N.Y. Comp. Codes R. & Regs. tit. 6 § 373-1.3

Current through Register Vol. 46, No. 19, May 8, 2024

Section 373-1.3 - Interim status

(a)General.

New York State's hazardous waste management facility permitting program consists of a phase called "interim status" for qualifying facilities and a phase that constitutes the formal permit process. Interim status is a condition under which facilities may operate prior to completing permit processing requirements. It is a temporary measure designed to phase existing facilities into compliance with permit requirements. Only certain facilities will be eligible to receive interim status. All others, including new facilities, must obtain permits before commencing operation. Operation during interim status is conditioned upon compliance with performance standards set forth in Subpart 373-3 of this Part. Interim status may be modified, suspended or revoked in a manner similar to a permit.

(b)Eligibility.

The owners and operators of the following types of facilities are eligible for interim status:

(1) Owners or operators of existing hazardous waste management facilities who submitted part A of their RCRA permit application to the regional administrator no later than:

(i) six months after the date of publication of regulations which first require them to comply with the standards set forth in 40 CFR part 265 or 266 (see section 370.1[e] of this Title); or

(ii) 30 days after the date they first became subject to the standards set forth in 40 CFR part 265 or 266 (see section 370.1[e] of this Title), whichever occurred first.

Note:

For facilities which had to comply with 40 CFR part 265 because they handle a waste listed in EPA's May 19, 1980, part 261 regulations (45 FR 33006, et seq.), the deadline for submitting an application was November 19, 1980. Where other existing facilities had to begin to comply with 40 CFR part 265 or 266 at a later date because of revisions to 40 CFR part 260, 261, 265 or 266, the administrator specified in the preamble to those revisions when those facilities had to submit a part A application.

(iii) for generators generating greater than 100 kilograms but less than 1,000 kilograms of hazardous waste in a calendar month and treats, stores or disposes of these wastes onsite, by March 24, 1987.

(2) Facilities which were not required to submit a part A of their RCRA permit application to EPA, but which are subject to the permit requirements of his Part and submit an EPA part A application to the regional permit administrator in whose jurisdiction the facility is located, and the director, within 30 days of the effective date of this Part.

(3) Facilities that first become subject to the permit requirements of this Part due to a change in Part 371, 373 or 374 of this Title and who submit an EPA part A application to the regional permit administrator in whose jurisdiction the facility is located, and the commissioner, within 30 days of the effective date of the change in Part 371, 373 or 374.

(4) Facilities that have an RCRA part B permit issued by EPA but do not have a Part 373 permit.

(5) Notwithstanding the above, any owner or operator of an existing hazardous waste management facility must submit a Part 373 permit application in accordance with the dates specified in subdivision (h) of this section. Any owner or operator of a land disposal facility in existence on the effective date of a change to Part 370, et seq. of this Title that requires the facility to have a Part 373 permit must submit a Part 373 permit application in accordance with the dates specified in subdivision (h).

(c)Qualifying for interim status.

(1) Any person who owns or operates an existing HWM facility or a facility in existence on the effective date of statutory or regulatory amendments under the ECL and its regulations that render the facility subject to the requirement to have a Part 373 permit will have interim status and will be treated as having interim status, provided that:

(i) the facility is among the categories specified in subdivision (b) of this section; and

(ii) the owner or operator has complied with the requirements of subdivision (d) of this section governing submission of interim status applications.

(2) When the commissioner determines on examination or reexamination of an interim status application that it fails to meet the standards of this Part, the commissioner may commence proceedings to revoke interim status.

(3) Paragraph (1) of this subdivision does not apply to any facility which has been previously denied a Part 373 or RCRA part B permit or if authority to operate the facility under this Part or RCRA has been previously terminated.

(d)General procedures for interim status application.

(1) Applicant. Whenever the owner and the operator of a facility are different persons, the operator is responsible for submitting the required application for interim status, except that the owner is also responsible for signing the application. The operator must also receive the owner's permission to conduct all regulated activities, including adequate agreement for site access during the post-closure period for disposal facilities.

(2) Forms. The part A of the USEPA RCRA permit application (see section 370.1[e] of this Title) is the application form for New York State interim status pursuant to this Part.

(3) Submission of applications. The application shall be submitted to the regional permit administrator in the Department of Environmental Conservation region in which the facility is located and to the Director, Division of Hazardous Substances Regulation.

Note:

If the applicant submitted the application to USEPA Region II prior to July 14, 1985, then the requirements of paragraph (3) of this subdivision have been satisfied.

