La. Admin. Code tit. 33 § V-2271

Current through Register Vol. 50, No. 6, June 20, 2024

Section V-2271 - Exemptions to Allow Land Disposal of a Prohibited Waste by Deep Well Injections

A. Any person seeking an exemption to allow land disposal by deep well injection of a prohibited hazardous waste in a particular injection well or wells must submit a petition to the Office of Environmental Services that does the following.

1. The petition must show that no other economically and environmentally reasonable alternative to disposal into an injection well is available. No exemption shall be granted to a generator for the land disposal of a waste stream if the waste stream can reasonably be eliminated or significantly reduced through waste reduction.

2. The petition must demonstrate to a reasonable degree of certainty that the waste shall be permanently confined as required by R.S. 30:2193(A) and 2193(E)(2)(d) and for the purposes of this Section, permanent confinement means that there will be no migration of hazardous constituents from the injection zone for as long as the wastes remain hazardous. Migration prohibited by this Section includes migration into the air, land or waters of the state where a discharge is not permitted.

B. A petition submitted pursuant to this Section must apply to land disposal of the specific prohibited waste into a specific injection well or wells described in the showing and demonstration and will not apply to any other prohibited waste at that injection well or wells or to that specific prohibited waste at any other injection well.

C. To comply with Paragraph A.1 of this Section, the petitioner must show the following.

1. The petitioner must show that he or she has made a good-faith effort, using economically and technically feasible and environmentally sound methods, to provide for use, reuse, reclamation, or other recycling of waste in a manner other than for a use constituting disposal.

2. For each waste stream, the petitioner must show that he or she has a program or plan in effect to reduce the volume and toxicity of the waste he or she generates and that he or she has sought out the best technology available to reduce the toxicity, corrosiveness, virulent, or infectious character, or volume of the waste and that the waste cannot be further reduced through production modifications, nor can the waste or specific constituents of the waste be reclaimed or reused. The plan shall include:

a. a schedule of implementation and anticipated reductions in quantity and toxicity;

b. a list of technical process reductions considered and those rejected and the reasons for the rejections;

c. an analysis of the impact of the reduction program or plan on all operations of the facility affecting the environment, including air and water discharges; and

d. each waste reduction program or plan must be certified by a Louisiana licensed professional engineer (PE).

3. The petitioner must sign and present to the administrative authority the following certification.

"I certify under penalty of law that I have personally examined and am familiar with the information submitted in this waste reduction plan and all attached documents, and that, based on my inquiry of those individuals immediately responsible for obtaining the information, I believe that the submitted information is true, accurate, and complete. I am aware that there are significant penalties for submitting false information, including the possibility of fines and imprisonment."

4. The petitioner must submit a report describing in detail the efforts undertaken since 1984 to reduce the volume and toxicity of waste generated. The report shall provide data indicating the change in volume and toxicity of waste actually achieved during each year in comparison to previous years, to the extent that such information is available. The report shall also document, for each hazardous waste stream proposed for disposal in a land disposal unit, a Waste Reduction Analysis (WRA) showing that the petitioner has considered the economic and technical feasibility of alternative disposal methods in the following order: reduction, recycling, treatment, and disposal. The WRA must include:

a. an analysis of alternatives considered;

b. the costs of alternatives considered;

c. an assessment of the impact on other environmental programs of the facility, including impacts on air and water discharges; and

d. a description of the availability of alternate capacity for use of alternative technologies.

D. The demonstration required in LAC 33:V.2271.A.2 must include sufficient information to assure the administrative authority of the following.

1. The hydrogeological and geochemical conditions at the sites and the physiochemical nature of the waste stream(s) are such that one of the following reliable predictions can be made.

a. Fluid movement conditions are such that the injected fluids will not migrate within 10,000 years, either:

i. vertically upward out of the injection zone; or

ii. laterally within the injection zone, to a point of discharge or interface with an underground source of drinking water (USDW).

b. If the injected fluids do migrate out of the injection zone or to a point of discharge or interface with a USDW within 10,000 years, the fluid will no longer be hazardous because of attenuation, transformation, or immobilization of hazardous constituents within the injection zone by hydrolysis, chemical interactions, or other means.

