Section 0400-12-02-.02 - PERMITTING OF NEW COMMERCIAL HAZARDOUS WASTE MANAGEMENT FACILITIES(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; and2. 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 Permits1. 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 Sheets1. 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 Period1. 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:(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 Decision1. 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).
Tenn. Comp. R. & Regs. 0400-12-02-.02
Original rule filed June 19, 2012; effective September 17, 2012.Authority: §§ 68-212-101 et seq.,68-212-201 et seq., and 4-5-201 et seq.