(4) Signatories to interim status applications and reports.

(i) Applications. All applications must be signed as follows:

(a) for a corporation: by a responsible corporate officer. For the purpose of this section, a responsible corporate officer means:

(1) a president, secretary, treasurer or vice-president of the corporation in charge of a principal business function, or any other person who performs similar policy or decisionmaking functions for the corporation; or

(2) the manager of one or more manufacturing, production or operating facilities employing more than 250 persons or having gross annual sales or expenditures exceeding $25 million (in second-quarter 1980 dollars), if authority to sign documents has been assigned or delegated to the manager in accordance with corporate procedure; or

(b) for a partnership or sole proprietorship: by a general partner or the proprietor, respectively; or

(c) for a municipality, State, Federal or other public agency: by either a principal executive officer or ranking elected official. For purposes of this section, a principal executive officer of a governmental agency includes:

(1) the chief executive officer of the agency; or

(2) a senior executive officer having responsibility for the overall operations of a principal geographic unit of the agency.

(ii) Reports. All reports required for interim status and other information requested by the commissioner must be signed by a person described in paragraph (4) of this subdivision, or by a duly authorized representative of that person. A person is a duly authorized representative only if:

(a) the authorization is made in writing by a person described in paragraph (4) of this subdivision;

(b) the authorization specifies either an individual or a position having responsibility for overall operation of the regulated facility or activity, such as the position of plant manager, operator of a well or a well field, superintendent, or position of equivalent responsibility (a duly authorized representative may thus be either a named individual or any individual occupying a named position); and

(c) the written authorization is submitted to the commissioner.

(iii) Changes to authorization. If an authorization under subparagraph (ii) of this paragraph is no longer accurate because a different individual or position has responsibility for the overall operation of the facility, a new authorization satisfying the requirements of subparagraph (ii) must be submitted to the commissioner prior to or together with any reports, information or applications to be signed by an authorized representative.

(iv) Certification. Any person signing a document under subparagraph (i) or (ii) of this paragraph must make the following certification:

"I certify under penalty of law that this document and all attachments were prepared under my direction or supervision in accordance with a system designed to assure that qualified personnel properly gather and evaluate the information submitted. Based on my inquiry of the person or persons who manage the system, or those persons directly responsible for gathering the information, the information submitted is, to the best of my knowledge and belief, true, accurate and complete. I am aware that there are significant penalties for submitting false information, including the possibility of fine and imprisonment for knowing violations."

(e)Contents of the application for interim status.

The application form for interim status must include the following specific information:

(1) the activities conducted by the applicant which require a permit under this Part;

(2) name, mailing address and location, including latitude and longitude of the facility for which the application is submitted;

(3) up to four standard industrial classification (SIC) codes which best reflect the principal products or services provided by the facility;

(4) the operator's names, address, telephone number, ownership status, and status as Federal, State, private, public or other entity;

(5) the name, address and phone number of the owner of the facility;

(6) whether the facility is located on Indian lands;

(7) an indication of whether the facility is new or existing and whether it is a first or revised application;

(8) for existing facilities:

(i) a scale drawing of the facility showing the location of all past, present and future treatment, storage and disposal areas; and

(ii) photographs of the facility, clearly delineating all existing structures; existing treatment, storage and disposal areas; and sites of future treatment, storage and disposal areas.

(9) a description of the processes to be used for treating, storing and disposing of hazardous waste, and the design capacity of these items;

(10) a specification of the hazardous wastes listed or designated under Part 371 of this Title to be treated, stored or disposed of at the facility, an estimate of the quantity of such wastes to be treated, stored or disposed of annually, and a general description of the processes to be used for such wastes;

(11) a listing of all permits or construction approvals received or applied for under any of the following programs:

(i) Hazardous Waste Management program under RCRA (see section 370.1[e] of this Title);

(ii) UIC program under the SDWA (see section 370.1[e] );

(iii) SPDES under ECL article 17;

(iv) Prevention of Significant Deterioration (PSD) program under the Clean Air Act and 40 CFR 52.21 as administered by the Department of Environmental Conservation;

(v) nonattainment program under the Clean Air Act (see section 370.1[e] ) and Part 231 of this Title;

(vi) National Emission Standards for Hazardous Pollutants (NESHAPS) preconstruction approval under the Clean Air Act and 40 CFR Part 61 as administered by the Department of Environmental Conservation under delegation from USEPA;

(vii) ocean dumping permits under the Marine Protection Research and Sanctuaries Act (see section 370.1[e] );

(viii) dredge or fill permits under section 404 of the CWA (see section 370.1[e] ); or

(ix) other relevant environmental permits, including other Federal, State and local permits;

(12) a topographic map extending one mile beyond the property boundaries of the site, depicting the facility and each of its intake and discharge structures; each of its hazardous waste treatment, storage or disposal facilities; each well where fluids from the facility are injected underground; and those wells, springs, other surface water bodies and drinking water wells listed in public records or otherwise known to the applicant within one quarter mile of the facility property boundary; and

(13) a brief description of the nature of the business.

