1. (1) The regulations in this section apply to owners and operators of all hazardous waste facilities, except as provided in section 373-2.1 of this Subpart and in paragraph (2) of this subdivision.

2. (2) Paragraph (j)(1) of this section applies only to facilities subject to regulations under sections 373-2.9 through 373-2.15 and 373-2.24 of this Subpart.

   (b) Facility ownership transfer.

3. (1) The ownership or operation of a facility during its operating life, or a disposal facility during the period of post-closure care, shall be transferable only upon prior written approval of the department.

4. (2) Before transferring ownership or operation of a facility during its operating life, or of a disposal facility during the post-closure care period, the owner or operator must notify the new owner or operator, in writing, of the requirements of this Subpart and Subpart 373-1 of this Part.

   (c) Identification number.

   Every facility owner or operator must apply to EPA for an EPA identification number in accordance with the EPA notification procedures (45 FR 12746 et seq.) (see section 370.1[e] of this Title).

   (d) Required notices.

5. (1) The owner or operator of a facility that has arranged to receive hazardous waste from a source outside of the United States must notify the department in writing at least four weeks in advance of the date on which the first shipment of the hazardous waste is expected to arrive at the facility. The owner or operator of a facility that has arranged to receive hazardous waste from an OECD country, as defined in section 372.5(h)(1) of this Title must also notify the EPA regional administrator in writing at least four weeks in advance of the date on which the first shipment of the hazardous waste is expected to arrive at the facility. Notice of subsequent shipments of the same waste from the same foreign source is not required.

   Note:

   For purposes of reference only: The owner or operator of a recovery facility that has arranged to receive hazardous waste from an OECD member country, as defined in section 372.5(h)(1) of this Title, must also meet the requirement of 40 CFR 264.12(a)(2) (see section 370.1(e) of this Title).

6. (2) The owner or operator of a facility that receives hazardous waste from an offsite source (except where the owner or operator is also the generator) must inform the generator in writing that he or she has the appropriate permit(s) for, and will accept, the waste the generator is shipping. The owner or operator must keep a copy of this written notice as part of the operating record.

7. (e) General waste analysis.

   1. (i) Before an owner or operator treats, stores or disposes of any hazardous wastes, or nonhazardous wastes if applicable under section 373-2.7(d)(4) of this Subpart, a detailed chemical and physical analysis of a representative sample of the wastes must be obtained. At a minimum, this analysis must contain all the information which must be known to treat, store or dispose of the waste in accordance with the requirements of this Subpart and Part 376 of this Title.

   2. (ii) The analysis may include data developed under Part 371 of this Title, and existing published or documented data on the hazardous waste or on hazardous waste generated from similar processes. Note:

      Note:

      For example, the facility's records of analyses performed on the waste before the effective date of these regulations, or studies conducted on hazardous waste generated from processes similar to that which generated the waste to be managed at the facility, may be included in the data base required to comply with subparagraph (i) of this paragraph. The owner or operator of an offsite facility may arrange for the generator of the hazardous waste to supply part of the information required by subparagraph (i) of this paragraph, except as otherwise specified in section 376.1(g)(2) and (3) of this Title. If the generator does not supply the information, and the owner or operator chooses to accept a hazardous waste, the owner or operator is responsible for obtaining the information required to comply with this section.

   3. (iii) The analysis must be repeated as necessary to ensure that it is accurate and up-to- date. At a minimum, the analysis must be repeated:

      1. (a) when the owner or operator is notified, or has reason to believe, that the process or operation generating the hazardous wastes, or nonhazardous waste if applicable under section 373-2.7(d)(4) of this Subpart, has changed; and
      2. (b) for off-site facilities, when the results of the inspection required in subparagraph (iv) of this paragraph indicate that the hazardous waste received at the facility does not match the waste designated on the accompanying manifest or shipping paper.
   4. (iv) The owner or operator of an off-site facility must inspect and, if necessary, analyze each hazardous waste movement received at the facility to determine whether it matches the identity of the waste specified on the accompanying manifest or shipping paper.

