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Subpart 383.1: General Provisions

(Statutory authority: Environmental Conservation Law, arts. 3, 17, 19, 27, 29)

[Effective Date March 14, 1993 ]

Contents:

Sec.

§383-1.1 Applicability.

(a) The regulations in this Part establish requirements for the design, construction, operation, closure, post-closure monitoring and maintenance, and institutional control of land disposal facilities used for permanent disposal of low-level radioactive waste (waste) (Land disposal facilities permitted under this Part may also be used for disposal of NARM waste). This Part and Part 382 apply to any person who constructs, operates, or maintains a land disposal facility located wholly or partially in New York State.

(b) The regulations in this Part do not apply to:

(1) disposal of high-level radioactive waste, as defined by 42 U.S.C. section 10101(12) (see section 383-1.8 of this Part);

(2) disposal of transuranic wastes;

(3) disposal of the tailings or wastes produced by the extraction or concentration of uranium or thorium from any ore processed primarily for its source material content in quantities greater than 10,000 kilograms (approximately 11 tons) containing more than five (5) millicuries of Radium-226;

(4) disposal of radioactive material in accordance with Part 380 of this Title, except as provided in section 383-1.9 of this Part; or

(5) disposal of naturally-occurring radioactive material unless it has been processed and concentrated.

(c) Compliance with these regulations does not relieve the owners or operators of the land disposal facility from compliance with all other applicable state and federal laws and regulations.

§383-1.2 Prohibition.

No person shall dispose of low-level radioactive waste or NARM waste in this state except:

(a) at a facility permitted pursuant to this Part, or

(b) in accordance with 6 NYCRR Part 380.

§383-1.3 Permit required.

(a) No person shall receive, possess, and dispose of waste or NARM waste at a land disposal facility without obtaining a valid permit issued pursuant to this Part. The receipt, possession, and disposal of radioactive material at a land disposal facility is also subject to the applicable regulations of the State Department of Labor. No person shall modify any aspect of the operation of a land disposal facility approved in a permit pursuant to this Part except as authorized by the department or in accordance with section 383-3.9 of this Part.

(b) No person may commence operation, including commencement of construction, of a land disposal facility until that person has obtained a permit. Failure to comply with this requirement may be grounds for the denial of a permit.

(c) A permit pursuant to this Part is not required for activities necessary to limit access and maintain security on a proposed disposal site during the period prior to the department's decision on an application for a permit provided these activities are not commencement of construction.

(d) The disposal of waste or NARM waste at a land disposal facility may only be permitted on land owned in fee by the state of New York.

§383-1.4 Severability.

If any provision of this Part or its application to any person or circumstances is held invalid, the remainder of this Part and the application of those provisions to persons or circumstances, other than those to which it is held invalid, will not be affected thereby.

§383-1.5 Variances.

(a) Unless otherwise precluded by law, the department may, upon written application from any person who is subject to this Part, grant a variance from one or more provisions of this Part except the performance objectives under the conditions set forth in this subpart. An application for a variance must:

(1) identify the specific provisions of this Part from which a variance is sought;

(2) demonstrate to the satisfaction of the department that compliance with the identified provision would impose on the applicant or the public an unreasonable safety or economic hardship;

(3) demonstrate to the satisfaction of the department that, with the requested variance in effect, there would be reasonable assurance that the performance objectives would be met; and

(4) demonstrate to the satisfaction of the department that the requested variance would:

(i) cause no significant adverse impact on the environment, natural resources, or the public health, safety, and welfare; and

(ii) would be consistent with the other provisions of the ECL and this Part and Part 382 of this Title.

(b) In granting a variance pursuant to this section, the department may impose specific conditions reasonably necessary to ensure that the granting of such variance will cause no significant adverse impact on the environment, natural resources, or on the public health, safety, or welfare.

(c) Any United States Department of Energy contractor or subcontractor operating in this state is exempt from the requirements of this Part to the extent that such contractor or subcontractor is involved in selecting, characterizing, developing, operating, closing, or maintaining a site to be used by the Department of Energy for disposal of low-level radioactive waste pursuant to federal law.

§383-1.6 Safeguarding information.

Any requests for the release of information in the custody of the department related to this Part shall be handled according to the provisions of New York Public Officers Law section 87 and Part 616 of this Title, Public Access to Records of the Department.

§383-1.7 Enforcement and inspection and access to records.

(a) Enforcement.

(1) Every land disposal facility in this state is subject to every applicable requirement identified in this Part, subject to a demonstration to the department by its owner or operator that the facility is clearly exempt from regulation under, or from the requirement in question that is contained in, this Part.

(2) Without limitation to any other civil or criminal sanction that may be applicable, any person who violates any provision of, or fails to perform any duty imposed by this Part, or any term or condition of any permit issued pursuant to this Part, or any final determination or order of the Commissioner issued pursuant to any statutory authority under which this Part is promulgated, is subject to all appicable civil, administrative, and criminal sanctions set forth in ECL Article 71.

(b) Inspection and access to records.

(1) Notwithstanding subpart 383-15, the department may enter any land disposal facility and any property or premises of the facility during normal business hours or at any other time during which regulated activity is reasonably believed to be occurring, for the purpose of inspecting such facility, property or premises to determine compliance, subject to the limitations set forth below. Such entry shall be accomplished with the minimum disruption to operations at the facility.