(f)Operation during interim status.

(1) During the interim status period the facility must not:

(i) treat, store or dispose of hazardous waste not specified in part A of the permit application;

(ii) employ processes not specified in the interim status application; or

(iii) exceed the design capacities specified in the interim status application.

(2) Interim status standards. During interim status, owners or operators must comply with the interim status standards of Subpart 373-3 of this Part and, in the case of owners or operators that have an RCRA part B permit issued by EPA, comply with the requirements of the EPA part B permit.

(g)Changes during interim status.

(1) Except as provided in paragraph (2) of this subdivision, the owner or operator of an interim status facility may make the following changes at the facility:

(i) treatment, storage, or disposal of new hazardous wastes not previously identified in the interim status application (and, in the case of newly listed or identified wastes, addition of the units being used to treat, store, or dispose of the hazardous wastes on the effective date of the listing or identification) if the owner or operator submits a revised interim status application prior to such treatment, storage, or disposal;

(ii) increases in the design capacity of processes used at the facility if the owner or operator submits a revised interim status application prior to such a change (along with a justification explaining the need for the change) and the commissioner approves the changes because:

(a) there is a lack of available treatment, storage, or disposal capacity at other hazardous waste management facilities; or

(b) the change is necessary to comply with a Federal, State, or local requirement;

(iii) changes in the processes for the treatment, storage, or disposal of hazardous waste or addition of processes if the owner or operator submits a revised interim status application prior to such change (along with a justification explaining the need for the change) and the commissioner approves the change because:

(a) the change is necessary to prevent a threat to human health and the environment because of an emergency situation; or

(b) the change is necessary to comply with a Federal, State, or local requirement;

(iv) changes in the ownership or operational control of a facility if the new owner or operator submits a revised interim status application no later than 90 days prior to the scheduled change. When a transfer of operational control of a facility occurs, the old owner or operator shall comply with the requirements of section 373-3.8 of this Part (Financial requirements), until the new owner or operator has demonstrated to the commissioner that he/she is complying with the requirements of that section. The new owner or operator must demonstrate compliance with section 373-3.8 of this Part requirements within six months of the date of the change in ownership or operational control of the facility. Upon demonstration to the commissioner by the new owner or operator of compliance with section 373-3.8 of this Part, the commissioner shall notify the old owner or operator in writing that he/she no longer needs to comply with section 373-3.8 of this Part as of the date of demonstration. All other interim status duties are transferred effective immediately upon the date of the change in ownership or operational control of the facility;

(v) changes made in accordance with an interim status corrective action order issued by the USEPA under section 3008(h) or other Federal authority, by the commissioner under section 71-2727(3) of the ECL or by a court in a judicial action brought by the USEPA or by New York State. Changes under this paragraph are limited to the treatment, storage, or disposal of solid waste from releases that originate within the boundary of the facility;

(vi) addition or newly regulated units for the treatment, storage, or disposal of hazardous waste if the owner or operator submits a revised part A permit application on or before the date on which the unit becomes subject to the new requirements.

(2) Except as specifically allowed under this paragraph, changes listed under paragraph (1) of this subdivision may not be made if they amount to reconstruction of the hazardous waste management facility. Reconstruction occurs when the capital investment in the changes to the facility exceeds 50 percent of the capital cost of a comparable entirely new hazardous waste management facility. If all other requirements are met, the following changes may be made even if they amount to a reconstruction:

(i) changes made solely for the purposes of complying with the requirements of section 373-3.10(d) of this Part for tanks and ancillary equipment;

(ii) if necessary to comply with Federal, State, or local requirements, changes to an existing unit, changes solely involving tanks or containers, or addition of replacement surface impoundments that satisfy the standards of section 373-2.11, 373-2.14, 373-3.11 or 373-3.14 of this Part;

