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TITLE 30ENVIRONMENTAL QUALITY
PART 1TEXAS COMMISSION ON ENVIRONMENTAL QUALITY
CHAPTER 335INDUSTRIAL SOLID WASTE AND MUNICIPAL HAZARDOUS WASTE
SUBCHAPTER FPERMITTING STANDARDS FOR OWNERS AND OPERATORS OF HAZARDOUS WASTE TREATMENT, STORAGE, OR DISPOSAL FACILITIES
RULE §335.165Compliance Monitoring Program

An owner or operator required to establish a compliance monitoring program must, at a minimum, discharge the following responsibilities.

  (1) The owner or operator must monitor the groundwater to determine whether regulated units are in compliance with the groundwater protection standard under §335.158 of this title (relating to Groundwater Protection Standard). The commission will specify the groundwater protection standard in the compliance plan, including:

    (A) a list of the hazardous constituents identified under §335.159 of this title (relating to Hazardous Constituents);

    (B) concentration limits under §335.160 of this title (relating to Concentration Limits) for each of those hazardous constituents;

    (C) the compliance point under §335.161 of this title (relating to Point of Compliance); and

    (D) the compliance period under §335.162 of this title (relating to Compliance Period).

  (2) The owner or operator must install a groundwater monitoring system at the compliance point as specified under §335.161 of this title. The groundwater monitoring system must comply with §335.163(1)(B), (2), and (3) of this title (relating to General Groundwater Monitoring Requirements).

  (3) The commission will specify the sampling procedures and statistical methods appropriate for the constituents at the facility, consistent with §335.163(7) and (8) of this title.

    (A) The owner or operator must conduct a sampling program for each chemical parameter or hazardous constituent in accordance with §335.163(7) of this title.

    (B) The owner or operator must record groundwater analytical data as measured by and in a form necessary for the determination of statistical significance under §335.163(8) of this title for the compliance period of the facility.

  (4) The owner or operator must determine whether there is statistically significant evidence of increased contamination for any chemical parameter or hazardous constituent specified in the permit, pursuant to paragraph (1) of this section, at a frequency specified under paragraph (6) under this section.

    (A) In determining whether statistically significant evidence of increased contamination exists, the owner or operator must use the method(s) specified in the permit under §335.163(8) of this title. The method(s) must compare data collected at the compliance point(s) to a concentration limit developed in accordance with §335.163 of this title.

    (B) The owner or operator must determine whether there is statistically significant evidence of increased contamination at each monitoring well at the compliance point within a reasonable time period after completion of sampling. The commission will specify that time period in the facility permit after considering the complexity of the statistical test and the availability of laboratory facilities to perform the analysis of groundwater samples.

  (5) The owner or operator must determine the groundwater flow rate and direction in the uppermost aquifer at least annually.

  (6) The commission will specify the frequencies for collecting samples and conducting statistical tests to determine statistically significant evidence of increased contamination in accordance with §335.163(7) of this title.

  (7) Annually, the owner or operator must determine whether additional hazardous constituents from Appendix IX of 40 Code of Federal Regulations (CFR) Part 264, which could possibly be present but are not on the detection monitoring list in the permit, are actually present in the uppermost aquifer and, if so, at what concentration, pursuant to procedures in paragraph (6) of this section. To accomplish this, the owner or operator must consult with the executive director to determine on a case-by-case basis:

    (A) Which sample collection event during the year will involve enhanced sampling;

    (B) The number of monitoring wells at the compliance point to undergo enhanced sampling;

    (C) The number of samples to be collected from each of these monitoring wells; and

    (D) The specific constituents from Appendix IX of 40 CFR Part 264 for which these samples must be analyzed.

  (8) If the enhanced sampling event indicates that Appendix IX of 40 CFR Part 264 constituents are present in the groundwater that are not already identified in the permit as monitoring constituents, the owner or operator may resample within one month or at an alternative site-specific schedule approved by the executive director, and repeat the analysis.

  (9) If the second analysis confirms the presence of new constituents, the owner or operator must report the concentration of these additional constituents to the executive director within seven days after the completion of the second analysis and add them to the monitoring list.

  (10) If the owner or operator chooses not to resample, then the concentrations of these additional constituents must be reported to the executive director within seven days after completion of the initial analysis, and must be added to the monitoring list.

  (11) If the owner or operator determines, pursuant to paragraph (4) of this section, that any concentration limits under §335.160 of this title are being exceeded at any monitoring well at the point of compliance, he must:

    (A) notify the executive director of this finding in writing within seven days. The notification must indicate what concentration limits have been exceeded;

    (B) submit to the executive director an investigation report to establish a corrective action program meeting the requirements of §335.166 of this title (relating to Corrective Action Program) within 180 days, or within 90 days if an engineering feasibility study has been previously submitted to the executive director under §335.164(7)(E) of this title. The report must at a minimum include the following information:

      (i) a detailed description of corrective actions that will achieve compliance with the groundwater protection standard specified in the permit under paragraph (1) of this section; and

      (ii) a plan for a groundwater monitoring program that will demonstrate the effectiveness of the corrective action. Such a groundwater monitoring program may be based on a compliance monitoring program developed to meet the requirements of this section.

  (12) If the owner or operator determines, pursuant to paragraph (4) of this section, that the groundwater concentration limits are being exceeded at any monitoring well at the point of compliance, he may demonstrate that a source other than a regulated unit caused the contamination or that the detection is an artifact caused by error in sampling, analysis, or evaluation or natural variation in groundwater. In making a demonstration under this subsection, the owner or operator must:

    (A) notify the executive director in writing within seven days that he intends to make a demonstration under this section;

    (B) within 90 days submit a report to the executive director which demonstrates that a source other than a regulated unit caused the standard to be exceeded or that the apparent noncompliance with the standards resulted from error in sampling, analysis, or evaluation;

    (C) within 90 days submit to the executive director an application for a compliance plan amendment or compliance modification to make any appropriate change to the compliance monitoring program at the facility; and

    (D) continue to monitor in accord with the compliance monitoring program established under this section.

  (13) If the owner or operator determines that the compliance monitoring program no longer satisfies the requirements of this section, he must, within 90 days, submit an application for a plan modification to make any appropriate changes to the program.

  (14) The owner or operator shall prepare an annual summary to include the groundwater quality data and groundwater flow rate and direction required under paragraphs (3) and (5) of this section. Such annual summary shall be submitted to the executive director by January 21 of each year on forms provided or approved by the executive director. An owner or operator must keep a copy of the summary for a period of at least three years from the due date of the summary. The period of record retention required by this section is automatically extended during the course of any unresolved enforcement action regarding the regulated activity.


Source Note: The provisions of this §335.165 adopted to be effective May 28, 1986, 11 TexReg 2347; amended to be effective August 4, 1989, 14 TexReg 3532; amended to be effective October 29, 1990, 15 TexReg 6017; amended to be effective November 15, 2001, 26 TexReg 9135; amended to be effective October 29, 2009, 34 TexReg 7321

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