Tenn. Comp. R. & Regs. 0400-11-01-.02 - PERMITTING OF SOLID WASTE STORAGE, PROCESSING, AND DISPOSAL FACILITIES

(1) General

(a) Purpose - The purpose of this rule is to establish the procedures, documentation, and other requirements which must be met in order for a person to be permitted to operate a solid waste storage, processing or disposal facility in Tennessee.

(b) Scope/Applicability

1. The requirements of this rule apply as specified to operators of facilities in Tennessee. Except as otherwise provided in this rule, no facility can lawfully store, process, or dispose of solid waste unless the operator has a permit.

2. Each classification of disposal, processing, or transfer facility on a site must have a separate permit. However, a processing facility may have more than one unit.

3. The following facilities or practices are not subject to the requirement to have a permit:

(i) Disposal of septic tank pumpings;

(ii) Junkyards;

(iii) Reclamation of surface mines;

(iv) Disposal of farming wastes at facilities which are on the site of generation and with a fill area of less than one acre in areal extent when completed;

(v) Disposal of landscaping and land clearing wastes at facilities which are on the site of generation and with a fill area of less than one acre in areal extent when completed;

(vi) Disposal of construction/demolition wastes at facilities which are on-site of generation and with a fill area of less than one acre in areal extent when completed;

(vii) Burning solid wastes for energy recovery or processing solid wastes to produce a fuel or processing solid waste for materials recovery, provided such burning or processing occurs on the site of generation or at a site owned or operated by the same corporation or subsidiaries of such corporation;

(viii) Processing or disposal of solid wastes at hazardous waste management facilities authorized by permit or interim status under Rule 0400-12-01-.07, or management of solid waste that is regulated under Chapter 0400-12-01;

(ix) Baling, shredding, and mechanical or other processing of solid waste on the site of generation or at a site owned or operated by the same corporation or subsidiaries of such corporation;

(x) Processing of industrial wastewaters in on-site facilities subject to regulation under T.C.A. § 69-3-101 et seq.;

(xi) Processing or disposal of the following materials:

(I) Domestic sewage and any mixture of domestic sewage and other wastes that passes through a sewer system to a publicly-owned wastewater treatment works for treatment;

(II) Industrial wastewater discharges that are point source discharges subject to permits under T.C.A. § 69-3-101 et seq.;

(III) Irrigation return flows;

(IV) Source, special nuclear, or by-product material as defined by the Atomic Energy Act of 1954, as amended ( 42 U.S.C. 2011 et seq.);

(V) Materials subjected to in-situ mining techniques which are not removed from the ground as part of the extraction process;

(VI) Farming wastes which are returned to the soil as fertilizers; and

(VII) Mining overburden returned to the mine site;

(xii) Processing or disposal of solid wastes by deep underground injection which are permitted under the Water Quality Control Act of 1977 and Chapter 0400-45-06 Underground Injection Control.

(xiii) The use of solely natural rock, dirt, stumps, pavement, concrete and rebar, and/or brick rubble as fill material.

(xiv) The processing of waste tires at facilities that are permitted or otherwise authorized by this chapter to store and/or dispose of waste tires.

(xv) The storage of solid waste that is recyclable material incidental to its recycling, reuse, reclamation, or salvage provided that upon request of the Commissioner, the operator demonstrates to the satisfaction of the Commissioner that there is a viable market for all stored waste and provided that all waste is stored in a manner that minimizes the potential for harm to the public and the environment. Recyclable material may not be stored for more than one year without written approval from the Division.

(xvi) The storage of solid waste incidental to its collection. (The storage of solid waste at permitted facilities and permit-by-rule facilities and storage in a manner constituting disposal are not exempt from permitting requirements).

(xvii) The collection of "used oil" and/or the processing of used oil filters, provided that the used oil and/or filters are received directly from "do-it-yourselfers" as the terms are defined at T.C.A. § 68-211-1002.

(xviii) The processing of landscaping or land clearing wastes or unpainted, unstained, and untreated wood into mulch.

(xix) The land application of both publicly owned treatment works water sludges and publicly owned treatment works wastewater sludges from facilities that are subject to regulatory standards of the Department's Division of Water Resources.

(xx) The burning of natural and untreated wood, landscaping wastes, landclearing wastes in either an air curtain destructor or by open burning.

(xxi) The beneficial use of waste, which does not constitute disposal, that the generator demonstrates, to the satisfaction of the Commissioner, is not detrimental to public health, safety, or the environment.

(xxii) Recovered materials processing facilities provided all the following conditions are met:

(I) Prior to commencing operations, the owner or operator notifies the Commissioner on forms provided by the Department and completed in accordance with the instructions accompanying the forms, which include:

I. The facility name, owner, operator, mailing and location address;

II. The type(s) of material to be received;

III. The maximum storage capacity at the facility for the storage of each material identified in subitem II of this item;

IV. A general description of the recovered materials processing operation; and

V. Any information requested by the Commissioner to determine the amount of financial assurance needed, if any, pursuant to item (VII) of this subpart;

(II) Prior to implementing a change in ownership, location, type of material received, increase in storage capacity for a material, or method of processing, the owner or operator:

I. Notifies the Commissioner of the proposed change by submitting updated forms in accordance with item (I) of this subpart; and

II. Complies with item (VII) of this subpart;

(III) All materials arriving at the facility to be processed are recovered materials as defined in paragraph (2) of Rule 0400-11-01-.01;

(IV) The owner or operator manages all solid waste generated as a result of recovered materials processing from the point of generation and provides for its proper management in accordance with the requirements of this chapter;

(V) The owner or operator manages the recovered material(s) and/or product(s) produced as a valuable commodity(ies) while it is under the owner or operator's control and minimizes:

I. The propagation, harborage, or attraction of flies, rodents, or other disease vectors;

II. The potential for explosions or uncontrolled fires;

III. The potential for releases of recovered materials or process residues to the environment except in a manner authorized by state and local air pollution control, water pollution control, and/or waste management agencies; and

IV. The potential for harm to the public through unauthorized or uncontrolled access;

(VI) Upon request of the Commissioner, the owner or operator timely demonstrates, to the satisfaction of the Commissioner, that there is a viable market for the sale of, or a use or reuse of, the recovered material;

(VII) Upon request of the Commissioner, after the Commissioner receives the initial notification pursuant to item (I) of this subpart or a change in the information pursuant to item (II) of this subpart, the owner or operator timely files with the Commissioner a financial assurance instrument that complies with subparagraph (3)(d) of Rule 0400-11-01-.03 in an amount determined by the Commissioner to be sufficient to ensure proper closure and post-closure care of the facility, after taking into consideration the potential value of the recovered materials and the cost for an independent third party to remove for proper management all of the recovered materials to be stored or processed based on the maximum extent of facility operation;

(Note: Financial assurance will not be required for recovered materials processing facilities that are government-owned or if the value of the recovered materials is more than the cost for an independent third party to remove for proper management all of the recovered materials to be stored or processed assuming the maximum extent of facility operation.)

(VIII) The owner or operator maintains the records necessary to demonstrate:

I. Compliance with items (III), (IV), and (VI) of this subpart; and

II. That the maximum storage capacity at the facility for the storage of each recovered material has not been exceeded; and

(IX) If applicable, in accordance with T.C.A. § 68-211-871 and subparagraph (5)(c) of Rule 0400-11-01-.09, the owner or operator submits an annual report by type of material by March 1 of each year in a manner directed by the Commissioner.

4. The Commissioner may issue or deny a permit for one or more units at a facility without simultaneously issuing or denying a permit to all of the units at the facility.

