Current through Register Vol. 35, No. 18, September 24, 2024
A. Based on the
results of the corrective measures assessment conducted under 20.9.9.15 NMAC,
the owner or operator shall, within 120 days following the submission of the
assessment of corrective measures, submit a proposed remedy to the department
for review and approval that meets the standards listed in this section. The
secretary may issue an order approving, approving with conditions, denying the
proposed remedy, may require submission of an alternative proposed remedy, or
may impose a remedy whether or not proposed by the owner or operator.
B. Prior to approving or imposing a remedy,
the department shall hold a hearing on the remedy proposed by the owner or
operator and any draft remedy proposed by the department. The owner or operator
shall be required to provide notice of hearing on the proposed remedy or
remedies in accordance with Section
74-9-22
NMSA 1978. Hearing procedures shall be in accordance with Permit Procedures -
Environment Department, 20.1.4 NMAC.
C. The selected remedy shall:
(1) be protective of public health, welfare
and the environment;
(2) attain the
CAL;
(3) control the source(s) of
releases so as to reduce or eliminate, to the maximum extent practicable,
further releases into the environment that may pose a threat to public health,
welfare or the environment;
(4)
comply with standards for management of wastes as specified in Subsection C of
20.9.9.17 NMAC.
D. In
its submission of a proposed remedy that meets the standards listed above, the
owner or operator shall provide evidence demonstrating:
(1) the long and short term effectiveness and
protectiveness of the potential remedy, along with the degree of certainty that
the remedy will prove successful based on consideration of the following:
(a) magnitude of reduction of existing
risks;
(b) magnitude of residual
risks in terms of likelihood of further releases due to waste remaining
following implementation of a remedy;
(c) the type and degree of long term
management required, including monitoring, operation, and
maintenance;
(d) short term risks
that might be posed to the community, workers, or the environment during
implementation of such a remedy, including potential threats to public health,
welfare and the environment associated with excavation, transportation, and
redisposal of wastes;
(e) time
until full protection is achieved;
(f) potential for exposure of humans and
environmental receptors to remaining wastes, considering the potential threat
to public health, welfare and the environment associated with excavation,
transportation, redisposal, or containment;
(g) long term reliability of the engineering
and institutional controls; and
(h)
potential need for replacement of the remedy;
(2) the effectiveness of the remedy in
controlling the source to reduce further releases based on consideration of the
following factors:
(a) the extent to which
containment practices will reduce further releases; and
(b) the extent to which treatment
technologies may be used;
(3) the ease or difficulty of implementing a
potential remedy based on consideration of the following factors:
(a) degree of difficulty associated with
constructing the technology;
(b)
expected operational reliability of the technology;
(c) need to coordinate with, and obtain
necessary approvals and permits from, other agencies;
(d) availability of necessary equipment and
specialists; and
(e) available
capacity and location of needed treatment, storage, and disposal
services;
(4)
practicable capability of the owner or operator, including a consideration of
the technical and economic capability; and
(5) the degree to which community concerns
are addressed.
E. The
owner or operator shall specify as part of the proposed selected remedy a
schedule for initiating and completing remedial activities. Such a schedule
shall provide for the initiation of remedial activities within a reasonable
period of time, taking into consideration the factors listed in Subsection C of
20.9.9.15 NMAC.
F. In its
submission of a proposed remedy under this section, the owner or operator may
seek a determination that remediation of a contaminant to the CAL is not
required as follows:
(1) if an exceedance of a
commission standard would occur, the owner or operator shall seek a variance
from the commission standard in accordance with Subsection E or F of
20.6.2.4103 NMAC and incorporate the terms and conditions of any such variance
into the selected remedy and corrective action program; or
(2) the owner or operator may seek a
determination from the secretary that remediation of a contaminant to the CAL
(for CALs not based on a commission standard) is not required by submitting a
written request to the secretary for a determination that attainment of the CAL
is technically infeasible; the request shall include: a demonstration of
technical or physical impossibility of attaining the CAL using potential
remedies; the effectiveness of potential remedies; whether the proposed
determination will allow a present or future hazard to public health or the
environment; and any other information required by the secretary; in addition,
the request shall propose an alternate CAL for the secretary's approval, based
on the effectiveness of potential remedies and a site-specific risk assessment;
the secretary may approve, approve with terms and conditions, or deny the
requested determination.
G. A determination by the secretary pursuant
to Subsection F of this section shall not affect the authority of the secretary
to require the owner or operator to undertake source control measures or other
measures that may be necessary to eliminate or minimize releases to the ground
water, to prevent exposure of the ground water to concentrations that are
technically practicable and significantly reduce threats to public health,
welfare or the environment.
