Ariz. Admin. Code § R18-8-271 - Procedures for Permit Administration
A. All of 40 CFR 124, revised as of July 1,
2020 (and no future editions), with the exception of §§ 124. 1 (b)
through (e), 124. 2, 124. 4, 124. 16, 124. 20, 124. 21, and subparts C, D, and
G, and with the exception of the revisions for standardized permits as
published at 70 FR 53419, is incorporated by reference, modified by the
following subsections, and on file with the DEQ. Copies of 40 CFR 124 are
available at https://www.eCFR.gov.
Copies of the Federal Register are available at
https://www.federalregister.gov.
B.
§ 124. 1, titled "Purpose
and scope," paragraph (a) is replaced by the following:
[This Section contains the DEQ procedures for issuing, modifying, revoking and reissuing, or terminating all hazardous waste management facility permits. This Section describes the procedures the DEQ shall follow in reviewing permit applications, preparing draft permits, issuing public notice, inviting public comment, and holding public hearings on draft permits. This Section also includes procedures for assembling an administrative record, responding to comments, issuing a final permit decision, and allowing for administrative appeal of the final permit decision. The procedures of this Section also apply to denial of a permit for the active life of a RCRA HWM facility or unit under § 270. 29.]
C.
§ 124. 3, titled "Application for a
permit," is replaced by the following:
(a)
(1) Any person who requires a permit under
this Article shall complete, sign, and submit to the Director an application
for each permit required under § 270.
1.
Applications are not required for RCRA permits-by-rule in § 270.
60.
(2) The Director
shall not begin processing a permit until the applicant has fully complied with
the application requirements for that permit. (Refer to §§ 270. 10
and 270. 13).
(3) An applicant for
a permit shall comply with the signature and certification requirements of
§ 270. 11.
(b)
Reserved.
(c) The Director shall
review for completeness every application for a permit. Each application
submitted by a new HWM facility shall be reviewed for completeness by the
Director in the order of priority on the basis of hazardous waste capacity
established in a list by the Director. The Director shall make the list
available upon request. Upon completing the review, the Director shall notify
the applicant in writing whether the application is complete. If the
application is incomplete, the Director shall list the information necessary to
make the application complete. When the application is for an existing HWM
facility, the Director shall specify in the notice of deficiency a date for
submitting the necessary information. The Director shall notify the applicant
that the application is complete upon receiving this information. After the
application is completed, the Director may request additional information from
an applicant but only when necessary to clarify, modify, or supplement
previously submitted material. Requests for additional information do not
render an application incomplete.
(d) If an applicant fails or refuses to
correct deficiencies in the application, the permit may be denied and the
Director may take appropriate enforcement actions against an existing HWM
facility pursuant to A. R. S. §§
49-923,
49-924 and
49-925.
(e) If the Director decides that a site visit
is necessary for any reason in conjunction with the processing of an
application, the Director shall notify the applicant and schedule a date for a
site visit.
(f) The effective date
of an application is the date on which the Director notifies the applicant that
the application is complete as provided in paragraph (c) of this subsection.
(g) For each application from a
new HWM facility, the Director shall, no later than the effective date of the
application, prepare and mail to the applicant a project decision schedule. The
schedule shall specify target dates by which the Director intends to do the
following:
(1) Prepare a draft permit or
Notice of Intent to Deny;
(2) Give
public notice;
(3) Complete the
public comment period, including any public hearing;
(4) Make a decision to issue or deny a final
permit; and
(5) Issue a final
decision.
D.
§ 124. 5, titled "Modification, revocation and reissuance, or termination
of permits," is replaced by the following:
(a)
Permits may be modified, revoked and reissued, or terminated either at the
request of any interested person (including the permittee) or upon the
Director's initiative. However, permits may only be modified, revoked and
reissued, or terminated for the reasons specified in §§ 270. 41 or
270. 43. All requests shall be in writing and shall contain facts or reasons
supporting the request.
(b) If the
Director decides the request is not justified, the Director shall send the
requester a brief written response giving a reason for the decision. Denials of
requests for modification, revocation and reissuance, or termination are not
subject to public notice, comment, or hearings.
(c) Modification, revocation or reissuance of
permits procedures.
(1) If the Director
tentatively decides to modify or revoke and reissue a permit under §§
270. 41 or 270. 42(c), the Director shall prepare a draft permit under §
124. 6, incorporating the proposed changes. The Director may request additional
information and, in the case of a modified permit, may require the submission
of an updated application. In the case of revoked and reissued permits, the
Director shall require the submission of a new application.
