D E C banner
D E C banner

Disclaimer

The New York State Department of Environmental Conservation has added a link to a translation service developed by Microsoft Inc., entitled Bing Translator, as a convenience to visitors to the DEC website who speak languages other than English.

Additional information can be found at DEC's Language Assistance Page.

Subpart 373-3: Interim Status Standards For Owners and Operators Of Hazardous Waste Facilities - Page 2

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

[Effective September 5, 2006]

[page 2 of 5

Pages in this Part:
Sections 1 to Section 7
Sections 8 to Section 11
Sections 12 to Section 28
Section 29
Sections 30 to Appendix 55

Contents:

Sec.

§373-3.8 - Financial Requirements

(a) Applicability.

(1) The requirements of subdivisions (c), (d), (h) and (i) of this section and section 373-2.8(j) of this Part apply to owners and operators of all hazardous waste facilities, except as provided otherwise in this section or in section 373-3.1 of this Subpart.

(2) The requirements of subdivisions (e) and (g) of this section apply only to owners and operators of:

(i) disposal facilities;

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

(iii) containment buildings that are required under subdivision 373-3.30(c) to meet the requirements for landfills.

(3) States and the Federal government are exempt from the requirements of this section.

(4) The department may replace all or part of the requirements of this section applying to a regulated unit with alternative requirements for financial assurance set out in the permit or in an enforceable document (as defined in 373-1.2(e)(3) of this Title), where the department:

(i) Prescribes alternative requirements for the regulated unit under paragraphs 373-3.6(a)(6) and/or 373-3.7(a)(4), and

(ii) Determines that it is not necessary to apply the requirements of this section because the alternative financial assurance requirements will protect human health and the environment.

(b) Definitions of terms as used in this section.

(1) "Closure plan" means the plan for closure prepared in accordance with the requirements of section 373-3.7(c) of this Subpart.

(2) "Current closure cost estimate" means the most recent of the estimates prepared in accordance with paragraphs (c)(1), (2) and (3) of this section.

(3) "Current post-closure cost estimate" means the most recent of the estimates prepared in accordance with paragraphs (e)(1), (2), and (3) of this section.

(4) "Parent corporation" means a corporation which directly owns at least 50 percent of the voting stock of the corporation which is the facility owner or operator; the latter corporation is deemed a "subsidiary" of the parent corporation.

(5) "Post-closure plan" means the plan for post-closure care prepared in accordance with the requirements of sections 373-3.7(g) through (j) of this Subpart.

(6) "Revenue-oriented", or "revenue-oriented hazardous waste management facility", means any facility (as defined in section 27-0917(7) of the ECL or section 370.2(b) of this Title) for which a majority of both its operating revenues and profits after tax at that facility for the prior three years and for the current and next year have been and are expected to be attributable to the transportation, storing, handling, disposal, treatment, or management of solid and hazardous wastes or related activities or to the ownership of or leasehold or other interest in any persons, facilities, or other assets engaged in or used for such activities. In making such calculations under this provision, all sources of operating revenues and profits (both before and after tax) shall be included. The commissioner may request any person to show to the satisfaction of the commissioner that the facility is not a revenue-oriented hazardous waste management facility by this definition. The commissioner may require a person to present its statements of account, independently audited by a certified public accountant, and other records to make this showing.

(7) The following terms are used in the specifications for the financial tests for closure, post-closure care, and liability coverage. The definitions are intended to assist in the understanding of these regulations and are not intended to limit the meanings of terms in a way that conflicts with generally accepted accounting practices.

(i) "Assets" means all existing and all probable future economic benefits obtained or controlled by a particular entity.

(ii) "Current assets" means cash or other assets or resources commonly identified as those which are reasonably expected to be realized in cash or sold or consumed during the normal operating cycle of the business.

(iii) "Current liabilities" means obligations whose liquidation is reasonably expected to require the use of existing resources properly classifiable as current assets or the creation of other current liabilities.

(iv) "Current plugging and abandonment cost estimate" means the most recent of the estimates prepared in accordance with 40 CFR 144.62 (see section 370.1(e) of this Title).

(v) "Independently audited" refers to an audit performed by an independent certified public accountant in accordance with generally accepted auditing standards.

(vi) "Liabilities" means probable future sacrifices of economic benefits arising from present obligations to transfer assets or provide services to other entities in the future as a result of past transactions or events.

(vii) "Net working capital" means current assets minus current liabilities.

(viii) "Net worth" means total assets minus total liabilities and is equivalent to owner's equity.

(ix) "Tangible net worth" means the tangible assets that remain after deducting liabilities; such assets would not include intangibles such as goodwill and rights to patents or royalties.

(8) In the liability insurance requirements the terms "bodily injury" and "property damage" shall have the meanings given these terms by applicable State law. However, these terms do not include those liabilities which, consistent with standard industry practices, are excluded from coverage in liability policies for bodily injury and property damage. The department intends the meanings of other terms used in the liability insurance requirements to be consistent with their common meanings within the insurance industry. The definitions given below of several of the terms are intended to assist in the understanding of these regulations and are not intended to limit their meanings in a way that conflicts with general insurance industry usage.

(i) "Accidental occurrence" means an accident, including continuous or repeated exposure to conditions, which results in bodily injury or property damage neither expected nor intended from the standpoint of the insured.

(ii) "Legal defense costs" means any expenses that an insurer incurs in defending against claims of third parties brought under the terms and conditions of an insurance policy.

(iii) "Nonsudden accidental occurrence" means an occurrence which takes place over time and involves continuous or repeated exposure.

(iv) "Sudden accidental occurrence" means an occurrence which is not continuous or repeated in nature.

(9) "Substantial business relationship" means the extent of a business relationship necessary under applicable state law to make a guarantee contract issued incident to that relationship valid and enforceable. A "substantial business relationship" must arise from a pattern of recent or ongoing business transactions, in addition to the guarantee itself, such that a currently existing business relationship between the guarantor and the owner or operator is demonstrated to the satisfaction of the Commissioner.

(c) Cost estimates for facility closure.

(1) The owner or operator must have a detailed written estimate, in current dollars, of the cost of closing the facility in accordance with the requirements in sections 373-3.7(b) through (f) and applicable closure requirements in section 373-3.9(i), 373-3.10(e), 373-3.11(f), 373-3.12(g), 373-3.13(g), 373-3.14(d), 373-3.15(e), 373-3.16(e), 373-3.17(e) and 373-3.30(c) of this Subpart.

(i) The estimate must equal the cost of final closure at the point in the facility's active life when the extent and manner of its operation would make closure the most expensive, as indicated by its closure plan (see section 373-3.7(c)(2) of this Subpart); and

(ii) The closure cost estimate must be based on the costs to the owner or operator of hiring a third party to close the facility. A third party is a party who is neither a parent nor a subsidiary of the owner or operator. (See definition of parent corporation in subdivision (b) of this section.) The owner or operator may use costs for on-site disposal if the owner or operator can demonstrate that on-site disposal capacity will exist at all times over the life of the facility.

(iii) The closure cost estimate may not incorporate any salvage value that may be realized with the sale of hazardous wastes, or non-hazardous wastes if applicable under paragraph 373-3.7(d)(4), facility structures or equipment, land, or other assets associated with the facility at the time of partial or final closure.

(iv) The owner or operator may not incorporate a zero cost for hazardous wastes, or non-hazardous wastes if applicable under paragraph 373-3.7(d)(4) of this Subpart, that might have economic value.

(2) During the active life of the facility, the owner or operator must adjust the closure cost estimate for inflation within 60 days prior to the anniversary date of the establishment of the financial instruments used to comply with subdivision (d) of this section. For owners and operators using the financial test or guarantee, the closure cost estimate must be updated for inflation within 30 days after the close of the firm's fiscal year and before submission of updated information to the commissioner as specified in section 373-3.8(d)(5)(iii) of this Subpart. The adjustment may be made by recalculating the maximum costs of closure in current dollars, or by using an inflation factor derived from the most recent Implicit Price Deflator for Gross National Product published by the U.S. Department of Commerce in its Survey of Current Business, as specified in subparagraphs (i) and (ii) of this paragraph. The inflation factor is the result of dividing the latest published annual deflator by the deflator for the previous year.

(i) The first adjustment is made by multiplying the closure cost estimate by the inflation factor. The result is the adjusted closure cost estimate.

(ii) Subsequent adjustments are made by multiplying the latest adjusted closure cost estimate by the latest inflation factor.

(3) During the active life of the facility, the owner or operator must revise the closure cost estimate no later than 30 days after a revision has been made to the closure plan which increases the cost of closure. If the owner or operator has an approved closure plan, the closure cost estimate must be revised no later than 30 days after the commissioner has approved the request to modify the closure plan, if the change in the closure plan increases the cost of closure. The revised closure cost estimate must be adjusted for inflation as specified in paragraph (2) of this subdivision.

(4) The owner or operator must keep the following at the facility during the operating life of the facility: The latest closure cost estimate prepared in accordance with paragraphs (1) and (3) of this subdivision and, when this estimate has been adjusted in accordance with paragraph (2) of this subdivision, the latest adjusted closure cost estimate.

(d) Financial assurance for facility closure. An owner or operator of each facility must establish financial assurance for closure of the facility. The owner or operator must choose from the options as specified in paragraphs (1) through (5) of this subdivision. An owner or operator may also use a combination of the options specified in paragraphs (1) through (5) to provide the total amount of financial assurance for the closure of the facility.

(1) Closure trust fund.

(i) An owner or operator may satisfy the requirements of this subdivision by establishing a closure trust fund which conforms to the requirements of this paragraph and submitting an originally signed duplicate of the trust agreement to the commissioner. The trustee must be an entity which has the authority to act as a trustee and whose trust operations are regulated and examined by a Federal or State agency.

(ii) The wording of the trust agreement must be identical to the wording specified in section 373-2.8(j)(1) of this Part, and the trust agreement must be accompanied by a formal certification of acknowledgement (for example, see section 373-2.8(j)(1)). Schedule A of the trust agreement must be updated within 60 days after a change in the amount of the current closure cost estimate covered by the agreement.

(iii) Payments into the trust fund must be made annually by the owner or operator over the first 5 years of operation or over the remaining operating life of the facility as estimated in the closure plan, whichever period is shorter; this period is hereafter referred to as the "pay-in period." The payments into the closure trust fund must be made as follows:

('a') For a new or revenue-oriented facility, the first payment must be equal to the total closure cost estimate or, an alternative mechanism must be provided, which when combined with the trust fund, provides financial assurance for an amount at least equal to the current closure cost estimate. For a revenue-oriented facility the first payment is due 90 days after the date that these regulations are promulgated. For a new facility, this payment will be made before the initial receipt of hazardous waste for treatment, storage, or disposal.

('b') For an existing facility which is not revenue-oriented, the first payment must be at least equal to the current closure cost estimate, except as provided in paragraph (2) of this subdivision, divided by the number of years in the pay-in period.

('c') Subsequent payments must be made no later than 30 days after each anniversary date of the first payment. The amount of each subsequent payment must be determined by this formula:

Next payment = CE-CV
Y

Where CE is the current closure cost estimate, CV is the current value of the trust fund, and Y is the number of years remaining in the pay-in period.

(iv) The owner or operator may accelerate payments into the trust fund or may deposit the full amount of the current closure cost estimate at the time the fund is established. However, the owner or operator must maintain the value of the fund at no less than the value that the fund would have if annual payments were made as specified in subparagraph (iii) of this paragraph.

(v) If the owner or operator established a closure trust fund after having used one or more alternate mechanisms specified in this subdivision, the first payment must be in at least the amount that the fund would contain if the trust fund were established initially and annual payments made as specified in subparagraph (iii) of this paragraph.

(vi) After the pay-in period is completed or whenever the current closure cost estimate changes, the owner or operator must compare the new estimate with the trustee's most recent annual valuation of the trust fund. If the value of the fund is less than the amount of the new estimate, the owner or operator, within 60 days after the change in the cost estimate, must either deposit an amount into the fund so that its value after this deposit at least equals the amount of the current closure cost estimate, or obtain other financial assurance as specified in this subdivision to cover the difference.

(vii) If the value of the trust fund is greater than the total amount of the current closure cost estimate, the owner or operator may submit a written request to the commissioner for release of the amount in excess of the current closure cost estimate.

(viii) If an owner or operator substitutes other financial assurance as specified in this subdivision for all or part of the trust fund, the owner or operator may submit a written request to the commissioner for release of the amount in excess of the current closure cost estimate covered by the trust fund.

(ix) Within 60 days after receiving a request from the owner or operator for release of funds as specified in subparagraph (vii) or (viii) of this paragraph, the commissioner will instruct the trustee to release to the owner or operator such funds as the commissioner specifies in writing.

(x) After beginning partial or final closure, an owner or operator or another person authorized to conduct partial or final closure may request reimbursements for partial or final closure expenditures by submitting itemized bills to the commissioner. The owner or operator may request reimbursements for partial closure only if sufficient funds are remaining in the trust fund to cover the maximum costs of closing the facility over its remaining operating life. Within 60 days after receiving bills for partial or final closure activities, the commissioner will instruct the trustee to make reimbursements in those amounts as the commissioner specifies in writing, if the commissioner determines that the partial or final closure expenditures are in accordance with the approved closure plan, or otherwise justified. If the commissioner has reason to believe that the maximum cost of closure over the remaining life of the facility will be significantly greater than the value of the trust fund, the commissioner may withhold reimbursements of such amounts as he or she deems prudent until the commissioner determines, in accordance with paragraph (8) of this subdivision, that the owner or operator is no longer required to maintain financial assurance for final closure of the facility. If the commissioner does not instruct the trustee to make such reimbursements, the commissioner will provide the owner or operator with a detailed written statement of reasons.

