WAC 173-303-840
Procedures for decision making. (1)
Application and completeness.
(a) The department will not begin the processing of a permit
until the applicant has fully complied with the application
requirements for the permit. Permit applications must comply
with the signature and certification requirements of WAC 173-303-810 (12) and (13).
(b) The department will review for completeness each
application for a permit under this chapter. Each application
for a permit should be reviewed for completeness within sixty
days of its receipt. Upon completing the review, the department
will notify the applicant in writing whether or not the
application is complete. If the application is incomplete, the
department will list the information necessary to make the
application complete, and will specify in the notice of
deficiency a date for submitting the necessary information. After the application is completed, the department may request
additional information from an applicant but only when necessary
to clarify, modify, or supplement previously submitted material. Requests for such additional information will not render an
application incomplete.
(c) If an applicant fails or refuses to correct deficiencies
in the application, the permit may be denied and appropriate
enforcement actions may be taken under chapter 70.105 RCW.
(d) If the department decides that a site visit is necessary
for any reason in conjunction with the processing of an
application, then the department will notify the applicant and a
date will be scheduled.
(e) The effective date of an application is the date on
which the department notifies the applicant that the application
is complete as provided in (b) of this subsection.
(2) Draft permits.
(a) A draft permit is a document prepared by the department
indicating the tentative decision to issue, deny, modify, revoke
and reissue, or terminate a permit.
(b) When an application is complete, the department will
tentatively decide whether to prepare a draft permit, or to deny
the application.
(c) If the department tentatively decides to deny the permit
application, then the department will issue a notice of intent to
deny. A notice of intent to deny the permit application is a
type of draft permit which follows the same procedures as any
draft permit prepared under this subsection. If the department's
final decision is that the tentative decision to deny was
incorrect, then the department will withdraw the notice of intent
to deny and proceed to prepare a draft permit under this
subsection.
(d) If the department decides to prepare a draft permit, it
will contain the following information:
(i) All conditions applicable to permits under WAC 173-303-810 and 173-303-815 including compliance and monitoring
requirements;
(iii) All applicable standards for storage, treatment and
disposal, and other permit conditions.
(e) All draft permits must be accompanied by a fact sheet
that is supported by administrative record and made available for
public comment.
(f) Fact sheet; statement of basis.
(i) A fact sheet will be prepared for every draft permit for
a major dangerous waste management facility, and for every draft
permit which the department finds is the subject of wide-spread
public interest or raises major issues.
(ii) The fact sheet will briefly set forth the principal
facts and the significant factual, legal, methodological, and
policy questions considered in preparing the draft permit. The
department will send this fact sheet to the applicant and, on
request, to any other person.
(iii) The fact sheet will include, when applicable:
(A) A brief description of the type of facility or activity
which is the subject of the draft permit;
(B) The type and quantity of wastes, fluids, or pollutants
which are proposed to be or are being treated, stored, disposed,
injected, emitted, or discharged;
(C) A brief summary of the basis for the draft permit
conditions including supporting references;
(D) Reasons why any requested variances or alternatives to
required standards do or do not appear justified; and
(E) A description of the procedures for reaching a final
decision on the draft permit including:
(I) The beginning and ending dates of the comment period and
the address where comments will be received;
(II) Procedures for requesting a hearing and the nature of
that hearing;
(III) Any other procedures by which the public may
participate in the final decision; and
(IV) Name and telephone number of a person to contact for
additional information.
(iv) The department will prepare a statement of basis for
every draft permit for which a fact sheet is not prepared. The
statement of basis will briefly describe the derivation of the
conditions of the draft permit and the reasons for them or, in
the case of notices of intent to deny or terminate, reasons
supporting the tentative decision. The statement of basis will
be sent to the applicant and, on request, to any other person.
(3) Public notice and involvement.
(a) The department will give public notice that the
following actions have occurred:
(i) A draft permit has been prepared or an application is
tentatively being denied;
(ii) A hearing on a permit has been scheduled; or
(iii) An appeal on a permit has been filed with the
pollution control hearings board.