5. No permit or other authorization shall be issued or renewed by the Division of Solid Waste Management pursuant to 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) Coordinating Local Approval with Review of Permits and Permits by Rule

1. Regional Approval under T.C.A. Title 68, Chapter 211, Part 8.

(i) T.C.A. subdivision 68-211-814(b)(2) provides that an applicant for a permit for construction or expansion of a municipal solid waste landfill or incinerator must submit a copy of the application to the municipal solid waste region at or before the time the application is submitted to the department. It also requires the region to render a decision within 90 days of receipt of a complete application. Finally, it states that if the region rejects the application, the department shall not issue the permit unless it finds that the region's decision was arbitrary and capricious and unsupported in the record developed before the region.

(ii) A person applying to the department for a permit for construction or expansion of a municipal solid waste landfill or incinerator must submit documentation to the department within 120 days of its submittal of a complete application to the region that shall include:

(I) evidence of the date on which it submitted its application to the region;

(II) a copy of a notice that the application was determined to be complete by the region, if one was issued; and

(III) a copy of the decision of the region or a notarized statement that the region failed to act within the 90 days after receipt of a complete application as provided by T.C.A. subsection 68-211-814(b).

(iii) Only for purposes of subparts (i) and (ii) of this part, "application" or "complete application" shall mean:

(I)

I. For an incinerator, a copy of the notification required by part (2)(b)2. of this rule that contains the information required by subparts (i) through (v) of that part; and

II. For a landfill, a copy of the Part 1 application required by subpart (3)(c)1.(i) of this rule; and

(II) Other information which the region may reasonably require for its purposes of determining whether a proposed landfill or incinerator is consistent with the region's solid waste plan.

2. Local Approval under T.C.A. Title 68, Chapter 211, Part 7

(i) T.C.A. Title 68, Chapter 211, Part 7, known as the "Jackson Law," authorizes counties and municipalities to opt-into its provisions in accordance with T.C.A. § 68-211-707. If a local government does so, it may then approve or disapprove the proposed new construction for solid waste disposal by landfilling and solid waste processing facilities in accordance with T.C.A. § 68-211-704. For purposes of T.C.A. § 68-211-105(h), a "new landfill for solid waste disposal" or a "new solid waste landfill" means any of the following:

(I) A solid waste landfill that received a tentative decision from the department to issue a permit after June 2, 1989 (the date the Jackson Law went into effect);

(II) A lateral expansion (a modification that expands the previously permitted footprint) of a solid waste landfill described in item (I) of this part; and

(III) A solid waste landfill described in item (I) of this part whose owner or operator proposes to accept waste that would require a change of the landfill's classification under this chapter to a classification with higher standards (i.e., from a Class III/IV landfill to a Class I or II landfill, or from a Class II to a Class I).

(ii) The Jackson Law does not apply to facilities that existed on June 2, 1989 (the date the Jackson Law went into effect) and it does not apply to an expansion of those facilities. Facilities that existed on June 2, 1989 include those that had received from the department a tentative decision to issue the facility a permit.

(iii) The Jackson Law does not apply to any private landfill that accepts solid waste solely generated by its owner if the waste is solely generated within the county where the landfill is located and if the private landfill does not accept county or municipal solid waste or ordinary household garbage.

(iv) If a local government(s) has not adopted the Jackson Law prior to the date the department issues public notice of a tentative decision to issue a permit, then the Jackson Law does not apply to that permitting process. Public Acts 1989, Chapter 515, Section 13 provides that the Jackson Law shall only be applicable to any permit application for which a tentative approval/determination has not been public noticed.

(Note: A current list of local governments that have adopted the Jackson Law can be found on the department's website.)

(v) The department shall not review or approve a notification for a solid waste processing facility or an application for a new solid waste landfill that is proposed to be located within jurisdictions that have adopted the Jackson Law until the application or notification for a processing facility permit by rule is approved pursuant to T.C.A. § 68-211-704.

(vi) Within jurisdictions in which the Jackson Law is applicable, any person seeking department review and approval of an application for a new solid waste landfill permit, shall provide:

(I) Documentation to the department that the applicant submitted plans for the new solid waste landfill to the local government(s) in compliance with T.C.A. § 68-211-701 and that those plans included information about the following {T.C.A. subsection 68-211-704(b)}:

I. The type of waste to be disposed of at the landfill;

II. The method of disposal to be used at the landfill (including a drawing, map, or aerial photograph showing the location and maximum dimensions of the proposed landfill or landfill expansion);

III. The projected impact on surrounding areas from noise and odor created by the proposed landfill;

IV. The projected impact on property values on surrounding areas created by the proposed landfill;

V. The adequacy of existing roads and bridges to carry the increased traffic projected to result from the proposed landfill;

VI. The economic impact on the county, city or both;

VII. The compatibility with existing development or zoning plans; and

VIII. Any other factor which may affect the public health, safety or welfare.

(II) A copy of the public notice issued by the local government(s) required by T.C.A. subsection 68-211-703(a);

(III) Evidence that the signs required by T.C.A. subsection 68-211-703(h) were erected;

(IV) The date of any public hearing held; and

(V) Evidence of approval by the local government(s).

(vii) For solid waste processing facilities that are proposed to be located within jurisdictions in which the Jackson Law is applicable, any person seeking a permit by rule authorization for a new solid waste processing facility or a lateral expansion of a facility (a modification that expands the previously permitted footprint) shall provide:

(I) Documentation to the department that the applicant submitted a copy of the notification required by part (2)(b)2. of this rule that contains the information required by subparts (i) through (v) of that part for the proposed new solid waste processing facility or lateral expansion of a solid waste processing facility to the local government(s) in compliance with T.C.A. § 68-211-701 and that the notification included information about the following:

I. The type of waste to be processed;

II. The method of processing;

III. The projected impact on surrounding areas from noise and odor;

IV. The projected impact on property values on surrounding areas;

V. The adequacy of existing roads and bridges to carry the increased traffic projected to result from the proposed facility;

VI. The economic impact on the county, city or both;

VII. The compatibility with existing development or zoning plans; and

VIII. Any other factor which may affect the public health, safety or welfare.

(II) Evidence of approval by the local government(s).

3. Local Approval under Tennessee Private Acts, 1990, Chapter 210

(i) Section 1 of Chapter 210 of the Private Acts of 1990 provides that no permit may be issued for a new solid waste landfill or processing facility in Lewis County if the application was submitted by a county or municipality outside Lewis County, unless the legislative body of Lewis County approves it.

(ii) Any county or municipality outside of Lewis County that applies to the department for a permit for a new landfill in Lewis County shall include with the application documentation that the legislative body of Lewis County was aware of and approved the landfill and the location and maximum dimensions of the proposed landfill or landfill expansion.

(iii) Any county or municipality outside of Lewis County that applies to the department for a permit for a new processing facility, or a notification for a permit by rule for a new processing facility shall include with the application or notification documentation that the legislative body of Lewis County was aware of and approved the processing facility.

4. Public Notice of Drilling in Certain Counties, including Bledsoe, Lawrence, and Lewis

(i) T.C.A. subsection 68-211-106(g) requires that, in the counties named or described in subpart (ii) of this part, any person applying for a permit for a solid waste processing or disposal facility for which core drilling is required must notify the department 45 days before the drilling and shall give public notice 30 days before the drilling. It also requires the applicant to include a copy of the public notice in the permit application to the department and mandates that the application be denied if any of these provisions is not met.

(Note: This chapter does not require core drilling for any processing facilities.)

