Hazard Code R) for characteristics other than those listed in subparagraphs 371.3(d)(1)(iv) and (v) of this Title, and will not be burned when other hazardous wastes are present in the combustion zone; or

('c') a hazardous waste solely because it possesses the characteristic of ignitability, corrosivity, or both, as determined by the test for characteristics of hazardous wastes under section 371.3 of this Title; or

('d') a hazardous waste solely because it possesses any of the reactivity characteristics described by subparagraphs 371.3(d)(1)(i), (ii), (iii), (vi), (vii) and (viii) of this Title, and will not be burned when other hazardous wastes are present in the combustion zone; and

(ii) if the waste analysis shows that the waste contains none of the hazardous constituents listed in Appendix 23 (see Part 371) of this Title, which would reasonably be expected to be in the waste.

(4) If the waste to be burned is one which is described by clause (3)(i)('a'), ('b'), ('c'), or ('d') of this subdivision and contains insignificant concentrations of the hazardous constituents listed in Appendix 23 of this Title, then the commissioner may, in establishing permit conditions, exempt the applicant from all requirements of this section, except subdivision (b) (waste analysis) and (h) (closure), after consideration of the waste analysis included with the permit application, unless the commissioner finds that the waste will pose a threat to human health and the environment when burned in an incinerator.

(5) The owner or operator of an incinerator may conduct trial burns subject only to the requirements of subdivision 373-1.9(a) of this Part.

(b) Waste analysis.

(1) As a portion of the trial burn plan required by subdivision 373-1.9(a) of this Part, or with the Part 373 permit application, the owner or operator must have included an analysis of the waste feed sufficient to provide all information required by paragraph 373-1.9(a)(2) or subdivision 373-1.5(f) of this Part. Owners or operators of new hazardous waste incinerators must provide the information required by paragraph 373-1.9(a)(3) or subdivision 373-1.5(f) to the greatest extent possible.

(2) Throughout normal operation, the owner or operator must conduct sufficient waste analysis to verify that waste feed to the incinerator is within the physical and chemical composition limits specified in the permit (under paragraph (f)(2) of this section).

(c) Principal organic hazardous constituents (POHC's).

(1) Principal Organic Hazardous Constituents (POHC's) in the waste feed must be treated to the extent required by the performance standard of subdivision (d) of this section.

(2) (i) One or more POHC's will be specified in the facility's permit, from among those constituents listed in Appendix 23 (see Part 371 of this Title), for each waste feed to be burned. This specification will be based on the degree of difficulty of incineration of the organic constituents in the waste and on their concentration or mass in the waste feed, considering the results of waste analyses and trial burns or alternative data submitted with the facility's Part 373 permit application. Organic constituents which represent the greatest degree of difficulty of incineration will be those most likely to be designated as POHC's. Constituents are more likely to be designated as POHC's if they are present in large quantities or concentration in the waste.

(ii) Trial POHC's will be designated for performance of trial burns in accordance with the procedure specified in section 373-1.9 of this Part obtaining trial burn permits.

(d) Performance standards. An incinerator burning hazardous waste must be designed, constructed, and maintained so that, when operated in accordance with operating requirements specified under subdivision (f) of this section, it will meet the following performance standards:

(1) (i) Except as provided in subparagraph (ii) of this paragraph, an incinerator burning hazardous waste must achieve a destruction and removal efficiency (DRE) of 99.99 percent for each principal organic hazardous constituent (POHC) designated (under subdivision (c) of this section) in its permit for each waste feed. DRE is determined for each POHC from the following equation:

DRE = (Win-Wout) x 100%/Win
DRE =	(Win-Wout) x 100% _________________
	Win

Where:

Win = Mass feed rate of one principal organic hazardous constituent (POHC) in the waste stream feeding the incinerator, and Wout = Mass emission rate of the same POHC present in exhaust emissions prior to release to the atmosphere.

(ii) An incinerator burning Hazardous Waste F020, F021, F022, F023, F026, or F027 must achieve a destruction and removal efficiency (DRE) of 99.9999 percent for each principal organic hazardous constituent (POHC) designated under subdivision (c) of this section in its permit. This performance must be demonstrated on POHC's that are more difficult to incinerate than tetra-, penta-, and hexachlorodibenzo-p-dioxins and dibenzofurans. DRE is determined for each POHC from the equation in subparagraph (i) of this paragraph. In addition, the owner or operator of the incinerator must notify the commissioner of the intent to incinerate hazardous wastes F020, F021, F022, F023, F026, or F027.

(2) An incinerator burning hazardous waste and producing stack emissions of more than 1.8 kilograms per hour (4 pounds per hour) of hydrogen chloride (HC1) must control HC1 emissions such that the rate of emission is no greater than the larger of either 1.8 kilograms per hour or 1 percent of the HC1 in the stack gas prior to entering any pollution control equipment.

(3) An incinerator burning hazardous waste must not emit particulate matter in excess of 180 milligrams per dry standard cubic meter (0.08 grains per dry standard cubic foot) when corrected for the amount of oxygen in the stack gas according to the formula:

Pc = Pm x 14/21-Y
Pc =	Pm x 14
	----------- 21-Y

Where Pc is the corrected concentration of particulate matter, Pm is the measured concentration of particulate matter, and Y is the measured concentration of oxygen in the stack gas, using the Orsat method for oxygen analysis of dry flue gas. This method is presented in 40 CFR Part 60, Appendix A (Method 3) (see 6 NYCRR 370.1(e)). This correction procedure is to be used by all hazardous waste incinerators except those operating under conditions of oxygen enrichment. For these facilities, the commissioner will select an appropriate correction procedure to be specified in the facility permit.

(4) For purposes of permit enforcement, compliance with the operating requirements specified in the permit (under subdivision (f) of this section) will be regarded as compliance with this subdivision. However, evidence that compliance with those permit conditions is insufficient to ensure compliance with the performance requirements of this section may be "information" justifying modification, revocation, or reissuance of a permit under subdivision 373-1.7(b) of this Part.

(e) Hazardous waste incinerator permits.

(1) The owner or operator of a hazardous waste incinerator may burn only wastes specified in the permit and only under operating conditions specified for those wastes under subdivision (f) of this section, except:

(i) in approved trial burns under subdivision 373-1.9(a) of this Part; or

(ii) under exemptions in subdivision (a) of this section.

(2) Other hazardous wastes may be burned only after operating conditions have been specified in a new permit or a permit modification as applicable. Operating requirements for new wastes may be based on either trial burn results or alternative data included with a permit application under subdivision 373-1.5(f) of this Part.

(3) The permit for a new hazardous waste incinerator must establish appropriate conditions for each of the applicable requirements of this section, including but not limited to allowable waste feeds and operating conditions necessary to meet the requirements of subdivision (f) of this section, sufficient to comply with the following standards:

(i) For the period beginning with initial introduction of hazardous waste to the incinerator and ending with initiation of the trial burn, and only for the minimum time required to establish operating conditions required in subparagraph (ii) of this paragraph, not to exceed a duration of 720 hours operating time for treatment of hazardous waste, the operating requirements must be those most likely to ensure compliance with the performance standards of subdivision (d) of this section. The commissioner may extend the duration of this period once for up to 720 additional hours when good cause for the extension is demonstrated by the applicant.

(ii) For the duration of the trial burn, the operating requirements must be sufficient to demonstrate compliance with the performance standards of subdivision (d) of this section and must be in accordance with the approved trial burn plan.

(iii) For the period immediately following completion of the trial burn and only for the minimum period sufficient to allow sample analysis, data computation, and submission of the trial burn results by the applicant, and review of the trial burn results and modification of the facility permit by the commissioner, the operation requirements must be those most likely to ensure compliance with the performance standards of subdivision (d) of this section.