(xi) The commissioner will agree to termination of the trust when:

('a') an owner or operator substitutes alternate financial assurance as specified in this subdivision; or

('b') the commissioner releases the owner or operator from the requirements of this subdivision in accordance with paragraph (8) of this subdivision.

(2) Surety Bond.

(i) An owner or operator may satisfy the requirements of this subdivision by obtaining a surety bond which conforms to the requirements of this paragraph and submitting the bond to the commissioner. The surety company issuing the bond must, at a minimum, be among those listed as acceptable sureties on Federal bonds in Circular 570 of the U.S. Department of the Treasury.

(ii) The wording of the surety bond must be identical to the wording specified in section 373-2.8(j)(2) of this Part.

(iii) The owner or operator who uses a surety bond to satisfy the requirements of this subdivision must also establish a standby trust fund. Under the terms of the bond, all payments made thereunder will be deposited by the surety directly into the standby trust fund in accordance with instructions from the commissioner. The standby trust fund must meet the requirements specified in paragraph (1) of this subdivision, except that:

('a') an originally signed duplicate of the trust agreement must be submitted to the commissioner with the surety bond; and

('b') until the standby trust fund is funded pursuant to the requirements of this subdivision, the following are not required by these regulations:

('1') payments into the trust fund as specified in paragraph (1) of this subdivision;

('2') updating of Schedule A of the trust agreement (see section 373-2.8(j)(1) of this Part) to show current closure cost estimates;

('3') annual valuations as required by the trust agreement; and

('4') notices of nonpayment as required by the trust agreement.

(iv) The bond must guarantee that the owner or operator will:

('a') fund the standby trust fund in an amount equal to the penal sum of the bond before the beginning of final closure of the facility; or

('b') fund the standby trust fund in an amount equal to the penal sum within 15 days after an order to begin final closure is issued by the commissioner or a United States district court or other court of competent jurisdiction; or

('c') provide alternate financial assurance as specified in this subdivision, and obtain the commissioner's written approval of the assurance provided, within 90 days after receipt by both the owner or operator and the commissioner of a notice of cancellation of the bond from the surety.

(v) Under the terms of the bond, the surety will become liable on the bond obligation when the owner or operator fails to perform as guaranteed by the bond.

(vi) The penal sum of the bond must be in an amount at least equal to the current closure cost estimate, except as provided in paragraph (6) of this subdivision.

(vii) Whenever the current closure cost estimate increases to an amount greater than the penal sum, the owner or operator, within 60 days after the increase, must either cause the penal sum to be increased to an amount at least equal to the current closure cost estimate and submit evidence of such increase to the commissioner, or obtain other financial assurance as specified in this subdivision to cover the increase. Whenever the current closure cost estimate decreases, the penal sum may be reduced to the amount of the current closure cost estimate following written approval by the commissioner.

(viii) Under the terms of the bond, the surety may cancel the bond by sending notice of cancellation by "certified mail return receipt requested" to the owner or operator and to the commissioner. Cancellation may not occur, however, during the 120 days beginning on the date of receipt of the notice of cancellation by both the owner or operator and the commissioner, as evidenced by the return receipts.

(ix) The owner or operator may cancel the bond if the commissioner has given prior written consent based on the receipt of evidence of alternate financial assurance as specified in this subdivision.

(3) Closure letter of credit.

(i) An owner or operator may satisfy the requirements of this subdivision by obtaining an irrevocable letter of credit which conforms to the requirements of this paragraph and submitting the letter to the commissioner. The issuing institution must be an entity which has the authority to issue letters of credit and whose letter of credit operations are regulated and examined by a Federal or State agency.

(ii) The wording of the letter of credit must be identical to the wording specified in section 373-2.8(j)(3) of this Part.

(iii) An owner or operator who uses a letter of credit to satisfy the requirements of this subdivision must also establish a standby trust fund. Under the terms of the letter of credit all amounts paid pursuant to a draft by the commissioner will be deposited by the issuing institution directly into the standby trust fund in accordance with instructions from the commissioner. This standby trust fund must meet the requirements of the trust fund specified in paragraph (1) of this subdivision, except that:

('a') an originally signed duplicate of the trust agreement must be submitted to the commissioner with the letter of credit; and

('b') unless the standby trust fund is funded pursuant to the requirements of this subdivision, the following are not required by these regulations:

('1') payments into the trust fund as specified in paragraph (1) of this subdivision;

('2') updating of Schedule A of the trust agreement (see section 373-2.8(j)(1) of this Part) to show current closure cost estimates;

('3') annual valuations as required by the trust agreement; and

('4') notices of nonpayment as required by the trust agreement.

(iv) The letter of credit must be accompanied by a letter from the owner or operator referring to the letter of credit by number, issuing institution, and date, and providing the following information: the EPA identification number, name, and address of the facility, and the amount of funds assured for closure of the facility by the letter of credit.

(v) The letter of credit must be irrevocable and issued for a period of at least 1 year. The letter of credit must provide that the expiration date will be automatically extended for a period of at least 1 year unless, at least 120 days before the current expiration date, the issuing institution notifies both the owner or operator and the commissioner by "certified mail return receipt requested" of a decision not to extend the expiration date. Under the terms of the letter of credit, the 120 days will begin on the date when both the owner or operator and the commissioner have received the notice, as evidenced by the return receipts.

(vi) The letter of credit must be issued in an amount at least equal to the current closure cost estimate, except as provided in paragraph (6) of this subdivision.

(vii) Whenever the current closure cost estimate increases to an amount greater than the amount of the credit, the owner or operator, within 60 days after the increase, must either cause the amount of the credit to be increased so that it at least equals the current closure cost estimate and submit evidence of such increase to the commissioner, or obtain other financial assurance as specified in this subdivision to cover the increase. Whenever the current closure cost estimate decreases, the amount of the credit may be reduced to the amount of the current closure cost estimate following written approval by the commissioner.

(viii) Following a determination, pursuant to section 373-3.7 of this Subpart, that the owner or operator has failed to perform final closure in accordance with the closure plan and other interim status requirements when required to do so, the commissioner may draw on the letter of credit.

(ix) If the owner or operator does not establish alternate financial assurance as specified in this subdivision and obtain written approval of such alternate assurance from the commissioner within 90 days after receipt by both the owner or operator and the commissioner of a notice from the issuing institution that it has decided not to extend the letter of credit beyond the current expiration date, the commissioner will draw on the letter of credit. The commissioner may delay the drawing if the issuing institution grants an extension of the term of the credit. During the last 30 days of any such extension the commissioner will draw on the letter of credit if the owner or operator has failed to provide alternate financial assurance as specified in this subdivision and obtain written approval of such assurance from the commissioner.

(x) The commissioner will return the letter of credit to the issuing institution for termination when:

('a') an owner or operator substitutes alternate financial assurance as specified in this subdivision; or

('b') the commissioner releases the owner or operator from the requirements of this section in accordance with paragraph (8) of this subdivision.

(4) Closure insurance.

(i) An owner or operator may satisfy the requirements of this subdivision by obtaining closure insurance which conforms to the requirements of this paragraph and submitting a certificate of such insurance to the commissioner. The owner or operator must submit to the commissioner a letter from an insurer stating that the insurer is considering issuance of closure insurance conforming to the requirements of this paragraph to the owner or operator. Within 90 days after the effective date of these regulations, the owner or operator must submit the certificate of insurance to the commissioner or establish other financial assurance as specified in this section. At a minimum, the insurer must be authorized by the Superintendent of the New York State Insurance Department to conduct the business of insurance, or eligible to provide insurance as an excess or surplus lines insurer, in New York State.

(ii) The wording of the certificate of insurance must be identical to the wording specified in section 373-2.8(j)(4) of this Part.

(iii) The closure insurance policy must be issued for a limit of liability at least equal to the current closure cost estimate, except as provided in paragraph (6) of this subdivision. The term "limits of liability" means the total amount the insurer is obligated to pay under the policy. Actual payments by the insurer will not change the limits of liability, although the insurer's future liability will be lowered by the amount of the payments.

(iv) The closure insurance policy must guarantee that funds will be available to close the facility whenever final closure occurs. The policy must also guarantee that once final closure begins, the insurer will be responsible for paying out funds, up to an amount equal to the limits of liability of the policy, upon the direction of the commissioner, to such party or parties as the commissioner specifies.

(v) After beginning partial or final closure, an owner or operator or any other person authorized to conduct closure may request reimbursements for closure expenditures by submitting itemized bills to the commissioner. The owner or operator may request reimbursements for partial closure only if the remaining value of the policy is sufficient to cover the maximum costs of closing the facility over its remaining operating life. Within 60 days after receiving bills for closure activities, the commissioner will instruct the insurer to make reimbursements in such amounts as the commissioner specifies in writing, if the commissioner determines that the partial or final closure expenditures are in accordance with the approved closure plan or otherwise justified. If the commissioner has reason to believe that the maximum cost of closure over the remaining life of the facility will be significantly greater than the face amount of the policy, the commissioner may withhold reimbursements of such amounts as he or she deems prudent until the commissioner determines, in accordance with paragraph (8) of this subdivision, that the owner or operator is no longer required to maintain financial assurance for final closure of the particular facility. If the commissioner does not instruct the insurer to make such reimbursements, the commissioner will provide the owner or operator with a detailed written statement of reasons.

(vi) The owner or operator must maintain the policy in full force and effect until the commissioner consents to termination of the policy by the owner or operator as specified in subparagraph (x) of this paragraph. Failure to pay the premium, without substitution of alternate financial assurance as specified in this subdivision, will constitute a significant violation of these regulations, warranting such remedy as the commissioner deems necessary. Such violation will be deemed to begin upon receipt by the commissioner of a notice of future cancellation, termination, or failure to renew due to nonpayment of the premium, rather than upon the date of expiration.

(vii) Each policy must contain a provision allowing assignment of the policy to a successor owner or operator. Such assignment may be conditional upon consent of the insurer, provided such consent is not unreasonably refused.

(viii) The policy must provide that the insurer may not cancel, terminate, or fail to renew the policy except for failure to pay the premium. The automatic renewal of the policy must, at a minimum, provide the insured with the option of renewal at the limits of liability of the expiring policy. If there is a failure to pay the premium, the insurer may elect to cancel, terminate, or fail to renew the policy by sending notice by "certified mail return receipt requested" to the owner or operator and the commissioner. Cancellation, termination, or failure to renew may not occur, however, during the 120 days beginning with the date of receipt of the notice by both the commissioner and the owner or operator, as evidenced by the return receipts. Cancellation, termination, or failure to renew may not occur and the policy will remain in full force and effect in the event that on or before the date of expiration:

('a') the commissioner deems the facility abandoned; or

('b') interim status is terminated or revoked; or

('c') closure is ordered by the commissioner or a U.S. district court or other court of competent jurisdiction; or

('d') the owner or operator is named as debtor in a voluntary or involuntary proceeding under 11 USCA (Bankruptcy); or

('e') the premium due is paid.

(ix) Whenever the current closure cost estimate increases to an amount greater than the limits of liability of the policy, the owner or operator, within 60 days after the increase, must either cause the limits of liability face amount to be increased to an amount at least equal to the current closure cost estimate and submit evidence of such increase to the commissioner, or obtain other financial assurance as specified in this subdivision to cover the increase. Whenever the current closure cost estimate decreases, the limits of liability may be reduced to the amount of the current closure cost estimate following written approval by the commissioner.

(x) The commissioner will give written consent to the owner or operator that the insurance policy may be terminated when:

('a') an owner or operator substitutes alternate financial assurance as specified in this subdivision; or

('b') the commissioner releases the owner or operator from the requirements of this section in accordance with paragraph (8) of this subdivision.

(5) Financial test and guarantee for closure.

(i) An owner or operator of a facility which is not a revenue-oriented facility may satisfy the requirements of this section by demonstrating that the owner or operator passes a financial test as specified in this paragraph. No revenue-oriented facilities will be allowed to use this financial assurance mechanism. To pass this test the owner or operator must meet the criteria of either clause ('a') or ('b') of this paragraph.

('a') the owner or operator must have:

('1') two of the following three ratios: A ratio of total liabilities to net worth less than 2.0; a ratio of the sum of net income plus depreciation, depletion, and amortization to total liabilities greater than 0.1; and a ratio of current assets to current liabilities greater than 1.5;

('2') net working capital and tangible net worth each at least six times the sum of the current closure and post-closure cost estimates; and the current plugging and abandonment cost estimates; and

('3') tangible net worth of at least $10 million; and

('4') assets in the United States amounting to at least 90 percent of the total assets or at least six times the sum of the current closure and post-closure cost estimates and the current plugging and abandonment cost estimates.

('b') The owner or operator must have:

('1') a current rating for their most recent bond issuance of AAA, AA, A or BBB as issued by Standard and Poor's or Aaa, Aa, A, or Baa as issued by Moody's;

('2') tangible net worth at least six times the sum of the current closure and post-closure cost estimates and the current plugging and abandonment costs;

('3') tangible net worth of at least $10 million; and

('4') assets located in the United States amounting the at least 90 percent of the total assets or at least six times the sum of the current closure and post-closure cost estimates and the current plugging and abandonment costs.

