(i) where persons have been granted an extension to the effective date of a prohibition under section 376.3 of this Part or pursuant to 40 CFR section 268.5 and subdivision (e) of this section with respect to those wastes covered by the extension;

(ii) where persons have been granted an exemption from a prohibition pursuant to a petition under 40 CFR section 268.6 and subdivision (f) of this section with respect to those wastes and units covered by the petition;

(iii) wastes that are hazardous only because they exhibit a hazardous characteristic, and which are otherwise prohibited under this Part, 40 CFR part 148, or titles 7 and 8 of article 17 of the ECL, are not prohibited if the wastes:

(iv) wastes that are hazardous only because they exhibit a hazardous characteristic, and which are otherwise prohibited under this Part, are not prohibited if the wastes meet any of the following criteria, unless the wastes are subject to a specified method of treatment other than DEACT in section 376.4 of this Part, or are D003 reactive cyanide:

(i) waste generated by conditionally exempt small quantity generators of less than 100 kilograms of nonacute hazardous waste or less than 1 kilogram of acute hazardous waste per calendar month, as defined in section 371.1(f) of this Title;

(ii) waste pesticides that a farmer disposes of pursuant to section 372.1(e)(3) (i), (ii), (iii) and (iv) of this Title; and

(iii) wastes identified or listed as hazardous after November 8, 1984 for which DEC has not promulgated land disposal prohibitions or treatment standards.

(i) batteries as described in section 374-3.1(b) of this Title;

(ii) pesticides as described in section 374-3.1(c) of this Title;

(iii) mercury-containing equipment as described in section 374-3.1(d) of this Title; and

(iv) lamps as described in section 374-3.1(e) of this Title.

(i) Halogenated organic compounds or HOCs means those compounds having a carbon- halogen bond which are listed under Appendix 37 of this Title.

(ii) Hazardous constituent or constituents means those constituents listed in Appendix 23 of this Title.

(iii) Land disposal means placement in or on the land, except in a corrective action management unit or staging pile, and includes, but is not limited to, placement in a landfill, surface impoundment, waste pile, land treatment facility, salt dome formation, salt bed formation, underground mine or cave, injection well, or placement in a concrete vault or bunker intended for disposal purposes.

(iv) Nonwastewaters are wastes that do not meet the criteria for wastewaters in subparagraph (1)(vi) of this subdivision.

(v) Polychlorinated biphenyls or PCBs are halogenated organic compounds defined in accordance with section 371.4(e) of this Title and 40 CFR 761.3.

(vi) Wastewaters are wastes that contain less than one percent by weight total organic carbon (TOC) and less than one percent by weight total suspended solids (TSS).

(vii) Debris means solid material exceeding a 60 mm particle size that is intended for disposal and that is: a manufactured object; or plant or animal matter; or natural geologic material. However, the following materials are not debris: any material for which a specific treatment standard is provided in section 376.4 of this Part, namely lead acid batteries, cadmium batteries and radioactive lead solids; process residuals such as smelter slag and residues from the treatment of waste, wastewater, sludges, or air emission residues; and intact containers of hazardous waste that are not ruptured and that retain at least 75 percent of their original volume. A mixture of debris that has not been treated to the standards provided by section 376.4(g) of this Part and other material is subject to regulation as debris if the mixture is comprised primarily of debris, by volume, based on visual inspection.

(viii) Hazardous debris means debris that contains a hazardous waste listed in section 371.4 of this Title, or that exhibits a characteristic of hazardous waste identified in section 371.3 of this Title. Any deliberate mixing of prohibited hazardous waste with debris that changes its treatment classification (i.e., from waste to hazardous debris) is not allowed under the dilution prohibition in subdivision (c) of this section.

(ix) Restricted wastes are hazardous wastes that are prohibited from land disposal by either statute or regulation, regardless of whether subcategories of such wastes are subject to an exemption, extension, or variance.

(x) Tolling agreements are contractual agreements as defined in section 372.2(b)(7)(i), (ii) and (iii) of this Title.

(xi) Spalling, as used in section 376.4(g) of this Title, means the removal of, but is not limited to, chips, fragments, slabs, pieces, or layers of debris from hazardous debris.