(iv) For the remaining duration of the permit, the operating requirements must be those demonstrated in a trial burn or by alternative data specified in paragraph 373-1.5(f)(3) of this Part, as sufficient to ensure compliance with the performance standards of subdivision (d) of this section.

(f) Operating requirements.

(1) An incinerator must be operated in accordance with operating requirements specified in the permit. These will be specified on a case-by-case basis as those demonstrated (in a trial burn or in alternative data as specified in paragraph (e)(2) of this section and included with a facility's permit application) to be sufficient to comply with the performance standards of subdivision (d) of this section.

(2) Each set of operating requirements will specify the composition of the waste feed (including acceptable variations in the physical or chemical properties of the waste feed which will not affect compliance with the performance requirement of subdivision (d) of this section) to which the operating requirements apply. For each such waste feed, the permit will specify acceptable operating limits including the following conditions:

(i) carbon monoxide (CO) level in the stack exhaust gas;

(ii) waste feed rate;

(iii) combustion temperature;

(iv) an appropriate indicator of combustion gas velocity;

(v) allowable variations in incinerator system design or operating procedures; and

(vi) such other operating requirements as are necessary to ensure that the performance standards of subdivision (d) of this section are met.

(3) During start-up and shut-down of an incinerator, hazardous waste (except wastes exempted in accordance with subdivision (a) of this section) must not be fed into the incinerator unless the incinerator is operating within the conditions of operation (temperature, air feed rate, etc.) specified in the permit.

(4) Fugitive emissions from the combustion zone must be controlled by:

(i) keeping the combustion zone totally sealed against fugitive emissions; or

(ii) maintaining a combustion zone pressure lower than atmospheric pressure; or

(iii) an alternate means of control demonstrated (with Part 373 permit application) to provide fugitive emissions control equivalent to maintenance of combustion zone pressure lower than atmospheric pressure.

(5) An incinerator must be operated with a functioning system to automatically cut off waste feed to the incinerator when operating conditions deviate from limits established under paragraph (1) of this subdivision.

(6) An incinerator must cease operation when changes in waste feed, incinerator design, or operating conditions exceed limits designated in its permit.

(g) Monitoring and inspections.

(1) The owner or operator must conduct, as a minimum, the following monitoring while incinerating hazardous waste:

(i) Combustion temperature, waste feed rate, and the indicator of combustion gas velocity specified in the facility permit must be monitored on a continuous basis.

(ii) Carbon monoxide must be monitored on a continuous basis at a point in the incinerator downstream of the combustion zone and prior to release to the atmosphere.

(iii) Upon request by the commissioner, sampling and analysis of the waste and exhaust emissions must be conducted to verify that the operating requirements established in the permit achieve the performance standards of subdivision (d) of this section.

(2) The incinerator and associated equipment (pumps, valves, conveyors, pipes, etc.) must be subjected to thorough visual inspection, at least daily, for leaks, spills, fugitive emissions, and signs of tampering.

(3) The emergency waste feed cutoff system and associated alarms must be tested at least weekly to verify operability, unless the applicant demonstrates to the commissioner that weekly inspections will unduly restrict or upset operations and that less frequent inspection will be adequate. At a minimum, operational testing must be conducted at least monthly.

(4) This monitoring and inspection data must be recorded and the records must be placed in the operating log required by subdivision 373-2.5(c) of this Subpart.

(h) Closure. At closure the owner or operator must remove all hazardous waste and hazardous waste residues (including, but not limited to, ash, scrubber waters, and scrubber sludges) from the incinerator site.

(NOTE: At closure, as throughout the operating period, unless the owner or operator can demonstrate, in accordance with 6 NYCRR 371.1(d)(4) that the residue removed from the incinerator is not a hazardous waste, the owner or operator becomes a generator of hazardous waste and must manage it in accordance with applicable requirements of 6 NYCRR Parts 372 through 374.)

§373-2.16 - 373-2.18 Reserved.

§373-2.19 Special Provisions for Cleanup.

(a) Applicability of Corrective Action Management Unit (CAMU) Regulations.

(1) Except as provided in paragraph (2) of this subdivision, CAMUs are subject to the requirements of subdivision (c) of this section.

(2) CAMUs that were approved before April 22, 2002, or for which substantially complete applications (or equivalents) were submitted to the Department on or before November 20, 2000, are subject to the requirements in subdivision (b) of this section for grandfathered CAMUs; CAMU waste, activities, and design will not be subject to the standards in subdivision (c) of this section, so long as the waste, activities, and design remain within the general scope of the CAMU as approved.

(b) Grandfathered Corrective Action Management Units (CAMUs).

(1) To implement remedies under subdivision 373-2.6(l) of this Subpart, ECL 71-2727(3), or RCRA section 3008(h), or to implement remedies at a permitted facility that is not subject to 373-2.6(l) of this Subpart, the Department may designate an area at the facility as a corrective action management unit under the requirements of this subdivision. Corrective action management units means an area within a facility that is used only for managing remediation wastes for implementing corrective action or cleanup at the facility. A CAMU must be located within the contiguous property under the control of the owner or operator where the wastes to be managed in the CAMU originated. One or more CAMUs may be designated at a facility.

(i) Placement of remediation wastes into or within a CAMU does not constitute land disposal of hazardous wastes.

(ii) Consolidation or placement of remediation wastes into or within a CAMU does not constitute creation of a unit subject to minimum technology requirements.

(2) (i) The Department may designate a regulated unit (as defined in subparagraph 373-2.6(a)(1)(ii) of this Subpart) as a CAMU, or may incorporate a regulated unit into a CAMU, if:

('a') The regulated unit is closed or closing, meaning it has begun the closure process under subdivision 373-2.7(d) or 373-3.7(d); and

('b') Inclusion of the regulated unit will enhance implementation of effective, protective and reliable remedial actions for the facility.

(ii) The section 373-2.6, 373-2.7, 373-2.8, 373-3.6, 373-3.7, and 373-3.8 requirements and the unit-specific requirements of Subpart 373-2 or 373-3 that applied to that regulated unit will continue to apply to that portion of the CAMU after incorporation into the CAMU.

(3) The Department shall designate a CAMU in accordance with the following:

(i) The CAMU shall facilitate the implementation of reliable, effective, protective, and cost-effective remedies;

(ii) Waste management activities associated with the CAMU shall not create unacceptable risks to humans or to the environment resulting from exposure to hazardous wastes or hazardous constituents;

(iii) The CAMU shall include uncontaminated areas of the facility, only if including such areas for the purpose of managing remediation waste is more protective than management of such wastes at contaminated areas of the facility;

(iv) Areas within the CAMU, where wastes remain in place after closure of the CAMU, shall be managed and contained so as to minimize future releases, to the extent practicable;

(v) The CAMU shall expedite the timing of remedial activity implementation, when appropriate and practicable;

(vi) The CAMU shall enable the use, when appropriate, of treatment technologies (including innovative technologies) to enhance the long-term effectiveness of remedial actions by reducing the toxicity, mobility, or volume of wastes that will remain in place after closure of the CAMU; and

(vii) The CAMU shall, to the extent practicable, minimize the land area of the facility upon which wastes will remain in place after closure of the CAMU.

(4) The owner/operator shall provide sufficient information to enable the Department to designate a CAMU in accordance with the criteria in subdivision 373-2.19(a).

(5) The Department shall specify, in the permit or order, requirements for CAMUs to include the following:

(i) The areal configuration of the CAMU.

(ii) Requirements for remediation waste management to include the specification of applicable design, operation and closure requirements.

(iii) Requirements for ground water monitoring that are sufficient to:

('a') Continue to detect and to characterize the nature, extent, concentration, direction, and movement of existing releases of hazardous constituents in ground water from sources located within the CAMU; and

('b') Detect and subsequently characterize releases of hazardous constituents to ground water that may occur from areas of the CAMU in which wastes will remain in place after closure of the CAMU.

