§ 23-19.1-10 - Permits – Issuance – Renewal – Revocation – Exempted activities.
SECTION 23-19.1-10
§ 23-19.1-10 Permits – Issuance– Renewal – Revocation – Exempted activities. – (a) After the rules and regulations required to be promulgated under thischapter take effect, no person shall construct, substantially alter, or operateany hazardous waste management facility, nor shall any person store, transport,treat, or dispose of any hazardous waste, except as exempted by this section,without first obtaining a permit from the director for the facility oractivity, nor shall any person accept or deliver hazardous waste from or to anyperson who does not possess a permit from the director for hazardous wastemanagement, without the prior approval of the director, provided, that thissection shall not be construed to require permits for the generation ofhazardous waste.
(b) Permits shall be issued pursuant to § 23-19.1-6.Applications shall be reviewed for compliance with § 23-19.1-6 and theregulations promulgated pursuant to § 23-19.1-6 by the office of wastemanagement. Upon receipt of an application, the office of waste managementshall notify both the chief executive officer and the city or town councilpresident of the municipality in which the facility is proposed to be locatedof the receipt of the application. For any application deemed deficient, itshall be returned to the applicant, without prejudice, together with a concisestatement of the deficiencies. The director may deny an application if, in hisor her judgment, the applicant does not adequately respond to these identifieddeficiencies. The applicant may appeal this decision to the office ofadministrative adjudication. For any application deemed to comply, a draftpermit shall be issued by the department's office of waste management.
(2) Within fifteen (15) days following the issuance of adraft permit, the office of waste management shall give notice of aninformational workshop and public comment hearing. The notice shall bepublished in a newspaper of general circulation in the area affected, and theoffice of waste management shall notify all persons requesting notification inwriting and all property owners within five hundred feet (500') of theperimeter of the site of the facility by mail directed to the last knownaddress, and the city or town in which the hazardous waste management facilityis located. Within fifteen (15) days of the date of the notice, theinformational workshop shall be conducted. The purpose of the informationalworkshop is to discuss the type of facility or activity which is the subject ofthe draft permit; the type and quantity of wastes which are proposed to bemanaged, processed, and/or disposed, a brief summary for the basis for thedraft permit, proposed permit conditions, including references to applicablestatutory or regulatory provisions, an explanation of why any requestedvariances or alternatives to required standards do or do not appear justified,a description of the procedures for reaching a final decision on the draftpermit, which includes the beginning and ending dates for the comment period,the address where comments will be received, the nature of that hearing, anyprocedures by which the public may participate in the final decision, and thename and telephone number of a person to contact for further information.
(3) No earlier than sixty (60) days nor later thanseventy-five (75) days following the initial public notice of the informationalworkshop and public comment hearing, a hearing shall be held to take publiccomment. Comments from the applicant and/or any interested persons shall berecorded at the public hearing. Written comments, which shall be consideredpart of the record, may be submitted for thirty (30) days following the closeof the public comment hearing.
(4) Within ninety (90) days of the close of the publiccomment period, the director shall issue or deny the permit. The permit or thedenial is sent to the applicant, and a copy shall be sent to the municipalityin which the proposed facility is to be located. The permit or denial shall bein writing and include a response to each substantive public comment. In theevent that the director fails to either issue or deny the permit within theninety (90) day period, then the applicant may petition the superior court toissue its writ of mandamus ordering the office of waste management or somesuitable person to immediately issue the permit or denial. Any person refusingto obey the writ of mandamus is subject to penalties for contempt of court. Thewrit of mandamus is the exclusive remedy for failure of the director to complyunder this section.
(5) The applicant and/or any person who provided substantivecomment at any time during the public comment period may appeal the decision ofthe office of waste management to the department's office of administrativeadjudication; provided, that any person who demonstrates good cause for failureto participate and demonstrate that his or her interests are substantiallyimpacted if prohibited from appearance in the appeal may, in the discretion ofthe hearing officer, be permitted to participate in the appeal process.