(xii) Underlying hazardous constituent means any constituent listed in section 376.4(j) of this Part, Table UTS - Universal Treatment Standards, except fluoride, selenium, sulfides, vanadium and zinc, which can reasonably be expected to be present at the point of generation of the hazardous waste, at a concentration above the constituent-specific UTS treatment standards.

(xiii) Inorganic metal-bearing waste is one for which the department has established treatment standards for metal hazardous constituents, and which does not otherwise contain significant organic or cyanide content as described in subparagraph (c)(3)(i) of this section, and is specifically listed in Appendix 54 of this Title.

(xiv) Soil means unconsolidated earth material composing the superficial geologic strata (material overlying bedrock), consisting of clay, silt, sand, or gravel size particles as classified by the U.S. Natural Resources Conservation Service, or a mixture of such materials with liquids, sludges or solids which is inseparable by simple mechanical removal processes and is made up primarily of soil by volume based on visual inspection. Any deliberate mixing of prohibited hazardous waste with soil that changes its treatment classification (i.e., from waste to contaminated soil) is not allowed under the dilution prohibition in subdivision (c) of this section.

(i) the waste contains hazardous organic constituents or cyanide at levels exceeding the constituent-specific treatment standard found in section 376.4(j) of this Part;

(ii) the waste consists of organic, debris-like materials (e.g., wood, paper, plastic, or cloth) contaminated with an inorganic metal -bearing hazardous waste;

(iii) the waste, at point of generation, has reasonable heating value such as greater than or equal to 5000 BTU per pound;

(iv) the waste is cogenerated with wastes for which combustion is a required method of treatment;

(v) the waste is subject to Federal and/or State requirements necessitating reduction of organics (including biological agents); or

(vi) the waste contains greater than one percent total organic carbon (TOC).

(i) Treatment of such wastes occurs in the impoundments; and

(ii) The following conditions are met:

(iii) The impoundment meets the design requirements of section 373-2.11(b)(3) or 373-3.11(i)(1) of this Title, regardless that the unit may not be new, expanded, or a replacement, and be in compliance with applicable ground water monitoring requirements of sections 373-2.6 and 373-3.6 of this Title unless:

(iv) The owner or operator submits to the commissioner a written certification that the requirements of subparagraph (iii) of this paragraph have been met. The following certification is required:

(i) they have made a good-faith effort to locate and contract with treatment, recovery, or disposal facilities nationwide to manage their waste in accordance with the effective date of the applicable restriction established under section 376.3 of this Part;

(ii) they have entered into a binding contractual commitment to construct or otherwise provide alternative treatment, recovery (e.g., recycling), or disposal capacity that meets the treatment standards specified in section 376.4 of this Part or, where treatment standards have not been specified, such treatment, recovery, or disposal capacity is protective of human health and the environment;

(iii) due to circumstances beyond the applicant's control, such alternative capacity cannot reasonably be made available by the applicable effective date. This demonstration may include a showing that the technical and practical difficulties associated with providing the alternative capacity will result in the capacity not being available by the applicable effective date;

(iv) the capacity being constructed or otherwise provided by the applicant will be sufficient to manage the entire quantity of waste that is the subject of the application;

(v) they have prepared a detailed schedule for obtaining required operating and construction permits or an outline of how and when alternative capacity will be available;

(vi) they have arranged for adequate capacity to manage their waste during an extension and has documented in the application the location of all sites at which the waste will be managed; and

(v) any waste managed in a surface impoundment or landfill during the extension period will meet the requirements of subparagraph (8)(ii) of this subdivision.

(i) the storage restrictions under section 376.5 of this Part do not apply; and

(ii) such hazardous waste may be disposed in a landfill or surface impoundment only if such unit is in compliance with the technical requirements of the following provisions regardless of whether such unit is existing, new, or a replacement or lateral expansion.

(i) an identification of the specific waste and the specific unit for which the demonstration will be made;

(ii) a waste analysis to describe fully the chemical and physical characteristics of the subject waste;

(iii) a comprehensive characterization of the disposal unit site including an analysis of background air, soil, and water quality;

(iv) a monitoring plan that detects migration at the earliest practicable time; and

(v) sufficient information to assure the commissioner that the owner or operator of a land disposal unit receiving restricted waste(s) will comply with other applicable Federal and State laws.