2. Any migration due to diffusion shall be accounted for in the demonstration required under Subparagraph D.1.a of this Section.

3. For each well the petitioner has done the following.

a. The petitioner has demonstrated that the injection well's area of review includes at least the 2-mile radius around the bore hole. The administrative authority may specify a larger area of review on the basis of the calculated cone of influence around the well.

b. Using a protocol acceptable to the administrative authority, the petitioner has located, identified, and ascertained the conditions of all wells within the injection well's area of review (as specified in Subparagraph D.2.a of this Section) that penetrate the injection zone or the confining zone.

c. The petitioner has submitted a corrective action plan that meets the substantive requirements of Subsection V of this Section; its implementation shall become a condition of petition approval.

d. The petitioner has submitted the results of pressure and radioactive tracer tests performed within one year prior to submission of the petition that may demonstrate the mechanical integrity of the well's long string casing, injection tube, annular seal, and bottom hole cement. In cases where the petition has not been approved or denied within one year after the initial demonstration of mechanical integrity, the administrative authority may require the owner or operator to perform the tests again and submit the results of the new tests.

E. A demonstration under LAC 33:V.2271.D.1.a shall identify the strata within the injection zone which will confine fluid movement above the injection interval and include a showing that this strata is free of known transmissive faults or fractures and that there is a confining zone above the injection zone.

F. A demonstration under LAC 33:V.2271.D.1.b shall identify the strata within the injection zone where waste transformation will be accomplished and include a showing that this strata is free of known transmissive faults or fractures and that there is a confining zone above the injection zone.

G. A demonstration may include information that:

1. treatment methods, the implementation of which shall become a condition of approval, will be used to reduce the toxicity or mobility of the wastes; or

2. a monitoring plan, the implementation of which shall become a condition of petition approval, will be used to enhance confidence in one or more aspects of the demonstration.

H. Any person who has been granted an exemption pursuant to this Section may submit a petition to the Office of Environmental Services for reissuance of the exemption to include an additional prohibited waste or wastes or to modify any conditions placed on the exemption by the administrative authority. The administrative authority may reissue the exemption if the petitioner complies with the requirements of Subsections A-F of this Section.

I. Any person who has been granted an exemption pursuant to this Section may submit a petition to the Office of Environmental Services to modify an exemption to include an additional nonprohibited hazardous waste or wastes. The administrative authority may grant the modification if he or she determines, to a reasonable degree of certainty, that the additional waste or wastes will behave hydraulically and chemically in a manner similar to previously included wastes and that it will not interfere with the containment capability of the injection zone.

J. Information submitted in support of the exemption petition must meet the following criteria.

1. All waste analysis and any new testing performed by the petitioner should be accurate and reproducible and performed in accordance with quality assurance standards.

2. Estimation techniques shall be appropriate, and EPA-certified test protocols shall be used when available and appropriate.

3. Predictive models shall have been verified and validated; shall be appropriate for the specific site, waste streams, and injection conditions of the operation; and shall be calibrated for existing sites where sufficient data are available.

4. An approved quality assurance and quality control plan shall address all aspects of the demonstration.

5. Reasonably conservative values shall be used whenever values taken from the literature or estimated on the basis of known information are used instead of site-specific measurements.

6. An analysis shall be performed to identify and assess aspects of the demonstration that contribute significantly to uncertainty. The petitioner shall conduct a sensitivity analysis to determine the extent to which significant uncertainty may affect the demonstration. The demonstration shall then be based on conservative assumptions identified in the analysis.

