Chapter 856: LICENSING OF HAZARDOUS WASTE FACILITIES
TABLE OF CONTENTS
Chapter 856: LICENSING OF HAZARDOUS WASTE FACILITIES
SUMMARY: This rule specifies the application requirements and procedures by which owners and operators may apply for a license to establish, construct, alter or operate a hazardous waste facility and the procedures by which such applications will be reviewed and acted upon by the Department and Board of Environmental Protection.
l. Legal Authority. This rule is authorized by 38 MRSA, section 1301, et seq., which prohibits the establishment, construction, alteration and operation of a hazardous waste facility without a license, establishes the authority of the Board of Environmental Protection to issue licenses and to adopt rules for licensing, and sets out the findings which the Board must make in order to issue a license.
2. Preamble. It is the purpose of the Department of Environmental Protection, consistent with legislative policy, to provide necessary controls over hazardous waste facilities so as to ensure the protection of public health, safety, welfare and the environment.
3. Definitions. For the purpose of this rule, terms not defined in this section have the meaning given them under 38 MRSA §§ 361-A and 1303-C. The following terms as used in this rule have the following meaning unless the context indicates otherwise:
A. By-product. "By-product" means a material that is not one of the primary products of a production process and is not solely or separately produced by the production process. The term does not include a co-product that is produced for the general public's use and is ordinarily used in the form in which it is produced by the process.
B. Commercial hazardous waste facility. "Commercial hazardous waste facility" means a facility which accepts, for handling, hazardous wastes other than those generated on site by the owner of the facility. The handling of residual hazardous wastes generated on site in the process of handling hazardous wastes are included within the scope of the facility's operations. Commercial hazardous waste facility includes mobile treatment facilities.
C. Elementary neutralization unit. "Elementary neutralization unit" means a device which is used on site for neutralizing wastes that are hazardous solely because they exhibit the corrosivity characteristic defined in Chapter 850 of the department rules or are listed in section 3(C) of Chapter 850 solely for this reason and meets the definition of tank, tank system, container, transport vehicle or vessel in 40 CFR 260.10.
D. Facility property. "Facility property" means all of the property, as defined by its legal boundaries, on which is or will be located the existing or proposed waste facility for hazardous waste for which the license is sought.
E. Mobile treatment facility. "Mobile treatment facility" means a facility or unit capable of being moved and operated at sites for a limited period of time. In order to qualify as a "mobile treatment facility" units located at generator sites must be operational at more than one site in a calendar year.
F. New waste facility for hazardous waste. "New waste facility for hazardous waste" means a facility which did not exist prior to the effective date of this rule or which did not handle hazardous waste prior to the effective date of this rule.
G. Publicly owned treatment works. "Publicly owned treatment works" (POTW) means any device or system used in the treatment (including recycling and reclamation) of municipal sewage or industrial wastes of a liquid nature which is owned by a "State" or "municipality." This definition includes sewers, pipes, or other conveyances only if they convey wastewater to a POTW providing treatment.
H. Substantial modification. "Substantial modification" means any change in size or operation of a licensed facility which may pose a risk to health, safety, welfare or the environment which is significantly different in kind or degree from that posed by the facility without the modification, or may pose a significant risk which was not considered in the original application or is not addressed in the existing license.
I. Thermal treatment. "Thermal treatment" means the treatment of hazardous waste in a device which uses elevated temperatures as the primary means to change the chemical, physical or biological character or composition of the hazardous waste. Examples of thermal treatment processes are incineration, molten salt, pyrolysis, calcination, wet air oxidation and microwave discharge.
J. Transfer facility. "Transfer facility" means any transportation-related facility including loading docks, parking areas, storage areas and other similar areas where shipments of hazardous waste are held during the normal course of transportation.
A. No person shall establish, construct or operate a new waste facility for hazardous waste or substantially modify a licensed facility without a license issued by the Board, and no person shall alter the design, construction or operation of a licensed facility without prior Board approval.
B. After the date upon which an application for a license under this rule is due, no person shall operate a waste facility for hazardous waste for which an interim license has been issued, unless the application has been filed. The Department shall give written notification to the owner or operator of an interimly licensed facility of the date upon which his application is due, which date shall not be earlier than sixty (60) days after the date of the notice.
C. No person shall:
(l) operate a licensed waste facility for hazardous waste except in accordance with its license, the terms and conditions thereof and with the requirements of law and rule;
(2) operate a waste facility for hazardous waste in any manner which could endanger public health, safety, welfare or the environment.