   5. (2) The owner or operator must develop and follow a written waste analysis plan which describes the procedures which will be carried out to comply with paragraph (1) of this subdivision. This plan must be kept at the facility. At a minimum, the plan must specify:

      1. (i) the parameters for which each hazardous waste, or nonhazardous waste if applicable under section 373-2.7(d)(4) of this Subpart, will be analyzed and the rationale for the selection of these parameters (i.e., how analysis for these parameters will provide sufficient information on the waste's properties to comply with paragraph [1] of this subdivision);
      2. (ii) the test methods which will be used to test for these parameters;

      3. (iii) the sampling method which will be used to obtain a representative sample of the waste to be analyzed. A representative sample may be obtained using either:

         1. (a) one of the sampling methods described in Appendix 19 of this Title; or
         2. (b) an equivalent sampling method;
      4. (iv) the frequency with which the initial analysis of the waste will be reviewed or repeated to ensure that the analysis is accurate and up-to-date;
      5. (v) for off-site facilities, the waste analyses that hazardous waste generators have agreed to supply;
      6. (vi) where applicable, the methods that will be used to meet the additional waste analysis requirements for specific waste management methods as specified in sections 373-2.2(i), 373-2.14(j), 373-2.15(b), 373-2.27(e)(4), 373-2.28(n)(4) and 373-2.29(d) of this Subpart and section 376.1(g) of this Title; and

      7. (vii) for surface impoundments exempted from land disposal restrictions under section 376.1(d)(1) of this Title, the procedures and schedules for:

         1. (a) the sampling of impoundment contents;
         2. (b) the analysis of test data; and
         3. (c) the annual removal of residues which are not delisted under section 370.3(c) of this Title and do exhibit a characteristic of hazardous waste, and which do not meet the treatment standards of section 376.4 of this Title;

      8. (viii) for owners and operators seeking an exemption to the air emission standards of section 373-2.29 of this Subpart in accordance with section 373-2.29(c) of this Subpart:

         1. (a) If direct measurement is used for the waste determination, the procedures and schedules for waste sampling and analysis, and the results of the analysis of the test data to verify the exemption.
         2. (b) If knowledge of the waste is used for the waste determination, any information prepared by the facility owner or operator or by the generator of the hazardous waste, if the waste is received from off-site, that is used as the basis for knowledge of the waste.

   6. (3) For off-site facilities, the waste analysis plan required in paragraph (2) of this subdivision must also specify the procedures which will be used to inspect and, if necessary, analyze each movement of hazardous waste received at the facility to ensure that it matches the identity of the waste designated on the accompanying manifest or shipping paper. At a minimum, the plan must describe:

      1. (i) the procedures which will be used to determine the identity of each movement of waste managed at the facility;
      2. (ii) the sampling method which will be used to obtain a representative sample of the waste to be identified, if the identification method includes sampling; and

      3. (iii) the procedures that the owner or operator of an off-site landfill receiving containerized hazardous waste will use to determine whether a hazardous waste generator or treater has added a biodegradable sorbent to the waste in the container.

         (f) Security.

   7. (1) The owner or operator must prevent the unknowing entry, and minimize the possibility for the unauthorized entry, of persons or livestock onto the active portion of the facility, unless the owner or operator can demonstrate to the commissioner that:

      1. (i) physical contact with the waste, structures or equipment within the active portion of the facility will not injure unknowing or unauthorized persons or livestock which may enter the active portion of a facility; and
      2. (ii) disturbance of the waste or equipment, by the unknowing or unauthorized entry of persons or livestock onto the active portion of a facility, will not cause a violation of the requirements of this Part.

   8. (2) Unless the owner or operator has made a successful demonstration under subparagraphs (1)(i) and (ii) of this subdivision, a facility must have:

      1. (i) a 24-hour surveillance system (e.g., television monitoring or surveillance by guards or facility personnel) which continuously monitors and controls entry onto the active portion of the facility; or

         1. (a) an artificial or natural barrier (e.g., a fence in good repair or a fence combined with a cliff), which completely surrounds the active portion of the facility; and
         2. (b) a means to control entry, at all times, through the gates or other entrances to the active portion of the facility (e.g., an attendant, television monitors, locked entrance, or controlled roadway access to the facility).

