§ 23-19.1-10 — § 23-19.1-10. Permits — Issuance — Renewal — Revocation — Exempted activities.

Rhode Island § 23-19.1-10

• Jurisdiction: Rhode Island
• Title 23: Health and Safety
• Ch. 23-19.1: Hazardous Waste Management

Text

§ 23-19.1-10. Permits — Issuance — Renewal — Revocation — Exempted activities.

(a) After the rules and regulations required to be promulgated under this chapter take effect, no person shall construct, substantially alter, or operate any 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 or activity, nor shall any person accept or deliver hazardous waste from or to any person who does not possess a permit from the director for hazardous waste management, without the prior approval of the director, provided, that this section shall not be construed to require permits for the generation of hazardous waste.

(b)(1) Permits shall be issued pursuant to § 23-19.1-6. Applications shall be reviewed for compliance with § 23-19.1-6 and the regulations promulgated pursuant to § 23-19.1-6 by the office of waste management. Upon receipt of an application, the office of waste management shall notify both the chief executive officer and the city or town council president of the municipality in which the facility is proposed to be located of the receipt of the application. For any application deemed deficient, it shall be returned to the applicant, without prejudice, together with a concise statement of the deficiencies. The director may deny an application if, in his or her judgment, the applicant does not adequately respond to these identified deficiencies. The applicant may appeal this decision to the office of administrative adjudication. For any application deemed to comply, a draft permit shall be issued by the department's office of waste management.

(2) Within fifteen (15) days following the issuance of a draft permit, the office of waste management shall give notice of an informational workshop and public comment hearing. The notice shall be published in a newspaper of general circulation in the area affected, and the office of waste management shall notify all persons requesting notification in writing and all property owners within five hundred feet (500′) of the perimeter of the site of the facility by mail directed to the last known address, and the city or town in which the hazardous waste management facility is located. Within fifteen (15) days of the date of the notice, the informational workshop shall be conducted. The purpose of the informational workshop is to discuss the type of facility or activity which is the subject of the draft permit; the type and quantity of wastes which are proposed to be managed, processed, and/or disposed, a brief summary for the basis for the draft permit, proposed permit conditions, including references to applicable statutory or regulatory provisions, an explanation of why any requested variances or alternatives to required standards do or do not appear justified, a description of the procedures for reaching a final decision on the draft permit, which includes the beginning and ending dates for the comment period, the address where comments will be received, the nature of that hearing, any procedures by which the public may participate in the final decision, and the name and telephone number of a person to contact for further information.

(3) No earlier than sixty (60) days nor later than seventy-five (75) days following the initial public notice of the informational workshop and public comment hearing, a hearing shall be held to take public comment. Comments from the applicant and/or any interested persons shall be recorded at the public hearing. Written comments, which shall be considered part of the record, may be submitted for thirty (30) days following the close of the public comment hearing.

(4) Within ninety (90) days of the close of the public comment period, the director shall issue or deny the permit. The permit or the denial is sent to the applicant, and a copy shall be sent to the municipality in which the proposed facility is to be located. The permit or denial shall be in writing and include a response to each substantive public comment. In the event that the director fails to either issue or deny the permit within the ninety (90) day period, then the applicant may petition the superior court to issue its writ of mandamus ordering the office of waste management or some suitable person to immediately issue the permit or denial. Any person refusing to obey the writ of mandamus is subject to penalties for contempt of court. The writ of mandamus is the exclusive remedy for failure of the director to comply under this section.

(5) The applicant and/or any person who provided substantive comment at any time during the public comment period may appeal the decision of the office of waste management to the department's office of administrative adjudication; provided, that any person who demonstrates good cause for failure to participate and demonstrate that his or her interests are substantially impacted if prohibited from appearance in the appeal may, in the discretion of the hearing officer, be permitted to participate in the appeal process.

(6) No appeal is de novo, and is limited to those substantive issues raised by the appellant during the comment period, or allowed pursuant to subdivision (b)(5).

(7) All appeals shall be pursuant to the rules and regulations established by the director and the rules and regulations established by the office of administrative adjudication; provided, that all appeals shall contain precise statements of the issues presented on appeal and the specific part of parts of the decision of the director, which are challenged.

(8) All appeals shall be heard before administrative adjudication hearing officers.

(c) No permit shall be approved by the director unless he or she finds that the applicant, in any prior performance record in the collection, transportation, treatment, storage, or disposal of hazardous or solid waste, has exhibited sufficient reliability, expertise, and competency to operate the hazardous waste management facility, given the potential for harm to human health and the environment which could result from the irresponsible operation of this hazardous waste management facility, or if no prior record exists, that the applicant is likely to exhibit that reliability, expertise and competence.

