Missouri Code of State Regulations › Title 10 - DEPARTMENT OF NATURAL RESOURCES › Division 25 - Hazardous Waste Management Commission › Chapter 8 - Public Participation and General Procedural Requirements › Section 10 CSR 25-8.124 - Procedures for Decision Making

Current through Register Vol. 49, No. 14, July 15, 2024
PURPOSE: All of the rules in Title 10, Division 25
				  relating to hazardous waste generators, permitted hazardous waste facilities,
				  and hazardous waste transporters were reviewed as part of the department's Red
				  Tape Reduction initiative for the purpose of reducing regulations that
				  unnecessarily burden individuals and businesses while doing little to protect
				  or improve public health and safety and our natural resources. The purpose of
				  this amendment is to make changes consistent with this initiative to this
				  rule.
(1) Except as provided
				otherwise in this rule, the substitution of terms set forth in
				10 CSR
				25-3.260(1)(A) apply in this rule, in
				addition to any other modifications established in paragraph (1)(A)2. of this
				rule. Where conflicting rules exist in 10 CSR 25, the more stringent rules
				control. (Comment: This section has been organized so that Missouri
				requirements analogous to a particular lettered subpart in 40 CFR part 124 are
				set forth in the corresponding lettered subsection of section (1) of this rule.
				For example, the general program requirements in 40 CFR part 124 subpart A,
				with Missouri modifications, are found in subsection (1)(A) of this rule.)
(A) This subsection sets forth requirements
				that correspond to those requirements in 40 CFR part 124 subpart A.
1. Purpose and scope. This subsection
				contains procedures for the review, issuance, class 3 or department-initiated
				modification, total modification, or revocation of all permits issued pursuant
				to sections
				260.350 through
				260.434, RSMo. This
				subsection also contains procedures for the denial of a permit, either in its
				entirety or as to the active life of a hazardous waste management facility or
				unit, under
				40
				CFR 270.29, as incorporated in
				10 CSR
				25-7.270. Interim status is not a permit and is
				covered by specific provisions in
				10 CSR
				25-7.265 and
				10 CSR
				25-7.270. Class 1 or class 2 permit modifications, as
				defined in
				40 CFR
				270.42 as incorporated in
				10 CSR
				25-7.270, are not subject to the requirements of this
				subsection.
2. Definitions. In
				addition to the definitions given in
				40
				CFR 270.2, as incorporated in
				10 CSR
				25-7.270, the definitions below apply to this rule-
A. "Draft permit" means a document prepared
				under paragraph (1)(A)6. of this rule indicating the department's tentative
				decision to issue, deny, modify in part or in total, revoke, or reissue a
				"permit." A notice of intent to revoke, as discussed in subparagraph (1)(A)5.D.
				of this rule, and a notice of intent to deny, as discussed in subparagraph
				(1)(A)6.B. of this rule, are types of draft permits. A denial of a request for
				modification, total modification, or revocation of a permit, as discussed in
				subparagraph (1)(A)5.B. of this rule, is not a type of "draft
				permit";
B. "Formal hearing" means
				any contested case held under section
				260.400,
				RSMo;
C. "Permit application" means
				the U.S. Environmental Protection Agency standard national forms for applying
				for a permit, including any additions, revisions, or modifications to the
				forms; or forms approved by the U.S. Environmental Protection Agency for use in
				Missouri, including any approved modifications or revisions. It also includes
				the information specified by the department under 40 CFR 270.14-270.29, as
				incorporated into 10 CSR 25-7.270;
D. "Public hearing" means any hearing on a
				tentative decision at which any member of the public is invited to give oral or
				written comments;
E. "Revocation"
				means the termination of a permit;
F. "Schedule of compliance" means a schedule
				of remedial measures in a permit, including an enforceable sequence of interim
				requirements (for example, actions, operations, or milestone events) leading to
				compliance with sections
				260.350 through
				260.434, RSMo;
G. "Total modification" means the revocation
				and reissuance of a permit;
H.
				"Site" means the land or water area where any "facility or activity" is
				physically located or conducted, including adjacent land used in connection
				with the facility or activity; and
I. "Variance" means any variation from the
				Missouri Hazardous Waste Management Law as defined in section
				260.405,
				RSMo.
3. Application for
				a permit.