(2) In a permit modification under this
[subsection], only those conditions to be modified shall be reopened when a new
draft permit is prepared. All other aspects of the existing permit shall remain
in effect for the duration of the unmodified permit. The permit modification
shall have the same expiration date as the unmodified permit. When a permit is
revoked and reissued under this subsection, the entire permit is reopened just
as if the permit had expired and was being reissued. During any revocation and
reissuance proceeding the permittee shall comply with all conditions of the
existing permit until a new final permit is reissued.
(3) "Classes 1 and 2 modifications" as
defined in § 270. 42 are not subject to the requirements of this
subsection.
(d) If the
Director tentatively decides to terminate a permit under § 270. 43, the
Director shall issue a notice of intent to terminate. A notice of intent to
terminate is a type of draft permit which follows the same procedures as any
draft permit prepared under § 124. 6. In the case of permits that are
processed or issued jointly by both the DEQ and the EPA, a notice of intent to
terminate shall not be issued if the Regional Administrator and the permittee
agree to termination in the course of transferring permit responsibilities from
the EPA to the state.
(e) The
Director shall base all draft permits, including notices of intent to
terminate, prepared under this subsection on the administrative record as
defined in § 124. 9.]
E.
§ 124. 6, titled "Draft permits," is
replaced by the following:
(a) Once an
application is complete, the Director shall tentatively decide whether to
prepare a draft permit or to deny the application.
(b) If the Director tentatively decides to
deny the permit application, the Director shall issue a notice of intent to
deny. A notice of intent to deny the permit application is a type of draft
permit which follows the same procedures as any draft permit prepared under (e)
of this subsection.
(c) Reserved.
(d) If the Director decides to
prepare a draft permit, the Director shall prepare a draft permit that contains
the following information:
(2) All compliance
schedules under § 270. 33;
(3)
All monitoring requirements under § 270. 31; and
(4) Standards for treatment, storage, and/or
disposal and other permit conditions under § 270. 30.
(e) All draft permits prepared by the DEQ
under this subsection shall be accompanied by a statement of basis (§ 124.
7,) or fact sheet (§ 124. 8,), and shall be based on the administrative
record (§ 124. 9,), publicly noticed (§ 124. 10,) and made available
for public comment (§ 124. 11,). The Director shall give notice of
opportunity for a public hearing (§ 124. 12,), issue a final decision
(§ 124. 15,) and respond to comments (§ 124. 17,).
F.
§ 124. 7, titled
"Statement of basis," is replaced by the following:
The DEQ shall prepare a statement of basis for every draft permit for which a fact sheet under § 124. 8 is not prepared. The statement of basis shall briefly describe the derivation of the conditions of the draft permit and the reasons for them or, in the case of notices of intent to deny or terminate, reasons supporting the tentative decision. The statement of basis shall be sent to the applicant and, on request, to any other person.
G.
§ 124. 8, titled "Fact
sheet," is replaced by the following:
(a) The
DEQ shall prepare a fact sheet for every draft permit for a new HWM facility,
and for every draft permit that the Director finds is the subject of widespread
public interest or raises major issues. 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. The Director shall
send this fact sheet to the applicant and, on request, to any other person.
(b) The fact sheet shall include,
when applicable:
(1) A brief description of
the type of facility or activity that is the subject of the draft
permit;
(2) The type and quantity
of wastes, that are proposed to be or are being treated, stored, or
disposed;
(3) Reserved.
(4) 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
administrative record required by § 124. 9;
(5) Reasons why any requested variances or
alternatives to required standards do or do not appear justified;
(6) 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 §§ 124. 10 and the address where comments will
be received;
(ii) Procedures for
requesting a hearing and the nature of that hearing; and
(iii) Any other procedures by which the
public may participate in the final decision; and
(7) Name and telephone number of a person to
contact for additional information.
(8) Reserved.
H.
§ 124. 9 titled "Administrative
record for draft permits" is replaced by the following:
(a) The provisions of a draft permit prepared
under § 124. 6 shall be based on the administrative record defined in this
subsection.
(b) For preparing a
draft permit under § 124. 6, the record consists of:
(1) The application, if required, and any
supporting data furnished by the applicant, subject to paragraph (e) of this
subsection;
(2) The draft permit or
notice of intent to deny the application or to terminate the permit;
(3) The statement of basis under §§
124. 7 or fact sheet under § 124. 8;
(4) All documents cited in the statement of
basis or fact sheet; and
(5) Other
documents contained in the supporting file for the draft permit.
(6) Reserved.
(c) Material readily available at the DEQ or
published material that is generally available, and that is included in the
administrative record under paragraphs (b) and (c) of this subsection, need not
be physically included with the rest of the record as long as it is
specifically referred to in the statement of basis or the fact sheet.