(ii) The phrases "current closure and post-closure cost estimates" and "current plugging and abandonment cost estimates," as used in subparagraph (i) of this paragraph refer to the cost estimates required to be shown in paragraphs 1-3 of the letter from the owner's or operator's chief financial officer (see section 373-2.8(j)(5) of this Part).

(iii) To demonstrate that he or she meets this test, the owner or operator must submit the following items to the commissioner.

('a') a letter signed by the owner's or operator's chief financial officer and worded as specified in section 373-2.8(j)(5) of this Part; and

('b') a copy of the independent certified public accountant's report on examination of the owner's or operator's financial statements for the latest completed fiscal year; and

('c') a special report from the owner's or operator's independent certified public accountant to the owner or operator stating that:

('1') the accountant has compared the data which the letter from the chief financial officer specifies as having been derived from the independently audited, year-end financial statements for the latest fiscal year with the amounts in such financial statements; and

('2') in connection with that procedure, no matters came to the accountant's attention which caused the accountant to believe that the specified data should be adjusted.

(iv) After the initial submission of items specified in subparagraph (iii) of this paragraph, the owner or operator must send updated information to the commissioner within 90 days after the close of each succeeding fiscal year. This information must consist of all three items specified in subparagraph (iii) of this paragraph.

(v) If the owner or operator no longer meets the requirements of subparagraph (i) of this paragraph, the owner or operator must send notice to the commissioner of intent to establish alternate financial assurance as specified in this subdivision. The notice must be sent by "certified mail return receipt requested" within 90 days after the end of the fiscal year for which the year-end financial data show that the owner or operator no longer meets the requirements. The owner or operator must provide the alternate financial assurance within 120 days after the end of such fiscal year.

(vi) The commissioner may, based on a reasonable belief that the owner or operator may no longer meet the requirements of subparagraph (i) of this paragraph, require reports of financial condition at any time from the owner or operator in addition to those specified in subparagraph (iii) of this paragraph. If the commissioner finds, on the basis of such report or other information, that the owner or operator no longer meets the requirements of subparagraph (i) of this paragraph, the owner or operator must provide alternate financial assurance as specified in this subdivision within 30 days after notification of such a finding.

(vii) The commissioner may disallow use of this test on the basis of qualifications in the opinion expressed by the independent certified public accountant in his or her report on examination of the owner's or operator's financial statements (see clause (iii)('b') of this paragraph). An adverse opinion or a disclaimer of opinion will be cause for disallowance. The commissioner will evaluate other qualifications on an individual basis. The owner or operator must provide alternate financial assurance as specified in this subdivision within 30 days after notification of the disallowance.

(viii) The owner or operator is no longer required to submit the items specified in subparagraph (iii) of this paragraph when:

('a') an owner or operator substitutes alternate financial assurance as specified in this subdivision; or

('b') the commissioner releases the owner or operator from the requirements of this section in accordance with paragraph (8) of this subdivision.

(ix) An owner or operator of a facility which is not a revenue-oriented facility, may meet the requirements of this subdivision by obtaining a written guarantee, hereafter referred to as "guarantee." If the firm which is providing the guarantee does not meet the definition of "revenue-oriented" in section 373-2.8 or 373-3.8 of this Part, it may provide the guarantee on behalf of the owner or operator even if the owner or operator is a "revenue-oriented" facility. However, the financial statement of the owner or operator cannot be consolidated with the financial statement of the guarantor. The guarantor must be the direct or higher-tier parent corporation of the owner or operator, a firm whose parent corporation is also the parent corporation of the owner or operator, or a firm with a "substantial business relationship" with the owner or operator. The guarantor must meet the requirements for owners or operators in subparagraphs (i) through (vii) of this paragraph and must comply with the terms of the guarantee. The wording of the guarantee must be identical to the wording specified in section 373-2.8(j)(6) of this Part. A certified copy of the guarantee must accompany the items sent to the commissioner as specified in subparagraph (iii) of this paragraph. One of these items must be the letter from the guarantor's chief financial officer. If the guarantor's parent corporation is also the parent corporation of the owner or operator, the letter must describe the value received in consideration of the guarantee. If the guarantor is a firm with a "substantial business relationship" with the owner or operator, this letter must describe this "substantial business relationship" and the value received in consideration of the guarantee. The terms of the guarantee must provide that:

('a') If the owner or operator fails to perform final closure of a facility covered by the guarantee in accordance with the closure plan and other interim status requirements whenever required to do so, the guarantor will do so or make payment as the commissioner shall direct, in writing.

('b') The guarantee will remain in force unless the guarantor sends notice of cancellation by certified mail, return receipt requested, to the owner or operator and to the commissioner. Cancellation may not occur, however, during the 120 days beginning on the date of receipt of the notice of cancellation by both the owner or operator and the commissioner, as evidenced by the return receipts.

('c') If the owner or operator fails to provide alternate financial assurance as specified in this subdivision and obtain the written approval of such alternate assurance from the commissioner, within 90 days after receipt by both the owner or operator and the commissioner of a notice of cancellation of the guarantee from the guarantor, the guarantor will provide such alternate financial assurance in the name of the owner or operator.

(6) Use of multiple financial mechanisms. An owner or operator may satisfy the requirements of this subdivision by establishing more than one financial mechanism per facility. These mechanisms are limited to trust funds, surety bonds, letters of credit, and insurance. The mechanisms must be as specified in paragraphs (1) through (4), respectively, of this subdivision, except that it is the combination of mechanisms, rather than the single mechanisms, which must provide financial assurance for an amount at least equal to the current closure cost estimate. If an owner or operator uses a trust fund in combination with a surety bond or a letter of credit, the trust fund may be used as the standby trust fund for the other mechanisms. A single standby trust fund, if required, may be established for two or more mechanisms. The commissioner may use any or all of the mechanisms to provide for closure of the facility.

(7) Use of the financial mechanisms for multiple facilities. An owner or operator may use a financial assurance mechanism specified in this subdivision to meet the requirements of this subdivision for more than one facility. Evidence of financial assurance submitted to the commissioner must include a list showing, for each facility, the EPA identification number, name, address, and the amount of funds for closure assured by the mechanism. The amount of funds available through the mechanism must be no less than the sum of funds that would be available if a separate mechanism had been established and maintained for each facility. In directing funds available through the mechanism, the commissioner may direct only the amount of funds designated for that facility, unless the owner or operator agrees to the use of additional funds available under the mechanism.

(8) Release of the owner or operator from the requirements of this subdivision. Within 60 days after receiving certifications from the owner or operator and an independent professional engineer registered in New York that final closure has been completed in accordance with the approved closure plan, the commissioner will notify the owner or operator in writing that the owner or operator is no longer required by this subdivision to maintain financial assurance for final closure of the facility, unless the commissioner has reason to believe that final closure has not been in accordance with the closure plan. The commissioner shall provide the owner or operator a detailed written statement of the reason to believe that closure has not been in accordance with the approved closure plan.

(e) Cost estimate for post-closure care.

(1) The owner or operator of a hazardous waste disposal unit must have a detailed written estimate, in current dollars, of the annual cost of post-closure monitoring and maintenance of the facility in accordance with the applicable post-closure regulations in subdivisions (g) through (j) of this section and section 373-3.11(e), 373-3.12(g), 373-3.13(g) and 373-3.14(d) of this Subpart.

(i) The post-closure cost estimate must be based on the costs to the owner or operator of hiring a third party to conduct post-closure care activities. A third party is a party who is neither a parent nor a subsidiary of the owner or operator. (See definition of parent corporation in subdivision (b) of this section).

(ii) The post-closure cost estimate is calculated by multiplying the annual post-closure cost estimate by the number of years of post-closure care required under section 373-2.7(g) of this Subpart.

(2) During the active life of the facility, the owner or operator must adjust the post-closure cost estimate for inflation within 60 days prior to the anniversary date of the establishment of the financial instruments used to comply with subdivision (f) of this section. For owners and operators using the financial test or guarantee, the post-closure care cost estimate must be updated for inflation within 30 days after the close of the firm's fiscal year and before submission of updated information to the commissioner as specified in section 373-3.8(f)(5)(v) of this Subpart. The adjustment may be made by recalculating the post-closure cost estimate in current dollars, or by using an inflation factor derived from the most recent Implicit Price Deflator for Gross National Product published by the U.S. Department of Commerce in its Survey of Current Business, as specified in subparagraphs (i) and (ii) of this paragraph. The inflation factor is the result of dividing the latest published annual deflator by the deflator for the previous year.

(i) The first adjustment is made by multiplying the post-closure cost estimate by the inflation factor. The result is the adjusted closure cost estimate.

(ii) Subsequent adjustments are made by multiplying the latest adjusted post-closure cost estimate by the latest inflation factor.

(3) During the active life of the facility, the owner or operator must revise the post-closure cost estimate no later than 30 days after a revision to the post-closure plan which increases the cost of post-closure care. If the owner or operator has an approved post-closure plan, the post-closure cost estimate must be revised no later than 30 days after the commissioner has approved the request to modify the plan, if the change in the post-closure plan increases the cost of post-closure care. The revised post-closure cost estimate must be adjusted for inflation as specified in paragraph (2) of this subdivision.

(4) The owner or operator must keep the following at the facility during the operating life of the facility: the latest post-closure cost estimate prepared in accordance with paragraphs (1) and (3) of this subdivision and, when this estimate has been adjusted in accordance with paragraph (2) of this subdivision, the latest adjusted post-closure cost estimate.

(f) Financial assurance for post-closure care. An owner or operator of a facility with a hazardous waste disposal unit must establish financial assurance for post-closure care of the disposal units.

(1) Post-closure trust fund.

(i) An owner or operator may satisfy the requirements of this subdivision by establishing a post-closure trust fund which conforms to the requirements of this paragraph and submitting an originally signed duplicate of the trust agreement of the commissioner. The trustee must be an entity which has the authority to act as a trustee and whose trust operations are regulated and examined by a Federal or State agency.

(ii) The wording of the trust agreement must be identical to the wording specified in section 373-2.8(j)(1) of this Part, and the trust agreement must be accompanied by a formal certification of acknowledgement (for example, see section 373-2.8(j)(1)). Schedule A of the trust agreement must be updated within 60 days after a change in the amount of the current post-closure cost estimate covered by the agreement.

(iii) Payments into the trust fund must be made annually by the owner or operator over the first 5 years of operation or over the remaining operating life of the facility as estimated in the closure plan, whichever period is shorter; this period is hereafter referred to as the "pay-in period." The payments into the post-closure trust fund must be made as follows:

('a') For a new or revenue-oriented facility, the first payment must be equal to the total post-closure cost estimate, or an alternative mechanism must be provided, which when combined with the trust fund, provides financial assurance for an amount at least equal to the current post-closure cost estimate. For a revenue-oriented facility the first payment is due 90 days after the date these regulations are promulgated. For all other facilities, the first payment must be at least equal to the current post-closure cost estimate, except as provided in paragraph (6) of this subdivision, divided by the number of years in the pay-in period.

('b') Subsequent payments must be made no later than 30 days after each anniversary date of the first payment. The amount of each subsequent payment must be determined by this formula:

Next payment = CE-CV
Y

Where CE is the current post-closure cost is estimate, CV is the current value of the trust fund, and Y is the number of years remaining in the pay-in period.

(iv) The owner or operator may accelerate payments into the trust fund or may deposit the full amount of the current post-closure cost estimate at the time the fund is established, However, the owner or operator must maintain the value of the fund at no less than the value that the fund would have if annual payments were made as specified in paragraph (iii) of this paragraph.

(v) If the owner or operator establishes a post-closure trust fund after having used one or more alternate mechanisms specified in this subdivision, the first payment must be in at least the amount that the fund would contain if the trust fund were established initially and annual payments made as specified in subparagraph (iii) of this paragraph.

(vi) After the pay-in period is completed, whenever the current post-closure cost estimate changes during the operating life of the facility, the owner or operator must compare the new estimate with the trustee's most recent annual valuation of the trust fund. If the value of the fund is less than the amount of the new estimate, the owner or operator, within 60 days after the change in the cost estimate, must either deposit an amount into the fund so that its value after this deposit at least equals the amount of the current post-closure cost estimate, or obtain other financial assurance as specified in this subdivision to cover the difference.

(vii) During the operating life of the facility, if the value of the trust fund is greater than the total amount of the current post-closure cost estimate, the owner or operator may submit a written request to the commissioner for release of the amount in excess of the current post-closure cost estimate.

(viii) If an owner or operator substitutes other financial assurance as specified in this subdivision for all or part of the trust fund, the owner or operator may submit a written request to the commissioner for release of the amount in excess of the current post-closure cost estimate covered by the trust fund.

(ix) Within 60 days after receiving a request from the owner or operator for release of funds as specified in subparagraphs (vii) or (viii) of this paragraph, the commissioner will instruct the trustee to release to the owner or operator such funds as the commissioner specifies in writing.

(x) During the period of post-closure care, the commissioner may approve a release of funds if the owner or operator demonstrates to the commissioner that the value of the trust fund exceeds the remaining cost of post-closure care.