(a) Operating a waste facility for hazardous waste without a license as required by this rule constitutes a presumption of such endangerment.
D. Possession of a license as required by this rule is not a defense to a violation of this rule or to any other violation of law or rule.
E. No person shall handle hazardous waste except at a waste facility for which a license for such handling has been issued by the Board.
F. No person shall operate a mobile treatment facility for more than 60 days at any one site in any 365 days without specific authorization from the Board.
5. Persons Who Must Apply for and Obtain Licenses
A. Any person who proposes to own or operate a waste facility for hazardous waste must, prior to establishment, construction or operation of the facility, apply for and obtain a license as required by this rule.
B. Any person who proposes to continue to own or operate a waste facility for hazardous waste for which an interim license is in force must apply for and obtain a license as required by this rule.
C. Any person who proposes to alter the design, construction or operation of a licensed waste facility for hazardous waste must, prior to alteration of the facility, apply for and obtain approval from the Board for the alteration. Approval of an alteration, if granted, will ordinarily be by amendment to the license and may be with or without conditions.
D. Any person who proposes to undertake or institute a substantial modification to a licensed hazardous waste facility must, prior to undertaking or instituting the modification, apply for and obtain a license for the modification as required by this rule.
E. Where the owner and the operator are not the same person, either may obtain the license but both must, by signing the certification on the application form, sign and certify the application.
F. Any person who owns or operates a facility for hazardous waste under interim or final license which closes and is subject to post closure requirements of Chapter 854 or Chapter 855 must apply for and obtain from the Board a post closure care license prior to closure of the facility. The denial of a license for the active life of a facility or unit does not affect the requirement to obtain a post closure license under this section. Approval of a post closure license, if granted by the Board, may be with or without conditions. The owner or operator must obtain a license or licenses during the entire post closure care period. Owners or operators of surface impoundments, land treatment units, and waste piles closing by removal or decontamination under Chapter 855 must obtain a post closure license unless they can demonstrate to the Board that the closure met the standards for closure by removal or decontamination under Chapter 854. The demonstration shall be made as part of an application for a post closure license, based upon information in the application. License processing procedures shall govern the review and final determination regarding the demonstration. At a minimum, the post closure license shall address applicable ground water monitoring, unsaturated zone monitoring, corrective action, and post closure care requirements of Chapter 854. In the case of a license application for post closure care only, the requirements of Section 10(A) and 10(K) of this Chapter shall apply.
6. Persons Not Required to Obtain a License. The following persons are not required to obtain a license:
A. Generators of hazardous waste who accumulate hazardous waste on site for 90 days or less, as provided in chapter 851, section 8(B) of department rules.
B. Farmers who dispose of hazardous waste pesticides from their own use as provided in chapter 851, section 4(C) and chapter 851, section 10 of the department rules.
C. Owners or operators of totally enclosed treatment facilities as defined in 40 CFR 260.10.
D. Owners or operators of wastewater treatment units as defined in 40 CFR 260.10 provided all the hazardous wastes and wastewaters treated in such units are generated on-site, and the owners and operators are in compliance and certify by June 30, 1995 that they are in compliance with the following requirements:
(1) The wastewater treatment units and associated piping are constructed of materials compatible with the wastes managed in such units during routine and upset conditions;
(2) The wastewater treatment units must have a secondary containment system of sufficient capacity to contain whichever is greater; 110% of the capacity of the largest unit or 20% of the combined capacity of the wastewater treatment units, except that, secondary containment of sewer lines is not required.