(ii) The requirements of subpart (i) of this part apply in any county whose population is not less than 9,650 and not more than 9,750 and not less than 34,075 and not more than 34,175 in the 1980 federal census or any subsequent federal census. In 1980, these population brackets applied to Lewis and Lawrence Counties. In 1990 Bledsoe County was in the smaller bracket so this law now applies in Bledsoe County. It would also apply to any other county whose population is within those brackets in any future federal census.

(iii) In Bledsoe, Lawrence, and Lewis Counties, and any other county with a population in a future federal census that falls within the brackets stated in subpart (ii) of this part, the applicant for any permit for a solid waste disposal facility that requires core drilling shall include with the application a copy of the public notice that was given that shows the date it was published.

(2) Permits by Rule

(a) Except as specifically allowed in part 1 of this subparagraph, the owner or operator of the facilities or activities listed in parts (b)1 through 7 of this paragraph shall be deemed permitted and are authorized to operate upon receipt of a written authorization from the Commissioner.

1. Owners or operators of existing facilities or activities listed in parts (b)1 through 7 of this paragraph authorized to manage solid waste and operating on the effective date of these rules may continue to operate the facility or activity consistent with the notification, including the written narrative and any required attachments, currently on file with the Department, until the owner or operator:

(i) Is required by the Commissioner to comply with subparagraph (c) of this paragraph by submitting a complete updated notification by the date required by the Commissioner; and

(ii) Receives a new written authorization from the Commissioner.

2. Owners or operators of facilities or activities seeking a written authorization from the Commissioner after the effective date of these rules must:

(i) Satisfy the requirements of parts 4 through 8 of this subparagraph if applicable;

(ii) Obtain all necessary prior approvals in accordance with subparagraph (1)(c) of this rule;

(iii) Submit a complete notification in compliance with the requirements of subparagraph (c) of this paragraph; and

(iv) Pay all applicable fees as required by Rule 0400-11-01-.07.

3. After receiving a written authorization from the Commissioner, pursuant to part 1 or 2 of this subparagraph, the owner or operator must:

(i) As provided in subparagraph (d) of this paragraph, comply with the requirements of this paragraph, as applicable to the owner's or operator's facility or activity, as well as any recordkeeping requirements specified in the written authorization deemed necessary by the Commissioner after reviewing the written narrative and any required attachments to the notification that document site specific compliance with this paragraph;

(ii) Operate the facility or activity consistent with the notification submitted in accordance with part (c)2 of this paragraph;

(iii) Notify the Commissioner of any substantive changes in the information submitted pursuant to part (c)2 of this paragraph, including but not limited to a change in ownership, location, type of material received, storage capacity for a material, and method of processing, and receive an amended written authorization from the Commissioner prior to implementing the change;

(iv) Keep the following records at the facility or at another location approved by the Commissioner:

(I) The written authorization from the Commissioner;

(II) The notification information submitted to comply with subpart 2(iii) of this subparagraph and subpart (iii) of this part; and

(III) Any records specifically required by subparagraphs (b) and (c) of this paragraph, and as specifically required by the Commissioner in the written authorization, from the date the record is generated;

(v) Upon the request of the Commissioner, furnish any records required by subpart (iv) of this part and make them available at all reasonable times for inspection; and

(vi) Pay all applicable fees as required by Rule 0400-11-01-.07.

4. New solid waste processing facilities, tire storage facilities, and transfer stations must not be located in wetlands, unless the owner or operator makes the applicable demonstrations to the Commissioner as referenced at subparagraph (2)(p) of Rule 0400-11-01-.04.

5. Solid waste processing facilities, tire storage facilities, and transfer stations must not be located in a 100-year floodplain unless it is demonstrated to the satisfaction of the Commissioner that:

(i) Location in the floodplain will not restrict the flow of the 100-year flood nor reduce the temporary water storage capacity of the floodplain; and

(ii) The facility is designed, constructed, operated, and maintained to prevent washout of any solid waste.

6. Solid waste processing facilities, tire storage facilities, and transfer stations must not:

(i) Cause or contribute to the taking of any endangered or threatened species of plants, fish, or wildlife; or

(ii) Result in the destruction or adverse modification of the critical habitat of endangered or threatened species.

7. An owner or operator proposing a new solid waste processing facility or a transfer station that handles putrescible wastes located within 10,000 feet (3,048 meters) of any airport runway end used by turbojet aircraft or within 5,000 feet (1,524 meters) of any airport runway end used only by piston-type aircraft must demonstrate to the satisfaction of the Commissioner that the facility does not pose a bird hazard to aircraft.

8. An owner or operator proposing a new solid waste processing facility or a transfer station that handles putrescible wastes located within a five-mile radius of any airport runway end used by turbojet or piston-type aircraft must notify the affected airport and the appropriate Federal Aviation Administration (FAA) office.

9. While authorized to operate under this paragraph, the owner or operator is exempt from the requirements of the following paragraphs of this rule: (3) (Application for a Permit), (4) (Processing the Permit), and (6) (Transfer, Modification, Revocation and Reissuance, and Termination of Permits), and from Rules 0400-11-01-.03 (Requirements for Financial Assurance) and 0400-11-01-.04 (Specific Requirements for Class I, II, III, and IV Disposal Facilities), except to the extent these paragraphs or rules are otherwise referenced by this paragraph.

(b) Permit by rule eligible facilities or activities.

1. Solid waste processing facilities.

(i) Except as specified in subpart (iv) of this part, an owner or operator of a solid waste processing facility shall:

(I) Construct, operate, maintain, and close the facility in such a manner as to minimize:

I. The propagation, harborage, or attraction of flies, rodents, or other disease vectors;

II. The potential for explosions or uncontrolled fires;

III. The potential for releases of solid wastes or solid waste constituents to the environment except in a manner authorized by state and local air pollution control, water pollution control, and/or waste management agencies; and

IV. The potential for harm to the public through unauthorized or uncontrolled access;

(II) Ensure that the facility has an artificial or natural barrier which completely surrounds the facility and a means to control entry, at all times, through the gate or other entrances to the facility;

(III) Ensure that the facility, if open to the public, has clearly visible and legible signs at the points of public access which indicate the hours of operation, the general types of waste materials that either will or will not be accepted, emergency telephone numbers, schedule of charges (if applicable), and other necessary information;

(IV) Ensure that the facility has trained personnel present during operating hours;

(V) Ensure that the facility has adequate sanitary facilities, potable water, emergency communications (e.g., telephone), and shelter available for personnel;

(VI) Ensure that the facility has access road(s) and parking area(s) constructed so as to be accessible in all weather conditions;

(VII) Restrict all waste handling (including loading and unloading) at the facility to paved surfaces;

(VIII) Restrict the storage of solid wastes at the facility to containers, bins, lined pits or on paved surfaces, designated for such storage;

(IX) Not burn solid wastes at the facility;

(X) Prohibit scavenging of solid wastes at the facility and limit any salvaging to safe, designated areas and times;

(XI) Ensure that wind dispersal of solid wastes at or from the facility is adequately controlled, and that windblown litter and other loose, unconfined solid wastes are collected daily and properly disposed;

(XII) Ensure that all liquids which either drain from solid wastes or are created by washdown of equipment at the facility are collected and directed to either:

I. A wastewater treatment facility permitted to receive such wastewaters under T.C.A. §§ 69-3-101 et seq. (Tennessee Water Quality Control Act), or

II. Other methods approved by the Commissioner.

(XIII) Ensure that special wastes are not received, unless:

I. Such receipt has been specifically approved in writing by the Commissioner, and

II. Special procedures and/or equipment are utilized to adequately confine and segregate the special wastes;

(XIV) Have alternative arrangements (e.g., contracts with other facilities) for the proper processing or disposal of the solid wastes authorized to be managed at the facility in the event the facility cannot operate;

(XV) Properly maintain and locate fire suppression equipment (e.g., fire extinguishers, water hoses) and make the equipment continuously available in sufficient quantities to control accidental fires that may occur;

(XVI) Manage all waste residues resulting from processing activities at the facility in accordance with this chapter or Chapter 0400-12-01 (Hazardous Waste Management), whichever is applicable, and/ or with any other applicable state or federal regulations governing waste management;

(XVII) Install the processing equipment on-site and ensure it is ready for use before accepting solid waste for storage or processing;

(XVIII)Prior to receiving solid waste for processing, or within 90 days of the effective date of these rules, if authorized and operating on the effective date of these rules:

I. File with the Commissioner a performance bond or equivalent cash or securities, payable to the State of Tennessee in an amount determined by the Commissioner to be sufficient to ensure the proper operation, closure, and post closure care of the facility;

II. Submit financial assurance instruments that are specified in subparagraph (3)(d) of Rule 0400-11-01-.03; and

III. Ensure that the financial assurance meets the criteria set forth in T.C.A. § 68-211-116(a), and complies with subparagraph (3)(b) of Rule 0400-11-01-.03.

(XIX) Maintain records documenting the amounts of the different types of solid waste at the facility, including, but not limited to, the amounts stored to be processed, in process, and that have completed processing, in order to determine processing completion within one year.

(ii) When closing the facility, the owner or operator of a processing facility shall:

(I) Remove all solid wastes and solid waste residues for proper disposal; and

(II) Notify the Commissioner in writing of the completion of closure of the facility and include a certification that the facility has been closed by removal of all the solid waste and residues.

(iii) Within 21 days of the receipt of the certification of closure notice submitted by an owner or operator in accordance with item (ii)(II) of this part, the Commissioner will inspect the facility to verify that closure has been completed to the satisfaction of the Commissioner. Within 10 days of such verification, the Commissioner will approve the closure in writing to the operator. Closure shall not be considered final and complete until such approval has been made.

(iv) Item (i)(IX) of this part does not apply to incinerators or energy recovery units.

2. Reserved.

3. Tire storage facilities.

An owner or operator of a tire storage facility must:

(i) Not operate a tire storage facility in a county where the county legislative body owns or operates a permitted Class I, Class III, or Class IV facility which is accepting waste tires;

(ii) Construct, operate, maintain, and close the facility in a manner consistent with items (2)(k)3(i)(I) and (II) of Rule 0400-11-01-.04;

(iii) Comply with items 1(i)(II), (III), (IV), (V), (VI), (IX), (X), (XII), (XIII), (XVI), and (XVII) of this subparagraph;

(iv) Provide, properly maintain, and make accessible fire suppression equipment capable of extinguishing a tire fire, such as fire extinguishers, and make the equipment continuously available in sufficient quantities to control accidental tire fires that may occur; and

(v) As a condition to begin operating or to continue to operate, establish and maintain a valid contract for the disposal or recycling of the shredded tires.

4. Convenience centers.

An owner or operator of a convenience center must:

(i) Attach as a part of the notification required by subpart (a)2(iii) of this paragraph all attachments required pursuant to part (2)(b)1 of Rule 0400-11-01-.10; and

(ii) Design and operate the facility in compliance with Rule 0400-11-01-.10.

5. Transfer stations.

An owner or operator of a transfer station must comply with items 1(i)(I) through (XV) and (XVII) of this subparagraph.

6. Land application facilities.

An owner or operator of a land application facility must:

(i) Attach as a part of the notification required by subpart (a)2(iii) of this paragraph all attachments required at subparagraph (1)(c) of Rule 0400-11-01-.13; and

(ii) Design and operate the facility in compliance with Rule 0400-11-01-.13.

7. Tier One composting facilities.

An owner or operator of a Tier One composting facility must:

(i) Attach as a part of the notification required by subpart (a)2(iii) of this paragraph all attachments required in the Composting Facility Operation Plan pursuant to subpart (2)(a)2(vii) of Rule 0400-11-01-.11; and

(ii) Design and operate the facility in compliance with Rule 0400-11-01-.11.

(c) An owner or operator seeking a written authorization from the Commissioner pursuant to this paragraph to operate a facility or activity listed in parts (b)1 through 7 of this paragraph must notify the Commissioner in accordance with the requirements of this subparagraph.

1. Notification must be submitted on forms provided by the Department and completed as per the accompanying instructions.

2. Notification must include, but shall not necessarily be limited to, the following information:

(i) The processing and disposal activities conducted and the types of solid wastes handled;

(ii) The name, mailing address, and location of the facility;

(iii) The name, mailing address, and telephone number of the applicant and, if the applicant is a government agency, corporation, company, or partnership, that of the registered agent or other contact person;

(iv) If different from the operator, the name, mailing address, and telephone number of the landowner, along with a signed letter from such owner to the Department allowing access to the property for purposes of inspection;

(v) A map (e.g., U.S.G.S. 7.5 minute topographic map) which clearly indicates the location of the facility;

(vi) A written narrative must be submitted that describes:

(I) How the owner or operator will comply with the requirements of subparagraph (b) of this paragraph, and Rules 0400-11-01-.10, 0400-11-01-.11, and 0400-11-01-.13, as applicable;

(II) The maximum capacity for each unit and storage area; and

(III) Any other information deemed necessary by the Commissioner; and

(vii) A design plan attached indicating boundaries of the site and all on-site appurtenances.

(d) Duty to Comply - An owner or operator deemed permitted under this paragraph must comply with all requirements applicable to the facility or activity operated under this paragraph, unless otherwise authorized by the Commissioner in writing. Any noncompliance constitutes a violation of the Act.

(e) Revocation of the Authorization to Operate.

1. The authorization to operate issued by the Commissioner pursuant to subparagraph (a) of this paragraph may be revoked for a cause identified in part 2 of this subparagraph and only according to the procedures set forth in part 3 of this subparagraph.

2. Causes for Revocation.

The following are causes for revoking the authorization to operate under this paragraph:

(i) The owner or operator of facilities or activities operating on the effective date of these rules fails to comply with part (a)1 of this paragraph by either not submitting a complete updated notification satisfying the requirements of subparagraph (c) of this paragraph, or not submitting it by the date required by the Commissioner.

(ii) Noncompliance by the owner or operator with any requirement of this paragraph which the Commissioner deems to be significant and/or repeated;

(iii) Failure of the owner or operator to disclose relevant or truthful facts in the notification information submitted pursuant to subparagraph (c) of this paragraph;

(iv) A determination made by the Commissioner that continued operation of the facility or activity endangers human health or the environment, which can only be effectively protected by revoking the authorization; and

(v) The failure of the owner or operator to pay any applicable fee owed to the Department.

3. Procedures.

(i) If the Commissioner determines cause exists and tentatively decides to revoke the authorization to operate, the Commissioner will, pursuant to T.C.A. § 4-5-320, give the owner and/or operator notice by mail of facts or conduct that warrant the intended action and will give the owner and/or operator an opportunity to show compliance with this paragraph;

(ii) After completing all the requirements of T.C.A. § 4-5-320, the Commissioner will decide whether or not to revoke the authorization to operate by issuing an order to the owner or operator; and

(iii) The Commissioner's decision to revoke the authorization to operate may be appealed as set forth in T.C.A. § 68-211-113.

(f) Denial of an Authorization to Operate.

