Current through Register Vol. 35, No. 11, June 11, 2024
Section 20.6.6.27 - CONTINGENCY REQUIREMENTS FOR ALL DAIRY FACILITIESA.Exceedance of ground water standards - all monitoring wells . If the constituent concentration in a ground water sample and in the next ground water sample collected from the same monitoring well intended to monitor a contamination source exceeds one or more of the ground water standards of 20.6.2.3103 NMAC and exceeds the concentration of such constituent(s) in a ground water sample collected from the upgradient monitoring well, or if the extent or magnitude of existing ground water contamination is significantly increasing, then the permittee shall take the following actions. For the purpose of this subsection, ground water samples obtained from the source monitoring well and the upgradient monitoring well that are used for comparison of constituent concentrations shall be collected within two days of each other, provided that if there is sufficient ground water quality data to demonstrate that samples from different periods should be compared, the department may allow such a comparison. If ground water quality data for the upgradient monitoring well are not submitted by the permittee, the ground water standards of 20.6.2.3103 NMAC shall be the applicable standard used to determine if the requirements of this subsection must be met. The contingency requirements of Paragraphs (1) and (2) of this subsection shall not apply if corrective action previously has been taken to address ground water contamination and constituent concentrations have stabilized or improved, but this exception shall no longer apply if a constituent concentration increases for two consecutive sampling events and exceeds its standard or the upgradient concentration. Once enacted the contingency requirements of this subsection apply until the permittee has fulfilled the requirements of this subsection and ground water monitoring pursuant to 20.6.6.23 NMAC confirms for a minimum of eight consecutive ground water sampling events that the standards of 20.6.2.3103 NMAC are not exceeded and the total nitrogen concentration in ground water is less than or equal to 10 milligrams per liter or until the department requires an abatement plan pursuant to Paragraph (3) of this subsection. (1) A corrective action plan shall be submitted within 120 days of the subsequent sample analysis date unless a petition for variance is fled in accordance with Paragraph (2) of this subsection. The corrective action plan shall describe any repairs made to address the cause of the exceedance, and propose source control measures and a schedule for implementation. The implementation schedule shall include a schedule of all proposed corrective action activities and the date that corrective action will be completed. The department shall approve or disapprove the corrective action plan within 60 days of receipt. Within 30 days of the date of postal notice of the department's approval of the corrective action plan, the permittee shall initiate implementation of the plan. If the department does not approve the corrective action plan, the department shall notify the permittee of the deficiencies by certified mail. The permittee shall submit a revised corrective action plan to the department within 60 days of the date of postal notice of the notice of deficiency. The department shall approve or disapprove the corrective action plan within 60 days of receipt. If the department does not approve the revised corrective action plan, or if the permittee fails to submit a revised plan as required by this subsection, the department may pursue enforcement actions authorized by Section 74-6-10 NMSA 1978.(2) The permittee may investigate potential sources of contamination that may have caused a standard(s) to be exceeded. If such an investigation indicates that the source of the contamination is not the source intended to be monitored by the well, the permittee may petition within 120 days of the subsequent sample analysis date for a variance from the requirements of this section in accordance with 20.6.2.1210 NMAC. It is the permittee's burden to prove any claim that the source of the contamination is not the source intended to be monitored by the well. If the petition is denied the permittee shall submit a corrective action plan meeting the requirements of Paragraph (1) of this subsection within 60 days of the denial.(3)The permittee may be required to submit an abatement plan proposal pursuant to 20.6.2.4106 NMAC within 60 days of written notice from the department. Abatement shall be performed pursuant to 20.6.2.4101, 20.6.2.4103, 20.6.2.4104, and 20.6.2.4106 through 20.6.2.4115 NMAC.B.Exceedance of ground water standards - impoundment monitoring well. If the constituent concentration in a ground water sample collected from a monitoring well intended to monitor an impoundment(s) exceeds one or more of the ground water standards of 20.6.2.3103 NMAC and exceeds the concentration of such constituent(s) in a ground water sample collected from the upgradient monitoring well for four consecutive quarters, then the department may require the permittee, by written notice, to take one of the following measures. Before notifying the permittee that action is required under this subsection, the department shall take into consideration site-specific conditions including, but