(d) This subsection applies to all
draft permits when public notice was given after the effective date of these
rules.
(e) All items deemed
confidential pursuant to A. R. S. §
49-928 shall be maintained
separately and not disclosed to the public.
I.
§ 124. 10, titled "Public notice of
permit actions and public comment period," is replaced by the following:
(a) Scope.
(1) The Director shall give public notice
that the following actions have occurred:
(i)
A permit application has been tentatively denied under § 124.
6(b);
(ii) A draft permit has been
prepared under § 124. 6(d); and
(iii) A hearing has been scheduled under
§ 124. 12.
(2) No
public notice is required when a request for permit modification, revocation
and reissuance, or termination is denied under § 124. 5(b). Written notice
of that denial shall be given to the requester and to the permittee.
(3) Public notices may describe more than one
permit or permit actions.
(b) Timing.
(1) Public notice of the preparation of a
draft permit (including a notice of intent to deny a permit application)
required under paragraph (a) of this subsection shall allow at least 45 days
for public comment.
(2) 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.)
(c) Methods. Public notice of activities
described in paragraph (a)(1) of this subsection shall be given by the
following methods:
(1) By mailing a copy of a
notice to the following persons (any person otherwise entitled to receive
notice under this subparagraph may waive his or her rights to receive notice
for any classes and categories of permits):
(i) An applicant;
(ii) Any other agency which the Director
knows has issued or is required to issue a HWM facility permit or any other
federal environmental permit for the same facility or activity;
(iii) Federal and state agencies with
jurisdiction over fish, shellfish, and wildlife resources, the Advisory Council
on Historic Preservation, State Historic Preservation Officers, including any
affected states (Indian Tribes). For purposes of this paragraph, and in the
context of the Underground Injection Control Program only, the term State
includes Indian Tribes treated as States;
(iv) Reserved.
(v) Reserved.
(vi) Reserved.
(vii) Reserved.
(viii) Reserved.
(ix) Persons on a mailing list developed by:
(A) Including those who request in writing to
be on the list;
(B) Soliciting
persons for "area lists" from participants in past permit proceedings in that
area; and
(C) Notifying the public
of the opportunity to be put on the mailing list through periodic publication
in the public press and in such publications as regional and state-funded
newsletters, environmental bulletins, or state law journals. (The Director may
update the mailing list from time to time by requesting written indication of
continued interest from those listed. The Director may delete from the list the
name of any person who fails to respond to the request.); and
(x)
(A) To any unit of local government having
jurisdiction over the area where the facility is proposed to be located;
and
(B) To each state agency having
any authority under state law with respect to the construction or operation of
the facility;
(2) By newspaper publication and radio
announcement broadcast, as follows:
(i)
Reserved.
(ii) For all permits,
publication of a notice in a daily or weekly major local newspaper of general
circulation within the area affected by the facility or activity, at least
once, and in accordance with the provisions of paragraph (b) of this
subsection; and
(iii) For all
permits, a radio announcement broadcast over two local radio stations serving
the affected area at least once during the period two weeks prior to the public
hearing. The announcement shall contain:
(A)
A brief description of the nature and purpose of the hearing;
(B) The information described in items (i),
(ii), (iii), (iv), and (vii) of subparagraph (d)(1) of this
subsection;
(C) The date, time, and
place of the hearing; and
(D) Any
additional information considered necessary or proper; or
(3) Reserved.
(4) Any other method reasonably calculated to
give actual notice of the action in question to the persons potentially
affected by it, including press releases or any other forum or medium to elicit
public participation.
(d)
(1) Each public notice issued under this
Article 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
such permit;
(iii) A brief
description of the business conducted at the facility or activity described in
the permit application;
(iv) Name,
address and telephone number of a person from whom interested persons may
obtain further information, including copies of the statement of basis or fact
sheet;
(v) A brief description of
the comment procedures required by §§ 124. 11 and 124. 12 and the
time and place of any hearing that shall be held, including a statement of
procedures to request a hearing (unless a hearing has already been scheduled)
and other procedures by which the public may participate in the final permit
decision;
(vi) The location of the
administrative record required by § 124. 9, the times at which the record
will be open for public inspection, and a statement that all data submitted by
the applicant (except for confidential information pursuant to A. R. S. §
49-928) is available as part of
the administrative record;
(vii)
The locations where a copy of the application and the draft permit may be
inspected and the times at which these documents are available for public
review; and
(viii)
Reserved.
(ix) Any additional
information considered necessary or proper.