(i) all waste and environmental sampling, test, and analysis data must be accurate and reproducible to the extent that state-of-the-art techniques allow;

(ii) all sampling, testing, and estimation techniques for chemical and physical properties of the waste and all environmental parameters must have been approved by the commissioner;

(iii) simulation models must be calibrated for the specific wastes and site conditions, and verified for accuracy by comparison with actual measurements;

(iv) a quality assurance and quality control plan that addresses all aspects of the demonstration must be approved by the commissioner; and

(v) an analysis must be performed to identify and quantify any aspects of the demonstration that contribute significantly to uncertainty. This analysis must include an evaluation of the consequences of predictable future events, including, but not limited to, earthquakes, floods, severe storm events, droughts, or other natural phenomena.

(i) a monitoring plan that describes the monitoring program installed at and/or around the unit to verify continued compliance with the conditions of the exemption. This monitoring plan must provide information on the monitoring of the unit and/or the environment around the unit. The following specific information must be included in the plan:

(ii) where applicable, the monitoring program described in subparagraph (i) of this paragraph must be in place for a period of time specified by the commissioner, as part of the approval of the petition, prior to receipt of prohibited waste at the unit;

(iii) the monitoring data collected according to the monitoring plan specified under subparagraph (i) of this paragraph must be sent to the commissioner according to a format and schedule specified and approved in the monitoring plan;

(iv) a copy of the monitoring data collected under the monitoring plan specified under subparagraph (i) of this paragraph must be kept on-site at the facility in the operating record;

(v) the monitoring program specified under subparagraph (i) of this paragraph must meet the following criteria:

(i) If the owner or operator plans to make changes to the unit design, construction, or operation, such a change must be proposed, in writing, and the owner or operator must submit a demonstration to the commissioner at least 30 days prior to making the change. The commissioner will determine whether the proposed change invalidates the terms of the petition and will determine the appropriate response. Any change must be approved by the commissioner prior to being made.

(ii) If the owner or operator discovers that a condition at the site which was modeled or predicted in the petition does not occur as predicted, this change must be reported, in writing, to the commissioner within 10 days of discovering the change. The commissioner will determine whether the reported change from the terms of the petition requires further action, which may include termination of waste acceptance and revocation of the petition, petition modifications, or other responses.

(i) immediately suspend receipt of prohibited waste at the unit;

(ii) notify the commissioner, in writing, within 10 days of the determination that a release has occurred; and

(iii) following receipt of the notification, the commissioner will determine within 60 days of receiving notification, whether the owner or operator can continue to receive prohibited waste in the unit and whether the exemption is to be revoked. The commissioner shall also determine whether further examination of any migration is warranted under applicable provisions of Subpart 373-2 or 373-3 of this Title.

(i) A generator of a hazardous waste must determine if the waste has to be treated before it can be land disposed. This is done by determining if the hazardous waste meets the treatment standards in section 376.4(a), (f), (g) or (k) of this Part. This determination can be made concurrently with the hazardous waste determination required in paragraph 372.2(a)(2) of this Title in either of two ways: testing the waste or using knowledge of the waste. If the generator tests the waste, testing would normally determine the total concentration of hazardous constituents, or the concentration of hazardous constituents in an extract of the waste obtained using Test Method 1311 in “Test Methods for Evaluating Solid Waste, Physical/Chemical Methods,” EPA Publication SW 846, as incorporated by reference in section 370.1(e) of this Title, depending on whether the treatment standard for the waste is expressed as a total concentration or concentration of hazardous constituent in the waste's extract. (Alternatively, the generator must send the waste to a RCRA-permitted hazardous waste treatment facility, where the waste treatment facility must comply with the requirements of 373-2.2[e] of this Title and paragraph [2] of this subdivision.) In addition, some hazardous wastes and some soils that are contaminated by such hazardous wastes must be treated by particular treatment methods before they can be land disposed. These treatment standards are also found in section 376.4(a) of this Part, and are described in detail in section 376.4(c), Table 1 of this Part. These wastes, and soils contaminated with such wastes, do not need to be tested (however, if they are in a waste mixture, other wastes with concentration level treatment standards would have to be tested). If a generator determines they are managing a waste or a soil contaminated with a waste, that displays a hazardous characteristic of ignitability, corrosivity, reactivity, or toxicity, the generator must comply with the special requirements of subdivision (h) of this section in addition to any applicable requirements in this subdivision.