A. Any person who requires a permit
				shall complete, sign, and submit to the department a permit application for
				each permit required under
				40 CFR
				270.1, as incorporated in
				10 CSR
				25-7.270. Permit applications are not required for
				permits by rule per
				40 CFR 270.60, as
				incorporated in 10 CSR 25-7.270. The department
				shall not begin the processing of a permit until the applicant has fully
				complied with the permit application requirements for that permit, as provided
				under
				40 CFR
				270.10 and
				270.13,
				as incorporated in 10 CSR 25-7.270. Permit
				applications shall comply with the signature and certification requirements of
				40 CFR
				270.11, as incorporated in
				10 CSR
				25-7.270(2)(A.) 1., and
				10 CSR
				25-7.270.
B. The department shall review for
				completeness every permit application. Each permit application submitted by a
				new facility should be reviewed for completeness by the department within
				thirty (30) days of its receipt. Each permit application submitted by an
				existing facility should be reviewed for completeness by the department within
				sixty (60) days of its receipt. Upon completing the review, the department will
				notify the applicant in writing whether the permit application is complete. If
				the permit application is incomplete, the department will list the information
				necessary to make the permit application complete. When the permit application
				is for an existing facility, the department will specify, in the notice of
				deficiency, a date for submitting the necessary information. The department
				will notify the applicant that the permit application is complete upon
				receiving the required information. After the permit application is complete,
				the department may request additional information from an applicant, but only
				as necessary to clarify, modify, or supplement previously submitted material.
				Requests for such additional information will not render a permit application
				incomplete.
C. If an applicant
				fails or refuses to correct deficiencies in the permit application, the permit
				may be denied and enforcement actions may be taken under the applicable
				statutory provisions of sections
				260.350 through
				260.434, RSMo.
D. The effective date of a permit application
				is the date the department notifies the applicant that the permit application
				is complete, as provided in subparagraph (1)(A)3.B. of this rule.
E. For each permit application the department
				will, no later than the effective date of the permit application, prepare and
				mail to the applicant a project decision schedule. The schedule will specify
				target dates by which the department intends to-
(I) Prepare a draft permit;
(II) Give public notice;
(III) Complete the public comment period,
				including any public hearing; and
(IV) Issue a final permit decision.
F. If the department decides that
				a site visit is necessary for any reason in conjunction with the processing of
				a permit application, the department will notify the applicant and a date will
				be scheduled.
G. Whenever a
				facility or activity requires more than one (1) type of environmental permit
				from the state, the applicant may request, or the department may offer, a
				unified permitting schedule that covers the timing and order to obtain such
				permits, as provided in section
				640.017,
				RSMo, and 10 CSR 1-3.010.
4. Reserved.
5. Modification, total modification, or
				revocation of permits.
A. Permits may be
				modified in part or in total, or revoked, either at the request of the
				permittee or of any interested person or upon the department's initiative.
				However, permits may only be modified or revoked for the reasons specified in
				40 CFR
				270.41 or 40 CFR 270.43, as incorporated in
				10 CSR
				25-7.270. All requests shall be in writing and shall
				contain facts and reasons supporting the request.
B. If the department decides the request is
				not justified, a brief written response giving a reason for the decision shall
				be sent to the person requesting the permit modification and to the permittee.
				Denial of a request for modification, in part or in total, or revocation of a
				permit is not subject to public notice, comment, or hearing, and is not
				appealable under section (2) of this rule.
C. Tentative decision to modify.
(I) If the department tentatively decides to
				modify a permit in part or in total, a draft permit incorporating the proposed
				changes will be prepared according to paragraph (1)(A)6. of this rule. The
				department may request additional information and, in the case of a partial
				permit modification, may require the submission of an updated permit
				application. In the case of a total permit modification, the department will
				require the submission of a new permit application.
(II) When a permit is partially modified
				under this paragraph, only the conditions being modified are reopened. All
				other conditions of the original permit remain in effect for the duration of
				the existing permit. When a permit is totally modified under this paragraph,
				the entire permit is reopened just as if the permit had expired and was being
				reissued. During any total modification, the permittee complies with all
				conditions of the existing permit until a new, final permit is
				issued.
(III) "Class 1 and class 2
				permit modifications" as defined in
				40 CFR
				270.42, as incorporated in
				10 CSR
				25-7.270, are not subject to the requirements of this
				paragraph.
D. If the
				department tentatively decides to revoke a permit, the department will issue a
				notice of intent to revoke. A notice of intent to revoke is a type of draft
				permit and follows the same procedures as any draft permit decision prepared
				under paragraph (1)(A)6. of this rule.
