The Hazardous Waste Permitting Process: A Citizens Guide

Hazardous wastes can be liquids, solids, or sludges. They can be by-products of manufacturing processes or discarded commercial products. If hazardous wastes are not handled properly, they pose a potential hazard to people and the environment. To ensure that companies handle waste safely and responsibly, EPA has written regulations that track hazardous wastes from the moment they are produced until their ultimate disposal.

Hazardous waste management facilities receive hazardous wastes for treatment, storage, or disposal. These facilities are often referred to as treatment, storage, and disposal facilities, or TSDFs.

Treatment facilities use various processes (such as incineration or oxidation) to alter the character or composition of hazardous wastes. Some treatment processes enable waste to be recovered and reused in manufacturing settings, while other treatment processes dramatically reduce the amount of hazardous waste.

Storage facilities temporarily hold hazardous wastes until they are treated or disposed of.

Disposal facilities permanently contain hazardous wastes. The most common type of disposal facility is a landfill, where hazardous wastes are disposed of in carefully constructed units designed to protect groundwater and surface-water resources.

EPA has written detailed regulations to make sure that TSDFs operate safely and protect people and the environment. EPA wrote these regulations to implement the Resource Conservation and Recovery Act (RCRA) of 1976 and the Hazardous and Solid Waste Amendments of 1984. The U.S. Congress passed these laws to address public concerns about the management of hazardous waste.

EPA can authorize states to carry out the RCRA program. To receive authorization, state requirements must be as strict, or stricter, than the federal requirements. DEQ is the lead agency for the hazardous waste management program in Arkansas and has received final authorization for all components of and revisions to the Federal RCRA Program promulgated on or before March 2005. This in includes authorization for corrective action.

The Arkansas Hazardous Waste Management Act (Act 40 of 1979, as amended, codified at Arkansas Code Annotated (A.C.A.) Section 8-7-201 et.seq.) and the Arkansas Resource Reclamation Act (Act 1098 of 1979, as amended, codified at A.C.A. Section 8-7-301 et. seq.) sets the legal framework for the state’s Hazardous Waste Management Program. The Arkansas Remedial Action Trust Fund Act (Act 479 of 1985, as amended, codified at A.C.A. Section 8-7-501 et. seq.) provides additional authority for corrective action and cleanup of hazardous waste releases at RCRA sites and facilities, as well as abandoned hazardous substance sites.

The Arkansas Pollution Control and Ecology Commission (APC&EC) Regulation 23 sets standards for the hazardous waste management facilities that treat, store, and dispose of hazardous wastes. APC&EC Regulation 23, Parts 260 through 279 can be found on the DEQ Website.

The Resource Conservation and Recovery Act (RCRA) requires hazardous waste treatment, storage, and disposal facilities to manage hazardous waste in accordance with a permit issued by DEQ. A RCRA permit establishes the facility’s operating conditions for managing hazardous waste. DEQ uses the permit to specify the administrative and technical standards for each facility. Over time, however, the facility will have to modify the permit to improve equipment or make changes in response to new standards. Recognizing this, APC&EC Regulation 23 establishes procedures for obtaining and modifying permits.

A RCRA Hazardous Waste Management Permit is a legally binding document that establishes the waste management activities that a facility can conduct and the conditions under which it can conduct them. The permit outlines facility design and operation, lays out safety standards, and describes activities that the facility must perform, such as monitoring and reporting. Permits typically require facilities to develop emergency plans, find insurance and financial backing, and train employees to handle hazards. Permits also can include facility-specific requirements such as ground-water monitoring. DEQ has the authority to issue or deny permits and is responsible for monitoring the facility to ensure that it is complying with the conditions in the permit. A TSDF cannot operate without a permit.

All facilities that currently or plan to in the future treat, store, or dispose of hazardous wastes must obtain a RCRA permit.

• New TSDFs must receive a permit before they even begin construction. They must prove that they can manage hazardous waste safely and responsibly. The DEQ reviews the permit application and decides whether the facility is qualified to receive a RCRA permit. Once issued, a permit may last up to 10 years.
• Operating TSDFs with expiring permits must submit new permit applications six months before their existing permits run out.
• TSDFs operating under interim status must also apply for a permit. Congress granted interim status to facilities that already existed when RCRA was enacted. Interim status allows existing facilities to continue operating while their permit applications are being reviewed.