(2) Public notices for hearings. In addition
to the general public notice described in paragraph (d)(1) of this subsection,
the public notice of a hearing under § 124. 12 shall contain the following
information:
(i) Reference to the date of
previous public notices relating to the permit;
(ii) Date, time, and place of the hearing;
and
(iii) A brief description of
the nature and purpose of the hearing, including the applicable rules and
procedures.
(iv) Reserved.
(e) In
addition to the general public notice described in paragraph (d)(1) of this
subsection, all persons identified in paragraphs (c)(1)(i), (ii), and (iii) of
this subsection shall be mailed a copy of the fact sheet or statement of basis,
the permit application (if any), and the draft permit (if any).
J.
§ 124. 11, titled "Public
comments and requests for public hearings," is replaced by the following:
During the public comment period provided under § 124. 10, any person may submit written comments on the draft permit and may request a public hearing, if no hearing has already been scheduled. A request for a public hearing shall be in writing and shall state the nature of the issues proposed to be raised in the hearing. All comments shall be considered in making the final decision and shall be answered as provided in § 124. 17.
K.
§ 124. 12, titled "Public
hearings," is replaced by the following:
(a)
(1) The Director shall hold a public hearing
whenever the Director finds, on the basis of requests, a significant degree of
public interest in a draft permit.
(2) The Director may also hold a public
hearing at the Director's discretion whenever, for instance, such a hearing
might clarify one or more issues involved in the permit decision.
(3) The Director shall hold a public hearing
whenever written notice of opposition to a draft permit and a request for a
hearing has been received within 45 days of public notice under § 124.
10(b)(1). Whenever possible the Director shall schedule a hearing under this
subsection at a location convenient to the nearest population center to the
proposed facility.
(4) Public
notice of the hearing shall be given as specified in § 124. 10.
(b) Reserved.
(c) 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. The public comment period under § 124. 10 shall
automatically be extended to the close of any public hearing under this
subsection. The hearing officer may also extend the comment period by so
stating at the hearing.
(d) A tape
recording or written transcript of the hearing shall be made available to the
public.
(e) Reserved.]
L.
§ 124. 13, titled
"Obligation to raise issues and provide information during the public comment
period," is replaced by the following: [All persons, including applicants, who
believe any condition of a draft permit is inappropriate or that the Director's
tentative decision to deny an application, terminate a permit, or prepare a
draft permit is inappropriate, shall raise all reasonably ascertain-able issues
and submit all reasonably available arguments supporting their position by the
close of the public comment period (including any public hearing) under §
124. 10,. Any supporting materials that a commenter submits shall be included
in full and shall not be incorporated by reference, unless they are already
part of the administrative record in the same proceeding or consist of state or
federal statutes and regulations, EPA documents of general applicability, or
other generally available reference materials. Commenters shall make supporting
material not already included in the administrative record available to the DEQ
as directed by the Director.]
M.
§ 124. 14, titled "Reopening of the public comment period," is replaced by
the following:
(a)
(1) The Director may order the public comment
period reopened if the procedures of this paragraph could expedite the
decision-making process. When the public comment period is reopened under this
paragraph, all persons, including applicants, who believe any condition of a
draft permit is inappropriate or that the Director's tentative decision to deny
an application, terminate a permit, or prepare a draft permit is inappropriate,
must submit all reasonably available factual grounds supporting their position,
including all supporting material, by a date, not less than 60 days after
public notice under paragraph (a)(2) of this subsection, set by the Director.
Thereafter, any person may file a written response to the material filed by any
other person, by a date, not less than 20 days after the date set for filing of
the material, set by the Director.
(2) Public notice of any comment period under
this paragraph shall identify the issues to which the requirements of §
124. 14(a) apply.
(3) On the
Director's own motion or on the request of any person, the Director may direct
that the requirements of paragraph (a)(1) of this subsection shall apply during
the initial comment period where it reasonably appears that issuance of the
permit will be contested and that applying the requirements of paragraph (a)(1)
of this subsection will substantially expedite the decision-making process. The
notice of the draft permit shall state whenever this has been done.
(4) A comment period of longer than 60 days
will often be necessary in complicated proceedings to give commenters a
reasonable opportunity to comply with the requirements of this subsection.
Commenters may request longer comment periods and they shall be granted under
§ 124. 10 to the extent they appear necessary.
(b) If any data, information, or arguments
submitted during the public comment period, including information or arguments
required under § 124. 13, appear to raise substantial new questions
concerning a permit, the Director may take one or more of the following
actions:
(1) Prepare a new draft permit,
appropriately modified, under §§ 124. 6;
(2) Prepare a revised statement of basis
under § 124. 7, a fact sheet or revised fact sheet under this § 124.