(iv) Closure and post-closure requirements.

('a') Closure of corrective action management units shall:

('1') Minimize the need for further maintenance; and

('2') Control, minimize, or eliminate, to the extent necessary to protect human health and the environment, for areas where wastes remain in place, post-closure escape of hazardous waste, hazardous constituents, leachate, contaminated runoff, or hazardous waste decomposition products to the ground, to surface waters, or to the atmosphere.

('b') Requirements for closure of CAMUs shall include the following, as appropriate and as deemed necessary by the Department for a given CAMU:

('1') Requirements for excavation, removal, treatment or containment of wastes;

('2') For areas in which wastes will remain after closure of the CAMU, requirements for capping of such areas; and

('3') Requirements for removal and decontamination of equipment, devices, and structures used in remediation waste management activities within the CAMU.

('c') In establishing specific closure requirements for CAMUs under paragraph 373-2.19(a)(5), the Department shall consider the following factors:

('1') CAMU characteristics;

('2') Volume of wastes which remain in place after closure;

('3') Potential for releases from the CAMU;

('4') Physical and chemical characteristics of the waste;

('5') Hydrogeological and other relevant environmental conditions at the facility which may influence the migration of any potential or actual releases; and

('6') Potential for exposure of humans and environmental receptors if releases from the CAMU were to occur.

('d') Post-closure requirements as necessary to protect human health and the environment, to include, for areas where wastes will remain in place, monitoring and maintenance activities, and the frequency with which such activities shall be performed to ensure the integrity of any cap, final cover, or other containment system.

(6) The Department shall document the rationale for designating CAMUs and shall make such documentation available to the public.

(7) Incorporation of a CAMU into an existing permit must be approved by the Department according to the procedures for Department-initiated permit modifications under subdivision 373-1.7(b) of this Title, or according to the permit modification procedures of section 373-1.7 of this Title.

(8) The designation of a CAMU does not change the Department's existing authority to address clean-up levels, media-specific points of compliance to be applied to remediation at a facility, or other remedy selection decisions.

(c) Corrective Action Management Units (CAMU).

(1) To implement remedies under subdivision 373-2.6(l) of this Subpart, ECL 71-2727(3), or RCRA section 3008(h), or to implement remedies at a permitted facility that is not subject to subdivision 373-2.6(l) of this Subpart, the Department may designate an area at the facility as a corrective action management unit under the requirements in this subdivision. Corrective action management unit means an area within a facility that is used only for managing CAMU-eligible wastes for implementing corrective action or cleanup at the facility. A CAMU must be located within the contiguous property under the control of the owner or operator where the wastes to be managed in the CAMU originated. One or more CAMUs may be designated at a facility.

(i) CAMU-eligible Waste means:

('a') All solid and hazardous wastes, and all media (including ground water, surface water, soils, and sediments) and debris, that are managed for implementing cleanup. As-generated wastes (either hazardous or non-hazardous) from ongoing industrial operations at a site are not CAMU-eligible wastes.

('b') Wastes that would otherwise meet the description in paragraph (1)(i)('a') of this subdivision are not "CAMU-Eligible Wastes" where:

('1') the wastes are hazardous wastes found during cleanup in intact or substantially intact containers, tanks, or other non-land-based units found above ground, unless the wastes are first placed in the tanks, containers or non-land-based units as part of cleanup, or the containers or tanks are excavated during the course of cleanup; or

('2') the Department exercises the discretion in subparagraph (1)(ii) of this subdivision to prohibit the wastes from management in a CAMU.

('c') Notwithstanding subparagraph (1)(i)('a') of this subdivision, where appropriate, as-generated non-hazardous waste may be placed in a CAMU where such waste is being used to facilitate treatment or the performance of the CAMU.

(ii) The Department may prohibit, where appropriate, the placement of waste in a CAMU where the Department has or receives information that such wastes have not been managed in compliance with applicable land disposal treatment standards of Part 376 of this Title, or applicable unit design requirements of this Subpart, or applicable unit design requirements of Subpart 373-3 of this Title, or that non-compliance with other applicable requirements of this Title likely contributed to the release of the waste.

(iii) Prohibition Against Placing Liquids in CAMUs.

('a')The placement of bulk or noncontainerized liquid hazardous waste or free liquids contained in hazardous waste (whether or not sorbents have been added) in any CAMU is prohibited except where placement of such wastes facilitates the remedy selected for the waste.

('b') The requirements in paragraph 373-2.14(j)(2) of this Subpart for placement of containers holding free liquids in landfills apply to placement in a CAMU except where placement facilitates the remedy selected for the waste.

('c') The placement of any liquid which is not a hazardous waste in a CAMU is prohibited unless such placement facilitates the remedy selected for the waste.

('d') The absence or presence of free liquids in either a containerized or a bulk waste must be determined in accordance with paragraph 373-2.14(j)(3) of this Subpart. Sorbents used to treat free liquids in CAMUs must meet the requirements of paragraph 373-2.14(j)(4) of this Subpart.

(iv) Placement of CAMU-eligible wastes into or within a CAMU does not constitute land disposal of hazardous wastes.

(v) Consolidation or placement of CAMU-eligible wastes into or within a CAMU does not constitute creation of a unit subject to minimum technology requirements.

(2) (i) The Department may designate a regulated unit (as defined in subparagraph 373-2.6(a)(1)(ii) of this Subpart) as a CAMU, or may incorporate a regulated unit into a CAMU, if:

('a') The regulated unit is closed or closing, meaning it has begun the closure process under subdivision 373-2.7(d) of this Subpart or subdivision 373-3.7(d) of this Part; and

('b') Inclusion of the regulated unit will enhance implementation of effective, protective and reliable remedial actions for the facility.

(ii) The section 373-2.6, 373-2.7, 373-2.8, 373-3.6, 373-3.7, and 373-3.8 requirements and the unit-specific requirements of this Subpart 373-2 or Subpart 373-3 of this Part that applied to the regulated unit will continue to apply to that portion of the CAMU after incorporation into the CAMU.

(3) The Department shall designate a CAMU that will be used for storage and/or treatment only in accordance with paragraph (6) of this subdivision. The Department shall designate all other CAMUs in accordance with the following:

(i) The CAMU shall facilitate the implementation of reliable, effective, protective, and cost-effective remedies;

(ii) Waste management activities associated with the CAMU shall not create unacceptable risks to humans or to the environment resulting from exposure to hazardous wastes or hazardous constituents;

(iii) The CAMU shall include uncontaminated areas of the facility, only if including such areas for the purpose of managing CAMU-eligible waste is more protective than management of such wastes at contaminated areas of the facility;

(iv) Areas within the CAMU, where wastes remain in place after closure of the CAMU, shall be managed and contained so as to minimize future releases, to the extent practicable;

(v) The CAMU shall expedite the timing of remedial activity implementation,when appropriate and practicable;

(vii) The CAMU shall, to the extent practicable, minimize the land area of the facility upon which wastes will remain in place after closure of the CAMU.

(4) The owner/operator shall provide sufficient information to enable the Department to designate a CAMU in accordance with the criteria in this subdivision, 373-2.19(c). This must include, unless not reasonably available, information on:

(i) The origin of the waste and how it was subsequently managed (including a description of the timing and circumstances surrounding the disposal and/or release);

(ii) Whether the waste was listed or identified as hazardous at the time of disposal and/or release; and

(iii) Whether the disposal and/or release of the waste occurred before or after the land disposal requirements of Part 376 of this Title were in effect for the waste listing or characteristic.

(5) The Department shall specify, in the permit or order, requirements for CAMUs to include the following:

(i) The areal configuration of the CAMU.

(ii) Except as provided in paragraph (7) of this subdivision, requirements for CAMU-eligible waste management to include the specification of applicable design, operation, treatment and closure requirements.

