DEPARTMENT OF HEALTH — CONTROLLED INDUSTRIAL WASTE MANAGEMENT ACT — PERMIT REQUIREMENTS — WHO IS SUBJECT TO THE ACT An industry which plows its controlled industrial waste into the soil must meet the permit requirements enumerated in the Controlled Industrial Waste Management Act, that if an industry's waste is not designated as controlled industrial waste its soil farming operation would not be subject to provisions of the Controlled Industrial Waste Disposal Act, and that soil farming of industrial waste not designated as controlled industrial waste upon the industry's own land would not be subject to the permitting requirements of the Solid Waste Management Act. The Attorney General has received your request for an opinion wherein you ask, in effect, the following questions: (1) Must an industry which plows its controlled industrial waste into the soil meet the permit requirements enumerated in 63 O.S. 2759 [63-2759] (1976)? (2) If an industry plows into the soil industrial waste which is not designated by the Controlled Industrial Waste Management Section as controlled industrial waste, would such soil farming operation be subject to the provisions of the Controlled Industrial Waste Disposal Act, 63 O.S. 2751 [63-2751] et seq (1976)? (3) If not, would such soil farming of industrial waste not designated as controlled industrial waste be subject to the permit requirements of the Solid Waste Management Act, 63 O.S. 2251 [63-2251] et seq (1971)? The Oklahoma Controlled Industrial Waste Disposal Act, 63 O.S. 2751 [63-2751] — 63 O.S. 2765 [63-2765] (1976), is determinative of the answer to your first question. 63 O.S. 2759 [63-2759] reads in pertinent part as follows: "The Section of the Oklahoma Department of Health shall issue permits for the operation of processing facilities or disposal sites. . . ." (Emphasis and explanation added) 63 O.S. 2752 [63-2752] reads in pertinent part: "As used in this act, unless the context otherwise requires: "4. 'Disposal site' means the location where any final disposition of controlled industrial waste occurs. Disposal sites include but are not limited to deep well injection and surface disposal facilities;" Thus, inasmuch as 63 O.S. 2759 [63-2759] requires a permit for each disposal site, and the definition of disposal site would certainly encompass the location where an industry plows its controlled industrial waste into the soil, your first question must be answered in the affirmative. In reaching this conclusion, it should be noted that due consideration was given to the provisions of 63 O.S. 2765 [63-2765] (1976), which section pertains to soil farming. It is the conclusion of this office that such section levies additional requirements on soil farming of controlled industrial wastes to those previously described and does not provide an alternative to such requirements. 63 O.S. 2754 [63-2754] provides in pertinent part as follows: "The Section is hereby authorized and it shall be its duty to: "1. Designate materials as controlled industrial waste;" It should be noted that the requirement of 63 O.S. 2754 [63-2754] has to be read in the context of the definition of controlled industrial waste found in 63 O.S. 2752 [63-2752], which reads in pertinent part as follows: "1. 'Controlled industrial waste' is defined as refuse products, either solid or liquid, which are to be disposed of, and which are toxic to human, animal, aquatic or plant life and which are produced in such quantity that they cannot be safely disposed of in properly operated, state-approved sanitary land fills, waste or sewage treatment facilities. Controlled industrial waste may include but is not limited to explosives, flammable liquids, spent acids, caustic solutions, poisons, sludge, tank bottoms containing heavy metallic ions, toxic organic chemicals and materials such as paper, metal, cloth or wood which are contaminated with controlled industrial waste ;" Thus any designation of materials as controlled industrial waste by the Department of Health pursuant to 63 O.S. 2754 [63-2754] must be guided by the statutory considerations enumerated in 63 O.S. 2752 [63-2752](1), and any industrial waste so designated would be subject to the Controlled Industrial Waste Disposal Act. The contrary is likewise the case. Any industrial waste which is not designated as controlled industrial waste could be plowed under pursuant to a soil farming operation without the obtaining of a permit under the Controlled Industrial Waste Disposal Act, and thus your second question is answered in the negative. Your third question calls for consideration of the Oklahoma Solid Waste Management Act, 63 O.S. 2251 [63-2251] et seq. (1971). The definition of disposal sites found in 63 O.S. 2253 [63-2253] reads as follows: "As used in