Section 1410. Changes in the required management procedures

A. Reclamation of precious metals. The director may decide on a case-by-case basis that persons accumulating or storing the recyclable materials described in 40 CFR 261.6(a)(2)(iii) should be regulated under 40 CFR 261.6(b) and 40 CFR 261.6(c) rather than under provisions of 20VAC20-60-266. The basis for this decision is that the materials are being accumulated or stored in a manner that does not protect human health and the environment because the materials or their toxic constituents have not been adequately contained, or because the materials being accumulated or stored together are incompatible. In making this decision, the director will consider the following factors:

1. The types of materials accumulated or stored and the amounts accumulated or stored;

2. The method of accumulation or storage;

3. The length of time the materials have been accumulated or stored before being reclaimed;

4. Whether any contaminants are being released into the environment, or are likely to be so released; and

5. Other relevant factors. The procedures for this decision are set forth in 9VAC20-60-1420 C.

B. Variance from containment requirements for tanks.

1. The owner or operator may obtain a variance from the requirements of 40 CFR 265.193 or 40 CFR 264.193 if the director finds, as a result of a demonstration by the owner or operator, either:

a. That alternative design and operating practices, together with location characteristics, will prevent the migration of hazardous waste or hazardous constituents into the ground water or surface water at least as effectively as secondary containment during the active life of the tank system; or

b. That in the event of a release that does migrate to ground water or surface water, no substantial present or potential hazard will be posed to human health or the environment.

2. New underground tank systems may not, per a demonstration in accordance with subdivision 5 of this subsection, be exempted from the secondary containment requirements of this section.

3. Application for a variance as allowed in subdivision 1 of this subsection does not waive compliance with the requirements of 40 CFR 265.193 or 40 CFR 264.193 for new tank systems.

4. In deciding whether to grant a variance based on a demonstration of equivalent protection of ground water and surface water, the director will consider:

a. The nature and quantity of the wastes;

b. The proposed alternate design and operation;

c. The hydrogeologic setting of the facility, including the thickness of soils between the tank system and groundwater; and

d. All other factors that would influence the quality and mobility of the hazardous waste constituents and the potential for them to migrate to ground water or surface water.

5. In deciding whether to grant a variance, based on a demonstration of no substantial present or potential hazard, the director will consider:

a. The potential adverse effects on groundwater, surface water, and land quality taking into account:

(1) The physical and chemical characteristics of the waste in the tank system, including its potential for migration;

(2) The hydrogeological characteristics of the facility and surrounding land;

(3) The potential for health risks caused by human exposure to waste constituents;

(4) The potential for damage to wildlife, crops, vegetation, and physical structures caused by exposure to waste constituents; and

(5) The persistence and permanence of the potential adverse effects;

b. The potential adverse effects of a release on ground water quality, taking into account:

(1) The quantity and quality of ground water and the direction of ground water flow;

(2) The proximity and withdrawal rates of water in the area;

(3) The current and future uses of ground water in the area; and

(4) The existing quality of groundwater, including other sources of contamination and their cumulative impact on the ground water quality;

c. The potential adverse effects of a release on surface water quality, taking into account:

(1) The quantity and quality of ground water and the direction of ground water flow;

(2) The patterns of rainfall in the region;

(3) The proximity of the tank system to surface waters;

(4) The current and future uses of surface waters in the area any water quality standards established for those surface waters; and

(5) The existing quality of surface water, including other sources of contamination and the cumulative impact on surface water quality; and

d. The potential adverse effects of a release on the land surrounding the tank system, taking into account:

(1) The patterns of rainfall in the region; and

(2) The current and future uses of the surrounding land.

6. The owner or operator of a tank system, for which a variance from secondary containment had been granted in accordance with the requirements of subdivision 4 of this subsection at which a release of hazardous waste has occurred from the primary tank system but has not migrated beyond the zone of engineering control (as established in the variance), shall:

a. Comply with the requirements of 40 CFR 265.196 or 40 CFR 264.196, except 40 CFR 265.196(d) or 40 CFR 264.196(d);

b. Decontaminate or remove contaminated soil to the extent necessary to:

(1) Enable the tank system, for which the variance was granted, to resume operation with the capability for the detection of and response to releases at least equivalent to the capability it had prior to the release; and

(2) Prevent the migration of hazardous waste or hazardous constituents to ground water or surface water; and

c. If contaminated soil cannot be removed or decontaminated in accordance with subdivision 6 b of this subsection, comply with the requirements of 40 CFR 265.197(b) or 40 CFR 264.197(b), as applicable;

7. The owner or operator of a tank system, for which a variance from secondary containment had been granted in accordance with the requirements of subdivision 4 of this subsection, at which a release of hazardous waste has occurred from the primary tank system and has migrated beyond the zone of engineering control (as established in the variance), shall:

a. Comply with the requirements of 40 CFR 265.196(a) through 40 CFR 265.196(d) or 40 CFR 264.196(a) through 40 CFR 264.196(d);

b. Prevent the migration of hazardous waste or hazardous constituents to ground water or surface water, if possible, and decontaminate or remove contaminated soil. If contaminated soil cannot be decontaminated or removed, or if ground water has been contaminated, the owner or operator shall comply with the requirements of 40 CFR 265.197(b) or 40 CFR 264.197(b); and

c. If repairing, replacing, or reinstalling the tank system, provide secondary containment in accordance with the requirements of 40 CFR 265.193(a) through 40 CFR 265.193(f) or 40 CFR 264.193(a) through 40 CFR 264.193(f) or reapply for a variance from secondary containment and meet the requirements for new tank systems in 40 CFR 265.192 or 40 CFR 264.192 if the tank system is replaced.

The owner or operator shall comply with these requirements even if contaminated soil can be decontaminated or removed, and ground water or surface water has not been contaminated.

C. Petitions to allow land disposal of a waste prohibited under 9VAC20-60-268.

1. Any person seeking an exemption from a prohibition under 9VAC20-60-268 for the disposal of a restricted hazardous waste in a particular unit or units shall submit a petition to the EPA administrator in accordance with 40 CFR 268.6.

2. (Reserved.)

Historical Notes

Derived from VR672-10-1 § 14.4, eff. January 1, 1988; amended, Volume 05, Issue 04, eff. January 1, 1989; Volume 06, Issue 06, eff. February 1, 1990; Volume 07, Issue 16, eff. July 1, 1991; Volume 09, Issue 06, eff. January 13, 1993; Volume 09, Issue 23, eff. September 8, 1993; Volume 15, Issue 09, eff. February 17, 1999; Volume 18, Issue 11, eff. March 13, 2002.

Statutory Authority

§§ 10.1-1402 and Article 4 (§ 10.1-1426 et seq.) of Chapter 14 of Title 10.1 of the Code of Virginia.