(iii) Minimum Design Requirements: CAMUs, except as provided in paragraph (6) of this subdivision, into which wastes are placed must be designed in accordance with the following:

('a') Unless the Department approves alternate requirements under clause (5)(iii)('b') of this subdivision, CAMUs that consist of new, replacement, or laterally expanded units must include a composite liner and a leachate collection system that is designed and constructed to maintain less than a 30-cm depth of leachate over the liner. For purposes of this section, composite liner means a system consisting of two components; the upper component must consist of a minimum 30-mil flexible membrane liner (FML), and the lower component must consist of at least a two-foot layer of compacted soil with a hydraulic conductivity of no more than 1x10-7 cm/sec. FML components consisting of high density polyethylene (HDPE) must be at least 60 mil thick. The FML component must be installed in direct and uniform contact with the compacted soil component;

('b') Alternate Requirements. The Department may approve alternate requirements if:

('1') The Department finds that alternate design and operating practices, together with location characteristics, will prevent the migration of any hazardous constituents into the ground water or surface water at least as effectively as the liner and leachate collection systems in clause (5)(iii)('a') of this subdivision; or

('2') The CAMU is to be established in an area with existing significant levels of contamination, and the Department finds that an alternative design, including a design that does not include a liner, would prevent migration from the unit that would exceed long-term remedial goals.

(iv) Minimum treatment requirements: Unless the wastes will be placed in a CAMU for storage and/or treatment only in accordance with paragraph (6) of this section, CAMU-eligible wastes that, absent this section, would be subject to the treatment requirements of Part 376 of this Title, and that the Department determines contain principal hazardous constituents must be treated to the standards specified in clause (5)(iv)('c') of this subdivision.

('a') Principal hazardous constituents are those constituents that the Department determines pose a risk to human health and the environment substantially higher than the cleanup levels or goals at the site.

('1') In general, the Department will designate as principal hazardous constituents:

('i') Carcinogens that pose a potential direct risk from ingestion or inhalation at the site at or above 10-3; and

('ii') Non-carcinogens that pose a potential direct risk from ingestion or inhalation at the site an order of magnitude or greater over their reference dose.

('2') The Department will also designate constituents as principal hazardous constituents, where appropriate, when risks to human health and the environment posed by the potential migration of constituents in wastes to ground water are substantially higher than cleanup levels or goals at the site; when making such a designation, the Department may consider such factors as constituent concentrations, and fate and transport characteristics under site conditions.

('3') The Department may also designate other constituents as principal hazardous constituents that the Department determines pose a risk to human health and the environment substantially higher than the cleanup levels or goals at the site.

('b') In determining which constituents are "principal hazardous constituents," the Department must consider all constituents which, absent this section, would be subject to the treatment requirements in Part 376 of this Title.

('c') Waste that the Department determines contains principal hazardous constituents must meet treatment standards determined in accordance with clause (5)(iv)('d') or (5)(iv)('e') of this subdivision.

('d') Treatment standards for wastes placed in CAMUs.

('1') For non-metals, treatment must achieve 90 percent reduction in total principal hazardous constituent concentrations, except as provided by subclause (5)(iv)('d')('3') of this subdivision.

('2') For metals, treatment must achieve 90 percent reduction in principal hazardous constituent concentrations as measured in leachate from the treated waste or media (tested according to the TCLP) or 90 percent reduction in total constituent concentrations (when a metal removal treatment technology is used), except as provided by subclause (5)(iv)('d')('3') of this subdivision.

('3') When treatment of any principal hazardous constituent to a 90 percent reduction standard would result in a concentration less than 10 times the Universal Treatment Standard for that constituent, treatment to achieve constituent concentrations less than 10 times the Universal Treatment Standard is not required. Universal Treatment Standards are identified in subdivision 376.4(j) Table UTS of this Title.

('4') For waste exhibiting the hazardous characteristic of ignitability, corrosivity or reactivity, the waste must also be treated to eliminate these characteristics.

('5') For debris, the debris must be treated in accordance with subdivision 376.4(g) of this Title, or by methods or to levels established under subclauses (5)(iv)('d')('1') through ('4') or clause (5)(iv)('e') of this subdivision, whichever the Department determines is appropriate.

('6') Alternatives to TCLP. For metal bearing wastes for which metals removal treatment is not used, the Department may specify a leaching test other than the TCLP (SW-846 Method 1311, as incorporated by reference in subdivision 370.1(e) of this Part) to measure treatment effectiveness, provided the Department determines that an alternative leach testing protocol is appropriate for use, and that the alternative more accurately reflects conditions at the site that affect leaching.

('e') Adjusted standards. The Department may adjust the treatment level or method in clause (5)(iv)('d') of this subdivision to a higher or lower level, based on one or more of the following factors, as appropriate. The adjusted level or method must be protective of human health and the environment:

('1') The technical impracticability of treatment to the levels or by the methods in clause (5)(iv)('d') of this subdivision;

('2') The levels or methods in clause (5)(iv)('d') of this subdivision would result in concentrations of principal hazardous constituents (PHCs) that are significantly above or below cleanup standards applicable to the site (established either site-specifically, or promulgated under state or federal law);

('3') The views of the affected local community on the treatment levels or methods in clause (5)(iv)('d') of this subdivision as applied at the site, and, for treatment levels, the treatment methods necessary to achieve these levels;

('4') The short-term risks presented by the on-site treatment method necessary to achieve the levels or treatment methods in clause (5)(iv)('d') of this subdivision;

('5') The long-term protection offered by the engineering design of the CAMU and related engineering controls:

('i') Where the treatment standards in paragraph (5)(iv)('d') of this subdivision are substantially met and the principal hazardous constituents in the waste or residuals are of very low mobility; or

('ii') Where cost-effective treatment has been used and the CAMU meets the liner and leachate collection requirements for new land disposal units at paragraphs 373-2.14(c)(3) and (4) of this Subpart; or

('iii') Where, after review of appropriate treatment technologies, the Department determines that cost-effective treatment is not reasonably available, and the CAMU meets the liner and leachate collection requirements for new land disposal units at paragraphs 373-2.14(c)(3) and (4) of this Subpart; or

('iv') Where cost-effective treatment has been used and the principal hazardous constituents in the treated wastes are of very low mobility; or

('v') Where, after review of appropriate treatment technologies, the Department determines that cost-effective treatment is not reasonably available, the principal hazardous constituents in the wastes are of very low mobility, and either the CAMU meets or exceeds the liner standards for new, replacement, or laterally expanded CAMUs in clause (5)(iii)('a') and ('b') of this subparagraph, or the CAMU provides substantially equivalent or greater protection.

('f') The treatment required by the treatment standards must be completed prior to, or within a reasonable time after, placement in the CAMU.

('g') For the purpose of determining whether wastes placed in CAMUs have met site-specific treatment standards, the Department may, as appropriate, specify a subset of the principal hazardous constituents in the waste as analytical surrogates for determining whether treatment standards have been met for other principal hazardous constituents. This specification will be based on the degree of difficulty of treatment and analysis of constituents with similar treatment properties.

(v) Except as provided in paragraph (6) of this subdivision, requirements for ground water monitoring and corrective action that are sufficient to:

('b') Detect and subsequently characterize releases of hazardous constituents to ground water that may occur from areas of the CAMU in which wastes will remain in place after closure of the CAMU; and

('c') Require notification to the Department and corrective action as necessary to protect human health and the environment for releases to ground water from the CAMU.

(vi) Except as provided in paragraph (6) of this subdivision, closure and post-closure requirements:

('a') Closure of corrective action management units shall:

('1') Minimize the need for further maintenance; and

('2') Control, minimize, or eliminate, to the extent necessary to protect human health and the environment, for areas where wastes remain in place, post-closure escape of hazardous wastes, hazardous constituents, leachate, contaminated runoff, or hazardous waste decomposition products to the ground, to surface waters, or to the atmosphere.