(xi) An owner or operator or any other person authorized to conduct post-closure care may request reimbursements for post-closure expenditures by submitting itemized bills to the commissioner. Within 60 days after receiving bills for post-closure care activities, the commissioner will instruct the trustee to make reimbursements in those amounts as the commissioner specifies in writing, if the commissioner determines that the post-closure expenditures are in accordance with the approved post-closure plan, or otherwise justified. If the commissioner does not instruct the trustee to make such reimbursements, the commissioner will provide the owner or operator with a detailed written statement of reasons.

(xii) The commissioner will agree to termination of trust when:

('a') An owner or operator substitutes alternate financial assurance as specified in this subdivision; or

('b') The commissioner releases the owner or operator from the requirements of this subdivision in accordance with this paragraph.

(2) Surety bond.

(i) An owner or operator may satisfy the requirements of this subdivision by obtaining a surety bond which conforms to the requirements of this paragraph and submitting the bond to the commissioner. The surety company issuing the bond must, at a minimum, be among those listed a acceptable sureties on Federal bonds in Circular 570 of the U.S. Department of the Treasury.

(ii) The wording of the surety bond must be identical to the wording specified in section 373-2.8(j)(2) of this Part.

(iii) The owner or operator who uses a surety bond to satisfy the requirements of this subdivision must also establish a standby trust fund. Under the terms of the bond, all payments made thereunder will be deposited by the surety directly into the standby trust fund in accordance with instructions from the commissioner. This standby trust fund must meet the requirements specified in paragraph (1) of this subdivision, except that:

('a') an originally signed duplicate of the trust agreement must be submitted to the commissioner with the surety bond; and

('b') until the standby trust fund is funded pursuant to the requirements of this subdivision, the following are not required by these regulations:

('1') payments into the trust fund as specified in paragraph (1) of this subdivision;

('2') updating of Schedule A of the trust agreement (see paragraph 373-2.8(j)(1) of this Part) to show current post-closure cost estimates;

('3') annual valuations as required by the trust agreement; and

('4') notices of nonpayment as required by the trust agreement.

(iv) The bond must guarantee that the owner or operator will:

('a') fund the standby trust fund in an amount equal to the penal sum of the bond before the beginning of final closure of the facility; or

('b') fund the standby trust fund in an amount equal to the penal sum within 15 days after an order to begin final closure is issued by the commissioner or a U.S. district court or other court of competent jurisdiction; or

('c') provide alternate financial assurance as specified in this section, and obtain the commissioner's written approval of the assurance provided, within 90 days after receipt by both the owner or operator and the commissioner of a notice of cancellation of the bond from the surety.

(v) Under the terms of the bond, the surety will become liable on the bond obligation when the owner or operator fails to perform as guaranteed by the bond.

(vi) The penal sum of the bond must be in an amount at least equal to the current post-closure cost estimate, except as provided in paragraph (6) of this subdivision. (vii) Whenever the current post-closure cost estimate increases to an amount greater than the penal sum, the owner or operator, within 60 days after the increase, must either cause the penal sum to be increased to an amount at least equal to the current post-closure cost estimate and submit evidence of such increase to the commissioner, or obtain other financial assurance as specified in this section to cover the increase. Whenever the current post-closure cost estimate decreases, the penal sum may be reduced to the amount of the current post-closure cost estimate following written approval by the commissioner.

(viii) Under the terms of the bond, the surety may cancel the bond by sending notice of cancellation by "certified mail return receipt requested" to the owner or operator and to the commissioner. Cancellation may not occur, however, during the 120 days beginning on the date of receipt of the notice of cancellation by both the owner or operator and the commissioner, as evidenced by the return receipts.

(ix) The owner or operator may cancel the bond if the commissioner has given prior written consent based on the receipt of evidence of alternate financial assurance as specified in this subdivision.

(3) Post-Closure Letter of Credit.

(i) An owner or operator may satisfy the requirements of this subdivision by obtaining an irrevocable standby letter of credit which conforms to the requirements of this paragraph and submitting the letter to the commissioner. The issuing institution must be an entity which has the authority to issue letters of credit and whose letter of credit operations are regulated and examined by a Federal or State agency.

(ii) The wording of the letter of credit must be identical to the wording specified in section 373-2.8(j)(3) of this Part.

(iii) An owner or operator who uses a letter of credit to satisfy the requirements of this subdivision must also establish a standby trust fund. Under the terms of the letter of credit, all amounts paid pursuant to a draft by the commissioner will be deposited by the issuing institution directly into the standby trust fund in accordance with instructions form the commissioner. This standby trust fund must meet the requirements of the trust fund specified in paragraph (1) of this subdivision, except that:

('a') an originally signed duplicate of the trust agreement must be submitted to the commissioner with the letter of credit; and

('b') unless the standby trust fund is funded pursuant to the requirements of this subdivision, the following are not required by these regulations:

('1') payments into the trust fund as specified in paragraph (1) of this subdivision;

('2') updating of Schedule A of the trust agreement (see section 373-2.8(j)(1) of this Part), to show current post-closure cost estimates;

('3') annual valuations as required by the trust amendment; and

('4') notices of non-payment as required by the trust agreement.

(iv) The letter of credit must be accompanied by a letter from the owner or operator referring to the letter of credit by number, issuing institution, and date, and providing the following information: the EPA identification number, name, and address of the facility, and the amount of funds assured for post-closure care of the facility by letter of credit.

(v) The letter of credit must be irrevocable and issued for a period of at least 1 year. The letter of credit must provide that the expiration date will be automatically extended for a period of at least 1 year unless, at least 120 days before the current expiration date, the issuing institution notifies both the owner or operator and the commissioner by "certified mail return receipt requested" of a decision not to extend the expiration date. Under the terms of the letter of credit, the 120 days will begin on the date when both the owner or operator and the commissioner have received the notice, as evidenced by the return receipts.

(vi) The letter of credit must be issued in an amount at least equal to the current post-closure cost estimate, except as provided in paragraph (6) of this subdivision.

(vii) Whenever the current post-closure cost estimate increases to an amount greater than the amount of the credit during the operating life of the facility, the owner or operator, within 60 days after the increase, must either cause the amount of the credit to be increased so that it at least equals the current post-closure cost estimate and submit evidence of such increase to the commissioner, or obtain other financial assurance as specified in this subdivision to cover the increase. Whenever the current post-closure cost estimate decreases during the operating life of the facility, the amount of the credit may be reduced to the amount of the current post-closure cost estimate following written approval by the commissioner.

(viii) During the period of post-closure care, the commissioner may approve a decrease in the amount of the letter of credit if the owner or operator demonstrates to the commissioner that the amount exceeds the remaining cost of post-closure care.

(ix) Following a determination pursuant to section 373-3.7 of this Subpart that the owner or operator has failed to perform post-closure care in accordance with the post-closure plan and other permit requirements, the commissioner may draw on the letter of credit.

(x) If the owner or operator does not establish alternate financial assurance as specified in this subdivision and obtain written approval of such alternate assurance from the commissioner within 90 days after receipt by both the owner or operator and the commissioner of a notice from the issuing institution that it has decided not to extend the letter of credit beyond the current expiration date, the commissioner will draw on the letter of credit. The commissioner may delay the drawings if the issuing institution grants an extension of the term of the credit. During the last 30 days of any such extension the commissioner will draw on the letter of credit if the owner or operator has failed to provide alternate financial assurance as specified in this subdivision and obtain written approval of such assurance from the commissioner.

(xi) The commissioner will return the letter of credit to the issuing institution for termination when:

('a') an owner or operator substitutes alternate financial assurance as specified in this subdivision; or

('b') the commissioner releases the owner or operator from the requirements of this subdivision in accordance with paragraph (8).

(4) Post-closure insurance.

(i) An owner or operator may satisfy the requirements of this subdivision by obtaining post-closure insurance which conforms to the requirements of this paragraph and submitting a certificate of such insurance to the commissioner. At a minimum, the insurer must be authorized by this superintendent of the New York State Department of Insurance to conduct the business of insurance, or eligible to provide insurance as an excess or surplus lines insurer, in New York State.

(ii) The wording of the certificate of insurance must be identical to the wording specified in section 373-2.8(j)(4) of this Part.

(iii) The post-closure insurance policy must be issued for a limit of liability at least equal to the current post-closure cost estimate, except as provided in paragraph (d)(6) of this section. The term "limits of liability" means the total amount the insurer is obligated to pay under the policy. Actual payments by the insurer will not change the limits of liability, although the insurer's future liability will be lowered by the amount of the payments.

(iv) The post-closure insurance policy must guarantee that funds will be available to provide post-closure care of the facility whenever the post-closure period begins. The policy must also guarantee that once post-closure care begins, the insurer will be responsible for paying out funds, up to an amount equal to the limits of liability of the policy, upon the direction of the commissioner, to such party or parties as the commissioner specifies.

(v) An owner or operator or any other person authorized to perform post-closure care may request reimbursements for post-closure care expenditures by submitting itemized bills to the commissioner. Within 60 days after receiving bills for post-closure care activities, the commissioner will instruct the insurer to make reimbursements in those amounts as the commissioner specifies in writing, if the commissioner determines that the post-closure expenditures are in accordance with the approved post-closure plan or otherwise justified. If the commissioner does not instruct the insurer to make such reimbursements, the commissioner will provide the owner or operator with a detailed written statement of reasons.

(vi) ('a') The owner or operator must maintain the policy in full force and effect until the commissioner consents to termination of the policy by the owner or operator as specified in subparagraph (xi) of this paragraph.

('b') Failure to pay the premium, without substitution of alternate financial assurance as specified in this subdivision, will constitute a significant violation of these regulations, warranting such remedy as the commissioner deems necessary. Such violation will be deemed to begin upon receipt by the commissioner of a notice of future cancellation, termination, or failure to renew due to nonpayment of the premium, rather than upon the date of the expiration.

(vii) Each policy must contain a provision allowing assignment of the policy to a successor owner or operator. Such assignment may be conditional upon consent of the insurer, provided such consent is not unreasonably refused.

(viii) The policy must provide that the insurer may not cancel, terminate, or fail to renew the policy except for failure to apply the premium. The automatic renewal of the policy must, at a minimum, provide the insured with the option of renewal at the limits of liability of the expiring policy. If there is a failure to pay the premium, the insurer may elect to cancel, terminate, or fail to renew the policy by sending notice by "certified mail return receipt requested" to the owner or operator and the commissioner, cancellation, termination, or failure to renew may not occur, however, during the 120 days beginning with the date of receipt of the notice by both the commissioner and the owner or operator, as evidenced by the return receipts. Cancellation, termination, or failure to renew may not occur and the policy will remain in full force and effect in the event that on or before the date of expiration:

('a') the commissioner deems the facility abandoned; or

('b') interim status is terminated or revoked; or

('c') closure is ordered by the commissioner or a U.S. district court or other court of competent jurisdiction; or

('d') the owner or operator is named as debtor in a voluntary or involuntary proceeding under 11 USCA (Bankruptcy); or

('e') the premium due is paid.

(ix) Whenever the current post-closure estimate increases to an amount greater than the limits of liability of the policy during the operating life of the facility, the owner or operator, within 60 days after the increase, must either cause the limits of liability to be increased to an amount at least equal to the current post-closure cost estimate and submit evidence of such increase to the commissioner, or obtain other financial assurance as specified in this subdivision to cover the increase. Whenever the current post-closure cost estimate decreases during the operating life of the facility, the limits of liability may be reduced to the amount of the current post-closure cost estimate following written approval by the commissioner.

(x) Commencing on the date that liability to make payments pursuant to the policy accrues, the insurer will thereafter annually increase the limits of liability of the policy. Such increase must be equivalent to the limits of liability of the policy, less any payments made, multiplied by an amount equivalent to 85 percent of the most recent investment rate or of the equivalent coupon-issue yield announced by the U.S. Treasury for 26-week Treasury securities.

(xi) The commissioner will give written consent to the owner or operator that the insurance policy may be terminated when:

('a') an owner or operator substitutes alternate financial assurance as specified in this subdivision; or

('b') the commissioner releases the owner or operator from the requirements of this subdivision in accordance with paragraph (8).

(5) Financial test and guarantee for post-closure care.

(i) An owner or operator of a facility which is not a revenue-oriented facility, may satisfy the requirements of this subdivision by demonstrating that the owner or operator passes a financial test as specified in this paragraph. No revenue-oriented facilities will be allowed to use this financial assurance mechanism. To pass this test the owner or operator must meet the criteria of either clause ('a') or ('b') of this subparagraph:

('a') The owner or operator must have:

('1') two of the following three ratios: a ratio of total liabilities to new worth less than 2.0; a ratio of the sum of net income plus depreciation, depletion, and amortization to total liabilities greater than 0.1; and a ratio of current assets to current liabilities greater than 1.5;

('2') net working capital and tangible net worth each at least six times the sum of the current closure and post-closure cost estimates and the current plugging and abandonment cost estimates;

('3') tangible net worth of at least $10 million; and

('4') assets in the United States amounting to at least 90 percent of total assets or at least six times the sum of the current closure and post-closure cost estimates and the current plugging and abandonment cost estimates;

('b') The owner or operator must have:

('1') a current rating for their most recent bond issuance of AAA, AA, A, or BBB as issued by Standard and Poor's or Aaa, Aa, A or Baa as issued by Moody's;

('2') tangible net worth at least six times the sum of the current closure and post-closure cost estimates and the current plugging and abandonment cost estimates;

('3') tangible net worth of at least $10 million; and

('4') assets in the United States amounting to at least 90 percent of the total assets or at least six times the sum of the current closure and post-closure cost estimates and the current plugging and abandonment cost estimates.