(d) No permit shall be approved by the director if any person, shown to have a beneficial interest in the business of the applicant or the permittee other than an equity interest or debt liability by the investigation, has been convicted or has pled nolo contendere and received an actual or suspended sentence with a plan of any of the following crimes under the laws of Rhode Island or the equivalent of these under the laws of any other jurisdiction:

(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 of firearms;

(15) Unlawful possession or use of destructive devices or explosives;

(16) Racketeering;

(17) Perjury or false swearing;

(18) Any purposeful knowing, willful, or reckless violation of the criminal provision of any federal or state environmental protection laws, rules, and regulations;

(19) Assault constituting a felony.

(e) For the purpose of establishing whether any person, shown to have a beneficial interest in the business of the applicant or the permittee other than an equity interest or debt liability by the investigation, has been convicted or has pled nolo contendere and received an actual or suspended sentence with a plan for any of the offenses enumerated in subsection (d) under the laws of any other jurisdiction, the applicant shall provide the director, as part of the standard permit application process, a notarized affidavit and BCI criminal record report from each and every state within which the applicant resides and/or conducts business. The notarized affidavits and BCI criminal records reports shall be provided for each and every person shown to have a beneficial interest in the business of the applicant or the permittee other than an equity interest or debt liability by the investigation.

(f) Notwithstanding the provisions in this section, no applicant shall be denied a permit on the basis of a conviction of any individual shown to have a beneficial interest in the business of the applicant or the permittee other than an equity interest or debt liability by the investigation, for any of the offenses enumerated in this section if the person has affirmatively demonstrated by clear and convincing evidence of his or her rehabilitation. In determining whether an applicant has affirmatively demonstrated rehabilitation, the director shall request a recommendation from the attorney general and shall consider the following factors:

(1) The nature and responsibilities of the position which a convicted 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 the offense;

(8) Any evidence of rehabilitation, including good conduct in prison or in the community, counseling or psychiatric treatment received, acquisition of additional academic or vocational schooling, successful participation in additional academic or vocational schooling, successful participation in correctional work-release programs, or the recommendation of persons who have or have had the applicant under their supervision.

(g) No permit shall be approved by the director if the attorney general determines that there is a reasonable suspicion to believe that a person shown to have a beneficial interest in the business of the applicant or the permittee other than an equity interest or debt liability by the investigation, does not possess a reputation for good character, honesty and integrity, and that person or the applicant fails by clear and convincing evidence, to establish his or her reputation for good character, honesty, and integrity.

(h) No permit shall be approved by the director with respect to the approval of an initial permit, if there are current prosecutions or pending charges in any jurisdiction against any person shown to have a beneficial interest in the business of the applicant or the permittee other than an equity interest or debt liability by the investigation, for any of the offenses enumerated in this section; provided, that at the request of the applicant or the person charged, the director shall defer decision upon this application during the pendency of this charge.

(i) No permit shall be approved by the director if any person shown to have a beneficial interest in the business of the applicant or the permittee other than an equity interest or debt liability by the investigation, has pursued economic gain in an occupational manner or context which is in violation of the criminal or civil public policies of this state. For the purposes of this section, "occupational manner or context� means the systematic planning, administration, management, or execution of an activity for financial gain.

(j) No permit shall be approved by the director if the applicant in its application or any other materials supplied to the director or the attorney general shall supply information which is untrue or misleading as to a material fact pertaining to the disqualification criteria set out in this section.

(k) Any applicant who is denied an initial permit pursuant to this section shall, upon written request transmitted to the director within thirty (30) days of the denial, be afforded the opportunity for a hearing. Any permittee who receives a notice of intent to revoke or refuse to renew a permit shall have fifteen (15) days from the receipt of the notice to transmit to the director a request for a hearing.

(l)(1) Notwithstanding the disqualification of any applicant or permittee the director may issue or renew a license if the applicant or permittee severs the interest of or affiliation with the person who would cause that disqualification.

(2) Where the disqualifying individual is the owner of an equity interest or interest in the debt liability of the permittee or applicant, he or she must completely divest himself or herself of that interest. Where immediate sale of the interest would work an economic hardship on the individual, the permittee or applicant, the director may, in his or her discretion, allow for divestiture over a period of time not to exceed one year.

(3) Arrangements such as blind trusts will be acceptable only as part of a divestiture arrangement under which the trustee is obliged to sell the disqualifying individual's interest within a period not to exceed two (2) years.

(4) Before the director will issue or renew a permit to an applicant or permittee which has severed a disqualifying individual, the applicant or permittee must submit to the director an affidavit, sworn to by the chief executive officer, attesting to the severance of the disqualifying individual and describing the terms, circumstances and conditions of the severance. Any instruments pertaining to that severance (such as a trust agreement) shall be submitted with the affidavit.