('b') Requirements for closure of CAMUs shall include the following, as appropriate and as deemed necessary by the Department for a given CAMU:

('1') Requirements for excavation, removal, treatment or containment of wastes; and

('2') Requirements for removal and decontamination of equipment, devices, and structures used in CAMU-eligible waste management activities within the CAMU.

('c') In establishing specific closure requirements for CAMUs under (c)(5) of this section, the Department shall consider the following factors:

('1') CAMU characteristics;

('2') Volume of wastes which remain in place after closure;

('3') Potential for releases from the CAMU;

('4') Physical and chemical characteristics of the waste;

('5') Hydrological and other relevant environmental conditions at the facility which may influence the migration of any potential or actual releases; and

('6') Potential for exposure of humans and environmental receptors if releases were to occur from the CAMU.

('d') Cap Requirements:

('1') At final closure of the CAMU, for areas in which wastes will remain after closure of the CAMU, with constituent concentrations at or above remedial levels or goals applicable to the site, the owner or operator must cover the CAMU with a final cover designed and constructed to meet the following performance criteria, except as provided in subclause (5)(vi)('d')('2') of this subdivision:

('i') Provide long-term minimization of migration of liquids through the closed unit;

('ii') Function with minimum maintenance;

('iii') Promote drainage and minimize erosion or abrasion of the cover;

('iv') Accommodate settling and subsidence so that the cover's integrity is maintained; and

('v') Have a permeability less than or equal to the permeability of any bottom liner system or natural subsoils present.

('2') The Department may determine that modifications to subclause (5)(vi)('d')('1') of this subdivision are needed to facilitate treatment or the performance of the CAMU (e.g., to promote biodegradation).

('e') Post-closure requirements as necessary to protect human health and the environment, to include, for areas where wastes will remain in place, monitoring and maintenance activities, and the frequency with which such activities shall be performed to ensure the integrity of any cap, final cover, or other containment system.

(6) CAMUs used for storage and/or treatment only are CAMUs in which wastes will not remain after closure. Such CAMUs must be designated in accordance with all of the requirements of this section, except as follows.

(i) CAMUs that are used for storage and/or treatment only and that operate in accordance with the time limits established in the staging pile regulations at clause (e)(4)(i)('c'), and paragraphs (e)(8) and (9) of this section are subject to the requirements for staging piles at clauses (e)(4)(i)('a') and ('b') of this section, subparagraph (e)(4)(ii) of this section, paragraphs (e)(5) and (6) of this section, and paragraphs (e)(10) and (11) of this section in lieu of the performance standards and requirements for CAMUs in this subdivision at paragraph (3) and subparagraphs (5)(iii) through (vi) of this subdivision.

(ii) CAMUs that are used for storage and/or treatment only and that do not operate in accordance with the time limits established in the staging pile regulations at clause (e)(4)(i)('c'), and paragraphs (e)(8) and (9) of this section:

('a') must operate in accordance with a time limit, established by the Department, that is no longer than necessary to achieve a timely remedy selected for the waste, and

('b') are subject to the requirements for staging piles at clauses (e)(4)(i)('a') and ('b') of this section, subparagraph (e)(4)(ii) of this section, paragraphs (e)(5) and (6) of this section, and paragraphs (e)(10) and (11) in lieu of the performance standards and requirements for CAMUs in this section at paragraph (3) and subparagraphs (5)(iv) and (vi) of this subdivision.

(7) CAMUs into which wastes are placed where all wastes have constituent levels at or below remedial levels or goals applicable to the site do not have to comply with the requirements for liners at clause (5)(iii)('a') of this subdivision, caps at clause (5)(vi)('d') of this subdivision, ground water monitoring requirements at subparagraph (5)(v) of this subdivision or, for treatment and/or storage-only CAMUs, the design standards at paragraph (6) of this subdivision.

(8) The Department shall provide public notice and a reasonable opportunity for public comment before designating a CAMU. Such notice shall include the rationale for any proposed adjustments under clause (5)(iv)('e') of this subdivision to the treatment standards in clause (5)(iv)('d') of this subparagraph.

(9) Notwithstanding any other provision of this section, the Department may impose additional requirements as necessary to protect human health and the environment.

(10) Incorporation of a CAMU into an existing permit must be approved by the Department according to the procedures for Department-initiated permit modifications under subdivision 373-1.7(b) of this Part and section 621.14 of this Title, or according to the permit modification procedures of subdivision 373-1.7(b) of this Part and section 621.13 of this Title.

(11) The designation of a CAMU does not change the Department's existing authority to address clean-up levels, media-specific points of compliance to be applied to remediation at a facility, or other remedy selection decisions.

(d) Temporary Units (TU).

(1) For temporary tanks and container storage areas used to treat or store hazardous remediation wastes during remedial activities required under subdivision 373-2.6(l), ECL 71-2727(3), or RCRA section 3008(h), or at a permitted facility that is not subject to subdivision 373-2.6(l) of this Subpart, the Department may designate a unit at the facility, as a temporary unit. A temporary unit must be located within the contiguous property under the control of the owner/operator where the wastes to be managed in the temporary unit originated. For temporary units, the Department may replace the design, operating, or closure standard applicable to these units under this Subpart 373-2 or 373-3 of this Title, with alternative requirements which are protective of human health and the environment.

(2) Any temporary unit to which alternative requirements are applied in accordance with paragraph (1) of this subdivision shall be:

(i) Located within the facility boundary; and

(ii) Used only for treatment or storage of remediation wastes.

(3) In establishing standards to be applied to a temporary unit, the Department shall consider the following factors:

(i) Length of time such unit will be in operation;

(ii) Type of unit;

(iii) Volumes of wastes to be managed;

(iv) Physical and chemical characteristics of the wastes to be managed in the unit;

(v) Potential for releases from the unit;

(vi) Hydrogeological and other relevant environmental conditions at the facility which may influence the migration of any potential releases; and

(vii) Potential for exposure of humans and environmental receptors if releases were to occur from the unit.

(4) The Department shall specify in the permit or order the length of time a temporary unit will be allowed to operate, to be no longer than a period of one year. The Department shall also specify the design, operating, and closure requirements for the unit.

(5) The Department may extend the operational period of a temporary unit once for no longer than a period of one year beyond that originally specified in the permit or order, if the Department determines that:

(i) Continued operation of the unit will not pose a threat to human health and the environment; and

(ii) Continued operation of the unit is necessary to ensure timely and efficient implementation of remedial actions at the facility.

(6) Incorporation of a temporary unit or a time extension for a temporary unit into an existing permit shall be:

(i) Approved in accordance with the procedures for Department-initiated permit modifications under subdivision 373-1.7(b); or

(ii) Requested by the owner/operator as a modification according to the procedures under section 373-1.7 of this Title.

(7) The Department shall document the rationale for designating a temporary unit and for granting time extensions for temporary units and shall make such documentation available to the public.

(e) Staging piles. This subdivision is written in a special format to make it easier to understand the regulatory requirements. Like other Department regulations, this establishes enforceable legal requirements. "I" and "you" refer to the owner/operator.

(1) What is a staging pile? A staging pile is an accumulation of solid, non-flowing remediation waste (as defined in section 370.2 of this Title) that is not a containment building and is used only during remedial operations for temporary storage at a facility. A staging pile must be located within the contiguous property under the control of the owner/operator where the wastes to be managed in the staging pile originated. Staging piles must be designated by the Department according to the requirements in this subdivision.

(i) For the purposes of this subdivision, storage includes mixing, sizing, blending, or other similar physical operations as long as they are intended to prepare the wastes for subsequent management or treatment.

(ii) Reserved.