not limited to, geology, depth to ground water, threats to public health, and the trends in contamination at the site. For the purpose of this subsection, ground water samples obtained from the impoundment monitoring well and the upgradient monitoring well that are used for comparison of constituent concentrations shall be collected within two days of each other, provided that if there is sufficient ground water quality data to demonstrate that samples from different periods should be compared, the department may allow such a comparison. If ground water quality data for the upgradient monitoring well are not submitted by the permittee, the ground water standard(s) of 20.6.2.3103 NMAC shall be the applicable standard(s) used to determine if the requirements of this subsection must be met. The contingency requirements of Subparagraphs (a) through (c) of Paragraph (1) and Sub-subparagraphs (i) through (iii) of Sub-paragraph (a) of Paragraph (2) of this subsection shall not apply if corrective action previously has been taken to address ground water contamination and constituent concentrations have stabilized or improved, but this exception shall no longer apply if a constituent concentration increases for two consecutive sampling events and exceeds its standard or the upgradient concentration. Once enacted the contingency requirements of this subsection apply until the permittee has fulfilled the requirements of this subsection and ground water monitoring pursuant to 20.6.6.23 NMAC confirms for a minimum of eight consecutive ground water sampling events that the standards of 20.6.2.3103 NMAC are not exceeded and the total nitrogen concentration in ground water is less than or equal to 10 milligrams per liter or until the department requires an abatement plan pursuant to Subparagraph (d) of Paragraph (1) or Sub-subparagraph (iv) of Subparagraph (a) of Paragraph (2) of this subsection. (1)Clay liner or pre-dairy rule liner not composed of 40/30-mil HDPE (minimum) or equivalent. For impoundments using a clay liner or a liner installed prior to the effective date of the dairy rule and composed of a material that is not, at a minimum, 40-mil unreinforced HDPE, 30-mil reinforced HDPE, (or other material having equivalent characteristics with regard to permeability, resistance to degradation by ultraviolet light, compatibility with the liquids anticipated to be collected in the impoundment, tensile strength, and tear and puncture resistance), the following actions shall be taken. (a) A corrective action plan shall be submitted within 120 days of the date of postal notice from the department that action is required under this subsection unless a petition for variance is fled in accordance with Subparagraph (c) of this paragraph. The corrective action plan shall describe any repairs or changes in practices made to address the cause of the exceedance, and propose source control measures and a schedule for implementation. The implementation schedule shall include a schedule of all proposed corrective action activities and the date that corrective action will be completed. The department shall approve or disapprove the corrective action plan within 60 days of receipt. If the corrective action plan proposes actions to correct deficiencies with the liner, the proposed actions shall include the following items. (i) A proposal for reconstruction and relining of an existing impoundment, or construction and lining of a new impoundment utilizing a synthetic liner as specified in Paragraph (5) of Subsection D of 20.6.6.17 NMAC. Reconstruction or new construction shall be completed pursuant to 20.6.6.17 NMAC within one year of the date of postal notice from the department that action is required under this subsection. If a new impoundment is constructed, the existing impoundment shall be permanently closed pursuant to 20.6.6.30 NMAC.(ii) Reconstruction or construction plans and specifications for the impoundment shall be completed pursuant to 20.6.6.17 NMAC.(b) Within 30 days of the date of postal notice of the department's approval of the corrective action plan, the permittee shall initiate implementation of the plan. If the department does not approve the corrective action plan, the department shall notify the permittee of the deficiencies by certified mail. The permittee shall submit a revised correction action plan to the department within 60 days of the date of postal notice of the notice of deficiency. The department shall approve or disapprove the revised corrective action plan within 60 days of receipt. If the department does not approve the revised corrective action plan, or if the permittee fails to submit a revised plan as required by this subsection, the department may pursue enforcement actions authorized by Section 74-6-10 NMSA 1978.(c) The permittee may investigate potential sources of contamination that may have caused a standard(s) to be exceeded. If such an investigation indicates that the source of the contamination is not the impoundment intended to be monitored by the well, the permittee may petition within 120 days of the date of postal notice from the department that action is required under this subsection for a variance from the requirements of this section in accordance with 20.6.2.1210 NMAC. It is the permittee's burden to prove any claim that the source of the contamination is not the impoundment intended to be monitored by the well. If the variance is denied the permittee shall submit a corrective action plan meeting the requirements of Subparagraph (a) of this paragraph within 60 days of the denial.