8, and reopen the comment period under this subsection; or,
(3) Reopen or extend the comment period under
§ 124. 10 to give interested persons an opportunity to comment on the
information or arguments submitted.
(c) Comments filed during the reopened
comment period shall be limited to the substantial new questions that caused
its reopening. The public notice under § 124. 10 shall define the scope of
the reopening.
(d) Reserved.
(e) Public notice of any of the
above actions shall be issued under §§ 124. 10.
N.
§ 124. 15, titled "Issuance and
effective date of permit," is replaced by the following:
(a) After the close of the public comment
period under § 124. 10 on a draft permit, the Director shall issue a final
permit decision or a decision to deny a permit for the active life of a RCRA
hazardous waste management facility or unit under § 270. 29. The Director
shall notify the applicant and each person who has submitted written comments
or requested notice of the final permit decision. This notice shall include
reference to the procedures for appealing a decision on a permit or a decision
to terminate a permit. For purposes of this subsection, a final permit decision
means a final decision to issue, deny, modify, revoke and reissue, or terminate
a permit.
(b) A final permit
decision or a decision to deny a permit for the active life of a RCRA hazardous
waste management facility or unit under § 270. 29 becomes effective on the
date specified by the Director in the final permit notice.
(1) Reserved.
(2) Reserved.
(3) Reserved.
O.
§ 124. 17, titled "Response to
comments," is replaced by the following:
(a)
At the time that any final decision to issue a permit is made under § 124.
15, the Director shall issue a response to comments. This response shall:
(1) Specify which provisions, if any, of the
draft permit have been changed in the final permit decision, and the reasons
for the change; and
(2) Briefly
describe and respond to all significant comments on the draft permit raised
during the public comment period, or during any hearing.
(b) Any documents cited in the response to
comments shall be included in the administrative record for the final permit
decision as defined in § 124. 18. If new points are raised or new material
supplied during the public comment period, the DEQ may document its response to
those matters by adding new materials to the administrative record.
(c) The response to comments shall be
available to the public.
P.
§ 124. 18, titled "Administrative
record for final permit" is replaced by the following:
(a) The Director shall base final permit
decisions under § 124. 15 on the administrative record defined in this
subsection.
(b) The administrative
record for any final permit shall consist of the administrative record for the
draft permit, and:
(1) All comments received
during the public comment period provided under § 124. 10, including any
extension or reopening under § 124. 14,;
(2) The tape or transcript of any hearing(s)
held under § 124. 12;
(3) Any
written materials submitted at such a hearing;
(4) The response to comments required by
§ 124. 17 and any new material placed in the record under that
subsection;
(5) Reserved.
(6) Other documents contained in
the supporting file for the permit; and
(7) The final permit.
(c) The additional documents required under
(b) of this subsection shall be added to the record as soon as possible after
their receipt or publication by the DEQ. The record shall be complete on the
date the final permit is issued.
(d) This subsection applies to all final
permits when the draft permit was subject to the administrative record
requirement of § 124. 9.
(e)
Material readily available at the DEQ, or published materials which are
generally available and which are included in the administrative record under
the standards of this subsection or of § 124. 17, ("Response to
comments"), need not be physically included in the same file as the rest of the
record as long as the materials and their location are specifically identified
in the statement of basis or fact sheet or in the response to comments.
Q.
§ 124.19, titled
"Appeal of RCRA, UIC, and PSD permits," is replaced by the following:
A final permit decision (or a decision under § 270. 29 to deny a permit for the active life of a RCRA hazardous waste management facility or unit issued under § 124. 15 is an appealable agency action as defined in A. R. S. § 41-1092 and is subject to appeal under A. R. S. Title 41, Ch. 6, Art. 10.
R.
§ 124.31(a) titled "Pre-application
public meeting and notice" is amended by deleting the following sentence:
"For the purpose of this section only, 'hazardous waste management units over which EPA has permit issuance authority' refers to hazardous waste management units for which the State where the units are located has not been authorized to issue RCRA permits pursuant to 40 CFR 271 . "
S.
§ 124.32(a) titled
"Public notice requirements at the application stage" is amended by deleting
the following sentence:
"For the purpose of this section only, 'hazardous waste management units over which EPA has permit issuance authority' refers to hazardous waste management units for which the State where the units are located has not been authorized to issue RCRA permits pursuant to 40 CFR 271. "
T.
§ 124.33(a) titled
"Information repository" is amended by deleting the following sentence:
"For the purpose of this section only, 'hazardous waste management units over which EPA has permit issuance authority' refers to hazardous waste management units for which the State where the units are located has not been authorized to issue RCRA permits pursuant to 40 CFR 271. "
Notes
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