         (ii)

   9. (3) Unless the owner or operator has made a successful demonstration under subparagraphs (1)(i) and (ii) of this subdivision, a sign with the legend, “Danger—Unauthorized Personnel Keep Out,” must be posted at each entrance of the active portion of a facility, and at other locations, in sufficient numbers to be seen from any approach to this active portion. The legend must be written in English, and written in French in counties bordering the Canadian Province of Quebec. The legend must be legible from a distance of at least 25 feet. Existing signs with a legend other than “Danger—Unauthorized Personnel Keep Out” may be used if the legend on the sign indicates that only authorized personnel are allowed to enter the active portion, and that entry onto the active portion can be dangerous.

      (g) General inspection requirements.

   10. (1) The owner or operator must inspect the facility for malfunctions and deterioration, operator errors, and discharges which may be causing or may lead to:

       1. (i) release of hazardous waste constituents to the environment; or

       2. (ii) a threat to human health. The owner or operator must conduct these inspections often enough to identify problems in time to correct them before they harm human health or the environment.

          (2)

       3. (i) The owner or operator must develop and follow a written schedule for inspecting monitoring equipment, safety and emergency equipment, security devices, and operating and structural equipment (such as dikes and sump pumps) that are important to preventing, detecting or responding to environmental or human health hazards.
       4. (ii) This schedule must be kept at the facility.
       5. (iii) The schedule must identify the types of problems (e.g., malfunctions or deterioration) which are to be looked for during the inspection (e.g., inoperative sump pump, leaking fitting, eroding dike, etc.).
       6. (iv) The frequency of inspection may vary for the items on the schedule. However, the frequency should be based on the rate of deterioration of the equipment and the probability of an environmental or human health incident if the deterioration, malfunction, or any operator error goes undetected between inspections. Areas subject to spills, such as loading and unloading areas, must be inspected daily when in use. At a minimum, the inspection schedule must include the items and frequencies called for in sections 373-2.9(e), 373-2.10(d) and (f), 373-2.11(d), 373-2.12(e), 373-2.13(f), 373-2.14(e), 373-2.15(g), 373-2.24(c), 373-2.27(d), 373-2.28(c), (d) and (i) and 373-2.29(d)-(j) of this Subpart, where applicable.
   11. (3) The owner or operator must remedy any deterioration or malfunction of equipment or structures which the inspection reveals on a schedule which ensures that the problem does not lead to an environmental or human health hazard. Where a hazard is imminent or has already occurred, remedial action must be taken immediately.
   12. (4) The owner or operator must record inspections in an inspection log or summary. These records must be kept for at least three years from the date of inspection. At a minimum, these records must include the date and time of the inspection, the name of the inspector, a notation of the observations made, and the date and nature of any repairs or other remedial actions.

   (1)

8. (h) Personnel training.

   1. (i) Facility personnel must successfully complete a program of classroom instruction or on-the-job training that teaches them to perform their duties in a way that ensures the facility's compliance with the requirements of this Part. The owner or operator must ensure that this program includes all the elements described in the document required under subparagraph (4)(iii) of this subdivision.
   2. (ii) This program must be directed by a person trained in hazardous waste management procedures, and must include instruction which teaches facility personnel hazardous waste management procedures (including contingency plan implementation) relevant to the positions in which they are employed.

   3. (iii) At a minimum, the training program must be designed to ensure that facility personnel are able to respond effectively to emergencies by familiarizing them with emergency procedures, emergency equipment and emergency systems, including, where applicable:

      1. (a) procedures for using, inspecting, repairing and replacing facility emergency and monitoring equipment;
      2. (b) key parameters for automatic waste feed cutoff systems;
      3. (c) communication or alarm systems;
      4. (d) response to fires or explosions;
      5. (e) response to ground-water contamination incidents; and
      6. (f) shutdown of operations.
   4. (iv) For facility employees who receive emergency response training pursuant to Occupational Safety and Health Administration (OSHA) regulations 29 CFR 1910.120(p)(8) and 1910.120(q) (see section 370.1(e) of this Title), the facility is not required to provide separate emergency response training pursuant to this section, provided that the overall facility training meets all the requirements of this section.
   5. (2) Facility personnel must successfully complete the program required in paragraph (1) of this subdivision within six months after the date of their employment or an assignment to a facility, whichever is later. Employees must not work in unsupervised positions until they have completed the training requirements of paragraph (1) of this subdivision.
   6. (3) Facility personnel must take part in an annual review of the initial training required in paragraph (1) of this subdivision.