(d) The permittee may be required to submit an abatement plan proposal pursuant to 20.6.2.4106 NMAC within 60 days of written notice from the department. Abatement shall be performed pursuant to 20.6.2.4101, 20.6.2.4103, 20.6.2.4104, and 20.6.2.4106 through 20.6.2.4115 NMAC.(2)Dairy rule liner or pre-dairy rule liner composed of 40/30-mil (minimum) HDPE or equivalent. For impoundments using a liner installed after the effective date of the dairy rule and composed of a material that is, at a minimum, 60-mil HDPE (or other material having equivalent characteristics with regard to permeability, resistance to degradation by ultraviolet light, compatibility with the liquids anticipated to be collected in the impoundment, tensile strength, and tear and puncture resistance), or impoundments using a liner installed prior to the effective date of the dairy rule and composed of a material that is, at a minimum, 40-mil unreinforced HDPE, 30-mil reinforced HDPE, (or other material having equivalent characteristics with regard to permeability, resistance to degradation by ultraviolet light, compatibility with the liquids anticipated to be collected in the impoundment, tensile strength, and tear and puncture resistance), the following actions shall be taken. (a) Initial liner. For impoundments where the existing liner is the initial liner installed, the following actions shall be taken.(i) A corrective action plan shall be submitted within 120 days of the date of postal notice from the department that action is required under this subsection unless a petition for variance is fled in accordance with Sub-subparagraph (iii) of this subparagraph. The corrective action plan shall describe any repairs or changes in practices made to address the cause of the exceedance, and propose source control measures and a schedule for implementation. The implementation schedule shall include a schedule of all proposed corrective action activities and the date that corrective action will be completed. The department shall approve or disapprove the corrective action plan within 60 days of receipt. If the corrective action plan proposes actions to correct deficiencies with the liner, the proposed actions shall include repair or replacement of the existing liner, or construction and lining of a new impoundment. If liner repair is practicable, repairs shall be made pursuant to 20.6.6.17 NMAC or using a material that is equivalent to the existing liner with respect to material thickness and composition. Repairs shall be completed within 240 days of the date of postal notice from the department that action is required under this subsection. If liner repair is not practicable, the corrective action plan shall propose reconstruction and synthetic relining of the impoundment pursuant to 20.6.6.17 NMAC or construction and synthetic lining of a new impoundment pursuant to 20.6.6.17 NMAC within one year of the subsequent sample analysis date. Reconstruction or construction plans and specifications for the impoundment shall be completed pursuant to 20.6.6.17 NMAC and submitted with the corrective action plan. If a new impoundment is constructed the existing impoundment shall be closed pursuant to 20.6.6.30 NMAC.(ii) Within 30 days of the date of postal notice of the department's approval of the corrective action plan, the permittee shall initiate implementation of the plan. If the department does not approve the corrective action plan, the department shall notify the permittee of the deficiencies by certified mail. The permittee shall submit a revised corrective action plan to the department within 60 days of the date of postal notice of the notice of deficiency. The department shall approve or disapprove the revised corrective action plan within 60 days of receipt. If the department does not approve the revised corrective action plan, or if the permittee fails to submit a revised plan as required by this subsection, the department may pursue enforcement actions authorized by Section 74-6-10 NMSA 1978.(iii) The permittee may investigate potential sources of contamination that may have caused a standard(s) to be exceeded. If such an investigation indicates that the source of the contamination is not the impoundment intended to be monitored by the well, the permittee may petition within 120 days of the date of postal notice from the department that action is required under this subsection for a variance from the requirements of this section in accordance with 20.6.2.1210 NMAC. It is the permittee's burden to prove any claim that the source of the contamination is not the impoundment intended to be monitored by the well. If the variance is denied the permittee shall submit a corrective action plan meeting the requirements of Sub-subparagraph (i) of this subparagraph within 60 days of the denial.(iv) The permittee may be required to submit an abatement plan proposal pursuant to 20.6.2.4106 NMAC within 60 days of written notification from the department. Abatement shall be performed pursuant to 20.6.2.4101, 20.6.2.4103, 20.6.2.4104, and 20.6.2.4106 through 20.6.2.4115 NMAC.