(6) No appeal is de novo, and is limited to those substantiveissues raised by the appellant during the comment period, or allowed pursuantto subdivision (b)(5).
(7) All appeals shall be pursuant to the rules andregulations established by the director and the rules and regulationsestablished by the office of administrative adjudication; provided, that allappeals shall contain precise statements of the issues presented on appeal andthe specific part of parts of the decision of the director, which arechallenged.
(8) All appeals shall be heard before administrativeadjudication hearing officers.
(c) No permit shall be approved by the director unless he orshe finds that the applicant, in any prior performance record in thecollection, transportation, treatment, storage, or disposal of hazardous orsolid waste, has exhibited sufficient reliability, expertise, and competency tooperate the hazardous waste management facility, given the potential for harmto human health and the environment which could result from the irresponsibleoperation of this hazardous waste management facility, or if no prior recordexists, that the applicant is likely to exhibit that reliability, expertise andcompetence.
(d) No permit shall be approved by the director if anyperson, shown to have a beneficial interest in the business of the applicant orthe permittee other than an equity interest or debt liability by theinvestigation, has been convicted or has pled nolo contendere and received anactual or suspended sentence with a plan of any of the following crimes underthe laws of Rhode Island or the equivalent of these under the laws of any otherjurisdiction:
(1) Murder;
(2) Kidnapping;
(3) Gambling;
(4) Robbery;
(5) Bribery;
(6) Extortion;
(7) Criminal usury;
(8) Arson;
(9) Burglary;
(10) Theft and related crimes;
(11) Forgery and fraudulent practices;
(12) Fraud in the offering, sale or purchase of securities;
(13) Alteration of motor vehicle identification numbers;
(14) Unlawful manufacture, purchase, use or transfer offirearms;
(15) Unlawful possession or use of destructive devices orexplosives;
(16) Racketeering;
(17) Perjury or false swearing;
(18) Any purposeful knowing, willful, or reckless violationof the criminal provision of any federal or state environmental protectionlaws, rules, and regulations;
(19) Assault constituting a felony.
(e) For the purpose of establishing whether any person, shownto have a beneficial interest in the business of the applicant or the permitteeother than an equity interest or debt liability by the investigation, has beenconvicted or has pled nolo contendere and received an actual or suspendedsentence with a plan for any of the offenses enumerated in subsection (d) underthe laws of any other jurisdiction, the applicant shall provide the director,as part of the standard permit application process, a notarized affidavit andBCI criminal record report from each and every state within which the applicantresides and/or conducts business. The notarized affidavits and BCI criminalrecords reports shall be provided for each and every person shown to have abeneficial interest in the business of the applicant or the permittee otherthan an equity interest or debt liability by the investigation.
(f) Notwithstanding the provisions in this section, noapplicant shall be denied a permit on the basis of a conviction of anyindividual shown to have a beneficial interest in the business of the applicantor the permittee other than an equity interest or debt liability by theinvestigation, for any of the offenses enumerated in this section if the personhas affirmatively demonstrated by clear and convincing evidence of his or herrehabilitation. In determining whether an applicant has affirmativelydemonstrated rehabilitation, the director shall request a recommendation fromthe attorney general and shall consider the following factors:
(1) The nature and responsibilities of the position which aconvicted individual would hold;
(2) The nature and seriousness of the offense;
(3) The circumstances under which the offense occurred;
(4) The date of the offense;
(5) The age of the individual when the offense was committed;
(6) Whether the offense was an isolated or repeated incident;
(7) Any social conditions which may have contributed to theoffense;
(8) Any evidence of rehabilitation, including good conduct inprison or in the community, counseling or psychiatric treatment received,acquisition of additional academic or vocational schooling, successfulparticipation in additional academic or vocational schooling, successfulparticipation in correctional work-release programs, or the recommendation ofpersons who have or have had the applicant under their supervision.
(g) No permit shall be approved by the director if theattorney general determines that there is a reasonable suspicion to believethat a person shown to have a beneficial interest in the business of theapplicant or the permittee other than an equity interest or debt liability bythe investigation, does not possess a reputation for good character, honestyand integrity, and that person or the applicant fails by clear and convincingevidence, to establish his or her reputation for good character, honesty, andintegrity.