K. Any petitioner under LAC 33:V.2271.D.1.a shall provide sufficient site-specific information to support the demonstration, such as:

1. thickness, porosity, permeability, and extent of the various strata in the injection zone;

2. thickness, porosity, permeability, extent, and continuity of the confining zone;

3. hydraulic gradient in the injection zone;

4. hydrostatic pressure in the injection zone; and

5. geochemical conditions of the site.

L. In addition to the information in LAC 33:V.2271.K, any petitioner under LAC 33:V.2271.D.1.b shall provide sufficient waste-specific information to ensure reasonably reliable predictions about the waste transformation. The petitioner shall provide the information necessary to support the demonstration, such as:

1. a description of the chemical processes or other means that will lead to waste transformation; and

2. results of laboratory experiments verifying the waste transformation.

M. Any petition submitted to the administrative authority pursuant to this Section shall include the following components:

1. an identification of the specific waste or wastes and the specific injection well or wells for which the demonstration will be made;

2. a waste analysis to describe fully the chemical and physical characteristics of the subject wastes;

3. such additional information as is required by the administrative authority to support the petition under this Section; and

4. this statement signed by the petitioner or a duly authorized representative:

"I certify under penalty of law that I have personally examined and am familiar with the information submitted for this petition and all attached documents, and that based on my inquiry of those individuals immediately responsible for obtaining the information, I believe that the submitted information is true, accurate, and complete. I am aware that there are significant penalties for submitting false information, including the possibility of fines and imprisonment."

N. Ambient Monitoring

1. Based on a site-specific assessment of the potential for fluid movement from the well or injection zone, and on the potential value of monitoring wells to detect such movement, the administrative authority shall require the owner or operator to develop a monitoring program. At a minimum, the administrative authority shall require annual monitoring of the pressure build-up in the injection zone, including, at a minimum, a shutdown of the well for a time sufficient to conduct a valid observation of the pressure fall off curve.

2. The owner or operator shall include all of the following requirements in his or her monitoring program.

a. Continuous monitoring for pressure changes in the first aquifer overlying the confining zone shall be addressed. The owner or operator shall, on a quarterly basis, sample the aquifer and analyze for constituents specified by the administrative authority.

b. The use of indirect, geophysical techniques shall be required to determine the position of the waste front, the water quality in a formation designated by the administrative authority, or to provide other site-specific data.

c. Periodic monitoring of the groundwater quality in the first aquifer overlying the injection zone shall be required.

d. Periodic monitoring of the groundwater quality in the lowermost USDW shall be required.

e. Additional monitoring may be necessary to determine whether fluids are moving into or between USDWs.

3. The administrative authority may exempt the owner or operator from any requirements in Paragraph N.2 of this Section which he or she deems to be unnecessary or not feasible, or which pose undue risks.

O. The administrative authority may require seismicity monitoring when he or she has reason to believe that the injection activity could cause seismic disturbances.

P. The administrative authority shall provide public notice and an opportunity for public comment in accordance with the procedures in LAC 33:V.Chapter 7.Subchapter C, and §2243, of the intent to approve or deny a petition. The administrative authority shall provide public notice of the final decision on a petition.

Q. If an exemption is granted it will apply only to the underground injection of the specific prohibited waste or wastes identified in the petition into a Class I hazardous waste injection well or wells specifically identified in the petition unless the exemption is modified or reissued pursuant to LAC 33:V.2271.H or I.

R. Whenever the administrative authority determines that the basis for approval of a petition may no longer be valid, he or she shall require a new demonstration in accordance with this Section.

S. Termination of an Approved Petition

1. The administrative authority may terminate an exemption granted under this Section for the following causes:

a. noncompliance by the petitioners with any condition of the exemption;

b. the petitioner's failure in the petition or during the review and approval to disclose fully all relevant facts, or the petitioner's misrepresentation of any relevant facts at any time; or

c. a determination that new information shows that the basis for approval of the petition is no longer valid;

d. should a petition be terminated pursuant to this Section for the reason that it has been determined that a technologically and economically feasible alternative to underground injection exists, the administrative authority may provide for a compliance schedule authorizing continued injection for the amount of time reasonably necessary to construct and/or implement such alternative.