(ii) The phrases "current closure and post-closure cost estimates" and "current plugging and abandonment cost estimates," as used in subparagraph (i) of this paragraph refer to the cost estimates required to be shown in paragraphs 1-3 of the letter from the owner's or operator's chief financial officer (see section 373-2.8(j)(5) of this Part.)

(iii) To demonstrate that he or she meets this test, the owner or operator must submit the following items to the commissioner:

('a') a letter signed by the owner's or operator's chief financial officer and worded as specified in section 373-2.8(j)(5) of this Part;

('b') a copy of the independent certified public accountant's report on examination of the owner's or operator's financial statements for the latest completed fiscal year; and

('c') a special report from the owner's or operator's independent certified public accountant to the owner or operator stating that:

('1') the accountant has compared the data which the letter from the chief financial officer specifies as having been derived from the independently audited, year-end financial statements for the latest fiscal year; and

('2') in connection with that procedure, no matters came to the accountant's attention which caused the accountant to believe that the specified data should be adjusted.

(iv) After the initial submission of items specified in subparagraph (iii) of this paragraph, the owner or operator must send updated information to the commissioner within 90 days after the close of each succeeding fiscal year. This information must consist of all three items specified in subparagraph (iii) of this paragraph.

(v) If the owner or operator no longer meets the requirements of subparagraph (i) of this paragraph, the owner or operator must send notice to the commissioner of intent to establish alternate financial assurance as specified in this subdivision. The notice must be sent by "certified mail, return receipt requested" within 90 days after the end of the fiscal year for which the year-end financial data show that the owner or operator no longer meets the requirements. The owner or operator must provide the alternate financial assurance within 120 days after the end of such fiscal year.

(vi) The commissioner may, based on a reasonable belief that the owner or operator may no longer meet the requirements of subparagraph (i) of this paragraph, require reports of financial condition at any time from the owner or operator in addition to those specified in subparagraph (iii) of this paragraph. If the commissioner finds, on the basis of such reports or other information, that the owner or operator no longer meets the requirements of subparagraph (i) of this paragraph, the owner or operator must provide alternate financial assurance as specified in this subdivision within 30 days after notification of such a finding.

(vii) The commissioner may disallow use of this test on the basis of qualifications in the opinion expressed by the independent certified public accountant in his or her report on examination of the owner's or operator's financial statements (see clause (iii)('b') of this paragraph). An adverse opinion or a disclaimer of opinion will be cause for disallowance. The commissioner will evaluate other qualifications on an individual basis. The owner or operator must provide alternate financial assurance as specified in this subdivision within 30 days after notification of the disallowance.

(viii) During the period of post-closure care, the commissioner may approve a decrease in the current post-closure cost estimate for which this test demonstrates financial assurance if the owner or operator demonstrates to the commissioner that the amount of the cost estimate exceeds the remaining cost of post-closure care.

(ix) The owner or operator is no longer required to submit the items specified in subparagraph (iii) of this paragraph when:

('a') an owner or operator substitutes alternate financial assurance as specified in this subdivision; or

('b') the commissioner releases the owner or operator from the requirements of this subdivision in accordance with paragraph (8) of this subdivision.

(x) An owner or operator of a facility which is not a revenue-oriented facility, may meet the requirements of this subdivision by obtaining a written guarantee, hereafter referred to as "guarantee." If the firm which is providing the guarantee does not meet the definition of "revenue-oriented" in section 373-2.8 or 373-3.8, it may provide the guarantee on behalf of the owner or operator even if the owner or operator is a "revenue-oriented" facility. However, the financial statement of the owner or operator cannot be consolidated with the financial statement of the guarantor. The guarantor must be the direct or higher-tier parent corporation of the owner or operator, a firm whose parent corporation is also the parent corporation of the owner or operator, or a firm with a "substantial business relationship" with the owner or operator. The guarantor must meet the requirements for owners or operators in subparagraphs (i) through (viii) of this paragraph and must comply with the terms of the guarantee. The wording of the guarantee must be identical to the wording specified in section 373-2.8(j)(6) of this Part. A certified copy of the guarantee must accompany the items sent to the commissioner as specified in subparagraph (iii) of this paragraph. One of these items must be the letter from the guarantor's chief financial officer. If the guarantor's parent corporation is also the parent corporation of the owner or operator, the letter must describe the value received in consideration of the guarantee. If the guarantor is a firm with a "substantial business relationship" with the owner or operator, this letter must describe this "substantial business relationship" and the value received in consideration of the guarantee. The terms of the guarantee must provide that:

('a') If the owner or operator fails to perform post-closure care of a facility covered by the guarantee in accordance with the post-closure plan and other interim status permit requirements whenever required to do so, the guarantor will do so, or make payment as the commissioner shall direct, in writing.

('b') The guarantee will remain in force unless the guarantor sends notice of cancellation by certified mail, return receipt requested, to the owner or operator and to the commissioner. Cancellation may not occur, however, during the 120 days beginning on the date of receipt of the notice of cancellation by both the owner or operator and the commissioner, as evidenced by the return receipts.

('c') If the owner or operator fails to provide alternate financial assurance as specified in this subdivision and obtain the written approval of such alternate assurance from the commissioner within 90 days after receipt by both the owner or operator and the commissioner of a notice of cancellation of the guarantee from the guarantor, the guarantor will provide such alternate financial assurance in the name of the owner or operator.

(6) Use of multiple financial mechanisms. An owner or operator may satisfy the requirements of this subdivision by establishing more than one financial mechanism per facility. These mechanisms are limited to trust funds, surety bonds, letters of credit, and insurance. The mechanisms must be as specified in paragraphs (1), (2), (3), and (4), respectively, of this subdivision, except that it is the combination of mechanisms, rather than the single mechanism, which must provide financial assurance for an amount at least equal to the current post-closure cost estimate. If an owner or operator uses a trust fund in combination with a surety bond or a letter of credit, the trust fund may be used as the standby trust fund for the other mechanisms. A single standby trust fund, if required, may be established for two or more mechanisms. The commissioner may use any or all of the mechanisms to provide for post-closure care of the facility.

(7) Use of a financial mechanism for multiple facilities. An owner or operator may use a financial assurance mechanism specified in this subdivision to meet the requirements of this subdivision for more than one facility. Evidence of financial assurance submitted to the commissioner must include a list showing, for each facility, the EPA identification number, name, address, and the amount of funds for post-closure care assured by the mechanism. The amount of funds available through the mechanisms must be no less than the sum of funds that would be available if a separate mechanism has been established and maintained for each facility. In directing funds available through mechanisms for post-closure care of any of the facilities covered by the mechanism, the commissioner may direct only the amount of funds designated for that facility, unless the owner or operator agrees to the use of additional funds available under the mechanism.

(8) Release of the owner or operator from the requirements of this subdivision. Within 60 days after receiving certifications from the owner or operator and an independent registered professional engineer that post-closure care period has been completed in accordance with the approved post-closure plan, the commissioner will notify the owner or operator in writing that the owner or operator is no longer required by this subdivision to maintain financial assurance for post-closure care of that unit, unless the commissioner has reason to believe that post-closure care has not been in accordance with the approved post-closure plan. The commissioner will provide the owner or operator with a detailed written statement of any reason to believe that post-closure care has not been in accordance with the approved post-closure plan.

(Note: The notice releases the owner or operator only from the requirements for financial assurance for post-closure care of the facility; it does not release the owner or operator from legal responsibility for meeting the post-closure standards.)

(g) Use of a mechanism for financial assurance of both closure and post-closure care. An owner or operator may satisfy the requirements for financial assurance for both closure and post-closure care for one or more facilities by using a trust fund, surety bond, letter of credit, insurance, financial test, or guarantee that meets the specifications for the mechanism in both subdivisions (d) and (f) of this section. The amount of funds available through the mechanism must be no less than the sum of funds that would be available if a separate mechanism had been established and maintained for financial assurance of closure and post-closure care.

(h) Liability requirements.

(1) Coverage for sudden accidental occurrences. An owner or operator of a hazardous waste treatment, storage or disposal facility or a group of such facilities, must demonstrate financial responsibility for bodily injury and property damage to third parties caused by sudden accidental occurrences arising from operations of the facility or group of facilities. The owner or operator must have and maintain liability coverage for sudden accidental occurrences in the amount of at least $1 million per occurrence with an annual aggregate of at least $2 million, exclusive of legal defense costs. This liability coverage may be demonstrated as specified in subparagraphs (i), (ii), (iii), (iv), (v) or (vi) of this paragraph.

(i) An owner or operator may demonstrate the required liability coverage by having liability insurance as specified in this paragraph.

('a') Each insurance policy must be amended by attachment of the Hazardous Waste Facility Liability Endorsement or evidenced by a Certificate of Liability Insurance. The wording of the endorsement must be identical to the wording specified in section 373-2.8(j)(7) of this Part. The wording of the certificate of insurance must be identical to the wording specified in section 373-2.8(j)(8) of this Part. The owner or operator must submit a signed duplicate original of the endorsement or the certificate of insurance to the commissioner. If requested by the commissioner, the owner or operator must provide a signed duplicate original of the insurance policy.

('b') Each insurance policy must be issued by an insurer which, at a minimum, is licensed to transact the business of insurance, or authorized to provide insurance as an excess or surplus lines insurer, within New York State by the Superintendent of the New York State Department of Insurance.

(ii) An owner or operator of a facility which is not a revenue-oriented facility, may meet the requirements of this paragraph by passing a financial test or using the guarantee for liability coverage as specified in paragraph (6) and (7) of this subdivision. If the firm which is providing the guarantee does not meet the definition of "revenue-oriented" in section 373-2.8 or 373-3.8, it may provide the guarantee on behalf of the owner or operator even if the owner or operator is a "revenue-oriented" facility. However, the financial statement of the owner or operator cannot be consolidated with the financial statement of the guarantor.

(iii) An owner or operator may meet the requirements of this paragraph by obtaining a letter of credit for liability coverage as specified in paragraph (8) of this subdivision.

(iv) An owner or operator may meet the requirements of this paragraph by obtaining a surety bond for liability coverage as specified in paragraph (9) of this subdivision.

(v) An owner or operator may meet the requirements of this paragraph by obtaining a trust fund for liability coverage as specified in paragraph (10) of this subdivision.

(vi) An owner or operator may demonstrate the required liability coverage through the use of combinations of insurance, financial test, guarantee, letter of credit, surety bond, and trust fund, except that the owner or operator may not combine a financial test covering part of the liability coverage requirement with a guarantee unless the financial statement of the owner or operator is not consolidated with the financial statement of the guarantor. The amounts of coverage demonstrated must total at least the minimum amounts required by this paragraph. If the owner or operator demonstrates the required coverage through the use of a combination of financial assurances under this paragraph, the owner or operator shall specify at least one such assurance as "primary" coverage and shall specify other assurance as "excess" coverage. An owner or operator of a revenue-oriented facility may use all of the above-mentioned financial mechanisms except the financial test and/or guarantee.

(vii) An owner or operator shall notify the Commissioner in writing within 30 days whenever:

('a') a claim results in a reduction in the amount of financial assurance for liability coverage provided by a financial instrument authorized in subparagraphs (1)(i) through (1)(vi) of this subdivision; or

('b') a Certification of Valid Claim for bodily injury or property damages caused by a sudden or non-sudden accidental occurrence arising from the operation of a hazardous waste treatment, storage, or disposal facility is entered between the owner or operator and third-party claimant for liability coverage under subparagraphs (1)(i) through (1)(vi) of this subdivision; or

('c') a final court order establishing a judgement for bodily injury or property damage caused by a sudden or non-sudden accidental occurrence arising from the operation of a hazardous waste treatment, storage, or disposal facility is issued against the owner or operator or an instrument that is providing financial assurance for liability coverage under subparagraphs (1)(i) through (1)(vi) of this subdivision.

(2) Coverage for nonsudden accidental occurrences. An owner or operator of a surface impoundment, landfill, or land treatment facility which is used to manage hazardous waste, or a group of such facilities, must demonstrate financial responsibility for bodily injury and property damage to third parties caused by nonsudden accidental occurrences arising from operations of the facility or group of facilities. The owner or operator must have and maintain liability coverage for nonsudden accidental occurrences in the amount of at least $4.5 million per occurrence with an annual aggregate of at least $9 million, exclusive of legal defense costs, for each separate facility in New York State. An owner or operator who must meet the requirements of this paragraph may combine the required per-occurrence coverage levels for sudden and nonsudden accidental occurrences into a single per-occurrence level, and combine the required annual aggregate coverage levels for sudden and nonsudden accidental occurrences into a single annual aggregate level. Owners or operators who combine coverage levels for sudden and nonsudden accidental occurrences must maintain liability coverage in the amount of at least $5.5 million per occurrence and $11 million annual aggregate. This liability coverage may be demonstrated as specified in subparagraphs (i), (ii), (iii), (iv), (v) or (vi) of this paragraph.

(i) An owner or operator may demonstrate the required liability coverage by having liability insurance as specified in this paragraph.