(iii) changes that are necessary to allow owners or operators to continue handling newly listed or identified hazardous wastes that have been treated, stored, or disposed of at the facility prior to the effective date of the rule establishing the new listing or identification;

(iv) changes during closure of a facility or of a unit within a facility made in accordance with an approved closure plan;

(v) changes necessary to comply with an interim status corrective action order issued by the USEPA under section 3008(h) or other Federal authority, by the commissioner under section 71-2727(3) of the ECL, or by a court in a judicial proceeding brought by the USEPA or by New York State, provided that such changes are limited to the treatment, storage, or disposal of solid waste from releases that originate within the boundary of the facility;

(vi) changes to treat or store, in tanks, containers or containment buildings, hazardous wastes subject to land disposal restrictions imposed by Part 376 of this Title or RCRA section 3004, provided that such changes are made solely for the purpose of complying with Part 376 or RCRA section 3004;

(vii) addition of newly regulated units under subparagraph (1)(vi) of this subdivision; and

(viii) changes necessary to comply with standards under 40 CFR part 63, subpart EEE, National Emission Standards for Hazardous Air Pollutants From Hazardous Waste Combustors, as incorporated by reference in section 370.1(e) of this Title.

(h)Termination of interim status.

(1) Interim status terminates when final administrative disposition of a permit application, except an application for a remedial action plan (RAP) under section 373-1.11 of this Subpart, is made.

(2) Failure to furnish a requested Part 373 permit application on time, or to furnish in full the information required by the permit application, is grounds for termination of interim status under this subdivision.

(3) The commissioner may revoke the interim status of any facility or operation upon a showing of a violation of any law, rule or regulation related to interim status, or for any other reason that would serve as grounds for revocation of a permit. The procedures governing such revocation shall be the same as those governing the revocation of permits as provided for in Parts 621 and 624 of this Title.

(4) For owners or operators of each land disposal facility which has been granted interim status prior to November 8, 1984, interim status terminates on November 8, 1985, unless:

(i) the owner or operator submits Part B of the USEPA RCRA permit application to the regional administrator prior to that date; and

(ii) the owner or operator certifies that the facility is in compliance with all applicable ground-water monitoring and financial responsibility requirements.

(5) For owners or operators of each land disposal facility which is in existence on the effective date of statutory or regulatory amendments under the ECL and its regulations that require the facility to have a Part 373 permit and which is granted interim status, interim status terminates 12 months after the date on which the facility first becomes subject to such permit requirements unless the owner or operator of such facility:

(i) submits a Part 373 application for the facility within 12 months after the date on which the facility first became subject to such permit requirement; and

(ii) certifies that the facility is in compliance with all applicable ground-water monitoring and financial responsibility requirements.

(6) For owners or operators of any land disposal unit that is granted authority to operate under subparagraph (g)(1)(i), (ii) or (iii) of this section, on the date 12 months after the effective date of such requirement unless the owner or operator certifies that such unit is in compliance with all applicable ground-water monitoring and financial responsibility requirements.

(7) For owners or operators of each incinerator facility which has achieved interim status prior to November 8, 1984, interim status terminates on November 8, 1989, unless the owner or operator of the facility submits a Part 373 permit application for the incinerator facility by November 8, 1986.

(8) For owners or operators of any facility (other than a land disposal or an incinerator facility) which has achieved interim status prior to November 8, 1984, interim status terminates on November 8, 1992, unless the owner or operator of the facility submits a Part 373 application for the facility by November 8, 1988.

(i)Updating interim status applications.

(1) If any owner or operator of a hazardous waste management facility has filed an interim status application and has not yet filed for a Part 373 permit, the owner or operator must file an amended interim status application (EPA RCRA part A):

(i) with the regional permit administrator in whose jurisdiction the facility is located, and the director, no later than the effective date of revised regulations under Part 371 of this Title, listing or identifying additional hazardous wastes if the facility is treating, storing or disposing of any of those newly listed or identified wastes;

(ii) as necessary to comply with provisions of subdivision (g) of this section for changes during interim status. Revised EPA RCRA part A applications for New York State interim status must be filed with the regional permit administrator of jurisdiction and the director.

(2) The owner or operator of a facility who fails to comply with the updating requirements of paragraph (1) of this subdivision shall not receive interim status for the wastes not covered by duly filed interim status applications (EPA RCRA part A's).

N.Y. Comp. Codes R. & Regs. Tit. 6 § 373-1.3

Amended New York State Register March 4, 2020/Volume XLII, Issue 09, eff.4/18/2020