Note:
Additional public notice requirements for permitting at the preapplication and application stages are at WAC 173-303-281 (3) through (5).
(b) No public notice is required when a request for permit
modification, revocation and reissuance, or termination is
denied. A written notice of the denial will be given to the
person who requested the permit change and to the permittee.
(c) The public notice may describe more than one permit or
permit action.
(d) Public notice of the preparation of a draft permit,
including a notice of intent to deny a permit application will
allow at least forty-five days for public comment. Public notice
of a public hearing will be given at least thirty days before the
hearing.
(e) Public notice of activities described in this subsection
will be given by the following methods:
(i) By mailing a copy of a notice to the following persons
(any person otherwise entitled to receive notice under this
paragraph may waive his or her rights to receive notice for any
classes and categories of permits):
(A) The applicant;
(B) Any other agency which the department knows has issued
or is required to issue a permit for the same activity or
facility;
(C) Federal and state agencies with jurisdiction over fish,
shellfish, and wildlife resources and over coastal zone
management plans, the advisory council on historic preservation,
state historic preservation officers, including any affected
states (Indian tribes) (for purposes of this paragraph and in the
context of the Underground Injection Control Program only, the
term state includes Indian tribes treated as states);
(D) Persons on the mailing list developed by:
(I) Including those who request in writing to be on the
list;
(II) Soliciting persons for an area list from participants
in past permit proceedings in that area; and
(III) Notifying the public of the opportunity to be put on
the mailing list through periodic publications in the public
press and in appropriate publications of the department;
(E) Any unit of local government having jurisdiction over
the area where the facility is proposed to be located, and each
state agency having any authority under state law with respect to
construction or operation of such facility;
(ii) For major permits, by publication of a notice in a
daily or weekly newspaper within the area affected by the
facility;
(iii) For all permits, by publication of notice in a daily
or weekly major local newspaper of general circulation, and local
radio broadcast of the public notice; and
(iv) By any other method reasonably calculated to give
notice of the action in question to the persons potentially
affected by it, including press releases or any other forum or
medium to elicit public participation.
(4) Contents of the public notice.
(a) All public notices issued will contain the following
minimum information:
(i) Name and address of the office processing the permit
action for which notice is being given;
(ii) Name and address of the permittee or permit applicant
and, if different, of the facility or activity regulated by the
permit;
(iii) A brief description of the business conducted at the
facility or activity described in the permit application or the
draft permit;
(iv) Name, address, and telephone number of a person from
whom interested persons may obtain further information, including
copies of the draft permit, fact sheet or statement of basis, and
the application;
(v) A brief description of the comment procedures and the
time and place of any hearing that will be held, including a
statement of procedures to request a hearing (unless a hearing
has already been scheduled) and other procedures by which the
public may participate in the final permit decision;
(vi) And any additional information considered necessary or
proper.
(b) In addition to the general public notice described in
(a) of this subsection, public notice of a hearing under
subsection (5) of this section will contain the following
information:
(i) Date, time, and place of the hearing;
(ii) Reference to the date of the previous public notice
relating to the permit; and
(iii) A brief description of the nature and purpose of the
hearing including the applicable rules and procedures.
(c) In addition to the general public notice all persons
identified in WAC 173-303-840 (3)(e)(i)(A), (B), and (C) will be
mailed a copy of the fact sheet, the permit application (if any),
and the draft permit (if any).
(d) Public comments and request for public hearings. During
the public comment period any interested person may submit
written comments on the draft permit and may request a public
hearing, if no hearing has already been scheduled. A request for
a public hearing must be in writing and must state the nature of
the issues proposed to be raised in the hearing. All comments
will be considered in making the final decision and will be
answered according to WAC 173-303-840(9).
(5) Public hearings.
(a) The department will hold a public hearing whenever, on
the basis of requests, there is a significant degree of public
interest in a draft permit or there is written notice of
opposition and the director receives a request for a hearing
during the forty-five day comment period. The department also
may hold a public hearing at its discretion, whenever, for
instance, such a hearing might clarify one or more issues
involved in the permit decision. Public notice of the hearing
will be given as specified in WAC 173-303-840(3). Whenever
possible, the department will schedule a public hearing under
this subsection at a location convenient to the nearest
population center to the proposed facility.