6. Draft permits.
A. Once the technical review of a permit
				application is complete, the department shall tentatively decide whether to
				prepare a draft permit, or deny the permit application.
B. If the department tentatively decides to
				deny the permit application, a notice of intent to deny shall be issued. A
				notice of intent to deny is a type of draft permit and follows the same
				procedures as any draft permit decision prepared under this paragraph. If the
				department's final decision under paragraph (1)(A)15. of this rule is that the
				tentative decision to deny the permit application was incorrect, the department
				shall withdraw the notice of intent to deny and prepare a draft permit under
				this paragraph.
C. If the
				department tentatively decides to prepare a draft permit, the department will
				prepare a draft permit that contains the following information:
(I) All conditions under
				40 CFR
				270.30 and
				270.32,
				as incorporated in 10 CSR 25-7.270;
(II) All compliance schedules under
				40 CFR
				270.33, as incorporated in
				10 CSR
				25-7.270;
(III) All monitoring requirements under
				40
				CFR 270.31, as incorporated in
				10 CSR
				25-7.270; and
(IV) Standards for treatment, storage, and/or
				disposal and other permit conditions under
				40 CFR
				270.30, as incorporated in
				10 CSR
				25-7.270.
D. All draft permits prepared under this
				paragraph will be accompanied by a fact sheet per paragraph (1)(A)8. of this
				rule, publicly noticed per paragraph (1)(A)10. of this rule, and made available
				for public comment per paragraph (1)(A)11. of this rule. The department will
				give notice of opportunity for a public hearing per paragraph (1)(A)12. of this
				rule, issue a final decision per paragraph (1)(A)15. of this rule, and respond
				to comments per paragraph (1)(A)17. of this rule. An appeal may be filed under
				section (2) of this rule.
E. Prior
				to making the draft permit available for public comment, the department shall
				deliver the draft permit to the applicant for review, as provided in section
				640.016.2, RSMo. The applicant shall have ten (10) days to review the draft
				permit for nonsubstantive drafting errors. The department shall make the
				applicant's changes to the draft permit within ten (10) days of receiving the
				applicant's review and then submit the draft permit for public comment. The
				applicant may waive the opportunity to review the draft permit prior to public
				notice.
7.
				Reserved.
8. Fact sheet.
A. A fact sheet will be prepared for every
				draft permit. The fact sheet will briefly set forth the principal facts and the
				significant factual, legal, methodological, and policy questions considered in
				preparing the draft permit. The department will send this fact sheet to the
				applicant and to any person who requests a copy.
B. The fact sheet shall 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, fluids, or pollutants which are proposed to be or are being treated,
				stored, disposed of, injected, emitted, or discharged;
(III) A brief summary of the basis for the
				draft permit conditions including references to applicable statutory or
				regulatory provisions.
(IV)
				Reasons why any requested variances or alternatives to applicable standards do
				or do not appear justified;
(V) A
				description of the procedures for reaching a final decision on the draft permit
				including:
(a) The beginning and ending dates
				of the public comment period under paragraph (1)(A)10. of this rule and the
				address where comments will be received;
(b) Procedures for requesting a hearing and
				the nature of that hearing; and
(c)
				Any other procedures by which the public may participate in the final decision;
				and
(VI) Name and
				telephone number of a department contact for additional information.
9. Reserved.
10. Public notice of permit actions and
				public comment period.
A. Scope.
(I) The department will give public notice
				that the following actions have occurred:
(a)
				A notice of intent to deny a permit application has been prepared under
				subparagraph (1)(A)6.B. of this rule;
(b) A draft permit has been prepared under
				subparagraph (1)(A)6.C. of this rule;
(c) A hearing has been scheduled under
				paragraph (1)(A)12. of this rule; or
(d) A notice of intent to revoke a permit has been
				prepared under subparagraph (1)(A)5.D. of this rule.
(II) No public notice is required when a
				request for permit modification, in part or in total, or revocation is denied.
				A brief written response giving a reason for the decision will be sent to the
				requester and to the permittee.
(III) Public notices may describe more than
				one (1) permit or permit action.
B. Timing.
(I) Public notice of the preparation of a
				draft permit (including a notice of intent to deny a permit application and a
				notice of intent to revoke a permit) under subparagraph (1)(A)10.A. of this
				rule will allow at least forty-five (45) days for public comment.
(II) Public notice of a public hearing will
				be given at least thirty (30) days before the hearing. Public notice of the
				hearing may be given at the same time as the public notice of the draft permit,
				and the two (2) notices may be combined.