('a') Each insurance policy must be amended by attachment of the Hazardous Waste Facility Liability Endorsement or evidenced by a Certificate of Liability Insurance. The wording of the endorsement must be identical to the wording specified in section 373-2.8(j)(7) of this Part. The wording of the certification of insurance must be identical to the wording specified in section 373-2.8(j)(8) of this Part. The owner or operator must submit a signed duplicate original of the endorsement or the certificate of insurance to the commissioner. If requested by the commissioner, the owner or operator must provide a signed duplicate original of the insurance policy.

('b') Each insurance policy must be issued by an insurer which, at a minimum, is licensed to transact the business of insurance, or authorized to provide insurance as an excess or surplus lines insurer, within New York State by the Superintendent of the New York State Department of Insurance.

(ii) An owner or operator of a facility which is not a revenue-oriented facility, may meet the requirements of this paragraph by passing a financial test or using the guarantee for liability coverage as specified in paragraph (6) and (7) of this subdivisions. If the firm which is providing the guarantee does not meet the definition of "revenue-oriented" in section 373-2.8 or 373-3.8, it may provide the guarantee on behalf of the owner or operator even if the owner or operator is a "revenue-oriented" facility. However, the financial statement of the owner or operator cannot be consolidated with the financial statement of the guarantor.

(iii) An owner or operator may meet the requirements of this paragraph by obtaining a letter of credit for liability coverage as specified in paragraph (8) of this subdivision.

(iv) An owner or operator may meet the requirements of this paragraph by obtaining a surety bond for liability coverage as specified in paragraph (9) of this subdivision.

(v) An owner or operator may meet the requirements of this paragraph by obtaining a trust fund for liability coverage as specified in paragraph (10) of this subdivision.

(vi) An owner or operator may demonstrate the required liability coverage through the use of combinations of insurance, financial test, guarantee, letter of credit, surety bond, and trust fund, except that the owner or operator may not combine a financial test covering part of the liability coverage requirement with a guarantee unless the financial statement of the owner or operator is not consolidated with the financial statement of the guarantor. The amounts of coverage demonstrated must total at least the minimum amounts required by this paragraph. If the owner or operator demonstrates the required coverage through the use of a combination of financial assurances under this paragraph, the owner or operator shall specify at least one such assurance as "primary" coverage and shall specify other assurance as "excess" coverage. An owner or operator of a revenue-oriented facility may use all of the above-mentioned financial mechanisms except the financial test and/or guarantee.

(vii) An owner or operator shall notify the Commissioner in writing within 30 days whenever:

('a') a claim results in a reduction in the amount of financial assurance for liability coverage provided by a financial instrument authorized in subparagraphs (2)(i) through (2)(vi) of this subdivision; or

('b') a Certification of Valid Claim for bodily injury or property damages caused by a sudden or non-sudden accidental occurrence arising from the operation of a hazardous waste treatment, storage, or disposal facility is entered between the owner or operator and third-party claimant for liability coverage under subparagraphs (2)(i) through (2)(vi) of this subdivision; or

('c') a final court order establishing a judgment for bodily injury or property damage caused by a sudden or non-sudden accidental occurrence arising from the operation of a hazardous waste treatment, storage, or disposal facility is issued against the owner or operator or an instrument that is providing financial assurance for liability coverage under subparagraphs (2)(i) through (2)(vi) of this subdivision.

(3) Request for variance. If an owner or operator can demonstrate to the satisfaction of the commissioner that the levels of financial responsibility required by paragraphs (1) or (2) of this subdivision are not consistent with the degree and duration of risk associated with treatment, storage, or disposal at the facility or group of facilities, the owner or operator may obtain a variance from the commissioner. The request for a variance must be submitted in writing to the commissioner. If granted, the variance will take the form of an adjusted level of required liability coverage, such level to be based on the commissioner's assessment of the degree and duration of risk associated with the ownership or operation of the facility or group of facilities. The commissioner may require an owner or operator who requests a variance to provide such technical and engineering information as is deemed necessary by the commissioner to determine a level of financial responsibility other than that required by paragraph (1) or (2) of this subdivision. The commissioner will process a variance request as if it were a permit modification request under section 373-1.7 of this Part and subject to the procedures of Part 621 of this Title. Notwithstanding any other provision, the commissioner may hold a public hearing at his or her discretion or whenever the commissioner finds, on the basis of requests for a public hearing, a significant degree of public interest in a tentative decision to grant a variance.

(4) Adjustments by the commissioner. If the commissioner determines that the levels of financial responsibility required by paragraph (1) or (2) of this subdivision are not consistent with the degree and duration of risk associated with treatment, storage, or disposal at the facility or group of facilities, the commissioner may adjust the level of financial responsibility required under paragraph (1) or (2) of this subdivision as may be necessary to protect human health and the environment. This adjusted level will be based on the commissioner's assessment of the degree and duration of risk associated with the ownership or operation of the facility or group of facilities. In addition, if the commissioner determines that there is a significant risk to human health and the environment from nonsudden accidental occurrences resulting from the operations of a facility that is not a surface impoundment, landfill, or land treatment facility, the commissioner may require that an owner or operator of the facility comply with paragraph (2) of this subdivision. An owner or operator must furnish to the commissioner, within a reasonable time, any information which the commissioner requests to determine whether cause exists for such adjustments of level or type of coverage. The commissioner will process an adjustment of the level of required coverage as if it were a permit modification under section 373-1.7 of this Part and subject to the procedures of Part 621 of this Title. Notwithstanding any other provision, the commissioner may hold a public hearing at his or her discretion or whenever the commissioner finds, on the basis of requests for a public hearing, a significant degree of public interest in a tentative decision to adjust the level or type of required coverage.

(5) Period of coverage. Within 60 days after receiving certifications from the owner or operator and an independent professional engineer registered in New York that final closure has been completed in accordance with the approved closure plan, the commissioner will notify the owner or operator in writing that the owner or operator is no longer required by this subdivision to maintain liability coverage for that facility, unless the commissioner has reason to believe that the closure has not been in accordance with the approved closure plan.

(6) Financial test for liability coverage. An owner or operator of a facility which is not a revenue-oriented facility may satisfy the requirements of this subdivision by demonstrating that the owner or operator passes a financial test as specified in this paragraph. To pass this test the owner or operator must meet the criteria of subparagraph (i) or (ii) of this paragraph:

(i) The owner or operator must have:

('a') net working capital and tangible net worth each at least six times the amount of liability coverage to be demonstrated by this test;

('b') tangible net worth of at least $10 million; and

('c') assets in the United States amounting to either:

('1') at least 90 percent of the total assets; or

('2') at least six times the amount of liability coverage to be demonstrated by this test.

(ii) The owner or operator must have:

('a') a current rating for their most recent bond issuance of AAA, AA, A, or BBB as issued by Standard and Poor's or Aaa, Aa, A, or Baa as issued by Moody's;

('b') tangible net worth of at least $10 million;

('c') tangible net worth as at least six times the amount of liability coverage to be demonstrated by this test; and

('d') assets in the United States amounting to either:

('1') at least 90 percent of the total assets; or

('2') at least six times the amount of liability coverage to be demonstrated by this test.

(iii) The phrase "amount of liability coverage" as used in subparagraphs (i) and (ii) of this paragraph refers to the annual aggregate amounts for which coverage is required under paragraphs (1) and (2) of this subdivision.

(iv) To demonstrate that he or she meets this test, the owner or operator must submit the following three items to the commissioner:

('a') a letter signed by the owner's or operator's chief financial officer and worded as specified in section 373-2.8(j)(9) of this Part. If an owner or operator is using the financial test to demonstrate both assurance for closure or post-closure care, as specified by sections 373-2.8(d)(5), 373-2.8(f)(5), 373-3.8(d)(5), and 373-3.8(f)(5), and liability coverage, the letter specified in section 373-2.8(j)(9) must be submitted to cover both forms of financial responsibility; a separate letter as specified in section 373-2.8(j)(5) is not required;

('b') a copy of the independent certified public accountant's report on examination of the owner's or operator's financial statements for the latest completed fiscal year; and

('c') a special report from the owner's or operator's independent certified public accountant to the owner or operator stating that:

('1') the accountant has compared the data which the letter from the chief financial officer specifies as having been derived from the independently audited, year-end financial statements for the latest fiscal year with the amounts in such financial statements; and

('2') in connection with that procedure, no matters came to the accountant's attention which caused the accountant to believe that the specified data should be adjusted.

(v) After the initial submission of items specified in subparagraph (iii) of this paragraph, the owner or operator must send updated information to the commissioner within 90 days after the close of each succeeding fiscal year. This information must consist of all three items specified in subparagraph (iii) of this paragraph.

(vi) If the owner or operator no longer meets the requirements of subparagraphs (6)(i) or (6)(ii) of this subdivision, the owner or operator must obtain insurance, a letter of credit, a surety bond, a trust fund, or a guarantee for the entire amount of required liability coverage as specified in this subdivision. Evidence of liability coverage must be submitted to the commissioner within 90 days after the end of the fiscal year for which the year-end financial data show that the owner or operator no longer meets the test requirements.

(vii) The commissioner may disallow use of this test on the basis of qualifications in the opinion expressed by the independent certified public accountant in his or her report on examination of the owner's or operator's financial statements (see clause (iv)('b') of this paragraph). An adverse opinion or a disclaimer of option will be cause for disallowance. The commissioner will evaluate other qualifications on an individual basis. The owner or operator must provide evidence of insurance for the entire amount of required liability coverage as specified in this subdivision within 30 days after notification of disallowance.

(7) Guarantee for liability coverage.

(i) An owner or operator may meet the requirements of this subdivision by obtaining a written guarantee, hereinafter referred to as "guarantee." If the firm which is providing the guarantee does not meet the definition of "revenue-oriented" in section 373-2.8 or 373-3.8, it may provide the guarantee on behalf of the owner or operator even if the owner or operator is a "revenue-oriented" facility. However, the financial statement of the owner or operator cannot be consolidated with the financial statement of the guarantor. The guarantor must be the direct or higher-tier parent corporation of the owner or operator, a firm whose parent corporation is also the parent corporation of the owner or operator, or a firm with a "substantial business relationship" with the owner or operator. The guarantor must meet the requirements for owners or operators in paragraph (6) of this subdivision. The wording of the guarantee must be identical to the wording specified in subparagraph 373-2.8(j)(6)(ii) of this Part. A certified copy of the guarantee must accompany the items sent to the commissioner as specified in subparagraph (6)(iv) of this subdivision. One of these items must be the letter from the guarantor's chief financial officer. If the guarantor's parent corporation is also the parent corporation of the owner or operator, this letter must describe the value received in consideration of the guarantee. If the guarantor is a firm with a "substantial business relationship" with the owner or operator, this letter must describe this "substantial business relationship" and the value received in consideration of the guarantee. The terms of the guarantee must provide that:

('a') if the owner or operator fails to satisfy a judgment based on a determination of liability for bodily injury or property damage to third parties caused by sudden or nonsudden accidental occurrences (or both as the case may be), arising from the operation of facilities covered by this guarantee, or fails to pay an amount agreed to in settlement of claims arising from or alleged to arise from such injury or damage, the guarantor will do so up to the limits of coverage.

('b') the guarantee will remain in force unless the guarantor sends notice of cancellation by "certified mail, return receipt requested" to the owner or operator and to the commissioner. This guarantee may not be terminated unless and until the commissioner approves alternate liability coverage complying with this subdivision.

(8) Letter of credit for liability coverage.

(i) An owner or operator may satisfy the requirements of this subdivision by obtaining an irrevocable standby letter of credit that conforms to the requirements of this paragraph and submitting a copy of the letter of credit to the Commissioner.

(ii) The financial institution issuing the letter of credit must be an entity that has the authority to issue letters of credit and whose letter of credit operations are regulated and examined by a Federal or State agency.

(iii) The wording of the letter of credit must be identical to the wording specified in 373-2.8(j)(10) of this Title.

(iv) An owner or operator who uses a letter of credit to satisfy the requirements of this subdivision may also establish a standby trust fund. Under the terms of such a letter of credit, all amounts paid pursuant to a draft by the trustee of the standby trust will be deposited by the issuing institution into the standby trust in accordance with instructions from the trustee. The trustee of the standby trust fund must be an entity which has the authority to act as a trustee and whose trust operations are regulated and examined by a Federal or State agency.

(v) The wording of the standby trust fund must be identical to the wording specified in 373-2.8(j)(13).

(9) Surety bond for liability coverage.

(i) An owner or operator may satisfy the requirements of this subdivision by obtaining a surety bond that conforms to the requirements of this paragraph and submitting a copy of the bond to the Commissioner.

(ii) The surety company issuing the bond must be among those listed as acceptable sureties on Federal bonds in the most recent Circular 570 of the U.S. Department of the Treasury.

(iii) The wording of the surety bond must be identical to the wording specified in 373-2.8(j)(11) of this Title.

(10) Trust fund for liability coverage.

(i) An owner or operator may satisfy the requirements of this subdivision by establishing a trust fund that conforms to the requirements of this paragraph and submitting an originally signed duplicate of the trust agreement to the Commissioner.

(ii) The trustee must be an entity which has the authority to act as a trustee and whose trust operations are regulated and examined by a Federal or State agency.