The Commissioner may deny an owner or operator an authorization to operate a facility or activity if:

1. The owner or operator has had any previously issued authorization to operate revoked for cause, unless the Commissioner is satisfied that the owner or operator is willing and able to operate the facility or activity in compliance with the requirements of this paragraph; or

2. The Commissioner believes the operation of the facility or activity will endanger human health or the environment.

(3) Application for a Permit

(a) General

1. Any person who is required to have a permit shall complete, sign, and submit an application to the Commissioner as described in this paragraph.

2. If the property on which a facility is located is owned by a person(s) different from the operator, then that owner(s) must also sign the permit application.

3. The Commissioner shall not issue a permit before receiving a complete application for a permit. An application for a permit is complete when the Commissioner receives an application form and any supplemental information which is completed to his satisfaction.

4. Operators shall keep records of all data and supplemental information used to complete permit applications until the end of the post-closure care period.

5. Five copies of the required permit application must be submitted to the Commissioner.

6. All reports, plans, specifications, and manuals must be prepared in proper technical format, typewritten, and bound (e.g., 3 ring loose-leaf binders).

7. All permit applications will be signed as follows:

(i) For a corporation: by a responsible corporate officer. For the purpose of this part, a responsible corporate officer means (I) a president, secretary, treasurer, or vice-president of the corporation in charge of a principal business function, or any other person who performs similar policy - or decision making functions for the corporation, or (II) the manager of one or more manufacturing, production, or operation facilities employing more than 250 persons or having gross annual sales or expenditures exceeding 25 million dollars (in second quarter 1980 dollars), if authority to sign documents has been assigned or delegated to the manager in accordance with corporate procedures.

(ii) For a partnership or sole proprietorship: by a general partner or the proprietor, respectively.

(iii) For a municipality, state, federal, or other public agency: by either a principal executive officer or ranking elected official. For purposes of this part, a principal executive officer of a federal agency includes (I) the chief executive officer of the agency, or (II) a senior executive officer having responsibility for the overall operations of a principal geographic unit of the agency (e.g., Regional Administrators of EPA) or for overall compliance with environmental regulatory requirements of the agency.

8. All reports required by permits and other information requested by the Commissioner shall be signed by a person described in part 7. of this subparagraph, or by a duly authorized representative of that person. A person is a duly authorized representative only if:

(i) The authorization is made in writing by a person described in part 7. of this subparagraph;

(ii) The authorization specifies either an individual or a position having responsibility for the overall operation of the regulated facility or activity, such as the position of plant manager, superintendent, or person of equivalent responsibility. (A duly authorized representative may thus be either a named individual or any individual occupying a named position); and

(iii) The written authorization is submitted to the Commissioner.

9. If an authorization under part 8. of this subparagraph is no longer accurate because a different individual or position has responsibility for the overall operation of the facility, a new authorization satisfying the requirements of part 8 of this subparagraph must be submitted to the Commissioner prior to or together with any reports or information to be signed by an authorized representative.

10. Any person signing a document under parts 7. or 8. of this subparagraph shall make the following certification:

"I certify that this document and all attachments were prepared under my direction or supervision in accordance with a system designed to assure that qualified personnel properly gathered and evaluated the information submitted. Based on my inquiry of the person or persons who manage the system, or those persons directly responsible for gathering the information, the information submitted is, to the best of my knowledge and belief, true, accurate, and complete. As specified in T.C.A. § 39-16-702(a)(4), this declaration is made under penalty of perjury."

(b) Permitted Facilities - Permitted facilities shall not be subjected to public notice and public hearings when making permit modifications that are necessary to comply with rules passed subsequent to the issuance of the facility's original permit.

(c) Contents of the Permit Application

1. Contents of the Disposal Permit Application -- A complete permit application shall consist of a Part I with the applicant's disclosure statement and a Part II as described in this subparagraph.

(i) The Part I disposal permit application must be submitted on forms provided by the Department with appropriate attachments which includes a disclosure statement as required by T.C.A. § 68-211-106(h). All forms must be completed as per the accompanying instructions. The Part I application must include, but shall not necessarily be limited to, the following information:

(I) The activities conducted or to be conducted by the applicant which require him to obtain a permit under this rule and the general types of wastes handled or to be handled;

(II) The name, mailing address, and location of the facility for which the application is submitted;

(III) The name, mailing address, and telephone number of the applicant and, if the applicant is a government agency, corporation, company, or partnership, that of the process agent or other person who will serve as the primary contact with the Department;

(IV) If different from the applicant, the name, mailing address, and telephone number of the land owner, along with a signed letter from such owner to the Department allowing access to the property for such investigations as may be necessary to determine its suitability as a disposal facility;

(V) The name, mailing address, and telephone number of the zoning authority of jurisdiction (if any), and the current zoning status of the property; and

(VI) A United States Geological Survey (U.S.G.S.) 7.5 minute topographic map extending one-half mile beyond the property boundaries of the facility which clearly depict:

I. The property boundaries;

II. The facility and each of its solid waste processing or disposal units and any hazardous waste treatment, storage, or disposal units (to include past waste disposal units); and

III. Those wells, springs, other surface water bodies, and drinking water wells listed in public records or otherwise known to the applicant within 1/4 mile of the facility property boundary.

(ii) The Part II disposal permit application shall consist of those reports, plans and specifications, or other documentation necessary to provide the information specified in paragraph (9) of Rule 0400-11-01-.04.

2. Contents of the Compost Facility Permit Application -- A complete permit application shall consist of a Part I with the applicant's disclosure statement and a Part II as described in this subparagraph.

(i) The Part I compost facility permit application must be submitted on forms provided by the Department with appropriate attachments which includes a disclosure statement as required by T.C.A. § 68-211-106(h). All forms must be completed as per the accompanying instructions. The Part I application must include, but shall not necessarily be limited to, the following information:

(I) The activities conducted or to be conducted by the applicant which require him to obtain a permit under this rule and the general types of wastes handled or to be handled;

(II) The name, mailing address, and location of the facility for which the application is submitted;

(III) The name, mailing address, and telephone number of the applicant and, if the applicant is a government agency, corporation, company, or partnership, that of the process agent or other person who will serve as the primary contact with the Department;

(IV) If different from the applicant, the name, mailing address, and telephone number of the land owner, along with a signed letter from such owner to the Department allowing access to the property for such investigations as may be necessary to determine its suitability as a composting facility;

(V) The name, mailing address, and telephone number of the zoning authority of jurisdiction (if any), and the current zoning status of the property; and

(VI) A United States Geological Survey (U.S.G.S.) 7.5 minute topographic map which clearly indicates the location of the facility.

(ii) The Part II compost facility permit application shall consist of those reports, plans and specifications, or other documentation necessary to provide the information specified in paragraph (5) of Rule 0400-11-01-.11. The master plan, design plan, and narrative description of the facility and operation are components of the Part II application and each must be prepared by a registered engineer. Any registered engineer herein required shall be governed by the terms of T.C.A. Title 62, Chapter 2.

(d) Recertification by Disposal Facility Permittees for Facilities Whose Initial Operation is Delayed

1. If the facility does not initiate construction and/or operation within one year of the date a permit (issued pursuant to paragraph (4) of this rule) becomes effective, the permittee must submit a letter to the Commissioner 180 days prior to construction which either:

(i) Certifies that the information submitted in the permit application is still accurate and complete; or

(ii) Identifies those changes that have occurred in the information submitted in the permit application.