(h) No permit shall be approved by the director with respectto the approval of an initial permit, if there are current prosecutions orpending charges in any jurisdiction against any person shown to have abeneficial interest in the business of the applicant or the permittee otherthan an equity interest or debt liability by the investigation, for any of theoffenses enumerated in this section; provided, that at the request of theapplicant or the person charged, the director shall defer decision upon thisapplication during the pendency of this charge.
(i) No permit shall be approved by the director if any personshown to have a beneficial interest in the business of the applicant or thepermittee other than an equity interest or debt liability by the investigation,has pursued economic gain in an occupational manner or context which is inviolation of the criminal or civil public policies of this state. For thepurposes of this section, "occupational manner or context" means the systematicplanning, administration, management, or execution of an activity for financialgain.
(j) No permit shall be approved by the director if theapplicant in its application or any other materials supplied to the director orthe attorney general shall supply information which is untrue or misleading asto a material fact pertaining to the disqualification criteria set out in thissection.
(k) Any applicant who is denied an initial permit pursuant tothis section shall, upon written request transmitted to the director withinthirty (30) days of the denial, be afforded the opportunity for a hearing. Anypermittee who receives a notice of intent to revoke or refuse to renew a permitshall have fifteen (15) days from the receipt of the notice to transmit to thedirector a request for a hearing.
(l) Notwithstanding the disqualification of any applicant orpermittee the director may issue or renew a license if the applicant orpermittee severs the interest of or affiliation with the person who would causethat disqualification.
(2) Where the disqualifying individual is the owner of anequity interest or interest in the debt liability of the permittee orapplicant, he or she must completely divest himself or herself of thatinterest. Where immediate sale of the interest would work an economic hardshipon the individual, the permittee or applicant, the director may, in his or herdiscretion, allow for divestiture over a period of time not to exceed one year.
(3) Arrangements such as blind trusts will be acceptable onlyas part of a divestiture arrangement under which the trustee is obliged to sellthe disqualifying individual's interest within a period not to exceed two (2)years.
(4) Before the director will issue or renew a permit to anapplicant or permittee which has severed a disqualifying individual, theapplicant or permittee must submit to the director an affidavit, sworn to bythe chief executive officer, attesting to the severance of the disqualifyingindividual and describing the terms, circumstances and conditions of theseverance. Any instruments pertaining to that severance (such as a trustagreement) shall be submitted with the affidavit.
(m) The director will not issue a permit to any person whohas had an application denied, or a license revoked, for any of the reasons setforth for a period of five (5) years following this denial or revocation. Aperson that is a business concern shall be considered as the same person if themanagement structure of the concern includes the person or persons that werethe cause of the original disqualification.
(n) Permits for hazardous waste transporters shall be issuedfor a period not to exceed one year. Applications for hazardous wastetransporter permits shall be reviewed by the office of waste management forcompliance with § 23-19.1-6 and the regulations promulgated pursuant to§ 23-19.1-6, and the director will issue or deny the permit based on thatreview. Appeals of this decision shall be to the office of administrativeadjudication. The provisions of subsection (b) are not applicable to hazardouswaste transporter permit applications. Permits for hazardous waste managementfacilities shall be issued subject to any terms and conditions that thedirector may require, and subject to suspension, revocation, modification, oramendment as provided in subsection (p) for a period of five (5) years. Thedirector shall hold a public hearing in accordance with subsection (b) prior tothe renewal of any permit. Any changes in permit conditions shall be includedin the notification.
(o) In any proceeding for issuance or renewal of a permitrequired under this section, the burden of proving that the operation of thefacility for which a permit is sought complies with the rules and regulationsunder § 23-19.1-6(a) shall be on the applicant for the permit; provided,that failure or refusal of the applicant to provide requested information maybe considered as grounds for denial of the application.