(ii) If the waste or contaminated soil does not meet the treatment standards, or if the generator chooses not to make the determination of whether the generator's waste must be treated, with the initial shipment of waste to each treatment or storage facility, the generator must send a one time written notice to each treatment or storage facility receiving the waste, and place a copy in the file. The notice must include the information in column “section 376.1(g)(1)(ii)” of the Generator Paperwork Requirements Table in subparagraph (iv) of this paragraph. (Alternatively, if the generator chooses not to make the determination of whether the waste must be treated, the notification must include the EPA Hazardous Waste Numbers and Manifest Number of the first shipment and must state “This hazardous waste may or may not be subject to the LDR treatment standards. The treatment facility must make the determination.”) No further notification is necessary until such time that the waste or facility change, in which case a new notification must be sent and a copy placed in the generator's file.

(iii) If the waste or contaminated soil meets the treatment standard at the original point of generation:

(iv) For reporting, tracking and recordkeeping when exceptions allow certain wastes or contaminated soil that do not meet the treatment standards to be land disposed: there are certain exemptions from the requirement that hazardous wastes or contaminated soil meet treatment standards before they can be land disposed. These include, but are not limited to case-by-case extensions under subdivision (e) of this section, disposal in a no-migration unit under subdivision (f) of this section, or a national capacity variance or case-by-case capacity variance under section 376.3 of this Part. If a generator's waste is so exempt, then with the initial shipment of waste, the generator must send a one-time written notice to each land disposal facility receiving the waste. The notice must include the information indicated in column “section 376.1(g)(1)(iv)” of the Generator Paperwork Requirements Table below. If the waste changes, the generator must send a new notice to the receiving facility, and place a copy in their files.

(v) If a generator is managing and treating prohibited waste or contaminated soil in tanks, containers, or containment buildings regulated under section 372.2(a)(8) of this Title, to meet applicable LDR treatment standards found in section 376.4(a) of this Part, the generator must develop and follow a written waste analysis plan which describes the procedures they will carry out to comply with the treatment standards. (Generators treating hazardous debris under the alternative treatment standards in Table 1, section 376.4[g] of this Part, however, are not subject to these waste analysis requirements.) The plan must be kept on site in the generator's records, and the following requirements must be met:

(vi) If a generator determines that the waste or contaminated soil is restricted based solely on generator knowledge of the waste, all supporting data used to make this determination must be retained on-site in the generator's files. If a generator determines that the waste is restricted based on testing this waste or an extract developed using the test method 1311 in “Test Methods for Evaluating Solid Waste, Physical/Chemical Methods,” EPA Publication SW-846, (as incorporated by reference in section 370.1[e] of this Title), and all waste analysis data must be retained on-site in the generator's files.

(vii) If a generator determines that the generator is managing a prohibited waste that is excluded from the definition of hazardous or solid waste or is exempted from hazardous waste regulation, under section 371.1(c) through (g) of this Title subsequent to the point of generation (including deactivated characteristic hazardous wastes managed in wastewater treatment systems subject to the Clean Water Act [CWA] as specified in section 371.1[e][1][ii] of this Title, or that are CWA-equivalent), or are managed in an underground injection well regulated by the SDWA and permitted under SPDES, the generator must place a one-time notice describing such generation, subsequent exclusion from the definition of hazardous or solid waste or exemption from hazardous waste regulation, Parts 370 through 374 and Part 376, of this Title, and the disposition of the waste, in the facility's on-site files.

(viii) Generators must retain on-site a copy of all notices, certifications, waste analysis data, and other documentation produced pursuant to this subdivision for at least three years from the date that the waste that is the subject of such documentation was last sent to on-site or off-site treatment, storage, or disposal. The three year record retention period is automatically extended during the course of any unresolved enforcement action regarding the regulated activity or as requested by the commissioner. The requirements of this paragraph apply to solid wastes even when the hazardous characteristic is removed prior to disposal, or when the waste is excluded from the definition of hazardous or solid waste under section 371.1(c) through (g) of this Title, or exempted from hazardous waste regulations, Parts 370 through 374 and 376 of this Title, subsequent to the point of generation.