(2) When may I use a staging pile? You may use a staging pile to store hazardous remediation waste (or remediation waste otherwise subject to land disposal restrictions) only if you follow the standards and design criteria the Department has designated for that staging pile. The Department must designate the staging pile in a permit or, at an interim status facility, in a closure plan or order (consistent with subparagraphs 373-1.3(g)(1)(v) and (2)(v) of this Title). The Department must establish conditions in the permit, closure plan, or order that comply with paragraphs (4) through (11) of this subdivision.

(3) What information must I provide to get a staging pile designated? When seeking a staging pile designation, you must provide:

(i) Sufficient and accurate information to enable the Department to impose standards and design criteria for your staging pile according to paragraphs (4) through (11) of this subdivision;

(ii) Certification by an independent, qualified professional engineer licensed in New York State, for technical data, such as design drawings and specifications, and engineering studies, unless the Department determines, based on information that you provide, that this certification is not necessary to ensure that a staging pile will protect human health and the environment; and

(iii) Any additional information the Department determines is necessary to protect human health and the environment.

(4) What performance criteria must a staging pile satisfy? The Department must establish the standards and design criteria for the staging pile in the permit, closure plan, or order.

(i) The standards and design criteria must comply with the following:

('a') The staging pile must facilitate a reliable, effective and protective remedy;

('b') The staging pile must be designed so as to prevent or minimize releases of hazardous wastes and hazardous constituents into the environment, and minimize or adequately control cross-media transfer, as necessary to protect human health and the environment (for example, through the use of liners, covers, run-off/run-on controls, as appropriate); and

('c') The staging pile must not operate for more than two years, except when the Department grants an operating term extension under paragraph 373-2.19(c)(9) of this subdivision (entitled "May I receive an operating extension for a staging pile?"). You must measure the two-year limit, or other operating term specified by the Department in the permit, closure plan, or order, from the first time you place remediation waste into a staging pile. You must maintain a record of the date when you first placed remediation waste into the staging pile for the life of the permit, closure plan, or order, or for three years, whichever is longer.

(ii) Establishing the standards and design criteria, the Department must consider the following factors:

('a') Length of time the pile will be in operation;

('b') Volumes of wastes you intend to store in the pile;

('c') Physical and chemical characteristics of the wastes to be stored in the unit;

('d') Potential for releases from the unit;

('e') Hydrogeological and other relevant environmental conditions at the facility that may influence the migration of any potential releases; and

('f') Potential for human and environmental exposure to potential releases from the unit.

(5) May a staging pile receive ignitable or reactive remediation waste? You must not place ignitable or reactive remediation waste in a staging pile unless:

(i) You have treated, rendered or mixed the remediation waste before you placed it in the staging pile so that:

('a') The remediation waste no longer meets the definition of ignitable or reactive under subdivision 371.3(b) or (d) of this Title; and

('b') You have complied with paragraph 373-2.2(i)(2); or

(ii) You manage the remediation waste to protect it from exposure to any material or condition that may cause it to ignite or react.

(6) How do I handle incompatible remediation wastes in a staging pile? The term "incompatible waste" is defined in section 370.2 of this Title. You must comply with the following requirements for incompatible wastes in staging piles:

(i) You must not place incompatible remediation wastes in the same staging pile unless you have complied with paragraph 373-2.2(i)(2);

(ii) If remediation waste in a staging pile is incompatible with any waste or material stored nearby in containers, other piles, open tanks or land disposal units (for example, surface impoundments), you must separate the incompatible materials, or protect them from one another by using a dike, berm, wall or other device; and

(iii) You must not pile remediation waste on the same base where incompatible wastes or materials were previously piled, unless the base has been decontaminated sufficiently to comply with paragraph 373-2.2(i)(2).

(7) Are staging piles subject to Land Disposal Restrictions (LDR) and Minimum Technological Requirements (MTR)? No. Placing hazardous remediation wastes into a staging pile does not constitute land disposal of hazardous wastes or create a unit that is subject to the minimum technological requirements of RCRA 3004(o).

(8) How long may I operate a staging pile? The Department may allow a staging pile to operate for up to two years after hazardous remediation waste is first placed into the pile. You must use a staging pile no longer than the length of time designated by the Department in the permit, closure plan, or order (the "operating term"), except as provided in paragraph (9) of this section.

(9) May I receive an operating extension for a staging pile?

(i) The Department may grant one operating term extension of up to 180 days beyond the operating term limit contained in the permit, closure plan, or order (see paragraph (12) of this section for modification procedures). To justify to the Department the need for an extension, you must provide sufficient and accurate information to enable the Department to determine that continued operation of the staging pile:

('a') Will not pose a threat to human health and the environment; and

('b') Is necessary to ensure timely and efficient implementation of remedial actions at the facility.

(ii) The Department may, as a condition of the extension, specify further standards and design criteria in the permit, closure plan, or order, as necessary, to ensure protection of human health and the environment.

(10) What is the closure requirement for a staging pile located in a previously contaminated area?

(i) Within 180 days after the operating term of the staging pile expires, you must close a staging pile located in a previously contaminated area of the site by removing or decontaminating all:

('a') Remediation waste;

('b') Contaminated containment system components; and

('c') Structures and equipment contaminated with waste and leachate.

(ii) You must also decontaminate contaminated subsoils in a manner and according to a schedule that the Department determines will protect human health and the environment.

(iii) The Department must include the above requirements in the permit, closure plan, or order in which the staging pile is designated.

(11) What is the closure requirement for a staging pile located in an uncontaminated area?

(i) Within 180 days after the operating term of the staging pile expires, you must close a staging pile located in an uncontaminated area of the site according to paragraph 373-2.12(h)(1) and subdivision 373-2.7(b) of this Subpart; or according to paragraph 373-3.12(g)(1) and subdivision 373-3.7(b) of this Part.

(ii) The Department must include the above requirement in the permit, closure plan, or order in which the staging pile is designated.

(12) How may my existing permit (for example, RAP), closure plan, or order be modified to allow me to use a staging pile?

(i) To modify a permit, other than a RAP, to incorporate a staging pile or staging pile operating term extension, either:

('a') The Department must approve the modification under the procedures for Department-initiated permit modifications in section 373-1.7 of this Title; or

('b') You must request a major permit modification under section 373-1.7(d) and Part 621 of this Title.

(ii) To modify a RAP to incorporate a staging pile or staging pile operating term extension, you must comply with the RAP modification requirements under paragraph 373-1.11(e)(1) of this Title.

(iii) To modify a closure plan to incorporate a staging pile or staging pile operating term extension, you must follow the applicable requirements under paragraph 373-2.7(c)(3) or 373-3.7(c)(3) of this Title.

(iv) To modify an order to incorporate a staging pile or staging pile operating term extension, you must follow the terms of the order and the applicable provisions of subparagraph 373-1.3(g)(1)(v) or (2)(v) of this Title.

(13) Is information about the staging pile available to the public? The Department must document the rationale for designating a staging pile or staging pile operating term extension and make this documentation available to the public.

(f) Disposal of CAMU-eligible wastes in permitted hazardous waste landfills.

(1) The Department with regulatory oversight at the location where the cleanup is taking place may approve placement of CAMU-eligible wastes in hazardous waste landfills not located at the site from which the waste originated, without the wastes meeting the requirements of Part 376, if the conditions in subparagraphs (1)(i) through (iii) of this subdivision are met:

(i) The waste meets the definition of CAMU-eligible wastes in subparagraphs (c)(1)(i) and (ii) of this section.

(ii) The Department with regulatory oversight at the location where the cleanup is taking place identifies principal hazardous constituents in such waste, in accordance with clauses (c)(5)(iv)('a') and ('b') of this section, and requires that such principal hazardous constituents are treated to any of the following standards specified for CAMU-eligible wastes:

('a') The treatment standards under clause (c)(5)(iv)('d') of this section; or

('b') Treatment standards adjusted in accordance with subclauses (c)(5)(iv)('e')('1'), ('3') or ('4') or item (c)(5)(iv)('e')('5')('i') of this section; or

('c') Treatment standards adjusted in accordance with (c)(5)(iv)('e')('5')('ii'), where treatment has been used and that treatment significantly reduces the toxicity or mobility of the principal hazardous constituents in the waste, minimizing the short-term and long-term threat posed by the waste, including the threat at the remediation site.