this act, unless the context otherwise requires: "(5) 'Disposal site' means any place at which solid waste is dumped, abandoned, or accepted or disposed of by incineration, land filling, composting or any other method;" This definition would appear to encompass soil farming of industrial waste as described in your inquiry and therefore render the provisions of the Oklahoma Solid Waste Management Act applicable, including the requirement of obtaining a permit, except for the express exemption language found in 63 O.S. 2258 [63-2258], which section reads as follows: "After adoption of the rules and regulations as provided in 63 O.S. 2259 [63-2259] and a reasonable time fixed by the Board of Health for compliance therewith, no person shall dispose of solid wastes at any site or facility other than a site or facility for which a permit for solid waste disposal has been issued by the State Board of Health, except that no provision of this act shall be construed so as to prevent a person from disposing of solid waste from his own household upon his own land provided such disposal does not create a nuisance or a hazard to the public health or does not violate a city ordinance. Upon issuance of any such permit the Board of Health shall file a recordable notice of the permit in the land records of the county in which the site is located. The notice shall contain the legal description of the site as well as the terms under which the permit is issued." (Emphasis added) It should be noted that under 63 O.S. 2253 [63-2253] the term person is de fined as meaning "any individual, corporation, company, firm, partnership, association, trust, state agency, government instrumentality or agency, institution, county, city, town or municipal authority or trust, venture or any other legal entity, however organized". Thus, it would appear that your third question must be answered in the negative in that an industry could soil farm its industrial waste upon its own land as long as such waste was not designated as controlled industrial waste.
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DEPARTMENT OF HEALTH — CONTROLLED INDUSTRIAL WASTE MANAGEMENT ACT — PERMIT REQUIREMENTS — WHO IS SUBJECT TO THE ACT An industry which plows its controlled industrial waste into the soil must meet the permit requirements enumerated in the Controlled Industrial Waste Management Act, that if an industry's waste is not designated as controlled industrial waste its soil farming operation would not be subject to provisions of the Controlled Industrial Waste Disposal Act, and that soil farming of industrial waste not designated as controlled industrial waste upon the industry's own land would not be subject to the permitting requirements of the Solid Waste Management Act. The Attorney General has received your request for an opinion wherein you ask, in effect, the following questions: (1) Must an industry which plows its controlled industrial waste into the soil meet the permit requirements enumerated in 63 O.S. 2759 [63-2759] (1976)? (2) If an industry plows into the soil industrial waste which is not designated by the Controlled Industrial Waste Management Section as controlled industrial waste, would such soil farming operation be subject to the provisions of the Controlled Industrial Waste Disposal Act, 63 O.S. 2751 [63-2751] et seq (1976)? (3) If not, would such soil farming of industrial waste not designated as controlled industrial waste be subject to the permit requirements of the Solid Waste Management Act, 63 O.S. 2251 [63-2251] et seq (1971)? The Oklahoma Controlled Industrial Waste Disposal Act, 63 O.S. 2751 [63-2751] — 63 O.S. 2765 [63-2765] (1976), is determinative of the answer to your first question. 63 O.S. 2759 [63-2759] reads in pertinent part as follows: "The Section of the Oklahoma Department of Health shall issue permits for the operation of processing facilities or disposal sites. . . ." (Emphasis and explanation added) 63 O.S. 2752 [63-2752] reads in pertinent part: "As used in this act, unless the context otherwise requires: "4. 'Disposal site' means the location where any final disposition of controlled industrial waste occurs. Disposal sites include but are not limited to deep well injection and surface disposal facilities;" Thus, inasmuch as 63 O.S. 2759 [63-2759] requires a permit for each disposal site, and the definition of disposal site would certainly encompass the location where an industry plows its controlled industrial waste into the soil, your first question must be answered in the affirmative. In reaching this conclusion, it should be noted that due consideration was given to the provisions of 63 O.S. 2765 [63-2765] (1976), which section pertains to soil farming. It is the conclusion of this office that such section levies additional requirements on soil farming of controlled industrial wastes to those previously described and does not provide an alternative to such requirements. 