(b) Replacement liner. If source control measures have been previously implemented such that the existing liner replaced a previously installed liner in an impoundment and ground water standard(s) of 20.6.2.3103 NMAC continue to be exceeded, such impoundments are authorized to continue to receive wastewater or stormwater pursuant to the following requirements.(i) The permittee may be required to submit an abatement plan proposal pursuant to 20.6.2.4106 NMAC within 60 days of written notice from the department if abatement has not been previously implemented. Abatement shall be performed pursuant to 20.6.2.4101, 20.6.2.4103, 20.6.2.4104, and 20.6.2.4106 through 20.6.2.4115 NMAC.(ii) If the results of abatement activities indicate that the replacement liner does not successfully control the source of contamination, the department may modify the discharge permit pursuant to Subsection E of 20.6.2.3109 NMAC and include additional conditions pursuant to Subsection H of 20.6.6.10 NMAC. The additional conditions shall address, but are not limited to, further source control measures which may include, but are not limited to, design, installation and construction of a composite liner system consistent with those described in the Guide for Industrial Waste Management, Part IV: Protecting Ground Water, Chapter 7: Section B, Designing and Installing Liners, Technical Considerations for New Surface Impoundments, Landfills and Waste Piles (U.S. environmental protection agency), incorporated herein by this reference. The requirements of 20.6.6.15 NMAC shall apply to hearing requests on the proposed additional discharge permit conditions.(3)If the department notifies a permittee that action is required under this subsection, the applicant or permittee may notify the secretary by certified mail, sent within 30 days after the date of postal notice of the department's notice, that the applicant or permittee invokes dispute resolution under this paragraph. Upon such notice, the department, as represented by the secretary, deputy secretary, or division director and the applicant or permittee shall meet in person within 30 days and shall attempt in good faith to resolve the dispute.C. Monitoring well replacement. If information available to the department indicates that a monitoring well(s) required by 20.6.6.23 NMAC is not located hydrologically downgradient of the contamination source it is intended to monitor, is not completed pursuant to 20.6.6.23 NMAC or contains insufficient water to monitor ground water quality effectively, a permittee shall install a replacement monitoring well(s). The replacement monitoring well(s) shall be installed within 120 days of the date of postal notice of notification from the department and a survey of the replacement monitoring well(s) shall be performed within 150 days of the date of postal notice of notification from the department, provided the department may grant an extension for good cause shown. The replacement monitoring well(s) shall be located, installed, completed, surveyed and sampled pursuant to 20.6.6.23 NMAC. The permittee shall develop a monitoring well completion report pursuant to Subsection J of 20.6.6.23 NMAC and submit it to the department within 180 days of the date of postal notice of notification from the department, provided the department may grant an extension for good cause shown.D. Exceedances of permitted maximum daily discharge volume. If the maximum daily discharge volume authorized by the discharge permit is exceeded by more than ten percent for any four average daily discharge volumes within any 12-week period, the permittee shall submit within 60 days of the fourth exceedance: a corrective action plan for reducing the discharge volume; or an application for a modified or renewed and modified discharge permit pursuant to 20.6.6.10 NMAC. Within 30 days of postal notice of department approval, the permittee shall initiate implementation of the corrective action plan.E. Insufficient impoundment capacity. If a survey, capacity calculations, or settled solids thickness measurements, indicate an existing impoundment is not capable of meeting the capacity requirements required by Subsection D of 20.6.6.17 NMAC, then within 90 days of the effective date of the discharge permit the permittee shall submit a corrective action plan for department approval. The plan may include, but is not limited to, proposals for constructing an additional impoundment, reducing the discharge volume, removing accumulated solids, changing wastewater or stormwater management practices, or installing an advanced treatment system. The corrective action plan shall include a schedule for implementation through completion of corrective actions. The corrective action plan schedule shall propose completion not to exceed one year from the submittal date of the initial corrective action plan. Within 30 days of the date of postal notice of the department's approval of the corrective action plan, the permittee shall initiate implementation of the plan. Should the corrective action plan include removal of accumulated solids, solids shall be removed from the impoundment in a manner that is protective of the impoundment liner. The plan shall include the method of removal, and locations and methods for storage and disposal of the solids-slurry. If the plan proposes land application of the solids-slurry, the plan must also include the analytical results of total Kjeldahl nitrogen and chloride