There are certain situations where a company is not required to obtain a RCRA permit.

• Businesses that generate hazardous waste and transport it off site without storing it for long periods of time (e.g., no longer that 180 days for small quantity generators; no longer than 90 days for large quantity generators) do not need a RCRA permit.
• Businesses that transport hazardous waste do not need a RCRA permit. However, they will need to obtain a transporter permit to haul hazardous waste in and through Arkansas. They will also need to obtain an EPA ID number from DEQ by completing the Notification of Regulated Waste Activity Form 8700-12 (AR-5-00R) and contacting the Programs Branch at 501-682-0848.
  
  Contact information for obtaining a transporter permit:
  
  Arkansas Highway Police
  ATTN: Hazardous Waste Transportation Permits
  P.O. Box 2779
  10324 Interstate 30
  Little Rock, AR 72209
  Phone: (501) 569-2422
  Fax: (501) 568-4921
  
• Transfer facilities that do not store hazardous waste greater than 10 days

Step 1 Starting the Process

Before a business even submits a permit application, it must hold an informal meeting with the public. The business must announce the "pre-application" meeting by putting up a sign on or near the proposed facility property, running an advertisement on radio or television, and placing a display advertisement in a newspaper. At the meeting, the business explains the plans for the facility, including information about the proposed processes it will use and wastes it will handle. The public has the opportunity to ask questions and make suggestions. The business may choose to incorporate the public's suggestions into its application. DEQ uses the attendance list from the meeting to help set up a mailing list for the facility.

Step 2 Applying for a Permit

After considering input from the pre-application meeting, the business may decide to submit a permit application. Permit applications are often lengthy. They must include a description of the facility and address the following:

• How the facility will be designed, constructed, maintained, and operated to be protective of public health and the environment
• How any emergencies and spills will be handled, should they occur
• How the facility will clean up and finance any environmental contamination that occurs
• How the facility will close and clean up once it is no longer operating

Step 3 Receipt and Review of the Application/Modifications

When DEQ receives a permit application, it sends a notice to everyone on the mailing list. The notice indicates that the DEQ has received the application and will make it available for public review. DEQ must then place a copy of the application in a public area for review.

Simultaneously, DEQ begins to review the application to make sure it contains all the information required by the regulations (e.g., Administrative Completeness). The proposed design and operation of the facility are also evaluated by DEQ to determine if the facility can be built and operated safely and in accordance with all applicable rules and regulations (e.g., Technical Completeness).

Once a facility receives a final permit, there may be changes to their operations or the regulations that require the facility to modify the permit. There are three classes of permit modifications:

• Class One Modifications (APC&EC Regulation 23, 270.42(d)(2)(i))
  • Class One modifications do not change substantially or alter the conditions in the permit or reduce the facility’s ability to protect human health and the environment; they generally apply to minor changes that keep the permit current with routine changes to the facility or its operation. In the case of Class One Permit Modifications, the DEQ-Hazardous Waste Division (HWD) chief may require prior approval before being implemented. Refer to Appendix I of APC&EC Regulation 23, 270.42 for a generalized classification list of permit modifications. This is not an all-inclusive list; however, those noted with a superscript of 1 may be implemented only with the prior written approval of DEQ’s Hazardous Waste chief.
• Class Two Modifications (APC&EC Regulation 23, 270.42(d)(2)(ii))
  • Class Two modifications apply to changes that are necessary to enable a permittee to respond in a timely manner to (1) common variations in the types and quantities of the wastes managed under the facility permit, (2) technological advancements, and (3) changes necessary to comply with new regulations, where these changes can be implemented without substantially changing any design specifications or management practices in the permit.
• Class Three Modifications (APC&EC Regulation 23, 270.42(d)(2)(iii))
  • Class Three modifications substantially alter the facility or its operations. The steps for public involvement include the facility representative requesting a modification of the permit to DEQ. The facility notifies the public (by placing a notice in a paper of general circulation in the area of the facility) they have requested a modification to their permit. DEQ holds a public meeting (for commercial facilities only), allowing 60 days for public comment on the modification requests. DEQ will hold a public hearing, if requested. At the completion of the 60 day public comment period, DEQ addresses all comments received in a Responsiveness Summary and makes a final decision on the permit modification by either (1) issuing the permit modification or (2) denying the permit modification.