(3) The wastewater treatment units are equipped with automatic high level alarms, and such alarms are inspected and tested at least twice per year;
(4) Procedures for responding to the activation of the automatic high level alarms have been established that are sufficient to prevent a release of hazardous waste to the environment and the wastewater treatment units are operated within the parameters of the facility's design;
(5) The wastewater treatment system is subject to a water discharge license pursuant to 38 MRSA sections 413 through 414(B) or 40 CFR 403.8 and 403.9 (pretreatment agreement) containing limits on the hazardous characteristics and any hazardous constituents for which the waste is hazardous (see Appendix VII to chapter 850), and the license provides for testing for such characteristics and/or constituents at least annually;
(6) Periodic inspections of wastewater treatment unit components are performed, and such inspections include the draining of tanks and trenches to ensure the integrity of the structures by inspecting for corrosion and other forms of deterioration at least every five years;
(7) All sewer lines are inspected and/or tested for structural integrity, including corrosion, at least every five years;
(8) Whenever the owner or operator discovers that temporary or permanent repairs to the wastewater treatment units or associated piping are necessary to maintain structural integrity, the owner or operator shall notify the Bureau of Water Quality Control and the Bureau of Remediation and Waste Management within 24 hours of the discovery, and within 72 hours of such discovery, shall submit a written plan and repair schedule for review and approval of the department;
(9) Repairs to equipment and structures are performed whenever necessary to maintain structural integrity prior to return to service;
(10) Wastewater analysis and inspection records shall be retained at the facility and made available to any department or municipal official for inspection; and
(11) The certification shall be submitted no later than June 30, 1995 to the Bureau of Remediation and Waste Management, Division of Oil and Hazardous Waste Facilities Regulation (see chapter 856, section 10(A)(1) for address).
The certification must be made by a person authorized to sign a permit application under chapter 856, section 10(A)(3), and such certification shall read:
I certify, under penalty of law, that the requirements of section 6(D) of Chapter 856 have been met for all wastewater treatment units which are unlicensed under the terms of that provision. I am aware there are significant penalties for submitting false information including the possibility of fine and imprisonment.
E. Generators of hazardous waste who physically treat hazardous waste in compactors designed and operated to prevent releases of liquids and vapors that are always closed, except when it is necessary to add or remove waste, provided the generators do not commingle different types of hazardous waste in the compactor.
NOTE: Generators should consult with compactor manufacturers to determine if their particular waste can be safely compacted. The requirements of chapter 851 apply to compactors including the labeling, maximum accumulation time, inspection and closure provisions.
F. Generators of hazardous waste who physically treat waste in tanks or containers and immediately reinsert the waste back into the manufacturing process without any other form of treatment, provided the waste is not used or reused in a manner constituting disposal or burned to recover energy or used to produce a fuel. "Physically treat" for the purposes of this section is limited to the use of pulverizers, grinders and hammers to reduce the particle size of hazardous waste such that the waste is more amenable for reuse.
G. Generators of laboratory hazardous waste who neutralize hazardous waste which is hazardous solely due to the characteristic of corrosivity in quantities less than 500 milliliters per treatment within their laboratory.
NOTE: Generators need to ensure that their waste is only hazardous for corrosivity and not for other hazardous waste characteristics, such as toxicity (including metals), ignitability, or reactivity.
H. Persons conducting removal or remedial action activities exempt from state licensing under section 121(e) of the federal Comprehensive Environmental Response, Compensation and Liability Act of 1980.
I. The owner or operator of an elementary neutralization unit, as defined in section 3, subsection B, of this chapter, provided:
(1) The unit is subject to a pretreatment agreement with the operator of a publicly owned treatment works, or wastewater from the unit is discharged to a wastewater treatment system licensed under 38 MRSA §§ 413 through 414-B or permitted under 40 CFR §§ 403.8 and 403.9;
(2) All pipes, sewers and other unit components that may contain, convey or otherwise be in contact with corrosive hazardous waste are constructed of materials compatible with the management of corrosive waste, and the location of all such components is identified in a spill prevention control and clean-up plan submitted to the commissioner as provided under 38 MRSA § 1318-C;
(3) Each identified unit component is inspected at a frequency specified in the spill prevention control and clean-up plan and repaired as necessary to maintain structural integrity;
(4) Inspection records, including the date and time of inspection, the name of the inspector and the date and nature of any significant repairs or corrective actions, are retained and made available to department officials upon request, and to municipal officials if effluent from the unit is subject to a pretreatment agreement under section 307(b) of the federal Clean Water Act; and
(5) The owner or operator complies with 40 CFR § 265.17(b), which, in general, requires that the treatment of corrosive hazardous wastes be conducted so that it does not cause violent reaction, damage the structural integrity of the unit or otherwise threaten human health and the environment.
7. Advisory Rulings. All requests for advisory rulings on the applicability of hazardous waste statutes to particular situations or on other matters shall be based upon existing facts and not upon hypothetical situations. Such requests shall be made in writing and addressed to Division of Oil and Hazardous Waste Facilities Regulation, Bureau of Hazardous Materials and Solid Waste Control, Department of Environmental Protection, State House Station 17, Augusta, Maine 04333-0017. Issuance of advisory rulings is discretionary with the Department on a case by case basis.