(m) The director will not issue a permit to any person who has had an application denied, or a license revoked, for any of the reasons set forth for a period of five (5) years following this denial or revocation. A person that is a business concern shall be considered as the same person if the management structure of the concern includes the person or persons that were the cause of the original disqualification.

(n) Permits for hazardous waste transporters shall be issued for a period not to exceed one year. Applications for hazardous waste transporter permits shall be reviewed by the office of waste management for compliance 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 that review. Appeals of this decision shall be to the office of administrative adjudication. The provisions of subsection (b) are not applicable to hazardous waste transporter permit applications. Permits for hazardous waste management facilities shall be issued subject to any terms and conditions that the director may require, and subject to suspension, revocation, modification, or amendment as provided in subsection (p) for a period of five (5) years. The director shall hold a public hearing in accordance with subsection (b) prior to the renewal of any permit. Any changes in permit conditions shall be included in the notification.

(o) In any proceeding for issuance or renewal of a permit required under this section, the burden of proving that the operation of the facility for which a permit is sought complies with the rules and regulations under § 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 may be considered as grounds for denial of the application.

(p)(1) Any permit issued under this section may be suspended, revoked, modified, or amended by the director at any time upon a showing: that the permittee failed in the application or during the permit issuance process to discharge fully all relevant facts, or the permittee's misrepresentation of any relevant facts at anytime, or that there has been a conviction or plea as described in subsection (d), that the permittee has failed to comply with the provisions of this chapter, rules and regulations promulgated by the director pursuant to this chapter, or the terms and conditions of the permit, a change in ownership or operational control of a permitted hazardous waste facility, or upon a showing that the continued operation of the permitted facility constitutes a threat to the health and safety of the public or to the environment. In any administrative proceeding for revocation of a permit under the provisions of this section the permittee has the burden of demonstrating compliance with all lawful requirements and regulations for the retention of the permit and that continued operation under the permit will not constitute a threat to public health, safety, or the environment. 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 an adequate hearing and with written notice of the intent of the director to revoke the permit and the reasons for the revocation.

(2) The following are causes for modification but not revocation and reissuance of permits, but the following may be causes for revocation and reissuance as well as modification when the permittee requests or agrees:

(i) There are material and substantial alterations or additions to the permitted facility or activity which occurred after the permit issuance which justify the application of permit conditions that are different or absent in the existing permit;

(ii) Permits may be modified during their terms only if the director has received information that was not available at the time of permit issuance and would have justified the application of different permit conditions at the time of issuance. This shall include any information indicating the cumulative effects on the environment are unacceptable;

(iii) The rules or regulations on which the permit was based have been changed by promulgation of amended rules or regulations or by judicial decision after the permit was issued.

(iv) The director determines good cause exists for modification of a compliance schedule, such as an act of God, strike, flood, or materials shortage or other events over which the permittee has little or no control 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 the permit, or in the conduct of the permitted activity;

(ii) Offering, conferring, or agreeing to confer any benefit to 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 hazardous waste, or of any rule or regulation adopted pursuant to it;

(iii) Coercion of a customer by violence or economic reprisal or the threat to utilize the services of any permittee;

(iv) Preventing, without authorization of the director, any permittee from disposing of solid waste or hazardous waste at a licensed treatment, 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 an adequate hearing and with written notice of the intent of the director to revoke the permit and the reasons for the revocation.

(q) The following activities do not require a permit under this chapter, but are subject to the portions of this chapter and rules and regulations adopted under this chapter that do not apply to permits:

(1) Storage, treatment, or disposal of those quantities of certain hazardous wastes that the director determines by regulation do not pose a threat to the public health, safety, and environment;

(2) Transport of any hazardous waste on the premises where it is generated or onto contiguous property owned by its generator; and

(3) Temporary storage or resource recovery, including regeneration or reclamation of material or energy, of hazardous wastes at the site of generation, which temporary storage or resource recovery is conducted by its generator.

(r) In addition to any other requirements imposed by this section, no permit or renewal of a permit for a facility that is a commercial landfill shall be approved by the director unless the applicant provides evidence of either (1) bonding; and/or (2) a catastrophe fund, both to be in an amount and for a length of time as the director shall determine to be necessary to protect the general public's health and welfare from any potential complications arising from the landfill. The director's determination as to the amount 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 be available for public inspection at the department.

Legislative History

P.L. 1978, ch. 229, § 1; G.L. 1956, § 23-46.2-10; P.L. 1979, ch. 39, § 1; G.L. 1956, § 23-19.1-10; P.L. 1982, ch. 197, § 2; P.L. 1986, ch. 505, § 1; P.L. 1990, ch. 148, § 1; P.L. 1998, ch. 310, § 1; P.L. 1999, ch. 463, § 1.