20.9.9.16

SELECTION OF REMEDY.

1. A. Based on the results of the corrective measures assessment conducted under 20.9.9.15 NMAC, the owner or operator shall, within 120 days following the submission of the assessment of corrective measures, submit a proposed remedy to the department for review and approval that meets the standards listed in this section. The secretary may issue an order approving, approving with conditions, denying the proposed remedy, may require submission of an alternative proposed remedy, or may impose a remedy whether or not proposed by the owner or operator.
2. B. Prior to approving or imposing a remedy, the department shall hold a hearing on the remedy proposed by the owner or operator and any draft remedy proposed by the department. The owner or operator shall be required to provide notice of hearing on the proposed remedy or remedies in accordance with Section 74-9-22 NMSA 1978. Hearing procedures shall be in accordance with Permit Procedures – Environment Department, 20.1.4 NMAC.

3. C. The selected remedy shall:

   (1) be protective of public health, welfare and the environment;

   (2) attain the CAL;

   (3) control the source(s) of releases so as to reduce or eliminate, to the maximum extent practicable, further releases into the environment that may pose a threat to public health, welfare or the environment;

   (4) comply with standards for management of wastes as specified in Subsection C of 20.9.9.17 NMAC.

4. D. In its submission of a proposed remedy that meets the standards listed above, the owner or operator shall provide evidence demonstrating:

   (1) the long and short term effectiveness and protectiveness of the potential remedy, along with the degree of certainty that the remedy will prove successful based on consideration of the following:

   (a) magnitude of reduction of existing risks;

   (b) magnitude of residual risks in terms of likelihood of further releases due to waste remaining following implementation of a remedy;

   (c) the type and degree of long term management required, including monitoring, operation, and maintenance;

   (d) short term risks that might be posed to the community, workers, or the environment during implementation of such a remedy, including potential threats to public health, welfare and the environment associated with excavation, transportation, and redisposal of wastes;

   (e) time until full protection is achieved;

   (f) potential for exposure of humans and environmental receptors to remaining wastes, considering the potential threat to public health, welfare and the environment associated with excavation, transportation, redisposal, or containment;

   (g) long term reliability of the engineering and institutional controls; and

   (h) potential need for replacement of the remedy;

   (2) the effectiveness of the remedy in controlling the source to reduce further releases based on consideration of the following factors:

   (a) the extent to which containment practices will reduce further releases; and

   (b) the extent to which treatment technologies may be used;

   (3) the ease or difficulty of implementing a potential remedy based on consideration of the following factors:

   (a) degree of difficulty associated with constructing the technology;

   (b) expected operational reliability of the technology;

   (c) need to coordinate with, and obtain necessary approvals and permits from, other agencies;

   (d) availability of necessary equipment and specialists; and

   (e) available capacity and location of needed treatment, storage, and disposal services;

   (4) practicable capability of the owner or operator, including a consideration of the technical and economic capability; and

   (5) the degree to which community concerns are addressed.

5. E. The owner or operator shall specify as part of the proposed selected remedy a schedule for initiating and completing remedial activities. Such a schedule shall provide for the initiation of remedial activities within a reasonable period of time, taking into consideration the factors listed in Subsection C of 20.9.9.15 NMAC.

6. F. In its submission of a proposed remedy under this section, the owner or operator may seek a determination that remediation of a contaminant to the CAL is not required as follows:

   (1) if an exceedance of a commission standard would occur, the owner or operator shall seek a variance from the commission standard in accordance with Subsection E or F of 20.6.2.4103 NMAC and incorporate the terms and conditions of any such variance into the selected remedy and corrective action program; or

   (2) the owner or operator may seek a determination from the secretary that remediation of a contaminant to the CAL (for CALs not based on a commission standard) is not required by submitting a written request to the secretary for a determination that attainment of the CAL is technically infeasible; the request shall include: a demonstration of technical or physical impossibility of attaining the CAL using potential remedies; the effectiveness of potential remedies; whether the proposed determination will allow a present or future hazard to public health or the environment; and any other information required by the secretary; in addition, the request shall propose an alternate CAL for the secretary's approval, based on the effectiveness of potential remedies and a site-specific risk assessment; the secretary may approve, approve with terms and conditions, or deny the requested determination.

7. G. A determination by the secretary pursuant to Subsection F of this section shall not affect the authority of the secretary to require the owner or operator to undertake source control measures or other measures that may be necessary to eliminate or minimize releases to the ground water, to prevent exposure of the ground water to concentrations that are technically practicable and significantly reduce threats to public health, welfare or the environment.

[20.9.9.16 NMAC - Rp, 20 NMAC 9.1.VIII.809, 8/2/2007]