8. Access to the Site. The filing of an application for a license constitutes the granting of permission by the applicant to allow authorized representatives of the Department access to the site of the facility or proposed facility in order to evaluate whether or not the facility will meet the standards set forth in Chapter 854 and this chapter. In so far as practical, access will be during normal business hours.
9. References to Federal Regulations. Portions of this rule refer to federal regulations of the United States Environmental Protection Agency (EPA). Unless otherwise specified, the federal regulations referenced are those interim final or final regulations revised as of July 1, 1988, as they appeared in volume 40 of the Code of Federal Regulations (CFR). Where specifically stated, the terms of a referenced federal regulation are hereby adopted as terms of this rule, except that in regulations incorporated thereby, "EPA" shall mean "The Maine Department of Regulation (DEP)"; "Administrator", "Regional Administrator" and "Director" shall mean "the Maine Board of Environmental Protection or its designated representative"; and the phrase "treat, store, and/or dispose" shall mean "handle". In addition, where the terms of federal regulations hereby incorporated by reference differ from or are inconsistent with other terms of this Chapter or Chapters 850 860, the more stringent of the requirements shall apply. Other changes to regulations incorporated hereby are as expressly made in this rule.
10. Application Requirements
A. General Requirements
(1) An applicant for a license for a waste facility for hazardous waste must file an application in accordance with the requirements of this section, (except for applications submitted under Section 11 of this Chapter), including a completed license application form and all supporting materials.
"Applicant" includes a person applying for a license for a substantial modification to a licensed facility. "Application" includes an application for a substantial modification to a licensed facility. However, information filed with the Department as part of an application for an initial license for a facility may satisfy some or all of the application requirements for a license for a substantial modification to the facility, if the applicant so requests and if the Department makes the determination that the information on file provides a proper basis for review of and decision on the application for the modification.
Application forms shall be obtained from and filed with:
Department of Environmental Protection
Bureau of Hazardous Materials & Solid Waste Control
Division of Oil & Hazardous Waste Facilities Regulation
State House Station #l7
Augusta, Maine 04333-0017
NOTE: Applicants are encouraged to contact the Division of Oil and Hazardous Waste Facilities Regulation (Telephone No. 207/287 2651) for assistance and information prior to the filing of an application.
(2) An applicant who owns or operates or proposes to own or operate a waste facility for hazardous waste in which more than one type of handling is performed may file a single application for a license to include all those types of handling. The application must meet all license application requirements applicable to each type of handling.
(3) The application must be signed and certified by:
(a) a principal executive officer of at least the level of a vice president, if the applicant is a corporation;
(b) a general partner or the proprietor, as appropriate, if the applicant is a partnership or sole proprietorship;
(c) a principal executive officer or ranking elected official, if the applicant is a municipality, state, federal, or other public agency.
Signing of the application constitutes certification thereof in accordance with the certification statement on the application form.
(4) With his application, an applicant must remit the appropriate application fee as established below, by certified check or money order made payable to the Maine Hazardous Waste Fund:
Type of Facility
Commercial Treatment Facility
On Site Treatment Facility
Other waste facility for hazardous waste, including treatment facilities other than on site and commercial treatment facilities
Abbreviated Licenses, except for abbreviated licenses for treatment facilities:
under 1,000 kg/month
over 1,000 kg/month
A refund of fifty (50) percent of the fee shall be returned to an applicant who withdraws his application within thirty (30) calendar days of its submission.
(5) The application fees are required for initial applications and for any applications for a substantial modification to a facility or a license.
(6) An applicant must complete the application form and submit it and all supporting materials as required by rule. On the application form, the Department will specify the number of copies to be submitted.
(7) All engineering designs, reports, plans, and other technical engineering documents must be signed and certified by a State of Maine Registered Professional Engineer.
(8) All geological work must be signed and certified by a State of Maine Certified Geologist, except that soils work may be signed and certified by a State of Maine Certified Soils Scientist.
(9) All survey work must be signed and certified by a State of Maine Registered Land Surveyor.
(10) All drawings must be done on paper no smaller than 8½ x 11 inches and no larger than 30 x 40 inches in size folded to 8½ x 11 inches.
(11) The Department will consider an application only when an applicant has demonstrated sufficient title, right, or interest in all of the property which is proposed for development or use. An applicant shall demonstrate in writing sufficient title, right, or interest, as follows:
(a) When the applicant owns the property, a copy of the deed(s) to the property shall be supplied.