(2) Inspections shall be limited to areas or places where regulated activity or contamination or pollution is occurring or reasonably believed to be occurring.

(3) All records required to be maintained under this Part must be furnished upon request, within a reasonable period of time. Inspections of records and documents required to be maintained under this Part shall occur at the location where such records are maintained or at a reasonable time and place specified by the department. To the extent that records required to be maintained under this Part are maintained on computer databases, the permittee shall provide the department with direct electronic access to such databases.

(4) Except as provided for in paragraph (5) herein, inspections shall be limited in frequency, duration, and scope by the following factors:

(i) potential environmental harm of the regulated activity;

(ii) complexity of the regulated activity and the time needed to determine compliance;

(iii) specific federal or state inspection mandates;

(iv) noncompliance history of the facility;

(v) existence or need for permits;

(vi) information received concerning noncompliance;

(vii) self-reported violations or releases that require a response by the department; and

(viii) need to follow up previous inspections which uncovered noncompliance with additional inspections.

(5) Notwithstanding paragraph (4) above, inspections by the department may occur with greater frequency when:

(i) a permit, license, or order authorizes more frequent inspection; and

(ii) the department has a reasonable basis to determine inspection is warranted in order to make a compliance determination.

§383-1.8 Documents incorporated by reference.

(a) Documents.

The following documents, referenced in this Part, are available for review and copying at the department's offices at 50 Wolf Road, Albany, New York:

(1) 42 U.S.C. Section 10101(12), 1983, Supplement, 1987.

(2) "Standard Format and Content of a License Application for a Low-Level Radioactive Waste Disposal Facility," U.S. Nuclear Regulatory Commission (NUREG-1199, Rev. 2)(1991).

(3) "Quality Assurance Guidance for a Low-Level Radioactive Waste Disposal Facility," U.S. Nuclear Regulatory Commission (NUREG - 1293) Rev. 1, April 1991.

(4) National Fire Protection Association Codes NFPA 801-1991, "Recommended Fire Protection Practice for Facilities Handling Radioactive Materials" (1991).

(5) National Fire Protection Association Codes NFPA 901-1990, "Uniform Coding Fire Protection" (1990).

(6) American Concrete Institute, Manual of Concrete Practice, 1989 edition.

(7) American Institute of Steel Construction, Manual of Steel Construction, ninth edition (1990).

(b) Availability of documents.

(1) Documents (1), (2) and (3) can be obtained from the Superintendent of Documents, U.S. Government Printing Office, Washington, D.C. 20402.

(2) Documents (4) and (5) can be obtained from the National Fire Protection Association, Batterymarch Park, Quincy, MA 02269.

(3) Document (6) can be obtained from the American Concrete Institute, P.O. Box 19150, Detroit, MI 48219.

(4) Document (7) can be obtained from the American Institute of Steel Construction, 400 N. Michigan Avenue, Chicago, IL 60611.

§383-1.9 Transition.

Except as otherwise provided in this Part, the following constitute the transition rules for this Part.

(a) Existing authorized land disposal facilities.

(1) This section applies to a land disposal facility having a permit or other authorization pursuant to Part 380 of this Title in effect on the day before the effective date of this Part. Nothing in this section shall be construed to limit or prohibit department-initiated modification of such a permit under the provisions of Part 621 of this Title.

(2) Each land disposal facility permit or other authorization in effect on the day before the effective date of this Part is hereby continued until the expiration date thereof or, if there is no expiration date, until the termination of such permit or authorization by further action of the department.

(3) The land disposal facility must comply with the conditions of the permit or other authorization and the regulations in effect on the day before the effective date of this Part for the duration of that permit or authorization. In the event of renewal, the application shall be treated as a new application under Part 380 of this Title or this Part, whichever is applicable.

(4) The requirements of Subparts 383-2 through 383-15 this Part are not applicable to facilities that were constructed pursuant to a permit or other authorization in effect on the day before the effective date of this Part except to the extent those requirements are made applicable by permit modification pursuant to Part 621 of this Title.

(b) Existing facilities currently in violation.

A land disposal facility constructed, operated, or closed in violation of the regulations in effect on the day before the effective date of this Part is subject to the requirements of this Part as of its effective date. Each enforcement action pending on the day before the effective date of this Part is hereby continued, and the standards for compliance shall be those contained in this Part.

(c) Existing facilities for which valid permits or other authorizations were not required to be in effect on the day before the effective date of this Part.

This subparagraph pertains only to land disposal facilities existing on the effective date of this Part that did not require a permit or other authorization to be in effect on the day before the effective date of this Part. For such facilities:

(1) The owner or operator must submit to the department within six months of the effective date of this Part a letter that references this subparagraph and describes the location, size, and the type of disposal facility in existence on the effective date of this Part, the sources of the waste, the form and volume of the waste, the radionuclides disposed of, and the current activity of each, and the existing environmental monitoring measures in place. The letter must be sent by certified mail return receipt requested and the following words must be placed on the outside of the envelope: "Part 383 facility notification enclosed";

(2) The department will acknowledge receipt of the letter in writing and may request additional information from the facility owner or operator relative to the need to determine whether the applicability of any of the provisions of this Part is necessary in order to prevent or eliminate adverse environmental impacts attributable to the land disposal facility;

(3) On the basis of this information, the department shall determine whether any such provisions are applicable, and if so, shall proceed to the issuance of an appropriate order following the procedures of Part 622 of this Title.