(p) Any permit issued under this section may be suspended,revoked, modified, or amended by the director at any time upon a showing: thatthe permittee failed in the application or during the permit issuance processto discharge fully all relevant facts, or the permittee's misrepresentation ofany relevant facts at anytime, or that there has been a conviction or plea asdescribed in subsection (d), that the permittee has failed to comply with theprovisions of this chapter, rules and regulations promulgated by the directorpursuant to this chapter, or the terms and conditions of the permit, a changein ownership or operational control of a permitted hazardous waste facility, orupon a showing that the continued operation of the permitted facilityconstitutes a threat to the health and safety of the public or to theenvironment. In any administrative proceeding for revocation of a permit underthe provisions of this section the permittee has the burden of demonstratingcompliance with all lawful requirements and regulations for the retention ofthe permit and that continued operation under the permit will not constitute athreat to public health, safety, or the environment. In any proceeding forrevocation, suspension, modification, or amendment of a permit pursuant to thissubsection, the director will provide the affected party with the opportunityfor an adequate hearing and with written notice of the intent of the directorto revoke the permit and the reasons for the revocation.
(2) The following are causes for modification but notrevocation and reissuance of permits, but the following may be causes forrevocation and reissuance as well as modification when the permittee requestsor agrees:
(i) There are material and substantial alterations oradditions to the permitted facility or activity which occurred after the permitissuance which justify the application of permit conditions that are differentor absent in the existing permit;
(ii) Permits may be modified during their terms only if thedirector has received information that was not available at the time of permitissuance and would have justified the application of different permitconditions at the time of issuance. This shall include any informationindicating the cumulative effects on the environment are unacceptable;
(iii) The rules or regulations on which the permit was basedhave been changed by promulgation of amended rules or regulations or byjudicial decision after the permit was issued.
(iv) The director determines good cause exists formodification of a compliance schedule, such as an act of God, strike, flood, ormaterials shortage or other events over which the permittee has little or nocontrol and for which there is no reasonably available remedy.
(3) In addition to any other cause set forth in this chapter,any permit may be revoked by the director for any of the following causes:
(i) Fraud, deceit, or misrepresentation in securing thepermit, or in the conduct of the permitted activity;
(ii) Offering, conferring, or agreeing to confer any benefitto induce any other person to violate the provisions of the Rhode Island"Hazardous Management Act" or of any other law relating to the collection,transportation, treatment, storage, or disposal of solid waste or hazardouswaste, or of any rule or regulation adopted pursuant to it;
(iii) Coercion of a customer by violence or economic reprisalor the threat to utilize the services of any permittee;
(iv) Preventing, without authorization of the director, anypermittee from disposing of solid waste or hazardous waste at a licensedtreatment, storage or disposal facility. In any proceeding for revocation,suspension, modification, or amendment of a permit pursuant to this subsection,the director will provide the affected party with the opportunity for anadequate hearing and with written notice of the intent of the director torevoke the permit and the reasons for the revocation.
(q) The following activities do not require a permit underthis chapter, but are subject to the portions of this chapter and rules andregulations adopted under this chapter that do not apply to permits:
(1) Storage, treatment, or disposal of those quantities ofcertain hazardous wastes that the director determines by regulation do not posea threat to the public health, safety, and environment;
(2) Transport of any hazardous waste on the premises where itis generated or onto contiguous property owned by its generator; and
(3) Temporary storage or resource recovery, includingregeneration or reclamation of material or energy, of hazardous wastes at thesite of generation, which temporary storage or resource recovery is conductedby its generator.
(r) In addition to any other requirements imposed by thissection, no permit or renewal of a permit for a facility that is a commerciallandfill shall be approved by the director unless the applicant providesevidence of either (1) bonding; and/or (2) a catastrophe fund, both to be in anamount and for a length of time as the director shall determine to be necessaryto protect the general public's health and welfare from any potentialcomplications arising from the landfill. The director's determination as to theamount and length of time for this bond and/or catastrophe fund shall be final.The applicant's evidence of the bonding and/or catastrophe fund shall beavailable for public inspection at the department.