(iii) The trust fund for liability coverage must be funded for the full amount of the liability coverage to be provided by the trust fund before it may be relied upon to satisfy the requirements of this subdivision. If at any time after the trust fund is created the amount of funds in the trust fund is reduced below the full amount of the liability coverage to be provided, the owner or operator, by the anniversary date of the establishment of the Fund, must either add sufficient funds to the trust fund to cause its value to equal the full amount of liability coverage to be provided, or obtain other financial assurance as specified in this subdivision to cover the difference. For purposes of this paragraph, "the full amount of the liability coverage to be provided" means the amount of coverage for sudden and/or nonsudden occurrences required to be provided by the owner or operator by this subdivision, less the amount of financial assurance for liability coverage that is being provided by other financial assurance mechanisms being used to demonstrate financial assurance by the owner or operator.

(iv) The wording of the trust fund must be identical to the wording specified in 373-2.8(j)(12) of this Title.

(i) Incapacity of owners or operators, guarantors, or financial institutions.

(1) An owner or operator must notify the commissioner by "certified mail return receipt requested" of the commencement of a voluntary or involuntary proceeding under 11 USCA (Bankruptcy), naming the owner or operator as debtor, within 10 days after commencement of the proceeding. A guarantor of a guarantee as specified in paragraphs (d)(5) and (f)(5) of this section must make such a notification if the guarantor is named as debtor, as required under the terms of the guarantee (see section 373-2.8(j)(6) of this Part).

(2) An owner or operator who fulfills the requirements of subdivision (d), (f), or (h) of this section by obtaining a trust fund, surety bond, letter of credit, or insurance policy will be deemed to be without the required financial assurance or liability coverage in the event of bankruptcy of the trustee or issuing institution, or a suspension or revocation of the authority of the trustee institution to act as trustee or of the institution issuing the surety bond, letter of credit, or insurance policy to issue such instruments. The owner or operator must establish other financial assurance or liability coverage within 60 days after such an event.

§373-3.9 - Use and Management of Containers

(a) Applicability. The regulations in this section apply to owners and operators of all hazardous waste facilities that store containers of hazardous waste, except as section 373-3.1(a) of this Subpart provides otherwise.

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

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

(d) Management of containers.

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

(2) A container holding hazardous waste must not be opened, handled, or stored in a manner which may rupture the container or cause it to leak. (Comment: Reuse of containers in transportation is governed by U.S. Department of Transportation regulations, including those set forth in 49 CFR 173.28 (see section 370.1(e) of this Title.))

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

(e) Inspections. At least weekly, the owner or operator must inspect areas where containers are stored, looking for leaking containers and for deterioration of containers and the containment system caused by corrosion or other factors. (Note: See subdivision (b) of this section for remedial action required if deterioration or leaks are detected.)

(f) Special requirements for ignitable or reactive waste. Containers holding ignitable or reactive waste must be located at least 15 meters (50 feet) from the facility property line (see section 373-3.2(h)(1) of this Subpart for additional requirements).

(g) Special requirements for incompatible wastes.

(1) Incompatible wastes, or incompatible wastes and materials (see Appendix 29 of this Title for examples) must not be placed in the same container, unless section 373-3.2(h)(2) of this Subpart is complied with.

(2) Hazardous waste must not be placed in an unwashed container that previously held an incompatible waste or materials (see Appendix 29 of this Title for examples), unless section 373-3.2(h)(2) of this Subpart is complied with.

(3) A storage container holding a hazardous waste that is incompatible with any waste or other materials stored nearby in other containers, piles, open tanks, or surface impoundments must be separated from the other materials or protected from them by means of a dike, berm, wall, or other device. (Note: The purpose of this is to prevent fires, explosions, gaseous emissions, leaching, or other discharge of hazardous waste or hazardous waste constituents which should result from the mixing of incompatible wastes or materials if containers break or leak.)

(h) Air Emission Standards. The owner or operator shall manage all hazardous waste placed in a container in accordance with the applicable requirements of sections 373-3.27, 373-3.28, and 373-3.29 of this Subpart.

§373-3.10 - Tank Systems

(a) Applicability. The requirements of this section apply to owners or operators of facilities that use tank systems for storing or treating hazardous waste, except as otherwise provided in paragraphs (1), (2) and (3) of this subdivision or in section 373-3.1 of this Part.

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

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

(3) Tanks, sumps, and other collection devices used in conjunction with drip pads, as defined in subdivision 370.2(b) of this Title and regulated under 6 NYCRR Part 373-3.23 must meet the requirements of this section.

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

(1) For each existing tank system that does not have secondary containment meeting the requirements of subdivision 373-3.10(d), the owner or operator must determine that the tank system is not leaking or is unfit for use. Except as provided in paragraph (3) of this subdivision, the owner or operator must obtain and keep on file at the facility a written assessment reviewed and certified by an independent, qualified, professional engineer registered in New York that attests to the tank system's integrity by December 25, 1989. The certification must be consistent with the applicable provisions of subparagraph 373-1.4(a)(5)(iv) of this Title.

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

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

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

(iii) existing corrosion protection measures;

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

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

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

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

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

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

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

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

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

(i) design standards according to which the tanks and ancillary equipment is or will be constructed;

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

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

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

('1') soil moisture content;

('2') soil pH;

('3') soil sulfides level;

('4') soil resistivity;

('5') structure to soil potential;

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

('7') stray electric current; and

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

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

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

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

('3') electrical isolation devices such as insulating joints and flanges;

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

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

(v) design considerations to ensure that:

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

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

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

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

(i) weld breaks;

(ii) punctures;

(iii) scrapes of protective coatings;

(iv) cracks;

(v) corrosion; and

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

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

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

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

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

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

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

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

(d) Containment and detection of releases.

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

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

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

(iii) for those existing non-enterable underground tanks and tank systems of known and documented age within two years after January 12, 1987, or when the tank systems have reached 15 years of age, whichever comes later, except as required under clause 373-1.1(d)(1)(iv)('f') of this Part;

(iv) for those existing non-enterable underground tanks and tank systems for which the age cannot be documented within eight years of January 12, 1987; but if the age of the facility is greater than seven years, secondary containment must be provided by the time the facility reaches 15 years of age, or within two years of January 12, 1987, whichever comes later, except as required under clause 373-1.1(d)(1)(iv)('f') of this Part;

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

(vi) for tank systems that store or treat materials that become hazardous wastes after the effective date of these regulations within the time intervals required in subparagraphs (i) through (v) of this paragraph.

(2) Secondary containment systems must be:

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

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

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

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

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

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

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

(Note: If the collected material is a hazardous waste under Part 371 of this Title, it is subject to management as a hazardous waste in accordance with all applicable requirements of Parts 372 through 374 and 376 of this Title. If the collected material is discharged through a point source to waters of the United States, it is subject to the requirements of Parts 700, 701, and 750 of this Title. If discharged to Publicly Owned Treatment Works (POTW's), it is subject to the requirements of section 307 of the Clean Water Act, as amended. If the collected material is released to the environment, it may be subject to the reporting requirements of 40 CFR Part 302.)

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

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

(ii) a vault;

(iii) a double-walled tank; or

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

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

(i) external liner systems must be:

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

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

('c') free of cracks or gaps;

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

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

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

(ii) vault systems must be:

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

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

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

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

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

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

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

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

(iii) double-walled tanks must be:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

('2') the proximity and withdrawal rates of water in the area;

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

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

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

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

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

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

('4') the current and future uses of surface waters in the area and any water quality standards established for those surface waters; and ('5') the existing quality of surface water, including other sources of contamination and the cumulative impact on surface water quality; and

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

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

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

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

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

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

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

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

('c') if contaminated soil cannot be removed or decontaminated in accordance with clause (iii)('b') of this subparagraph, comply with the requirements of 373-3.10(h)(2) of this Subpart.

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

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

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

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

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

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

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

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

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

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

(iv) The commissioner will inform the public, through a newspaper notice, of the availability of the demonstration for a variance. The notice shall be placed in a daily or weekly major local newspaper of general circulation and shall provide at least 30 days from the date of the notice for the public to review and comment on the demonstration for a variance. The commissioner also will hold a public hearing, in response to a request or at his or her own discretion, whenever such a hearing might clarify one or more issues concerning the demonstration for a variance. Public notice of the hearing will be given at least 30 days prior to the date of the hearing and may be given at the same time as notice of the opportunity for the public to review and comment on the demonstration. These two notices may be combined.

(v) The commissioner will approve or disapprove the request for a variance within 90 days of receipt of the demonstration from the owner or operator and will notify in writing the owner or operator and each person who submitted written comments or requested notice of the variance decision. If the demonstration for variance is incomplete or does not include sufficient information, the 90-day time period will begin when the commissioner receives a complete demonstration, including all information necessary to make a final determination. If the public comment period in subparagraph (iv) of this paragraph is extended, the 90-day time period will be similarly extended.

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

(i) for non-enterable underground tanks, a leak test that meets the requirements of subparagraph (b)(2)(v) of this section must be conducted at least annually;

(ii) for other than non-enterable underground tanks and for all ancillary equipment, an annual leak test, as described in subparagraph (i) of this paragraph, or an internal inspection or other tank integrity examination by an independent, qualified, professional engineer registered in New York that addresses cracks, leaks, corrosion, and erosion must be conducted at least annually. The owner or operator must remove the stored waste from the tank, if necessary, to allow the condition of all internal tank surfaces to be assessed;

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

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

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

(e) General operating requirements.

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

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

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

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

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

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

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

(f) Inspections.

(1) The owner or operator must inspect, where present, at least once each operating day:

(i) overfill/spill control equipment (e.g., waste-feed cutoff systems, bypass systems, and drainage systems) to ensure that it is in good working order; (ii) the above ground portions of the tank system, if any, to detect corrosion or releases of waste;

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

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

(Note: Paragraph 373-3.2(f)(3) of this Subpart requires the owner or operator to remedy any deterioration or malfunction the owner or operator finds. Subdivision (g) of this section requires the owner or operator to notify the commissioner within 24 hours of confirming a release. Also, 40 CFR Part 302 may require the owner or operator to notify the National Response Center of a release.)

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

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

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

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

(3) The owner or operator must document in the operating record of the facility an inspection of those items in paragraphs (1) and (2) of this subdivision.

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

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

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

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

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

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

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

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

(4) Notifications, reports.

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

(ii) A leak or spill of hazardous waste that is:

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

('b') immediately contained and cleaned-up is exempted from the requirements of this paragraph.

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

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

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

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

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

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

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

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

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

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

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

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

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

(Note: See paragraph 373-3.2(f)(3) of this Subpart for the requirements necessary to remedy a failure. Also, 40 CFR Part 302 requires the owner or operator to notify the National Response Center of a release of any "reportable quantity.")

(h) Closure and post-closure care.

(1) At closure of a tank system, the owner or operator must remove or decontaminate all waste residues, contaminated containment system components (liners, etc.), contaminated soils, and structures and equipment contaminated with waste, and manage them as hazardous waste, unless paragraph 371.1(d)(4) of this Title applies. The closure plan, closure activities, cost estimates for closure, and financial responsibility for tank systems must meet all of the requirements specified in sections 373-3.7 and 3.8 of this Subpart.

(2) If the owner or operator demonstrates that not all contaminated soils can be practicably removed or decontaminated as required in paragraph (1) of this subdivision, then the owner or operator must close the tank system and perform post-closure care in accordance with the closure and post-closure care requirements that apply to landfills (subdivision 373-3.14(d) of this Subpart). In addition, for the purposes of closure, post-closure, and financial responsibility, such a tank system is then considered to be a landfill, and the owner or operator must meet all of the requirements for landfills specified in sections 373-3.7 and 3.8 of this Subpart.

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

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

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

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

(iv) Financial assurance must be based on the cost estimates in subparagraph (iii) of this paragraph.

(v) For the purposes of the contingent closure and post-closure plans, such a tank system is considered to be a landfill, and the contingent plans must meet all of the closure, post-closure, and financial responsibility requirements for landfills under sections 373-3.7 and 3.8 of this Subpart.

(i) Special requirements for ignitable or reactive wastes.

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

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

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

('b') paragraph 373-3.2(h)(2) of this Subpart is complied with;

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

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

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

(j) Special requirements for incompatible wastes.

(1) Incompatible wastes, or incompatible waste and materials, must not be placed in the same tank system, unless paragraph 373-3.2(h)(2) of this Subpart is complied with.

(2) Hazardous waste must not be placed in a tank system that has not been decontaminated and that previously held an incompatible waste or material, unless paragraph 373-3.2(h)(2) of this Subpart is complied with.

(k) Waste analysis and trial tests. In addition to performing the waste analysis required by subdivision 373-3.2(d) of this Subpart, the owner or operator must, whenever a tank system is to be used to treat chemically or to store a hazardous waste that is substantially different from waste previously treated or stored in that tank system; or treat chemically a hazardous waste with a substantially different process than any previously used in that tank system:

(1) conduct waste analyses and trial treatment or storage tests (e.g., bench-scale or pilot-plant scale tests); or

(2) obtain written, documented information on similar waste under similar operating conditions to show that the proposed treatment or storage will meet the requirements of paragraph (e)(1) of this section.

(Note: Subdivision 373-3.2(d) of this Subpart requires the waste analysis plan to include analyses needed to comply with subdivisions (i) and (j) of this section. Subdivision 373-3.5(c) of this Subpart requires the owner or operator to place the results from each waste analysis and trial test or the documented information, in the operating record of the facility.)

(l) Special requirements for generators of between 100 and 1,000 kg/mo that accumulate hazardous waste in tanks.