2. Such letter must be signed as set forth in part (a)8. of this paragraph.

3. Upon his receipt of such letter or other information that indicates that a change has occurred in the information submitted in the permit application, the Commissioner shall:

(i) Determine if cause exists under paragraph (6) of this rule to modify, to revoke and reissue, or to terminate the permit; and

(ii) Take such action as he deems appropriate pursuant to paragraph (6) of this rule.

4. The permittee may not initiate construction and/or operation unless and until authorized by the Commissioner in writing.

(4) Processing the Permit

(a) Preliminary Notices - Within 30 days after the date of receipt, the Commissioner shall issue a preliminary public notice under subparagraph (e) of this paragraph for each Part I permit application received. Within one year of the date of receipt of the Part I permit application, the applicant shall submit either the Hydrogeological Report or Engineering Plans required to satisfy the Part II permit application. If within one year of the date of receipt of the Part I permit application the Commissioner has not received either the Hydrogeological Report or Engineering Plans, the applicant must resubmit the Part I permit application at the time of the submittal of the Engineering Plans.

(b) 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. 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 the required 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.

2. 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.

(c) Draft Permits

1. Once an application is 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 to deny. A notice of intent to deny the permit shall be sent to the applicant. The applicant may wish to appeal the Commissioner's decision to the Board by filing a written petition as provided at T.C.A. § 68-211-113(b).

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 terms and conditions from paragraph (5) of this rule.

5. All draft permits shall be subject to the procedures of subparagraphs (d) through (i) of this paragraph, unless otherwise specified in those subparagraphs.

(d) Fact Sheets

1. A fact sheet shall be prepared for every draft permit (or notice to deny the permit).

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 disposed of;

(iii) 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;

(iv) Reasons why any requested waivers or alternatives to required standards do or do not appear justified.

(v) 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 (e) of this paragraph and the address where comments will be received;

(II) Procedures for requesting a public hearing; and

(III) Any other procedures by which the public may participate in the final decision; and

(vi) Name and telephone number of a person to contact for additional information.

3. The Commissioner shall send this fact sheet to the applicant and, upon request, to any other person.

(e) Public Notices and Public Comments

1. Scope

(i) An applicant shall give public notice, as prepared and directed by the Commissioner that the following actions have occurred:

(I) A permit application as described in subparagraph (a) of this paragraph has been received;

(II) A draft permit has been prepared under part (c)3. of this paragraph or a new draft permit prepared under subparagraph (6)(a) or (6)(b) of this rule;

(III) A public hearing has been scheduled under subparagraph (g) of this paragraph; or

(IV) A change of ownership.

(ii) No public notice is required when a request for a permit modification, revocation and reissuance, or termination is denied under paragraph (6) of this rule. Written notice of that denial shall be given to the permittee.

(iii) Public notices may describe more than one permit or permit action.

(iv) An applicant shall provide proof of the completion of all notices required to be given by the Commissioner within 10 days following conclusion of the public notice procedures.

(v) The Commissioner shall give a public notice that a notice of intent to deny an original permit has been prepared under part (c)2. of this paragraph.

2. Timing

(i) Public notice of the preparation of a draft permit or a notice of intent to deny an original permit shall allow at least 45 days for public comment.

(ii) Public notice of a public hearing shall be given at least 15 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 all of the following:

(i) By posting in a public place (e.g., post office, library, health department, etc) of the municipalities nearest the site under consideration; and

(ii) By publication of a notice in a daily or weekly local newspaper of general circulation as designated by the Commissioner; and

(iii) By delivery to the county legislative body in which a proposed landfill is located and by delivery to the governing body of any municipality in which the proposed landfill is located or which is within one mile of such proposed landfill; and

(iv) 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, including press releases or any other forum or medium to elicit public participation. Such additional notices shall be the financial responsibility of the Commissioner. The Commissioner is financially responsible for newspaper notices in excess of one in each county where coverage is deemed necessary.

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, address and phone number 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 including the size and directions from a state highway or interstate, and/or a map (e.g., a sketched or copied street map if the location is remote or not easily accessible) to the facility and type of waste accepted;

(IV) A brief description of the comment procedures required by subparagraphs (f) and (g) of this paragraph, including a statement of procedures to request a public hearing (unless a hearing has already been scheduled), 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;

(VI) A description of the time frame and procedure for making a final determination on this facility application approval or disapproval;

(VII) If the notice is announcing a public hearing it will state the time and location of the hearing and make reference to any prior public notice issued for each site.

(VIII) 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.

(IV) A concise statement of the issues raised by the persons requesting the hearing.

(iii) Preliminary Notices - The preliminary public notice described in subparagraph (a) of this paragraph shall contain the following information:

(I) The information from items (i)(I), (II), (III), (V), (VI), and (VII) of this part; and

(II) A brief description of the permitting procedures that will be followed, focusing especially upon the opportunities for public participation in the process.

(f) Public Comments and Requests for Public Hearings - During the public comment period provided, any interested 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 subparagraph (j) of this paragraph.

(g) Public Hearings

1.

(i) The Commissioner shall hold a public hearing whenever he finds, on the basis of requests, a significant degree of public interest in a draft permit(s).

(ii) The Commissioner may also hold a public hearing at his discretion whenever, for instance, such a hearing might clarify one or more issues involved in the permit decision.

(iii) The Commissioner shall hold a public hearing whenever he receives written notice of significant public concern or opposition to a draft permit and a request for a hearing, within 45 days of public notice under subpart (e)2(i) of this paragraph.

(iv) Public hearing held pursuant to this rule shall be at a location convenient to the nearest population center to the subject facility.

(v) Public notice of the hearing shall be given as specified in subparagraph (e) of this paragraph.

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. The public comment period under subparagraph (e) of this paragraph shall automatically be extended to the close of any public hearing under this subparagraph. The hearing officer may also extend the comment period by so stating at the hearing.

3. A tape recording or written transcript of the hearing shall be made available to the public.

(h) 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 (c) of this paragraph;

(ii) Prepare a fact sheet or revised fact sheet under subparagraph (d) of this paragraph and reopen the comment period under subparagraph (e) of this paragraph; or

(iii) Reopen or extend the comment period under subparagraph (e) 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 (e) 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 (e) of this paragraph.

(i) Final Permit Decision

1. After the close of the public comment period under subparagraph (e) of this paragraph on a draft permit (including a notice of intent to deny a permit), the Commissioner shall issue a final permit decision. The Commissioner shall notify the applicant and each person who has submitted a written request for notice of the final permit decision. 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. A final permit decision shall become effective upon the date of the service of notice of the decision unless a later date is specified in the decision.

(j) Response to Comments

1. At the time that a final permit decision is issued under subparagraph (i) 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.

(k) Appeals - The Commissioner's final permit decision under subparagraph (i) of this paragraph may be appealed as set forth in T.C.A. § 68-211-113.

(5) Terms of the Permit

(a) Conditions Applicable to all Permits - The following conditions apply to all permits, and shall be incorporated into the permits either expressly or by reference. If incorporated by reference, a specific citation to this subparagraph must be included in the permit.

1. Duty to Comply - The permittee must comply with all conditions of this permit, unless otherwise authorized by the Department in writing. Any permit noncompliance constitutes a violation of the Act and is grounds for termination, revocation and/or reissuance, or modification of the permit and/or the assessment of civil penalties by the Commissioner.

2. Need to Halt or Reduce Activity Not a Defense - It shall not be a defense for a permittee in an enforcement action that it would have been necessary to halt or reduce the permitted activity in order to maintain compliance with the conditions of this permit.

3. Duty to Mitigate - In the event of noncompliance with the permit, the permittee shall take all reasonable steps to minimize releases to the environment, and shall carry out such measures as are reasonable to prevent adverse impacts on human health or the environment.