(b) When the applicant has a lease on the property, a copy of the lease shall be supplied. The lease shall be of sufficient duration, as determined by the Board, to permit construction and reasonable use of the facility.
(c) When the applicant has an option to buy or lease the property, a copy of the option agreement shall be supplied. Option agreements shall contain terms deemed sufficient by the Board to establish future title or a leasehold of sufficient duration.
(d) When the applicant has eminent domain power over the property, evidence shall be supplied as to the ability and intent to use the eminent domain power to acquire sufficient title, right, or interest as determined by the Board.
(12) Within 15 working days of receipt of an application, the Commissioner of the Department shall notify the applicant of the date the application was accepted by the Department as being complete for processing or return it specifying in writing the reasons for returning the application. No further processing of an application shall occur until the Department determines it to be complete. The statutory time period within which the Board must act upon the application pursuant to 38 M.R.S.A., Section 344 shall not begin until the application is determined to be complete. The Board may deny a license for the active life of a facility or unit before receiving a complete application.
(13) In reviewing applications determined to be complete for processing, the Board or Department may require additional information from the applicant on any aspect of the facility relating to compliance with the standards of Chapters 854 and 856.
(14) An applicant must give public notice of the filing of an application by:
(a) filing a copy of the application, and any changes thereto, with the clerk of the municipality in which the facility is or will be located or, if the facility is or will be located in the unorganized territory, with the county clerk of the county of its location. The application and changes must be so filed at the time each is filed with the Department except in the case of a mobile treatment facility which need not file the notice until the time of filing of phase two of its application.
(b) publishing notice, in size and form at least equivalent to standard legal notices and containing the information specified below, in at least one newspaper of general circulation in the area in which the facility is or will be located. For the purposes of a mobile treatment facility, the circulation area shall mean the entire State of Maine for Phase I of the application. Notice must be published once during the week in which the application is filed and once during the following week;
(c) broadcasting notice containing the information specified below over at least one radio station broadcasting in the area in which the facility is or will be located. Notice must be broadcast at least once each day of the week in which the application is filed; for the purposes of a mobile treatment facility, the circulation area shall mean the entire State of Maine for Phase I of the application.
(d) giving notice to all owners of property abutting the facility property. For mobile treatment facilities, this notice shall be given at the time of the filing of Phase II of the application, as defined in Chapter 854, Section 6G.
(15) The public notice shall include, but not be limited to:
(a) the name, location and type (e.g., hazardous waste storage facility; hazardous waste incinerator) of the facility;
(b) the name of the owner and operator of the facility;
(c) a statement that the application has been filed and the date filed;
(d) identification of the hazardous waste(s) to be handled at the facility and descriptions of the method(s) of handling;
(e) a statement that public comments are invited and will be considered by the Department if filed within 45 days of the last day of the week in which the application is filed;
(f) a statement that a public hearing may be requested by any person, groups of persons, or agency with respect to the application. The request for hearing shall be in writing, indicate the interest of the party filing the request, the reasons why a hearing is warranted and must be filed within 45 days of the last day of the week in which the application is filed;
(g) a statement that comments and hearing requests must be filed with, and more information can be obtained from:
Department of Environmental Protection
Bureau of Hazardous Materials & Solid Waste Control
Division of Oil & Hazardous Waste Facilities Regulation
State House Station #l7
Augusta, Maine 04333-0017
Telephone No. 207/287 2651
(h) the locations at which and the times during which the application and supporting materials may be examined.
(16) The applicant must submit to the Department evidence demonstrating that notice has been published and broadcast as required above, within 5 days of completion of publication and broadcasting. If such evidence is not received, or if notice requirements have not been complied with, processing of the application will cease and will not recommence until notice has been given as required.
(17) For a facility at which hazardous waste will be disposed, the applicant must provide information demonstrating that the volume of waste and the risks related to its handling will have been reduced to the maximum practical extent by treatment and volume reduction prior to disposal.
(18) The applicant must demonstrate, in his application, sufficient financial capacity, including projections of utilization of the facility by hazardous waste generators, to construct, operate, and maintain all aspects of the facility in accordance with requirements of statute and rules.
(19) Except as provided in Section 13(A)(10) below, applicants shall keep records of all data used to complete permit applications and any supplemental information submitted pursuant to this Chapter for a period of at least three years from the date the application is signed.
(20) If a hearing is mandatory, the applicant shall file notice in accordance with 5 M.R.S.A. 9051(A).