Step 4 Revisions, Revisions, and Revisions

After reviewing the application, DEQ may issue a Notice of Deficiency (NOD) to the applicant. NODs identify and request that the applicant provide any missing information. During the application review and revision process, DEQ may issue several NODs. Each time DEQ receives a response from the applicant, it reviews the information and, if necessary, issues another NOD until the application is complete.

Step 5 Drafting the Permit for Public Review

When the revisions are complete, DEQ makes a preliminary decision about whether to issue or deny the permit. If DEQ decides that the application is complete and meets appropriate standards, DEQ issues a draft permit containing the conditions under which the facility can operate if the permit receives final approval. If DEQ determines that an applicant cannot provide an application that meets the standards, DEQ tentatively denies the permit and prepares a Notice of Intent to Deny.

DEQ announces its decision by sending a letter to everyone on the mailing list, placing a notice in a local paper, or broadcasting it over the radio. It also issues a fact sheet to explain the decision. DEQ will automatically hold a public meeting and public hearing for Commercial Permitting decisions. Once the notice is issued, the public has 45 days to comment on the decision. Citizens also may request a public hearing by contacting DEQ. DEQ may also hold a hearing at its own discretion. DEQ must give a 30-day public notice before the hearing.

Step 6 The End Result: A Final Permit Decision

After carefully considering public comments, DEQ reconsiders the draft permit or the Notice of Intent to Deny. The DEQ must issue a Response to Public Comments, specifying any changes made to the draft permit. DEQ then issues the final permit or denies the permit.

Even after issuing a permit, DEQ continues to monitor the construction and operation of the facility to make sure they are consistent with state and federal rules and with the application.

Several additional steps can also take place after the original permit is issued:

• Permit Appeals. Facility owners and the public both have a right to appeal the final permit decision. The nature of any appeal can only pertain to the nature and content of oral or written comments received during the public comment period. The appeal is usually decided upon by administrative law judges.
• Permit Modifications. If a facility changes its management procedures, mechanical operations, or the wastes it handles, then it must secure a permit modification. For modifications that significantly change facility operations, the public must receive early notice and have a chance to participate and comment. For minor modifications, the facility must notify the public within a week of making the change (Refer to Step 3).
• Permit Renewals. DEQ can renew permits that are due to expire. Permit holders that are seeking a permit renewal must follow the same procedures as a facility seeking a new permit.
• Permit Terminations. If a facility violates the terms of its permit, DEQ can terminate the permit.

Temporary Authorization

For certain Class Two or Three modifications, DEQ may grant a facility temporary authorization to perform activities for up to 180 days prior to a permit modification becoming effective. For example, temporary authorization may be granted to ensure that cleanups, or corrective actions, and closure activities are undertaken in a timely manner to protect human health and the environment. Under certain circumstances, the temporary authorization may be reissued for one additional term of 180 days, provided the permittee has requested a Class 2 or Class 3 permit modification for the activity covered in the temporary authorization.

Members of the public can contribute valuable information and ideas that improve the quality of both DEQ decisions and permit applications. DEQ believes that public participation is a vital component of the permitting process. Accordingly, DEQ has written into the regulations opportunities for the public to learn about RCRA activities and give input during the permitting process. The pre-application meeting, public comment and response periods, and public hearings are all instances where citizens can engage companies and regulators in a dialogue. Furthermore, DEQ encourages permit holders or applicants and other interested parties to provide additional public participation activities where they will be helpful.

DEQ also realizes that some of the most important public participation activities happen outside the formal permitting process. Citizens can contact environmental, public interest, and civic and community groups that have an interest in the facility and become involved in their activities. The permit holder or applicant may also create informal opportunities for public input and dialogue.

The permitting process gives citizens a number of opportunities to express their ideas and concerns. Here are several steps you can take to ensure that your voice is heard:

• Know whom to call at DEQ. Early in the process, call DEQ to determine the contact for the project. This person's name should also be on fact sheets and other printed materials.
• Ask to have your name put on the facility mailing list for notices, fact sheets, and other documents distributed by DEQ.
• Submit written comments that are clear, concise, and well documented. Remember that, by law, permitting agencies must consider all significant written comments submitted during a formal comment period.
• Participate in public hearings and other meetings. Provide testimony that supports your position.
• If any material needs further explanation, or if you need to clear up some details about the facility or the permitting process, request an informational meeting with the appropriate official.
• Follow the process closely. Watch for DEQ decisions and review DEQ's responses to public comments.