(1) General
(a) Purpose/Scope
The purpose of this rule is to establish special procedures -
in addition to those found at Rule 0400-12-01-.07 - which are to be followed in
the submission of applications for, and the processing of, permits for new
commercial hazardous waste management facilities in Tennessee.
(b) Applicability
1. The requirements of this rule apply as
specified to the owners and operators of:
(i)
All proposed new commercial facilities who are required to apply for a permit
pursuant to Rule 0400-12-01-.07;
(ii) Those permitted commercial facilities
who are proposing to modify their permit to allow the addition of new
land-based or thermal treatment units which are subject to permits under Rule
0400-12-01-.07; and
(iii) Those
permitted non-commercial facilities who are proposing to modify their permit to
allow commercial operation.
2. The requirements of this rule shall not
apply to the processing of permit applications for:
(i) Existing commercial facilities or units
having interim status pursuant to Rule 0400-12-01-.07(3);
(ii) Proposed commercial facilities or units
which do not meet the definition of ''new commercial facility'' at Rule
0400-12-02-.01(2)(a);
(iii)
Modifications to permitted commercial facilities other than those modifications
identified in subpart 1(ii) of this subparagraph; and
(iv) New permits to replace expiring permits
at commercial facilities. .
(Note: As provided in Rule 0400-12-01-.08(1)(d), no permit or
other authorization shall be issued or renewed by the Division of Solid Waste
Management pursuant to Chapter 0400-12-01 or this chapter until all fees and/or
penalties owed by the applicant to the division are paid in full, unless a time
schedule for payments has been approved and all payments are current or
contested fees or penalties are under appeal.)
(c) Conversion to Commercial
Operation during Interim Status
A non-commercial facility having interim status pursuant to
Rule 0400-12-01-.07(3) may not convert to commercial operation without first
obtaining a permit pursuant to this rule and Rule 0400-12-01-.07.
(2) Submission of
Permit Applications
(a) Permit applications
shall consist of a Part A and a Part B as defined at Rule 0400-12-01-.07. The
owner or operator of a proposed new commercial facility must submit his Part A
permit application to the commissioner at least 120 days prior to submission of
his Part B permit application. Failure to do so will result in the commissioner
delaying the processing of the Part B application for a period of time
equivalent to the deficiency in this 120-day separation period. If the Part B
application is not submitted within one year of submittal of the Part A
application, that Part A submission shall be voided.
(b) On or within five (5) days of the dates
he or she submits to the department copies of the original Part A and Part B
applications, and any subsequent additions or modifications thereto, the
applicant shall also submit at least one copy of the same (each submittal) to
all appropriate local community officials. Documentation demonstrating
submission of materials to local community officials shall be submitted to the
department.
(3)
Processing the Permit
The requirements of this paragraph duplicate and supplement
the requirements of paragraph (7) of Rule 0400-12-01-.07, and shall apply in
lieu of that paragraph (7) in the processing of permits for new commercial
facilities.
(a) Preliminary Notices
Within 30 days after the date of original receipt, the
commissioner shall issue a preliminary public notice (pursuant to subparagraph
(f) of this paragraph) for:
1. Each
complete Part A permit application received pursuant to subparagraph (2)(a) of
this rule; and
2. Each Part B
application received for a proposed new commercial facility.
(b) Local Repository
Within 30 days after the date of original receipt of the Part
A or Part B application, the commissioner shall cause such documentation to be
placed in a library or other local repository where it can be reviewed by local
citizens. The commissioner shall further cause to be placed in such local
repository other relevant information, including significant correspondence
between the department and the applicant. Such information shall be maintained
in the local repository until either a final permit decision is reached or the
permit application is withdrawn. If a final permit is issued, the commissioner
shall cause to be placed in the local repository a copy of the final permit and
the response to comments required by subparagraph (m) of this paragraph. The
commissioner shall request that the information be maintained permanently in
this repository.
(c)
Community Meeting
Within 45 days of the publication of the preliminary public
notice required in part (a)2 of this paragraph, the commissioner shall hold a
public meeting in the local community to explain the proposed facility and the
permitting process and to help identify the concerns of the community. The
applicant must be adequately represented by one or more persons knowledgeable
of the proposed facility, and such representative(s) must participate in, any
such meeting in order for it to be considered held. As set forth in T.C.A.