(1) The requirements of this subdivision apply to small quantity generators of more than 100 kg but less than 1,000 kg of hazardous waste in a calendar month, that accumulate hazardous waste in tanks for less than 180 days (or 270 days if the generator must ship the waste greater than 200 miles), and do not accumulate over 6,000 kg on-site at any time.

(2) Generators of between 100 and 1,000 kg/mo hazardous waste must comply with the following general operating requirements:

(i) Treatment or storage of hazardous waste in tanks must comply with paragraph 373-3.2(h)(2) of this Subpart.

(ii) Hazardous wastes or treatment reagents must not be placed in a tank if they could cause the tank or its inner liner to rupture, leak, corrode, or otherwise fail before the end of its intended life.

(iii) Uncovered tanks must be operated to ensure at least 60 centimeters (2 feet) of freeboard, unless the tank is equipped with a containment structure (e.g., dike or trench), a drainage control system, or a diversion structure (e.g., standby tank) with a capacity that equals or exceeds the volume of the top 60 centimeters (2 feet) of the tank.

(iv) Where hazardous waste is continuously fed into a tank, the tank must be equipped with a means to stop this inflow (e.g., waste feed cutoff system or by-pass system to a stand-by tank).

(Note: These systems are intended to be used in the event of a leak or overflow from the tank due to a system failure (e.g., a malfunction in the treatment process, a crack in the tank, etc.))

(3) Generators of between 100 and 1,000 kg/mo accumulating hazardous waste in tanks must inspect, where present:

(i) discharge control equipment (e.g., waste feed cutoff systems, by-pass systems, and drainage systems) at least once each operating day, to ensure that it is in good working order;

(ii) data gathered from monitoring equipment (e.g., pressure and temperature gauges) at least once each operating day to ensure that the tank is being operated according to its design;

(iii) the level of waste in the tank at least once each operating day to ensure compliance with subparagraph (2)(iii) of this subdivision;

(iv) the construction materials of the tank at least weekly to detect corrosion or leaking of fixtures or seams; and

(v) the construction materials of, and the area immediately surrounding, discharge confinement structures (e.g., dikes) at least weekly to detect erosion or obvious signs of leakage (e.g., wet spots or dead vegetation).

(Note: As required by paragraph 373-3.2(f)(3) of this Subpart, the owner or operator must remedy any deterioration or malfunction the owner or operator finds.)

(4) Generators of between 100 and 1,000 kg/mo accumulating hazardous waste in tanks must, upon closure of the facility, remove all hazardous waste from tanks, discharge control equipment, and discharge confinement structures.

(Note: At closure, as throughout the operating period, unless the owner or operator can demonstrate, in accordance with paragraph 371.1(d)(3) or (4) of this Title, that any solid waste removed from the tank is not a hazardous waste, the owner or operator becomes a generator of hazardous waste and must manage it in accordance with all applicable requirements of Parts 370 through 374 and 376 of this Title.)

(5) Generators of between 100 and 1,000 kg/mo must comply with the following special requirements for ignitable or reactive waste:

(i) Ignitable or reactive waste must not be placed in a tank, unless:

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

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

('2') paragraph 373-3.2(h)(2) of this Subpart is complied with; or

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

('c') the tank is used solely for emergencies.

(ii) The owner or operator of a facility which treats or stores ignitable or reactive waste in covered tanks must comply with the buffer zone requirements for tanks contained in Tables 2-1 through 2-6 of the National Fire Protection Association's "Flammable and Combustible Liquids Code" (see subdivision 370.1(e) of this Title).

(6) Generators of between 100 and 1,000 kg/mo must comply with the following special requirements for incompatible wastes:

(i) Incompatible wastes, or incompatible wastes and materials, (see Appendix 29 of this Title for examples) must not be placed in the same tank, unless paragraph 373-3.2(h)(2) of this Subpart is complied with.

(ii) Hazardous waste must not be placed in an unwashed tank which previously held an incompatible waste or material, unless paragraph 373-3.2(h)(2) of this Subpart is complied with.

(m) Air Emissions Standards. The owner or operator shall manage all hazardous waste placed in a tank in accordance with the applicable requirements of sections 373-3.27, 373-3.28, and 373-3.29 of this Subpart.

§373-3.11 - Surface Impoundments

(a) Applicability. The regulations in this section apply to owners and operators of facilities that use surface impoundments to treat, store, and dispose of hazardous waste except as subdivision 373-3.1(a) of this Subpart provides otherwise.

(b) Action leakage rate.

(1) The owner or operator of surface impoundment units subject to paragraph 373-3.11(i)(1) must submit a proposed action leakage rate to the Commissioner when submitting the notice required under paragraph 373-3.11(i)(2). Within 60 days of receipt of the notification, the commissioner will: establish an action leakage rate, either as proposed by the owner or operator or modified using the criteria in this subdivision; or extend the review period for up to 30 days. If no action is taken by the Commissioner before the original 60 or extended 90 day review period ends, the action leakage rate will be approved as proposed by the owner or operator.

(2) The Commissioner shall approve an action leakage rate for surface impoundment units subject to paragraph 373-3.11(i)(1). The action leakage rate is the maximum design flow rate that the leak detection system (LDS) can remove without the fluid head on the bottom liner exceeding 1 foot. The action leakage rate must include an adequate safety margin to allow for uncertainties in the design (e.g., slope, hydraulic conductivity, thickness of drainage material), construction, operation, and location of the LDS, waste and leachate characteristics, likelihood and amounts of other sources of liquids in the LDS, and proposed response actions (e.g., the action leakage rate must allow for decreases in the flow capacity of the system over time resulting from siltation and clogging, rib layover and creep of synthetic components of the system, overburden pressures, etc.).

(3) 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 373-3.11(e)(2), to an average daily flow rate (gallons per acre per day) for each sump. Unless the Commissioner approves a different calculation, the average daily flow rate for each sump must be calculated weekly during the active life and closure period, and if the unit closes in accordance with subparagraph 373-3.11(f)(1)(ii), monthly during the post-closure care period when monthly monitoring is required under paragraph 373-3.11(e)(2).

(c) Containment system. All earthen dikes must have a protective cover, such as grass, shale, or rock, to minimize wind and water and water erosion and to preserve their structural integrity.

(d) Waste analysis and trial tests.

(1) In addition to the waste analysis required by subdivision 373-3.2(d) of this Subpart, whenever a surface impoundment is to be used to:

(i) chemically treat a hazardous waste which is substantially different from waste previously treated in that impoundment; or

(ii) chemically treat hazardous waste with a substantially different process than any previously used in that impoundment; the owner or operator must, before treating the different waste or using the different process:

('a') conduct waste analyses and trial treatment tests (e.g., bench scale or pilot plant scale tests); or

('b') obtain written, documented information on similar treatment of similar waste under similar operating conditions; to show that this treatment will comply with paragraph 373-3.2(h)(2) of this Subpart.

(Note: As required by subdivision 373-3.2(d) of this Subpart, the waste analysis plan must include analyses needed to comply with subdivisions (g) and (h) of this section. As required by subdivision 373-3.5(c) of this Subpart, the owner or operator must place the results from each waste analysis and trial test, or the documented information, in the operating record of the facility.)

(e) Monitoring and inspection.

(1) The owner or operator must inspect:

(i) The freeboard level at least once each operating day to ensure compliance with paragraphs (i)(6) and (7) of this section; and

(ii) the surface impoundment, including dikes and vegetation surrounding the dike, at least once a week to detect any leaks, deterioration, or failures in the impoundment.

(Note: As required by paragraph 373-3.2(f)(3) of this Subpart, the owner or operator must remedy and deterioration or malfunction the owner or operator finds.)

(2) (i) An owner or operator required to have a leak detection system under paragraph 373-3.11(i)(1) 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. The timing for submission and approval of the proposed "pump operating level" will be in accordance with paragraph 373-3.11(b)(1).

(f) Closure and post-closure care.

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

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

(ii) close the impoundment and provide post-closure care for a landfill under section 373-3.7 and subdivision 373-3.14(d) of this Subpart, including the following:

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

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

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

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

('2') function with minimum maintenance;

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

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

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

(2) In addition to the requirements of section 373-3.7 and subdivision 373-3.14(d) of this Subpart, during the post-closure care period, the owner or operator of a surface impoundment in which wastes, waste residues, or contaminated materials remain after closure in accordance with the provisions of subparagraph (1)(ii) of this subdivision must:

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

(ii) Maintain and monitor the leak detection system in accordance with clause 373-2.11(b)(3)(ii)('d') and subparagraph 373-2.11(b)(3)(iii) of this Part, and paragraph 373-3.11(e)(2) of this section, and comply with all other applicable leak detection system requirements of this Subpart;

(iii) maintain and monitor the groundwater monitoring system and comply with all other applicable requirements of section 373-3.6 of this Subpart; and

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

(g) Special requirements for ignitable or reactive waste.

(1) Ignitable or reactive waste must not be placed in a surface impoundment unless the waste and impoundment satisfy all applicable requirements of Part 376 of this Title, and:

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

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

('b') paragraph 373-3.2(h)(2) of this Subpart is complied with or;

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

('b') the owner or operator obtains a certification from a qualified chemist or engineer that, to the best of his or her knowledge and opinion, the design features or operating plans of the facility will prevent ignition or reaction; and

('c') the certification and the basis for it are maintained at the facility; or

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

(h) Special requirements for incompatible wastes. Incompatible wastes, or incompatible wastes and materials, (see Appendix 29 of this Title for examples) must not be placed in the same surface impoundment, unless paragraph 373-3.2(h)(2) of this Subpart is complied with.

(i) Design and operating requirements.

(1) The owner or operator of each new surface impoundment unit on which construction commences after January 29, 1992, each lateral expansion of a surface impoundment unit on which construction commences after July 29, 1992, and each replacement of an existing surface impoundment unit that is to commence reuse after July 29, 1992 must install two or more liners and a leachate collection and removal system between such liners, and operate the leachate collection and removal system, in accordance with paragraph 373-2.11(b)(3) of this Part, unless exempted under paragraphs 373-2.11(b)(4), (5), or (6), of this Part. "Construction commences" is as defined in subdivision 370.2(b) of this Title under "existing facility."

(2) The owner or operator of each unit referred to in paragraph (1) of this subdivision must notify the commissioner at least 60 days before receiving waste. The owner or operator of each facility submitting notice must file a Part 373 permit application within six months of the commissioner's receipt of such notice.

(3) The owner or operator of any replacement surface impoundment unit is exempt from paragraph (1) 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.

(4) The double liner requirement set forth in paragraph (1) of this subdivision may be waived by the commissioner for any monofill, if:

(i) the monofill contains only hazardous waste from foundry furnace emission controls or metal casting molding sand, and the 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 of leaking. For the purposes of this paragraph, the term "liner" means a liner designed, constructed, installed, and operated to prevent hazardous waste from passing into the liner at any time during the active life of the facility, or a liner designed, constructed, installed, and operated to prevent hazardous waste from migrating beyond the liner to adjacent subsurface soil, groundwater, or surface water at any time during the active life of the facility. In the case of any surface impoundment which has been exempted from the requirements of paragraph (1) of this subdivision on the basis of a liner designed, constructed, installed, and operated to prevent hazardous waste from passing beyond the liner, at the closure of the impoundment the owner or operator must remove or decontaminate all waste residues, all contaminated liner material, and contaminated soil to the extent practicable. If all contaminated soil is not removed or decontaminated, the owner or operator of such impoundment must comply with appropriate post-closure requirements, including but not limited to groundwater monitoring and corrective action;

('2') the monofill is located more than one-quarter mile from an underground source of drinking water (as 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 so as to assure that there will be no migration of any hazardous constituent into groundwater or surface water at any future time.

(5) In the case of any unit in which the liner and leachate collection system has been installed pursuant to the requirements of paragraph (1) of this subdivision, the commissioner, when issuing the first permit, will not require that a new liner or leachate collection system be installed, unless the commissioner has reason to believe the liner is leaking.

(6) A surface impoundment must maintain enough freeboard to prevent any overtopping of the dike by overfilling, wave action, or a storm. Except as provided in paragraph (7) of this subdivision, there must be at least 60 centimeters (2 feet) of freeboard.

(7) A freeboard level less than 60 centimeters (two feet) may be maintained if the owner or operator obtains certification by a qualified engineer that alternate design features or operating plans will, to the best of his or her knowledge and opinion, prevent overtopping of the dike. The certification, along with a written identification of alternate design features or operating plans preventing overtopping, must be maintained at the facility.

(8) Surface impoundments that are newly subject to RCRA section 3005(j)(1) (see 370.1(e) of this Title) due to the promulgation of additional listings or characteristics for the identification of hazardous waste must be in compliance with paragraphs (i)(1), (3) and (4) of this section not later than 48 months after the promulgation of the additional listing or characteristic. This compliance period shall not be cut short as the result of the promulgation of land disposal prohibitions under Part 376 of this Title or the granting of an extension to the effective date of a prohibition pursuant to 376.1(e) of this Title, within this 48 month period.

(j) Response actions.

(1) The owner or operator of surface impoundment units subject to paragraph 373-3.11(i)(1) must submit a response action plan to the Commissioner when submitting the proposed action leakage rate under subdivision 373-3.11(b). 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.

(k) Air Emission Standards. The owner or operator shall manage all hazardous waste placed in a surface impoundment in accordance with the applicable requirements of sections 373-3.28 and 373-3.29 of this Subpart.