   7. (4) The owner or operator must maintain the following documents and records at the facility:

      1. (i) the job title for each position at the facility related to hazardous waste management, and the name of the employee filling each job;
      2. (ii) a written job description for each position listed under subparagraph (i) of this paragraph. This description may be consistent in its degree of specificity with descriptions for other similar positions in the same company location or bargaining unit, but must include the requisite skill, education or other qualifications, and duties of employees assigned to each position;
      3. (iii) a written description of the type and amount of both introductory and continuing training that will be given to each person filling a position listed under subparagraph (i) of this paragraph; and
      4. (iv) records that document that the training or job experience required under paragraphs (1), (2) and (3) of this subdivision has been given to, and completed by, facility personnel.

   8. (5) Training records on current personnel must be kept until closure of the facility; training records on former employees must be kept for at least three years from the date the employee last worked at the facility. Personnel training records may accompany personnel transferred within the same company. Note:

      Note:

      Owners and operators are required to submit, with the permit application, an outline of the training program used (or to be used) at the facility and a brief description of how the training program is designed to meet actual job tasks.

      (i) General requirements for ignitable, reactive or incompatible wastes.

   9. (1) The owner or operator must take precautions to prevent accidental ignition or reaction of ignitable or reactive waste. This waste must be separated and protected from sources of ignition or reaction, including but not limited to: open flames, smoking, cutting and welding, hot surfaces, frictional heat, sparks (static, electrical or mechanical), spontaneous ignition (e.g., from heat-producing chemical reactions), and radiant heat. While ignitable or reactive waste is being handled, the owner or operator must confine smoking and open flame to specially designated locations. “No Smoking” signs must be conspicuously placed wherever there is a hazard from ignitable or reactive waste.

   10. (2) Where specifically required by other sections of this Part, the owner or operator of a facility that treats, stores or disposes of ignitable or reactive waste, or mixes incompatible wastes, or incompatible wastes and other materials, must take precautions to prevent reactions which:

       1. (i) generate extreme heat or pressure, fire or explosions, or violent reactions;
       2. (ii) produce uncontrolled toxic mists, fumes, dusts or gases in sufficient quantities to threaten human health or the environment;
       3. (iii) produce uncontrolled flammable fumes or gases in sufficient quantities to pose a risk of fire or explosion;
       4. (iv) damage the structural integrity of the device or facility; or
       5. (v) through other like means threaten human health or the environment.
   11. (3) When required to comply with paragraph (1) or (2) of this subdivision, the owner or operator must document that compliance. This documentation may be based on references to published scientific or engineering literature, data from trial tests (e.g., bench scale or pilot scale tests), waste analyses (as specified in subdivision [e] of this section), or the results of the treatment of similar wastes by similar treatment processes and under similar operating conditions.

   (1)

9. (j) Location standards.

   1. (i) Flood plains. A facility located in a 100-year flood plain must be designed, constructed, operated and maintained to prevent washout of any hazardous waste by a 100-year flood, unless the owner or operator can demonstrate to the commissioner's satisfaction that:

      1. (a) procedures are in effect which will cause the waste to be removed safely, before floodwaters can reach the facility, to a location where the wastes will not be vulnerable to floodwaters; or

      2. (b) for existing surface impoundments, waste piles, land treatment units, landfills, and miscellaneous units no adverse effects on human health or the environment will result if washout occurs, considering:

         1. (1) the volume and physical and chemical characteristics of the waste in the facility;
         2. (2) the concentration of hazardous constituents that would potentially affect surface waters as a result of washout;
         3. (3) the impact of such concentrations on the current or potential uses of, and water quality standards established for, the affected surface waters; and

         4. (4) the impact of hazardous constituents on the sediments of affected surface waters or the soils of the 100-year flood plain that could result from washout. Comment:

            Comment:

            The location where wastes are moved must be a facility which is either permitted by EPA under 40 CFR part 270, authorized to manage hazardous waste by the State under 6 NYCRR Part 373, authorized to manage hazardous waste by another state with a hazardous waste management program authorized under 40 CFR part 271, or in interim status under 40 CFR parts 270 and 265 (see section 370.1[e] of this Title).