C. Methods. Public notice of activities
				described in part (1)(A)10.A.(I) of this rule will be given by the following
				methods:
(I) By mailing a copy of a notice to
				the following persons (any person otherwise entitled to receive notice under
				this part may waive their rights to receive notice for any permit):
(a) The applicant;
(b) Federal and state agencies with
				jurisdiction over fish, shellfish, and wildlife resources, natural resource
				management plans, and state historic preservation officers, including any
				affected states (Indian tribes); and
(c) Persons on a mailing list maintained by
				the facility which is developed by-
I.
				Including those who request to be on the list;
II. Soliciting persons for "area lists" from
				participants in past permit proceedings in that area;
III. 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 facility shall be
				responsible for maintaining and updating the mailing list. The department may
				require the facility to update the mailing list from time-to-time by requesting
				written indication of continued interest from those listed. The facility may
				remove from the list the name of any person who fails to respond to such a
				request;
IV. Including all record
				owners of real property adjacent to the current or proposed facility, in
				accordance with section 260.395.8, RSMo;
V. Including, for a post-closure disposal
				facility, all record owners of real property which overlie any known plume of
				contamination originating from the facility; and
VI. Including, for an operating disposal
				facility, all record owners of real property located within one (1) mile of the
				outer boundaries of the current or proposed facility, in accordance with
				section 260.395.8, RSMo;
(d) A copy of the notice shall also be sent
				to the highest elected official of the county and the highest elected official
				of the city, town, or village having jurisdiction over the area where the
				facility is currently or proposed to be located, in accordance with section
				260.395.8, RSMo, and each state agency having any authority under state law
				with respect to the construction or operation of such facility; and
(e) A copy of the notice shall also be sent
				to any other department program or federal agency which the department knows
				has issued or is required to issue a Resource Conservation and Recovery Act
				(RCRA), Hazardous and Solid Waste Amendments (HSWA), Underground Injection
				Control (UIC), Prevention of Significant Deterioration (PSD), (or other permit
				issued under the Clean Air Act), National Pollutant Discharge Elimination
				System (NPDES), 404, or sludge management permit for the same facility or
				activity (including the U.S. Environmental Protection Agency);
(II) Other publication.
(a) Publish a legal notice in a daily or
				weekly major local newspaper of general circulation and broadcast over local
				radio stations.
(b) For any draft
				permit that includes active land disposal of hazardous waste, issue a news
				release to the media serving the area where the facility is currently or
				proposed to be located, in accordance with section 260.395.8, RSMo;
(III) Any other method reasonably
				calculated to give actual notice of the activity to the persons potentially
				affected by it, including news releases or any other forum or medium to elicit
				public participation; and
(IV) The
				department will mail a copy of the legal notice, fact sheet, and draft permit
				to a location accessible to the public, in the vicinity of the facility, where
				the documents can be viewed and copied.
D. Contents. All notices issued under this
				paragraph shall contain the following minimum information:
(I) Name and address of the
				department;
(II) Name and address
				of the permittee or 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 or the draft permit;
(IV) Name, address, and telephone number of a
				department contact person from whom interested persons may obtain additional
				information;
(V) A brief
				description of the comment procedures, the date, time, and place of any hearing
				that will be held, a statement of procedures for requesting a hearing (unless a
				hearing has already been scheduled), and any other procedures by which the
				public may participate in the final permit decision;
(VI) Any additional information considered
				necessary or proper by the department;
(VII) The location where the information
				listed in subpart (1)(A)10.C.(I)(e) of this rule was placed for public review;
				and
(VIII) In addition to the
				information listed above, the public notice of a public hearing under paragraph
				(1)(A)12. of this rule shall contain the following information:
(a) Reference to the date of previous public
				notices relating to the draft permit;
(b) Date, time, and place of the hearing;
				and
(c) A brief description of the
				nature and purpose of the hearing, including the applicable rules and
				procedures.
E.
				In addition to the notice described in subparagraph (1)(A)10.D. of this rule,
				the department shall mail a copy of the permit application (if any), draft
				permit, and fact sheet to all persons identified in subparts (1)(A)10.C.(I)(a),
				(b), and (f) of this rule.
11. Public comments and requests for public
				hearings. During the public comment period provided under paragraph (1)(A)10.
				of this rule, 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 state the
				nature of the issues to be raised in the hearing. All written comments and oral
				comments given at the public hearing, if one is held, are considered by the
				department in making the final permit decision and are answered as provided in
				paragraph (1)(A)17. of this rule.