obtained from a representative sample of the solids-slurry to be applied. Notwithstanding Paragraph (6) of Subsection D of 20.6.6.17 NMAC, if a corrective action plan required under this subsection calls for construction of a new wastewater impoundment or improvement of an existing wastewater impoundment, and ground water quality standards have not been exceeded in monitoring wells installed to monitor the existing impoundment for the four quarters preceding submission of the corrective action plan, the permittee may propose and the department may approve a liner for the new wastewater impoundment or improvement of the existing impoundment consistent with the liner design approved by the department at the time of the last discharge permit issued by the department before the effective date of the dairy rule.F. Inability to preserve required freeboard. If a minimum of two feet of freeboard cannot be preserved in the wastewater impoundment, the permittee shall submit a corrective action plan to the department for approval. The corrective action plan shall be submitted within 30 days of the date of the initial exceedance of the freeboard requirement. The plan may include, but is not limited to, proposals for constructing an additional impoundment, reducing the maximum daily discharge volume, changing wastewater management practices, or installing an advanced wastewater treatment system. The corrective action plan shall include actions to be immediately implemented to regain and maintain a minimum of two feet of freeboard until permanent corrective actions have been completed. The corrective action plan shall include a schedule for implementation through completion of corrective actions. The corrective action plan schedule shall propose completion not to exceed one year from the submittal date of the initial corrective action plan. Within 30 days of the date of postal notice of the department's approval of the corrective action plan, the permittee shall initiate implementation of the plan. Notwithstanding Paragraph (6) of Subsection D of 20.6.6.17 NMAC, if a corrective action plan required under this subsection calls for construction of a new wastewater impoundment or improvement of an existing wastewater impoundment, and ground water quality standards have not been exceeded in monitoring wells installed to monitor the existing impoundment for the four quarters preceding submission of the corrective action plan, then the permittee may propose and the department may approve a liner for the new wastewater impoundment or improvement of the existing impoundment consistent with the liner design approved by the department at the time of the last discharge permit issued by the department before the effective date of the dairy rule.G.Impoundment - structural integrity compromised. Within 24 hours of discovery, a permittee shall report to the department, any damage to the berms or the liner of an impoundment or any condition that exists that may compromise the structural integrity of the impoundment. Within 15 days of the reported discovery, the permittee shall submit to the department a corrective action plan describing any actions taken or proposed to be taken to repair the damage or condition. Within 30 days of receipt, the department shall respond to the proposed corrective action plan. Repairs to the impoundment liner or berms shall be completed pursuant to 20.6.6.17 NMAC. The corrective action plan shall include a schedule for implementation through completion of corrective actions. The corrective action plan schedule shall propose completion not to exceed one year from the submittal date of the initial corrective action plan. The schedule of corrective actions shall be commensurate to the magnitude and scope of the activities to be completed. Within 30 days of the date of postal notice of the department's approval of the corrective action plan, the permittee shall initiate implementation of the plan. Notwithstanding Paragraph (6) of Subsection D of 20.6.6.17 NMAC, if a corrective action plan required under this subsection calls for construction of a new wastewater impoundment or improvement of an existing wastewater impoundment, and ground water quality standards have not been exceeded for the four quarters preceding submission of the corrective action plan, then the permittee may propose and the department may approve a liner for the new wastewater impoundment or improvement of the existing impoundment consistent with the liner design approved by the department at the time of the last discharge permit issued by the department before the effective date of the dairy rule.H.Unauthorized discharge - reporting and correction. In the event of a spill or release that is not authorized by the discharge permit, the permittee shall notify the department and take corrective actions pursuant to 20.6.2.1203 NMAC. Wastewater or stormwater shall be contained and pumped to a permitted sump, impoundment, or land application area pursuant to the dairy rule. Wastewater or stormwater applied to the land application area shall conform to the requirements of 20.6.6.21 and 20.6.6.25 NMAC. The permittee shall repair or replace failed components within 48 hours from the time of failure or as soon as practicable.20.6.6.27 NMAC - N, 1/31/2011; A, 12/31/2011Amended by New Mexico Register, Volume XXVI, Issue 11, June 16, 2015, eff. 6/16/2015