2. The administrative authority shall terminate an exemption granted under this Section for the following causes:

a. the petitioner's willful withholding during the review and approval of the petition of facts directly and materially relevant to the administrative authority's decision on the petition;

b. a determination that there has been migration from the injection zone or the well that is not in accordance with the terms of the exemption, except that the administrative authority may at his or her discretion decide not to terminate where:

i. the migration resulted from a mechanical failure of the well that can be corrected promptly through a repair to the injection well itself or from an undetected well or conduit that can be plugged promptly; and

ii. the requirements of LAC 33:V.2271.V are satisfied.

3. The administrative authority shall follow the procedures in LAC 33:V.323 in terminating any exemption under this Section.

T. Whenever the owner or operator obtains evidence that injected wastes may have been released into an unauthorized zone, he or she must do the following.

1. The owner or operator shall immediately cease injection of waste fluids, and:

a. notify the Office of Environmental Compliance in the manner provided in LAC 33:I.3923 within 24 hours of obtaining such evidence;

b. take all necessary steps to identify and characterize the extent of any release;

c. comply with any remediation plan specified by the administrative authority;

d. implement any remediation plan approved by the administrative authority; and

e. where such release is into a USDW currently serving as a water supply, place a notice in a newspaper of general circulation.

2. The administrative authority may allow the operator to resume injection prior to completing cleanup action if the owner or operator demonstrates that the injection operation will not endanger strata containing waters of the state where a discharge is not permitted.

U. Term of the Exemption

1. The term of an exemption granted under this Section shall be a maximum of five years from the date of approval.

2. The administrative authority may re-issue an exemption every five years after the initial petition approval, based on the submittal and review of all demonstrations stipulated in LAC 33:V.2271.C and Z.

3. At least once every 10 years, the administrative authority will require re-issuance of the exemptions based on a full technical review of each petition. The department will coordinate the timing of the review with the Department of Natural Resources (DNR) so that the petition review will coincide with DNR's UIC re-permitting review process.

4. The term of the exemption granted shall expire under the following conditions:

a. upon the revocation or denial of a Department of Natural Resources final permit; or

b. upon the termination of an EPA exemption; or

c. when the volume limit of waste to be land disposed during the term of petition is reached.

5. The permittee shall submit a request to the Office of Environmental Services for reissuance of the exemption at least 180 days prior to the end of the term. If the applicant submits a timely and technically complete application, and the administrative authority, through no fault of the applicant, fails to act on the application for reissuance on or before the expiration date of the existing exemption, the permittee may, with the written approval of the administrative authority, continue to operate under the terms and conditions of the existing exemption which shall remain in effect until final action on the application is taken by the administrative authority.

V. Corrective Action for Wells in the Area of Review

1. The petitioner shall submit a plan to the Office of Environmental Assessment outlining the protocol used to:

a. identify all wells penetrating the confining zone or injection zone within the area of review; and

b. determine whether wells are adequately completed or plugged.

2. The petitioner shall identify the location of all wells within the area of review that penetrate the injection zone or the confining zone and shall submit the following information to the administrative authority:

a. a tabulation of all wells within the area of review that penetrate the injection zone or the confining zone; and

b. a description of each well or type of well and any records of its plugging or completion.

3. For wells that the administrative authority determines are improperly plugged, completed, or abandoned, or for which plugging or completion information is unavailable, the applicant shall also submit a plan consisting of such steps or modifications as are necessary to prevent movement of fluids into strata containing waters of the state where a discharge is not permitted. Where the plan is adequate, the administrative authority shall incorporate it into the exemption as a condition. Where the administrative authority's review indicates that the petitioner's plan is inadequate (based at a minimum on the factors in Paragraph 5 of this Subsection), the administrative authority shall:

a. require the applicant to revise the plan;

b. prescribe a plan for corrective action as a condition of the exemption; or

c. deny the exemption.