12. Public hearings.
A. In accordance with section 260.395.8,
				RSMo, the department will hold a public hearing whenever a written request for
				a hearing is received within forty-five (45) days of the public notice under
				part (1)(A)10.B.(I) of this rule. In accordance with section 260.395.8, RSMo,
				for any permit that includes active land disposal of hazardous waste, the
				department shall hold a public hearing after public notice, as specified in
				paragraph (1)(A)10. of this rule, before issuing, modifying in total, or
				renewing the permit; and before any Class 3 or department-initiated permit
				modification related to the hazardous waste land disposal unit(s), including
				those necessary due to the department's five- (5-) year review.
B. The department may hold a public hearing
				at its own discretion whenever there is significant public interest in a draft
				permit or when one (1) or more issues involved in the permit decision requires
				clarification.
C. Whenever
				possible, the department will schedule a public hearing under this paragraph at
				a location convenient to the nearest population center to the current or
				proposed facility.
D. Public notice
				of the public hearing will be given as specified in paragraph (1)(A)10. of this
				rule.
E. Any person may submit
				written comments or data concerning the draft permit. The department will
				accept oral comments during the public hearing. Reasonable limits may be set on
				the time allowed for oral comments. Any person who cannot present oral comments
				due to time limitations will be provided an opportunity to present written
				comments. The public comment period under paragraph (1)(A)10. of this rule will
				automatically be extended to the close of any public hearing if the public
				hearing is held later than forty-five (45) days after the start of the public
				comment period.
F. A tape recording
				or written transcript of the public hearing shall be made available to the
				public.
13. Obligation to
				raise issues and provide information during the public comment period. All
				persons, including the applicant, who believes any condition of a draft permit
				is inappropriate or that the department's tentative decision to deny a permit
				application, prepare a draft permit, or revoke a permit is inappropriate, shall
				raise all ascertainable issues and submit all relevant arguments supporting
				their position by the close of the public comment period under paragraph
				(1)(A)10. of this rule. Any supporting materials that are submitted shall be
				included in full and may not be incorporated by reference, unless the
				supporting materials are state or federal statutes and regulations, E PA
				documents of general applicability, or other generally available reference
				materials.
14. Reserved.
15. Issuance and effective date of permit.
A. For purposes of this paragraph, a final
				permit decision means the issuance, denial, Class 3 or department-initiated
				modification, total modification, or revocation of a permit. After the close of
				the public comment period under paragraph (1)(A)10. of this rule, the
				department will issue a final permit decision (or a decision to deny a permit
				for the active life of a hazardous waste management facility or unit under
				40
				CFR 270.29, as incorporated in
				10 CSR
				25-7.270 ). The department will notify the applicant
				and each person who submitted written comments, gave oral comments at the
				public hearing, or requested notice of the final permit decision. This notice
				will include reference to the procedures for appealing a final permit decision
				under section (2) of this rule. The department will mail a copy of the final
				permit decision to the location where the draft permit was placed for public
				review under subpart (1)(A)10.C.(II) of this rule. The department will also
				send a news release announcing the final permit decision to the media serving
				the area where the facility is currently or proposed to be located.
B. A final permit issuance, denial, or
				modification decision (or a decision to deny a permit either in its entirety or
				as to the active life of a hazardous waste management facility or unit under
				40
				CFR 270.29, as incorporated in
				10 CSR
				25-7.270 ) will become effective on the date the
				decision is signed by the department. A final permit revocation decision will
				become effective thirty (30) days after the department signs the decision,
				unless no comments requested a change in the draft permit revocation decision,
				in which case the final permit revocation decision will become effective on the
				date the decision is signed by the department.
16. Reserved.
17. Response to comments.
A. At the same time that any final permit
				decision is issued under paragraph (1)(A)15. of this rule, the department will
				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 and public hearing, if one was held.
B. The response to comments will
				be made available to the public.
18. Reserved.
19. Reserved.
20. Computation of time.
A. Any time period scheduled to begin on the
				occurrence of an act or event begins on the day after the act or
				event.
B. Any time period scheduled
				to end before the occurrence of an act or event ends on the last working day
				before the act or event.
C. If the
				last day of any time period falls on a weekend or legal holiday, the time
				period is extended to the next working day.
D. Whenever a party or interested person has
				the right or is required to act within a specific time period after he or she
				receives notice by mail, three (3) days is added to the time period to allow
				for mail delivery.