§
68-212-108(f) of
the Act, appropriate local community officials must also attend or be
represented at such meeting. However, their failure to attend shall not
invalidate the meeting.
(d)
Review of the Permit Application
1. The
commissioner shall review every permit application for completeness. Upon
completing the review, the commissioner shall notify the applicant in writing
whether the application is complete. The commissioner shall complete his review
and issue this notice within 45 days after receipt of the Part B permit
application. If the application is incomplete, the commissioner shall list the
information necessary to make the application complete. The commissioner shall
notify the applicant that the application is complete upon receiving this
information. After the application is completed, the commissioner may request
additional information from an applicant but only when necessary to clarify,
modify, or supplement previously submitted material. Requests for such
additional information will not render an application incomplete. The
commissioner shall provide copies of all such notices of deficiency and
requests for information to all appropriate local community officials promptly
upon issuance.
2. If an applicant
fails or refuses to correct deficiencies in the application, the permit shall
not be issued.
3. The commissioner
shall visit the proposed facility site as part of the permit application review
process in order to verify the site description provided in the application.
When the commissioner decides that a site visit is necessary for any reason in
conjunction with the processing of an application, he shall notify the
applicant and a date shall be scheduled. The commissioner shall notify
appropriate local community officials in advance of such scheduled site
visits.
(e) Draft
Permits
1. Once an application is determined
to be complete, the commissioner shall tentatively decide whether the permit
should be issued or denied.
2. If
the commissioner tentatively decides the permit should be denied, he shall
prepare a notice of intent to deny. A notice of intent to deny the permit is a
type of draft permit which follows the same procedures as any draft permit
prepared under this subparagraph (see part 6 of this subparagraph). If the
commissioner finally decides (under subparagraph (l) of this paragraph) that
the tentative decision to deny the permit was incorrect, the commissioner shall
withdraw the notice of intent to deny and proceed to prepare a draft permit as
set forth in part 4 of this subparagraph.
3. If the commissioner tentatively decides
the permit should be issued, he shall prepare a draft permit as set forth in
part 4 of this subparagraph.
4. A
draft permit shall contain (either expressly or by reference) all applicable
conditions from subparagraph (8)(a) of Rule 0400-12-01-.07.
5.
(i)
Except as provided in subpart (ii) of this part, the commissioner shall issue
the notice of intent to deny or issue the draft permit within 45 days after
notifying the applicant that his application was complete (see part (d)1 of
this paragraph).
(ii) If the
commissioner finds it necessary to request additional information from an
applicant after the application is deemed complete (see part (d)1 of this
paragraph), the 45-day time limit shall be automatically extended a period of
time equal to the time it takes for the applicant to submit the requested
information (such time to be calculated from the postmarked date of the
commissioner's written request to the date the department receives the
information).
6. All
draft permits shall be subject to the procedures of subparagraphs (f), (g),
(h), (i), and (j), of this paragraph, unless otherwise specified in those
subparagraphs.
7. Prior to
issuance, the commissioner shall provide a copy of the draft permit or notice
of intent to deny the permit to appropriate local community
officials.
(f) Fact
Sheets
1. A fact sheet shall be prepared for
every draft permit (or notice of intent to deny the permit) for new commercial
facilities.
2. The fact sheet shall
briefly set forth the principal facts and the significant factual, legal,
methodological and policy questions considered in preparing the draft permit;
to include, when applicable:
(i) A brief
description of the type of facility or activity which is the subject of the
draft permit;
(ii) The type and
quantity of wastes which are proposed to be or are being treated, stored, or
disposed of;
(iii) A brief summary
of the applicant's operating and compliance history at other hazardous waste
management facilities owned or operated by the applicant;
(iv) A brief summary of the basis for the
draft permit conditions including references to applicable statutory or
regulatory provisions and appropriate supporting references to the permit
application;
(v) Reasons why any
requested waivers or alternatives to required standards do or do not appear
justified;
(vi) A description of
the procedures for reaching a final decision on the draft permit, including: .
(I) The beginning and ending dates of the
comment period under subparagraph (g) of this paragraph and the address where
comments will be received;
(II) The
public hearing; and
(III) Any other
procedures by which the public may participate in the final decision;
and
(vii) Name and
telephone number of a person to contact for additional information.
