Sec. 26.13.05.06-5. Compliance Monitoring

A. Compliance Monitoring Program. An owner or operator required to establish a compliance monitoring program under this regulation shall, at a minimum, discharge the following responsibilities:

(1) Monitor the ground water to determine whether regulated units are in compliance with the ground water protection standard under Regulation .06-1A of this chapter;

(2) Comply with the ground water protection standard specified by the Secretary in the facility permit, including the:

(a) List of the hazardous constituents identified in accordance with Regulation .06-1B of this chapter;

(b) Concentration limits specified in accordance with Regulation .06-1C of this chapter for each of the hazardous constituents in §A(2)(a) of this regulation;

(c) Compliance point specified in accordance with Regulation .06-1D of this chapter; and

(d) Compliance period specified in accordance with Regulation .06-1E of this chapter;

(3) Install a ground water monitoring system at the compliance point as specified under Regulation .06-1D of this chapter that complies with the requirements of Regulation .06-2B-D and F of this chapter;

(4) Use sampling procedures and statistical methods appropriate for the constituents and the facility, in accordance with Regulations .06-2J and K and .06-3A and B of this chapter, as follows:

(a) Implement a sampling program as specified by the Secretary in the facility CHS permit;

(b) Conduct a sampling program for each chemical parameter or hazardous constituent in accordance with Regulation .06-2J and K of this chapter; and

(c) Record ground water analytical data as measured and in a form necessary for the determination of statistical significance under Regulation .06-3A and B of this chapter for the compliance period of the facility;

(5) Make a determination as to whether there is evidence of increased contamination in accordance with the following:

(a) Determine whether there is statistically significant evidence of increased contamination for any chemical parameter or hazardous constituent specified in the CHS facility permit under §A(1) and (2) of this regulation at a frequency specified under §A(7) and (8) of this regulation;

(b) Use the methods specified in the CHS facility permit under Regulation .06-3A and B of this chapter to make the determination under §A(5)(a) of this regulation;

(c) Ensure that the methods under §A(5)(b) of this regulation compare data collected at the compliance point or points to a concentration limit developed under Regulation .06-1C of this chapter;

(d) Make the determination of whether there is statistically significant evidence of increased contamination at each monitoring well at the compliance point within a reasonable time period after the completion of sampling, as specified by the Secretary in the facility's CHS permit after consideration of the following:

(i) The complexity of the statistical test; and

(ii) The availability of the laboratory facilities to perform the analysis of ground water samples;

(6) Determine the ground water flow rate and direction in the uppermost aquifer at least annually;

(7) Ensure that the frequencies for collecting samples and conducting statistical tests to determine statistically significant evidence of increased contamination in accordance with Regulation .06-2J and K of this chapter are in accordance with the requirements specified by the Secretary in the facility's CHS permit;

(8) Collect a sequence of at least four samples from each well, including background and compliance wells, at least semiannually during the compliance period of the facility;

(9) Analyze samples from all monitoring wells at the compliance point for all constituents listed in 40 CFR 264, Appendix IX, at least annually to determine whether additional hazardous constituents are present in the uppermost aquifer and, if so, at what concentration, in accordance with procedures under Regulation .06-4G of this chapter;

(10) If constituents listed in 40 CFR 264, Appendix IX, are found in the ground water under §A(9) of this regulation, and some of these constituents have not already been identified in the facility's CHS permit as monitoring constituents, the owner or operator shall either:

(a) Report the concentrations of the newly identified constituents to the Secretary within 7 days after the initial analysis and add them to the facility's monitoring list; or

(b) Resample within 1 month and repeat the analysis for constituents listed in 40 CFR 264, Appendix IX, and comply with the following requirements:

(i) Report the results of the analysis to the Secretary within 7 days of the completion of the second analysis; and

(ii) If the results of the resampling confirm the initial testing results, add the constituents to the list of constituents monitored under the facility's permit;

(11) Comply with the following requirements if the owner or operator determines, under §A(5) of this regulation, that any concentration limit under Regulation .06-1C of this chapter is being exceeded at any monitoring well at the point of compliance:

(a) Notify the Secretary of this finding in writing within 7 days, indicating in the notification the concentration limits that have been exceeded;

(b) Submit to the Secretary an application for a permit modification to establish a corrective action program meeting the requirements of Regulation .06-6 of this chapter within 180 days, or within 90 days if an engineering feasibility study has been previously submitted to the Secretary under Regulation .06-4H(5) of this chapter, unless the facility permit already includes that corrective action program;

(c) Include at a minimum, in the application submitted in accordance with §A(11)(b) of this regulation, the following information:

(i) A detailed description of corrective actions that will achieve compliance with the ground water protection standard specified in the permit under §A(1) and (2) of this regulation; and

(ii) A plan for a ground water monitoring program that will demonstrate the effectiveness of the corrective action, and that may be based on a compliance monitoring program developed to meet the requirements of this regulation.

B. Demonstration of Alternate Cause of Exceedence.

(1) If the owner or operator determines, in accordance with §A(5) of this regulation, that any ground water concentration limits under this regulation are being exceeded at any monitoring well at the point of compliance, the owner or operator may attempt to demonstrate that a source other than a regulated unit caused the contamination or that the detection is an artifact from either an error in sampling, analysis, or statistical evaluation, or from natural variation in the ground water.

(2) In making a demonstration under this section, the owner or operator shall:

(a) Notify the Secretary in writing, within 7 days of determining that a ground water concentration limit has been exceeded, of the intention to make a demonstration under this section;

(b) Within 90 days, submit a report to the Secretary which demonstrates that a source other than a regulated unit caused the standards to be exceeded or that the apparent noncompliance with the standards resulted from an error in sampling, analysis, or evaluation, or from natural variation in the ground water;

(c) Within 90 days, submit to the Secretary an application for a permit modification to make any appropriate changes to the compliance monitoring program at the facility; and

(d) Continue to monitor in accordance with the compliance monitoring program established under this regulation.

C. If the owner or operator determines that the compliance monitoring program no longer satisfies the requirements of this regulation, the owner or operator shall, within 90 days, submit an application for a permit modification to make any appropriate changes to the program.