4. Proper Operation and Maintenance - The permittee shall at all times properly operate and maintain all facilities and systems of treatment and control (and related appurtenances) which are installed or used by the permittee to achieve compliance with the conditions of this permit. Proper operation and maintenance includes effective performance, adequate funding, adequate operator staffing and training, and adequate laboratory and process controls, including appropriate quality assurance procedures. This provision requires the operation of back-up or auxiliary facilities or similar systems only when necessary to achieve compliance with the conditions of the permit.

5. Permit Actions - This permit may be modified, revoked and reissued, or terminated for cause. The filing of a request by the permittee for a permit modification, revocation and reissuance, or termination, or a notification of planned changes or anticipated noncompliance, does not stay any existing permit condition.

6. Property Rights - This permit does not convey any property rights of any sort, or any exclusive privilege.

7. Duty to Provide Information - The permittee must furnish to the Commissioner, within a reasonable time, any information which the Commissioner may request to determine whether cause exists for modifying, revoking and reissuing, or terminating this permit, or to determine compliance with this permit. The permittee must also furnish to the Commissioner, upon request, copies of records required to be kept by this permit. All records, including a copy of the permit and the approved Part I and Part II application, must be maintained at the facility or other locations as approved by the Commissioner.

8. Inspection and Entry - The permittee shall allow the Commissioner, or an authorized representative, to:

(i) Enter at any reasonable time the permittee's premises where a regulated facility or activity is located or conducted, or where records must be kept under the conditions of this permit;

(ii) Have access to and copy, at reasonable times, any records that must be kept under the conditions of this permit;

(iii) Inspect at any reasonable time any facilities, equipment (including monitoring and control equipment), practices or operations regulated or required under this permit (Note: If requested by the permittee at the time of sampling, the Commissioner shall split with the permittee any samples taken.);

(iv) Sample or monitor at reasonable times, for the purposes of assuring permit compliance or as otherwise authorized by the Act, any substances or parameters at any location; and

(v) Make photographs for the purpose of documenting items of compliance or noncompliance at waste management units, or where appropriate to protect legitimate proprietary interests, require the permittee to make such photos for the Commissioner.

9. Monitoring and Records

(i) Samples and measurements taken for the purpose of monitoring shall be representative of the monitored activity.

(ii) The permittee shall retain records of all required monitoring information. The permittee shall maintain records from all ground-water monitoring wells and associated ground-water surface elevations, for the active life of the facility, and for the post-closure care period as well. This period may be extended by request of the Commissioner at any time.

(iii) Records of monitoring information shall include:

(I) The date, exact place, and time of sampling or measurements;

(II) The individual(s) who performed the sampling or measurements;

(III) The date(s) analyses were performed;

(IV) The individual(s) who performed the analyses;

(V) The analytical techniques or methods used (including equipment used); and

(VI) The results of such analyses.

10. Reporting Requirements

(i) The permittee shall give notice to the Commissioner as soon as possible of any planned physical alterations or additions to the permitted facility.

(ii) Monitoring results shall be reported at the intervals specified in the permit.

(iii) The permittee shall report orally within 24 hours from the time the permittee becomes aware of the circumstances of any release, discharge, fire, or explosion from the permitted solid waste facility which could threaten the environment or human health outside the facility. Such report shall be made to the Tennessee Emergency Management Agency, using 24-hour toll-free number 1/800/262-3300.

(iv) Where the permittee becomes aware that it failed to submit any relevant facts in a permit application, or submitted incorrect information in a permit application or in any report to the Commissioner, it shall promptly submit such facts or information.

11. Periodic Survey of Disposal Facility

(i) Within 60 days of his receipt of the written request of the Commissioner to do so, the permittee shall cause to be conducted a survey of active and/or closed portions of his facility in order to determine if operations (e.g., cut and fill boundaries, grades) are being conducted in accordance with the approved design and operational plans. The permittee must report the results of such survey to the Commissioner within 90 days of his receipt of the Commissioner's request.

(ii) The Commissioner may request such a survey:

(I) If he has reason to believe that operations are being conducted in a manner that significantly deviates from the approved plans; and/or

(II) As a periodic verification (but no more than annually) that operations are being conducted in accordance with the approved plans.

(iii) Any survey performed pursuant to this part must be performed by a qualified land surveyor duly authorized under Tennessee law to conduct such activities.

(b) Facility - Specific Permit Conditions

1. In addition to the conditions required in all permits (subparagraph (a) of this paragraph), the Commissioner shall, as required on a case-by-case basis, establish conditions in permits pursuant to this subparagraph.

2. Each permit shall include such terms and conditions as the Commissioner determines are:

(i) Necessary to achieve compliance with the Act and regulations, including each of the applicable requirements specified in this Chapter, (Note: In satisfying this provision, the Commissioner may incorporate applicable requirements of these rules directly into the permit or establish other permit conditions that are based on these rules.); and

(ii) Otherwise necessary to protect human health and the environment.

3. An applicable requirement is a state statutory or regulatory requirement which takes effect prior to final administrative disposition of a permit. Subparagraph (4)(h) of this rule provides a means for reopening permit proceedings at the discretion of the Commissioner when applicable new requirements become effective during the permitting process and are of sufficient magnitude to make additional proceedings desirable. An applicable requirement is also any requirement which takes effect prior to the modification or revocation and reissuance of a permit, to the extent allowed in paragraph (6) of this rule.

4. All permit conditions shall be incorporated either expressly or by reference. If incorporated by reference, a specific citation to the applicable regulations or requirements must be given in the permit.

(c) Duration of Permits - Permits shall be effective for the operating life of the facilities.

(d) Effect of a Permit

1. A permit may be modified, revoked and reissued, or terminated during its term for cause as set forth in paragraph (6) of this rule.

2. The issuance of a permit does not convey any property rights of any sort, or any exclusive privilege.

3. The issuance of a permit does not authorize the permittee to injure persons or property or to invade other private rights, or to violate any local law or regulations.

(6) Transfer, Modification, Revocation and Reissuance, and Termination of Permits

(a) Transfer of Permits

1. A permit may be transferred by the permittee to a new operator only if the permit has been modified or revoked and reissued (under subparagraph (b) of this paragraph) to identify the new permittee and incorporate such other requirements (e.g., financial requirements) as may be necessary under the Act or this rule. A permit transfer may be performed as a minor modification, but does require the preparation and issuance of a public notice.

2.

(i) For the purpose of this Chapter, the "owner or operator" of a processing, storage or disposal facility has the ultimate responsibility for the operation of the facility, including the final authority to make or control operational decisions and legal responsibility for the business management. A "change of ownership" occurs whenever this ultimate authority to control the activities and the policies of the facility is transferred to another individual, group, or legal entity.

(ii) A "change of ownership" also occurs whenever there is a change in the legal form under which the controlling entity is organized.

(iii) Transactions constituting a change of ownership include, but are not limited to, the following:

(I) Sale or donation of the facility's legal title;

(II) Lease of the entire facility's real and personal property;

(III) A sole proprietor becomes a member of a partnership or corporation, succeeding him as the new operator;

(IV) A partnership dissolves;

(V) One partnership if replaced by another through the removal, addition or substitution of a partner;

(VI) A general partnership becomes a limited partnership, or limited partnership becomes general;

(VII) Two (2) or more corporations merge and the originally-permitted corporation does not survive;

(VIII) Corporations consolidate;

(IX) A non-profit corporation becomes a general corporation, or a for-profit corporation becomes non-profit.

(X) Transfers between levels of government; and

(XI) Corporate stock transfers or sales, when the controlling interest is transferred.