3. The commissioner shall send
this fact sheet to the applicant, to appropriate local community officials,
and, on request, to any other person.
(g) Public Notice of Permit Actions and
Public Comment Period
1. Scope
(i) The commissioner shall give public notice
that the following actions have occurred:
(I)
A Part A permit application as described in part (a)1 of this paragraph has
been received;
(II) A Part B permit
application as described in part (a)2 of this paragraph has been
received;
(III) A notice of intent
to deny a permit has been prepared under part (e)2 of this paragraph.
(IV) A draft permit has been prepared under
parts (e)2 or 3 of this paragraph; or
(V) A public hearing has been scheduled under
subparagraph (i) of this paragraph.
(ii) No public notice is required when a
request for permit modification, revocation and reissuance, or termination is
denied under paragraph (9) of Rule 0400-12-01-.07. Written notice of that
denial shall be given to the permittee.
(iii) Public notices may describe more than
one permit or permit action.
2. Timing
(i) Public notice of the preparation of a
notice of intent to deny a permit or of a draft permit, as required under part
1 of this subparagraph, shall allow at least 45 days for public
comment.
(ii) Public notice of a
public hearing shall be given at least 30 days before the hearing. (Public
notice of the hearing may be given at the same time as public notice of the
draft permit and the two notices may be combined.)
3. Methods
Public notice of activities described in subpart 1(i) of this
subparagraph shall be given by the following methods:
(i) By mailing a copy of a notice to the
following persons:
(I) The
applicant,
(II) Any other agency
which the commissioner knows has issued or is required to issue an
environmental permit for the same facility or activity,
(III) All appropriate local community
officials,
(IV) Each state agency
having any authority under state law with respect to the construction or
operation of such facility,
(V) At
the discretion of the commissioner, any other person who has expressed an
interest in such facilities or notices or who the commissioner believes may be
interested; and
(ii) By
publication of a notice in a daily or weekly major local newspaper or general
circulation and broadcast over local radio stations; and
(iii) By any other method deemed necessary or
appropriate by the commissioner to give actual notice of the action in question
to the persons potentially affected by it.
4. Contents
(i) General Public Notices
Except for the preliminary public notices described in
subparagraph (a) of this paragraph, all public notices issued under this part
shall contain the following minimum information:
(I) Name and address of the office processing
the permit action for which notice is being given;
(II) Name and address of the permittee or
permit applicant and, if different, of the facility or activity regulated by
the permit;
(III) A brief
description of the business conducted at the facility or activity described in
the permit application;
(IV) A
brief description of the comment procedures required by subparagraphs (h) and
(i) of this paragraph and the time and place of any public hearing that will be
held, and other procedures by which the public may participate in the final
permit decision;
(V) Name, address,
and telephone number of a person from whom interested persons may obtain
further information, including copies of draft permits and fact sheets;
and
(VI) Any additional information
considered necessary or proper.
(ii) Public Notices for Public Hearing
In addition to the general public notice described in subpart
(i) of this part, the public notice of a public hearing shall contain the
following information:
(I) Reference
to the dates of previous public notices relating to the permit
action;
(II) Date, time and place
of the public hearing; and
(III) A
brief description of the nature and purpose of the public hearing, including
the applicable Rules and procedures.
(iii) Preliminary Notices
(I) The preliminary public notice described
in part (a)1 of this paragraph shall contain the information from items (I),
(II), (III), (V) and (VI) of subpart (i) of this part plus a brief description
of the permitting procedures that will be followed, focusing especially upon
the opportunities for public participation in the process.
(II) The preliminary public notice described
in part (a)2 of this paragraph shall contain the information from items (I),
(II), (III), (V) and (VI) of subpart (i) of this part plus the time and
location of the community meeting(s) required in subparagraph (c) of this
paragraph.
5.
Attachments
In addition to the general public notice described in subpart
4(i) of this subparagraph, all persons identified in items 3(i)(I), (II), (III)
and (IV) of this subparagraph shall be mailed a copy of the fact sheet and the
draft permit.
6. Public
Notice
The applicant shall give all public notices, as prepared and
required by the Commissioner, that are to be issued pursuant to this Rule,
except for Commissioner permit denial decisions. The permittee shall provide
proof of the completion of all notice requirements to the Commissioner within
10 days following conclusion of the public notice procedures. As herein used,
public notification applies to paid publications in the print and electronic
media. Failure to issue such notices shall be grounds for denial of the
permit.