(ix) If a generator is managing a lab pack containing hazardous wastes and wishes to use the alternative treatment standard for lab packs found in section 376.4(c)(3) of this Part:

(x) Small quantity generators with tolling agreements pursuant to section 372.2(b)(7) of this Title must comply with the applicable notification and certification requirements of this paragraph for the initial shipment of the waste subject to the agreement. Such generators must retain on-site a copy of the notification and certification, together with the tolling agreement, for at least three years after termination or expiration of the agreement. The three year record retention period is automatically extended during the course of any unresolved enforcement action regarding the regulated activity or as requested by the commissioner.

(i) For wastes or contaminated soil with treatment standards expressed as concentrations in the waste extract (TCLP), the owner or operator of the treatment facility must test an extract of the treatment residues, using test method 1311 (the Toxicity Characteristic Leaching Procedure, described in “Test Methods for Evaluating Solid Waste, Physical/Chemical Methods,” EPA Publication SW-846 as incorporated by reference in section 370.1[e] of this Title), to assure that the treatment residues extract meet the applicable treatment standards.

(ii) For wastes or contaminated soil with treatment standards expressed as concentrations in the waste, the owner or operator of the treatment facility must test the treatment residues (not an extract of such residues) to assure that they meet the applicable treatment standards.

(iii) A one time notice must be sent with the initial shipment of waste or contaminated soil to the land disposal facility. A copy of the notice must be placed in the treatment facility's file.

(iv) The treatment facility must submit a one-time certification signed by an authorized representative with the initial shipment of waste or treatment residue of a restricted waste to the land disposal facility. The certification must state:

(v) If the waste or treatment residue will be further managed at a different treatment, storage or disposal facility, the treatment, storage, or disposal facility sending the waste or treatment residue off-site must comply with the notice and certification requirements applicable to generators under this subdivision.

(vi) Where the wastes are recyclable materials used in a manner constituting disposal subject to the provisions of section 374-1.3(a)(2) of this Title regarding treatment standards and prohibition levels, the owner or operator of a treatment facility (i.e., the recycler) must, for the initial shipment of waste, prepare a one-time certification described in subparagraph (iv) of this paragraph, and a one-time notice which includes the information in subparagraph (iii) of this paragraph (except the manifest number). The certification and notification must be placed in the facility's on-site files. If the waste or the receiving facility changes, a new certification and notification must be prepared and placed in the on-site files. In addition, the recycling facility also must keep records of the name and location of each entity receiving the hazardous waste derived product.

(i) have copies of the notice and certifications specified in paragraph (1) or (2) of this subdivision; and

(ii) test the waste, or an extract of the waste or treatment residue developed using the test method 1311 (the Toxicity Characteristic Leaching Procedure), described in “Test Methods for Evaluating Solid Waste, Physical/Chemical Methods,” EPA Publication SW-846 (as incorporated by reference in section 370.1[e] of this Title), to assure that the wastes or treatment residues are in compliance with the applicable treatment standards set forth in section 376.4 of this Part. Such testing must be performed according to the frequency specified in the facility's waste analysis plan as required by section 373-2.2(e) or 373-3.2(d) of this Title.

(i) a one-time notification, including the following information, must be submitted to the commissioner:

(ii) the notification must be updated if the debris is shipped to a different facility, and, for debris excluded under section 371.1(d)(5)(i) of this Title, if a different type of debris is treated or if a different technology is used to treat the debris;

(iii) for debris excluded under section 371.1(d)(5)(i) of this Title, the owner or operator of the treatment facility must document and certify compliance with the treatment standards in Table 1, section 376.4(g) of this Part as follows:

(i) prepare a one-time only documentation of these determinations including all supporting information; and

(ii) maintain that information in the facility files and other records for a minimum of three years.

(i) The notification must include the following information:

(ii) The certification must be signed by an authorized representative and must state the language found in subparagraph (g)(2)(iv) of this section.