(iv) Transactions which do not constitute a change of ownership include, but are not limited to, the following:

(I) Changes in the membership of a corporate board of directors or board of trustees;

(II) Two (2) or more corporations merge and the originally-permitted corporation survives;

(III) Changes in the membership of a non-profit corporation; and

(IV) Transfer between departments of the same level of government.

3. Changes in the ownership or operational control of a facility may be made as a modification with prior written approval of the Commissioner in accordance with part (b)2 of this paragraph. The new owner or operator must submit a transfer of ownership form no later than 90 days prior to the scheduled change. A written agreement containing a specific date for transfer of permit responsibility between the current and new permittees must also be submitted to the Commissioner. When a transfer of ownership or operational control occurs, the old owner or operator of the disposal facility shall comply with the financial assurance requirements of paragraph (3) of Rule 0400-11-01-.03 and likewise, the owner or operator of a composting facility shall comply with the financial assurance requirements of subparagraph (2)(p) of Rule 0400-11-01-.11 until the new owner or operator has demonstrated that he or she is complying with the requirements of that rule. The new owner or operator must demonstrate compliance with the referenced financial requirements within six months of the date of the change of ownership or operational control of the facility. Upon demonstration to the Commissioner by the new owner or operator of compliance with the referenced financial requirements, the Commissioner shall notify the old owner or operator that he or she no longer needs to comply with the referenced financial requirements as of the date of demonstration.

(b) Modification or Revocation and Reissuance of Permits

1. General - Except as otherwise provided in these rules, permits may only be modified or revoked and reissued for the reasons shown in parts 3., 4., or 5. of this subparagraph and only according to the procedures set forth in part 2. of this subparagraph. This process may be initiated either by the Commissioner or at the request of the permittee. All such requests from the permittee shall be in writing and shall contain the reasons for the request.

2. Procedures

(i) When the Commissioner receives a request from the permittee or other information (e.g., complaints, inspection findings, monitoring data, and required reports) indicating that modification or revocation and reissuance of the permit may be in order, he may determine whether or not one or more of the causes listed in parts 3., 4., or 5. of this subparagraph exist.

(ii) If the Commissioner determines cause exists, he may proceed to modify or revoke and reissue the permit accordingly, subject to the limitations of part 6. of this subparagraph. If a permit modification satisfies the criteria in part 5. of this subparagraph for "minor modifications", the permit may be modified without following further the procedures of this part, except for subpart (vi) of this part.

(iii) If the Commissioner determines cause does not exist under parts 3., 4., or 5. of this subparagraph, he shall not modify or revoke and reissue the permit. If the modification or revocation and reissuance was requested by the permittee, the Commissioner shall give to the permittee such notice as is required by T.C.A. § 4-5-320.

(iv) If the Commissioner tentatively decides to cause a major modification or revoke and reissue a permit, he shall prepare a draft permit under subparagraph (4)(c) of this rule incorporating the proposed changes. This draft permit shall be processed as set forth in paragraph (4) of this rule. The Commissioner may request additional information and, in the case of a modified permit, may require the submission of an updated permit application. In the case of revoked and reissued permits, the Commissioner shall require the submission of a new application.

(v) In a permit modification under this part, 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. When a permit is revoked and reissued under this part, 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.

(vi) No minor modification to a permit shall be made under subpart (ii) of this part, and no draft permit shall be prepared under subpart (iv) of this part, until the permittee has been given such notice as is required by T.C.A. § 4-5-320.

3. Causes for Modification - The following are causes for modification but not revocation and reissuance of permits. However, the following may be causes for revocation and reissuance as well as modification when the permittee requests or agrees:

(i) There are changes to the permitted facility which occurred after permit issuance which justify the application of permit conditions that are different or absent in the existing permit.

(ii) The Commissioner has received information which was not available at the time of permit issuance (other than revised regulations, guidance, or test methods) and would have justified the application of different permit conditions at the time of issuance.

(iii) The standards or regulations on which the permit was based have been substantially changed by legislation or promulgation of amended standards or regulations or by judicial decision after the permit was issued.

(iv) A major modification of a closure plan or post-closure plan is required.

(v) To include conditions applicable to units at a facility that were not previously included in the facility's permit.

(vi) When a land treatment unit is not achieving adequate treatment under its current permit conditions.

4. Causes for Modification or Revocation and Reissuance - The following are causes to modify or, alternatively, revoke and reissue a permit:

(i) Cause exists for termination under subparagraph (c) of this paragraph and the Commissioner determines that modification or revocation and reissuance is appropriate.

(ii) The Commissioner has received notification of a proposed transfer of the permit.

5. Minor Modification of Permits - Upon the consent of the permittee, the Commissioner may modify a permit to make the corrections or allowances for those changes in the permitted activity deemed by the Commissioner to be a minor modification without following the procedures of paragraph (4) of this rule. A minor modification is a change in the plans for a facility which will not alter the expected impact of the facility on the public, public health, or the environment. Major modifications shall include at least changes in final contour elevations, increase in capacities, changes in direction of site drainage, and other changes deemed major by the Commissioner.

6. Facility Siting - Suitability of the facility location will not be reconsidered at the time of permit modification or revocation and reissuance unless new information or standards indicate that a threat to human health or the environment exists which was unknown at the time of the permit issuance.

(c) Termination of Permits

1. General - Permits may be terminated only for the reasons shown in part 3. of this subparagraph and only according to the procedures set forth in part 2. of this subparagraph. This process may be initiated either by the Commissioner or at the request of the permittee. All such requests from the permittee shall be in writing and shall contain the reasons for the request.

2. Procedures

(i) When the Commissioner receives a request from the permittee or other information (e.g., complaints, inspection findings, monitoring data, reports) indicating that termination of the permit may be in order, he may determine whether or not one or more of the causes listed in part 3. of this subparagraph exist.

(ii) If the Commissioner determines cause exists, he may proceed to terminate the permit.

(iii) If the Commissioner tentatively decides to terminate a permit, he 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 and processed under paragraph (4) of this rule.

(iv) No notice of intent to terminate shall be issued under subpart (iii) of this part until the permittee has been given such notice as is required by T.C.A. § 4-5-320.

3. Causes for Termination - The following are causes for terminating a permit during its term, or for denying a permit renewal application:

(i) Noncompliance by the permittee with any condition of the permit which the Commissioner deems to be significant noncompliance, repeated noncompliance, and/or failure to comply with the Division's compliance schedule relative to permit conditions;

(ii) The permittee's failure in the application or during the permit issuance process to disclose fully all relevant facts, or the permittee's misrepresentation of any relevant facts at any time;

(iii) A determination that the permitted activity endangers human health or the environment and can only be regulated to acceptable levels by permit termination; or

(iv) The request of the permittee, providing he has complied with all closure and post-closure requirements in the permit conditions.

(v) The permittee's failure to file and maintain financial assurance in the amount required by Rule 0400-11-01-.03 and subparagraph (2)(p) of Rule 0400-11-01-.11.

(vi) Non-payment of any fees owed to the Department.

Notes

Tenn. Comp. R. & Regs. 0400-11-01-.02

Original rule filed June 19, 2012; effective September 17, 2012. Repeal and new rule filed December 18, 2012; effective March 18, 2013. Amendments filed April 8, 2016; effective July 7, 2016. Amendments filed October 1, 2019; effective 12/30/2019.

Authority: T.C.A. §§ 4-5-201, et seq.; 68-211-101, et seq.; 68-211-701, et seq.; and 68-211-801, et seq.; and Chapter 210 of the Private Acts of 1990.