(iii) The landfill receiving the CAMU-eligible waste must have a RCRA hazardous waste permit, meet the requirements for new landfills in section 373-2.14 of this Subpart, and be authorized to accept CAMU-eligible wastes; for the purposes of this requirement, "permit" does not include interim status.

(2) The person seeking approval shall provide sufficient information to enable the Department with regulatory oversight at the location where the cleanup is taking place to approve placement of CAMU-eligible waste in accordance with paragraph (1) of this subdivision. Information required by subparagraphs (c)(4)(i) through (iii) of this section for CAMU applications must be provided, unless not reasonably available.

(3) The Department with regulatory oversight at the location where the cleanup is taking place shall provide public notice and a reasonable opportunity for public comment before approving CAMU-eligible waste for placement in an off-site permitted hazardous waste landfill, consistent with the requirements for CAMU approval at paragraph (c)(8) of this section. The approval must be specific to a single remediation.

(4) Applicable hazardous waste management requirements for CAMU-eligible waste in this part, including record keeping requirements to demonstrate compliance with treatment standards approved under this section, must be incorporated into the receiving facility permit through permit issuance or a permit modification, providing notice and an opportunity for comment and a hearing. Notwithstanding subdivision 373-1.6(e) of this Part, a landfill may not receive hazardous CAMU-eligible waste under this section unless its permit specifically authorizes receipt of such waste.

(5) For each remediation, CAMU-eligible waste may not be placed in an off-site landfill authorized to receive CAMU-eligible waste in accordance with paragraph (4) of this subdivision until the following additional conditions have been met:

(i) The landfill owner/operator notifies the Department responsible for oversight of the landfill and persons on the facility mailing list, maintained in accordance with section 621.6 of this title, of his or her intent to receive CAMU-eligible waste in accordance with this subdivision; the notice must identify the source of the remediation waste, the principal hazardous constituents in the waste, and treatment requirements.

(ii) Persons on the facility mailing list may provide comments, including objections to the receipt of the CAMU-eligible waste, to the Department within 15 days of notification.

(iii) The Department may object to the placement of the CAMU-eligible waste in the landfill within 30 days of notification; the Department may extend the review period an additional 30 days because of public concerns or insufficient information.

(iv) CAMU-eligible wastes may not be placed in the landfill until the Department has notified the facility owner/operator that the Department does not object to its placement.

(v) If the Department objects to the placement or does not notify the facility owner/operator that the Department has chosen not to object, the facility may not receive the waste, notwithstanding subdivision 373-1.6(e) of this part, until the objection has been resolved, or the owner/operator obtains a permit modification in accordance with the procedures of subdivision 373-1.7(b) of this part and section 621.13 of this Title specifically authorizing receipt of the waste.

(vi) As part of the permit issuance or permit modification process of paragraph (4) of this subdivision, the Department may modify, reduce, or eliminate the notification requirements of this paragraph as they apply to specific categories of CAMU-eligible waste, based on minimal risk.

(6) Generators of CAMU-eligible wastes sent off-site to hazardous waste landfills under this subdivision must comply with the requirements of subparagraph 376.1(g)(1)(iv) of this Title; off-site facilities treating CAMU-eligible wastes to comply with this section must comply with the requirements of subparagraph 376.1(g)(2)(iv) of this Title, except that the certification must be with respect to the treatment requirements of subparagraph (1)(ii) of this subdivision.

(7) For the purposes of this subdivision only, the "design of the CAMU" in subclause (c)(5)(iv)('e')('5') of this section means design of the permitted Part 373 landfill.

(3) Owners and operators controlling air pollutant emissions from a tank using Tank Level 1 controls shall meet the requirements specified in subparagraphs (3)(i) through (3)(iv) of this subdivision:

(i) The owner or operator shall determine the maximum organic vapor pressure for a hazardous waste to be managed in the tank using Tank Level 1 controls before the first time the hazardous waste is placed in the tank. The maximum organic vapor pressure shall be determined using the procedures specified in subparagraph 373-2.29(d)(2)(iii) of this section. Thereafter, the owner or operator shall perform a new determination whenever changes to the hazardous waste managed in the tank could potentially cause the maximum organic vapor pressure to increase to a level that is equal to or greater than the maximum organic vapor pressure limit for the tank design capacity category specified in clause (2)(i)('a') of this subdivision, as applicable to the tank.

§373-2.20 - 373-2.22 Reserved.

§373-2.23 Drip Pads.

(a) Applicability.

(1) (i) Except as provided in subparagraph (1)(ii) of this subdivision, the requirements of this section apply to owners and operators of facilities that use new or existing drip pads to convey treated wood drippage, precipitation, and/or surface water run-off to an associated collection system. Existing drip pads are those constructed before December 6, 1990 and those for which the owner or operator has a design and has entered into binding financial or other agreements for construction prior to December 6, 1990. All other drip pads are new drip pads. The requirement at subparagraph 373-2.23(d)(2)(iii) to install a leak collection system applies only to those drip pads that are constructed after December 24, 1992, except for those constructed after December 24, 1992 for which the owner or operator has a design and has entered into binding financial or other agreements for construction prior to December 24, 1992.

(ii) For F034 and F035 wastes as defined in paragraph 371.4(b)(1) of this Title, subparagraph (i) of this paragraph applies, except that the referenced dates are revised to January 17, 1995.

(2) The owner or operator of any drip pad that is inside or under a structure that provides protection from precipitation so that neither run-off nor run-on is generated is not subject to regulation under paragraph 373-2.23(d)(5) or (6), as appropriate.

(3) The requirements of this section are not applicable to the management of infrequent and incidental drippage in storage yards provided that:

(i) The owner or operator maintains and complies with a written contingency plan that describes how the owner or operator will respond immediately to the discharge of such infrequent and incidental drippage. At a minimum, the contingency plan must describe how the owner or operator will do the following:

('a') Clean up the drippage;

('b') Document the cleanup of the drippage;

('c') Retain documents regarding cleanup for three years; and

('d') Manage the contaminated media in a manner consistent with Federal and New York State regulations.

(b) Assessment of existing drip pad integrity.

(1) For each existing drip pad as defined in subdivision (a) of this section, the owner or operator must evaluate the drip pad and determine that it meets all of the requirements of this section, except the requirements for liners and leak detection systems of paragraph 373-2.23(d)(2). No later than the effective date of these regulations, the owner or operator must obtain and keep on file at the facility a written assessment of the drip pad, reviewed and certified by an independent, qualified professional engineer registered in New York State that attests to the results of the evaluation. The assessment must be reviewed, updated and re-certified annually until all upgrades, repairs, or modifications necessary to achieve compliance with all of the standards of subdivision (d) of this section are complete. The evaluation must document the extent to which the drip pad meets each of the design and operating standards of subdivision (d) of this section, except the standards for liners and leak detection systems, specified in paragraph (d)(2) of this section.

(2) The owner or operator must develop a written plan for upgrading, repairing, and modifying the drip pad to meet the requirements of paragraph (d)(2) of this section, and submit the plan to the Commissioner no later than 2 years before the date that all repairs, upgrades, and modifications are complete. This written plan must describe all changes to be made to the drip pad in sufficient detail to document compliance with all the requirements of subdivision (d) of this section. The plan must be reviewed and certified by an independent qualified professional engineer registered in New York State.

(3) Upon completion of all upgrades, repairs, and modifications, the owner or operator must submit to the Commissioner, the as-built drawings for the drip pad together with a certification by an independent qualified professional engineer registered in New York State attesting that the drip pad conforms to the drawings.

