TITLE 23

Health and Safety

CHAPTER 23-19.1

Hazardous Waste Management

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 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.



History of Section.

(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.)