(h)
Public Comments
During the public comment period provided under subpart
(g)2(i) of this paragraph, any interested person may submit written comments on
the draft permit. All comments shall be considered in making the final decision
and shall be answered as provided in subparagraph (l) of this paragraph.
(i) Public Hearings
1.
(i) The
commissioner shall hold at least one public hearing on each draft permit issued
for a new commercial facility. Such hearings shall follow and be separate from
the community meeting required under subparagraph (c) of this
paragraph.
(ii) Whenever possible,
the commissioner shall schedule a hearing under this subparagraph at a location
convenient to the nearest population center to the subject facility.
(iii) Public notice of the hearing shall be
given as specified in subparagraph (g) of this paragraph.
(iv) The public hearing shall be held within
the public comment period established under subpart (g)2(i) of this paragraph
and at least one week prior to the scheduled close of such comment period. The
Hearing Officer may also extend the comment period by so stating at the
hearing.
2. Any person
may submit oral or written statements and data concerning the draft permit.
Reasonable limits may be set upon the time allowed for oral statements, and the
submission of statements in writing may be required.
3. A tape recording or written transcript of
the hearing shall be made available to the public.
(j) Reopening of the Public Comment Period
1. If any data, information, or arguments
submitted during the public comment period appear to raise substantial new
questions concerning a permit action, the commissioner may (at his discretion
or as directed by the Board) take one or more of the following actions:
(i) Prepare a new draft permit, appropriately
modified, under subparagraph (e) of this paragraph;
(ii) Prepare a fact sheet or revised fact
sheet under subparagraph (f) of this paragraph and reopen the comment period
under subparagraph (g) of this paragraph; or
(iii) Reopen or extend the comment period
under subparagraph (g) of this paragraph to give interested persons an
opportunity to comment on the information or arguments submitted.
2. Comments filed during the
reopened comment period shall be limited to the substantial new questions that
caused its reopening. The public notice under subparagraph (g) of this
paragraph shall define the scope of the reopening.
3. Public notice of any of the actions of
part 1 of this subparagraph shall be issued under subparagraph (g) of this
paragraph.
(k) Local
Community Input
In addition to commenting during the public comment period,
local communities may have input into the permit decision-making process by
submission of a report as set forth in T.C.A. §
68-212-108(f) of
the Act.
(l) Final Permit
Decision
1. Within 90 days after the close of
the public comment period (under subparagraph (g) of this paragraph) on a draft
permit (including a notice of intent to deny a permit), the commissioner shall
issue a final permit decision. In reaching such a final decision, the
commissioner shall consider any reports submitted from local communities as set
forth in §
68-212-108(f) of
the Act. For the purposes of this subparagraph, a final permit decision means a
final decision to issue, deny, modify, revoke and reissue, or terminate a
permit.
2. The commissioner shall
notify the applicant, the appropriate local community officials, and each
person who has submitted written comments or requested notice of the final
permit decision.
3. A final permit
decision shall become effective upon the date of the service of notice of the
decision to the applicant under part 1 of this subparagraph unless a later date
is specified in the decision.
(m) Response to Comments
1. At the time that a final permit is issued
under subparagraph (l) of this paragraph, the commissioner shall issue a
response to comments. This response shall:
(i)
Specify which provisions, if any, of the draft permit have been changed in the
final permit decision, and the reasons for the change; and
(ii) Briefly describe and respond to all
significant comments on the draft permit raised during the public comment
period, or during any public hearing.
2. The response to comments shall be made
available to the public.
(n) Appeals
The commissioner's final permit decision under subparagraph
(l) of this paragraph may be appealed to the Board as set forth in T.C.A.
§
68-212-113(a)(2)(B) and
(b). Such decision may be so appealed by any
aggrieved person, to include only the applicant, persons who own property or
live within a three (3) mile radius of the proposed facility, local communities
and/or any resident of such local communities. If the commissioner fails to
take any action on a permit application within 45 days after it was submitted
to him, or fails to meet the time limits imposed by parts (d)1, (e)5, and (l)1
of this paragraph, the permit applicant may appeal to the Board as set forth in
T.C.A. §
68-212-113(a)3
and (b).