   2. (ii) As used in subparagraph (1)(i) of this subdivision:

      1. (a) 100-year flood plain means any land area which is subject to a one-percent or greater chance of flooding in any given year from any source.
      2. (b) Washout means the movement of hazardous waste from the active portion of the facility as a result of flooding.
      3. (c) 100-year flood means a flood that has a one-percent chance of being equaled or exceeded in any given year.

   3. (2) Salt dome formations, salt bed formations, underground mines and caves. The placement of any noncontainerized or bulk liquid hazardous waste in any salt dome formation, salt bed formation, underground mine or cave is prohibited.

      (k) Construction quality assurance program.

   4. (1) CQA program.

      1. (i) A construction quality assurance (CQA) program is required for all surface impoundment, waste pile, and landfill units that are required to comply with sections 373-2.11(b)(3) and (4), and 373-2.14(c)(3) and (4) of this Subpart. The program must ensure that the constructed unit meets or exceeds all design criteria and specifications in the permit. The program must be developed and implemented under the direction of a CQA officer who is a professional engineer registered in New York State.

      2. (ii) The CQA program must address the following physical components, where applicable:

         1. (a) foundations;
         2. (b) dikes;
         3. (c) low-permeability soil liners;
         4. (d) geomembranes (flexible membrane liners);
         5. (e) leachate collection and removal systems and leak detection systems; and
         6. (f) final cover systems.

   5. (2) Written CQA plan. The owner or operator of units subject to the CQA program under paragraph (1) of this subdivision must develop and implement a written CQA plan. The plan must identify steps that will be used to monitor and document the quality of materials and the condition and manner of their installation. The CQA plan must include:

      1. (i) identification of applicable units, and a description of how they will be constructed;
      2. (ii) identification of key personnel in the development and implementation of the CQA plan, and CQA officer qualifications; and
      3. (iii) a description of inspection and sampling activities for all unit components identified in subparagraph (1)(ii) of this subdivision, including observations and tests that will be used before, during, and after construction to ensure that the construction materials and the installed unit components meet the design specifications. The description must cover: sampling size and locations; frequency of testing; data evaluation procedures; acceptance and rejection criteria for construction materials; plans for implementing corrective measures; and data or other information to be recorded and retained in the operating record under section 373-2.5(c) of this Subpart.

   6. (3) Contents of program.

      1. (i) The CQA program must include observations, inspections, tests, and measurements sufficient to ensure:

         1. (a) structural stability and integrity of all components of the unit identified in subparagraph (1)(ii) of this subdivision;
         2. (b) proper construction of all components of the liners, leachate collection and removal system, leak detection system, and final cover system, according to permit specifications and good engineering practices, and proper installation of all components (e.g., pipes) according to design specifications; and
         3. (c) conformity of all materials used with design and other material specifications under sections 373-2.11(b), 373-2.12(b), and 373-2.14(c) of this Subpart.
      2. (ii) The CQA program shall include test fills for compacted soil liners, using the same compaction methods as in the full scale unit, to ensure that the liners are constructed to meet the hydraulic conductivity requirements of sections 373-2.11(b)(3)(i)(a)(2), 373-2.12(b)(3)(i)(a)(2), and 373-2.14(c)(3)(i)(a)(2) of this Subpart in the field. Compliance with the hydraulic conductivity requirements must be verified by using in situ testing on the constructed test fill. The commissioner may accept an alternative demonstration, in lieu of a test fill, where data are sufficient to show that a constructed soil liner will meet the hydraulic conductivity requirements of sections 373-2.11(b)(3)(i)(a)(2), 372-2.12(b)(3)(i)(a)(2), and 373-2.14(c)(3)(i)(a)(2) of this Subpart in the field.
   7. (4) Certification. Waste shall not be received in a unit subject to this subdivision until the owner or operator has submitted to the commissioner by certified mail or hand delivery a certification signed by the CQA officer that the approved CQA plan has been successfully carried out and that the unit meets the requirements of sections 373-2.11(b)(3) or (4), 373-2.12(b)(3) or (4), or 373-2.14(c)(3) or (4) of this Subpart; and the procedure in section 373-1.6(a)(12)(ii)(b) of this Part has been completed. Documentation supporting the CQA officer's certification must be furnished to the commissioner upon request.

   (1)

(a) Applicability.