63 O.S. 2754 [63-2754] provides in pertinent part as follows: "The Section is hereby authorized and it shall be its duty to: "1. Designate materials as controlled industrial waste;" It should be noted that the requirement of 63 O.S. 2754 [63-2754] has to be read in the context of the definition of controlled industrial waste found in 63 O.S. 2752 [63-2752], which reads in pertinent part as follows: "1. 'Controlled industrial waste' is defined as refuse products, either solid or liquid, which are to be disposed of, and which are toxic to human, animal, aquatic or plant life and which are produced in such quantity that they cannot be safely disposed of in properly operated, state-approved sanitary land fills, waste or sewage treatment facilities. Controlled industrial waste may include but is not limited to explosives, flammable liquids, spent acids, caustic solutions, poisons, sludge, tank bottoms containing heavy metallic ions, toxic organic chemicals and materials such as paper, metal, cloth or wood which are contaminated with controlled industrial waste ;" Thus any designation of materials as controlled industrial waste by the Department of Health pursuant to 63 O.S. 2754 [63-2754] must be guided by the statutory considerations enumerated in 63 O.S. 2752 [63-2752](1), and any industrial waste so designated would be subject to the Controlled Industrial Waste Disposal Act. The contrary is likewise the case. Any industrial waste which is not designated as controlled industrial waste could be plowed under pursuant to a soil farming operation without the obtaining of a permit under the Controlled Industrial Waste Disposal Act, and thus your second question is answered in the negative. Your third question calls for consideration of the Oklahoma Solid Waste Management Act, 63 O.S. 2251 [63-2251] et seq. (1971). The definition of disposal sites found in 63 O.S. 2253 [63-2253] reads as follows: "As used in this act, unless the context otherwise requires: "(5) 'Disposal site' means any place at which solid waste is dumped, abandoned, or accepted or disposed of by incineration, land filling, composting or any other method;" This definition would appear to encompass soil farming of industrial waste as described in your inquiry and therefore render the provisions of the Oklahoma Solid Waste Management Act applicable, including the requirement of obtaining a permit, except for the express exemption language found in 63 O.S. 2258 [63-2258], which section reads as follows: "After adoption of the rules and regulations as provided in 63 O.S. 2259 [63-2259] and a reasonable time fixed by the Board of Health for compliance therewith, no person shall dispose of solid wastes at any site or facility other than a site or facility for which a permit for solid waste disposal has been issued by the State Board of Health, except that no provision of this act shall be construed so as to prevent a person from disposing of solid waste from his own household upon his own land provided such disposal does not create a nuisance or a hazard to the public health or does not violate a city ordinance. Upon issuance of any such permit the Board of Health shall file a recordable notice of the permit in the land records of the county in which the site is located. The notice shall contain the legal description of the site as well as the terms under which the permit is issued." (Emphasis added) It should be noted that under 63 O.S. 2253 [63-2253] the term person is de fined as meaning "any individual, corporation, company, firm, partnership, association, trust, state agency, government instrumentality or agency, institution, county, city, town or municipal authority or trust, venture or any other legal entity, however organized". Thus, it would appear that your third question must be answered in the negative in that an industry could soil farm its industrial waste upon its own land as long as such waste was not designated as controlled industrial waste. It is, therefore, the opinion of the Attorney General that an industry which plows its controlled industrial waste into the soil must meet the permit requirements enumerated in the Controlled Industrial Waste Management Act, that if an industry's waste is not designated as controlled industrial waste its soil farming operation would not be subject to provisions of the Controlled Industrial Waste Disposal Act, and that soil farming of industrial waste not designated as controlled industrial waste upon the industry's own land would not be subject to the permitting requirements of the Solid Waste Management Act. (JAMES R. BARNETT) (ksg)