4. Requirements

a. For existing hazardous waste injection wells, any exemption issued requiring corrective action other than pressure limitations shall include a compliance schedule requiring any corrective action accepted or prescribed under Paragraph V.3 of this Section. Any such compliance schedule shall provide for compliance no later than two years after issuance of the exemption and shall require observance of appropriate pressure limitations under Subparagraph V.4.c of this Section until all other corrective action measures have been implemented.

b. For new hazardous waste injection wells, no owner or operator may begin injection until all corrective actions required under this Section have been taken.

c. The administrative authority may require pressure limitations in lieu of plugging. If pressure limitations are used in lieu of plugging, the administrative authority shall require as a condition of the exemption that injection pressure be so limited that pressure in the injection zone at the site of any improperly completed or abandoned well within the area of review would not be sufficient to drive fluids into strata containing waters of the state where a discharge is not permitted.

5. In determining the adequacy of corrective action proposed by the applicant under Subsection V of this Section and in determining the additional steps needed to prevent fluid movement into strata containing waters of the state where a discharge is not permitted, the administrative authority shall consider the following criteria and factors:

a. nature and volume of injected fluid;

b. nature of native fluids or by-products of injection;

c. geology;

d. hydrology;

e. history of the injection operations;

f. completion and plugging procedures in effect at the time the well was closed;

g. closure procedures in effect at the time the well was closed;

h. hydraulic connections with USDWs;

i. reliability of the procedures used to identify abandoned wells; and

j. any other factors which might affect the movement of fluids into strata containing waters of the state where a discharge is not permitted.

W. Emergency Variance

1. During the petition review process, the applicant is required to comply with all prohibitions on land disposal under this Chapter, unless a petition for an exemption has been approved by the EPA, and the administrative authority grants an emergency variance. If EPA has approved the exemption, the land disposal of the waste may continue for up to one year under an emergency variance issued by the administrative authority until the administrative authority makes a decision on the petition for exemption. The administrative authority may extend an emergency variance beyond one year; however, such approval is solely based on the agency's inability to review the petition during the first one-year variance. The administrative authority shall either grant or deny the petition within the extended emergency variance period, no later than June 1, 1995, for petitions submitted prior to June 1, 1992. After the administrative authority issues a decision on the exemption, the waste may be land disposed only in accordance with the provision of the exemption.

2. If the exemption decision is vacated and/or remanded by a court on judicial review, the emergency variance shall be automatically reinstated and shall remain in effect until final action on the remand is taken by the administrative authority and any subsequent appeal process has been completed.

X. The petition granted by the administrative authority does not relieve the petitioner from compliance with all other applicable regulations.

Y. Liquid hazardous wastes containing PCBs at concentrations greater than or equal to 50 ppm are not eligible for an exemption under this Section.

Z. As a condition of the exemption, the petitioner must submit a report to the Office of Environmental Services by March 1 of each calendar year during the term of the exemption, describing in detail the efforts undertaken during the preceding calendar year to reduce the volume and toxicity of the waste generated. The report shall provide data indicating the change in volume and toxicity of waste actually achieved during the year in comparison to previous years.

La. Admin. Code tit. 33, § V-2271

Promulgated by the Department of Environmental Quality, Office of Solid and Hazardous Waste, Hazardous Waste Division, LR 22:22 (January 1996), amended LR 23:299 (March 1997), amended by the Office of Environmental Assessment, Environmental Planning Division, LR 26:2479 (November 2000), LR 30:1674 (August 2004), amended by the Office of the Secretary, Legal Affairs Division, LR 31:2460 (October 2005), LR 33:2110 (October 2007), amended by the Office of the Secretary, Legal Division, LR 38:2756 (November 2012), Amended by the Office of the Secretary, Legal Affairs and Criminal Investigations Division, LR 432138 (11/1/2017).

AUTHORITY NOTE: Promulgated in accordance with R.S. 30:2180 et seq.