(4) If the drip pad is found to be leaking or unfit for use, the owner or operator must comply with the provisions of paragraph (d)(13) of this section or close the drip pad in accordance with subdivision (f) of this section.

(c) Design and installation of new drip pads.

Owners and operators of new drip pads must ensure that the pads are designed, installed, and operated in accordance with one of the following:

(1) all of the applicable requirements of subdivisions (d) (except subparagraph (d)(1)(iv)), (e) and (f) of this section, or

(2) all of the applicable requirements of subdivisions (d) (except paragraph (d)(2)), (e) and (f) of this section.

(d) Design and operating requirements.

(1) Drip pads must:

(i) Be constructed of non-earthen materials, excluding wood and non-structurally supported asphalt;

(ii) Be sloped to free-drain treated wood drippage, rain and other waters, or solutions of drippage and water or other wastes to the associated collection system;

(iii) Have a curb or berm around the perimeter;

(iv)('a') Have a hydraulic conductivity of less than or equal to 1 x 10-7 centimeters per second, e.g., existing concrete drip pads must be sealed, coated, or covered with a surface material with a hydraulic conductivity of less than or equal to 1 x 10-7 centimeters per second such that the entire surface where drippage occurs or may run across is capable of containing such drippage and mixtures of drippage and precipitation, materials, or other wastes while being routed to an associated collection system. This surface material must be maintained free of cracks and gaps that could adversely affect its hydraulic conductivity, and the material must be chemically compatible with the preservatives that contact the drip pad. The requirements of this provision apply only to existing drip pads and those drip pads for which the owner or operator elects to comply with paragraph (c)(2) instead of paragraph (c)(1) of this section.

('b') The owner or operator must obtain and keep on file at the facility a written assessment of the drip pad, reviewed and certified by an independent, qualified professional engineer registered in New York State that attests to the results of the evaluation. The assessment must be reviewed, updated and recertified annually. The evaluation must document the extent to which the drip pad meets the design and operating standards of this subdivision, except for paragraph (2) of this subdivision.

(v) Be of sufficient structural strength and thickness to prevent failure due to physical contact, climatic conditions, the stress of daily operations, e.g., variable and moving loads such as vehicle traffic, movement of wood, etc.

(Note: DEC will generally consider applicable standards established by professional organizations generally recognized by the industry such as the American Concrete Institute (ACI) or the American Society of Testing and Materials (ASTM) in judging the structural integrity requirement of this paragraph.)

(2) If an owner/operator elects to comply with paragraph (c)(1) instead of paragraph (c)(2) of this section, the drip pad must have:

(i) A synthetic liner installed below the drip pad that is designed, constructed, and installed to prevent leakage from the drip pad into the adjacent subsurface soil or groundwater or surface water at any time during the active life (including the closure period) of the drip pad. The liner must be constructed of materials that will prevent waste from being absorbed into the liner and to prevent releases 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 strength and thickness to prevent failure due to pressure gradients (including static head and external hydrogeologic forces), physical contact with the waste or drip pad leakage to which they are exposed, climatic conditions, the stress of installation, and the stress of daily operation (including stresses from vehicular traffic on the drip pad);

('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 cover all surrounding earth that could come in contact with the waste or leakage; and

(ii) A leakage detection system immediately above the liner that is designed, constructed, maintained and operated to detect leakage from the drip pad. The leakage detection system must be:

('a') Constructed of materials that are:

('1') Chemically resistant to the waste managed in the drip pad and the leakage that might be generated; and

('2') Of sufficient strength and thickness to prevent collapse under the pressures exerted by overlaying materials and by any equipment used at the drip pad;

('b') Designed and operated to function without clogging through the scheduled closure of the drip pad; and

('c') Designed so that it will detect the failure of the drip pad or the presence of a release of hazardous waste or accumulated liquid at the earliest practicable time.

(iii) A leakage collection system immediately above the liner that is designed, constructed, maintained and operated to collect leakage from the drip pad such that it can be removed from below the drip pad. The date, time, and quantity of any leakage collected in this system and removed must be documented in the operating log.

(3) Drip pads must be maintained such that they remain free of cracks, gaps, corrosion, or other deterioration that could cause hazardous waste to be released from the drip pad.

(Note: See paragraph (13) of this subdivision for remedial action required if deterioration or leakage is detected.)

(4) The drip pad and associated collection system must be designed and operated to convey, drain, and collect liquid resulting from drippage or precipitation in order to prevent run-off.

(5) Unless protected by a structure, as described in paragraph (a)(2) of this section, the owner or operator must design, construct, operate and maintain a run-on control system capable of preventing flow onto the drip pad during peak discharge from at least a 24-hour, 25-year storm, unless the system has sufficient excess capacity to contain any run-off that might enter the system.

(6) Unless protected by a structure or cover as described in paragraph (a)(2) of this section, 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.

(7) The drip pad must be evaluated to determine that it meets the requirements of paragraphs (1) through (6) of this subdivision and the owner or operator must obtain a statement from an independent, qualified professional engineer registered in New York State certifying that the drip pad design meets the requirements of this section.

(8) Drippage and accumulated precipitation must be removed from the associated collection system as necessary to prevent overflow onto the drip pad.

(9) The drip pad surface must be cleaned thoroughly in a manner and frequency such that accumulated residues of hazardous waste or other materials are removed, with residues being properly managed as hazardous waste, so as to allow weekly inspections of the entire drip pad surface without interference or hindrance from accumulated residues of hazardous waste or other materials on the drip pad. The owner or operator must document the date and time of each cleaning and the cleaning procedure used in the facility's operating log. The owner/operator must determine if the residues are hazardous as per paragraph 372.2(a)(2) of this Title and, if so, must manage them under Parts 370 through 374 and Part 376 of this Title and section 3010 of RCRA.

(10) Drip pads must be operated and maintained in a manner to minimize tracking of hazardous waste or hazardous waste constituents off the drip pad as a result of activities by personnel or equipment.

(11) After being removed from the treatment vessel, treated wood from pressure and non-pressure processes must be held on the drip pad until drippage has ceased. The owner or operator must maintain records sufficient to document that all treated wood is held on the pad following treatment in accordance with this requirement.

(12) Collection and holding units associated with run-on and run-off control systems must be emptied or otherwise managed as soon as possible after storms to maintain design capacity of the system.

(13) Throughout the active life of the drip pad and as specified in the permit, if the owner or operator detects a condition that may have caused or has caused a release of hazardous waste, the condition must be repaired within a reasonably prompt period of time following discovery, in accordance with the following procedures:

(i) Upon detection of a condition that may have caused or has caused a release of hazardous waste (e.g., upon detection of leakage in the leak detection system), the owner or operator must:

('a') Enter a record of the discovery in the facility operating log;

('b') Immediately remove the portion of the drip pad affected by the condition from service;

('c') Determine what steps must be taken to repair the drip pad and clean up any leakage from below the drip pad, and establish a schedule for accomplishing the repairs;

('d') Within 24 hours after discovery of the condition, notify the Commissioner of the condition and, within 10 working days, provide written notice to the Commissioner with a description of the steps that will be taken to repair the drip pad and clean up any leakage, and the schedule for accomplishing this work.

(ii) The Commissioner will review the information submitted, make a determination regarding whether the pad must be removed from service completely or partially until repairs and clean up are complete and notify the owner or operator of the determination and the underlying rationale in writing.

(iii) Upon completing all repairs and clean up, the owner or operator must notify the Commissioner in writing and provide a certification signed by an independent, qualified professional engineer registered in New York State, that the repairs and clean up have been completed according to the written plan submitted in accordance with clause (13)(i)('d') of this subdivision.

(14) Should a permit be necessary, 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.

(15) The owner or operator must maintain, as part of the facility operating log,