(b) Any person may submit oral or written statements and
data concerning the draft permit. Reasonable limits may be set
upon the time allowed for oral statements, and the submission of
statements in writing may be required. The public comment period
under WAC 173-303-840(3) will automatically be extended to the
close of any public hearing under this subsection. The hearing
officer may also extend the comment period by so stating at the
hearing.
(c) A tape recording or written transcript of the hearing
will be made available to the public.
(6) Obligation to raise issues and provide information
during the public comment period.
(a) All persons, including applicants, who believe any
condition of a draft permit is inappropriate, or that the
department's tentative decision to deny an application, terminate
a permit, or prepare a draft permit is inappropriate, must raise
all reasonably ascertainable issues and submit all reasonably
available arguments and factual grounds supporting their
position, including all supporting material, by the close of the
public comment period (including any public hearing) under WAC 173-303-840(3).
(b) All supporting materials will be included in full and
may not be incorporated by reference, unless they are already
part of the administrative record in the same proceeding, or
consist of state or federal statutes and regulations, documents
of general applicability, or other generally available reference
materials. Commenters must make supporting material not already
included in the administrative record available to the
department. A comment period longer than forty-five days will
often be necessary in complicated proceedings to give commenters
a reasonable opportunity to comply with the requirements of this
subsection. Commenters may request a longer comment period.
(7) Reopening of the public comment period. If any data,
information, or arguments submitted during the public comment
period, including information or arguments required under
subsection (6) of this section, appear to raise substantial new
questions concerning a permit, the department may take one or
more of the following actions:
(a) Prepare a new draft permit, appropriately modified;
(b) Prepare a revised statement of basis, a fact sheet or
revised fact sheet, and reopen the comment period; or
(c) Reopen or extend the comment period to give interested
persons an opportunity to comment on the information or arguments
submitted.
Comments filed during the reopened comment period will be
limited to the substantial new questions that caused its
reopening. The public notice will define the scope of the
reopening.
(8) Issuance and effective date of permit.
(a) After the close of the public comment period under WAC 173-303-840(5) on a draft permit, the department will issue a
final permit decision (or a decision to deny a permit for the
active life of a RCRA dangerous waste facility or unit under WAC 173-303-840). The department will notify the applicant and each
person who has submitted written comments or requested notice of
the final permit decision. For purposes of this section, a final
permit means a final decision to issue, deny, modify, revoke and
reissue, or terminate a permit.
(b) A final permit decision will become effective thirty
days after the service of notice of the decision, unless:
(i) A later effective date is specified in the decision; or
(ii) No comments requested a change in the draft permit, in
which case the permit will become effective immediately upon
issuance; or
(iii) Review is requested under chapter 43.21B RCW or an
evidentiary hearing is requested under RCW 43.21B.160.
(9) Response to comments. At the time that any final permit
is issued, the department will issue a response to comments. This response will specify which provisions, if any, of the draft
permit have been changed in the final permit decision and the
reason for the change, and briefly describe and respond to all
significant comments of the draft permit raised during the public
comment period or during any hearing. The response to comments
shall be available to the public.
(10) Decision-making procedure for modification, revocation
and reissuance, or termination of permits.
(a) Permits may be modified, revoked and reissued, or
terminated either at the request of any interested person
(including the permittee) or upon the department's initiative. However, permits may only be modified or revoked and reissued for
the reasons specified in WAC 173-303-830(3), or terminated for
the reasons specified in WAC 173-303-805 or 173-303-830(5). All
requests must be in writing and must contain facts or reasons
supporting the request.
(b) If the department tentatively decides to modify or
revoke and reissue a permit under WAC 173-303-830 (3) or (4)(c),
it will prepare the draft permit under WAC 173-303-840(2),
incorporating the proposed changes. The department may request
additional information and, in the case of a modified permit, may
require the submission of an updated permit application. In the
case of revoked and reissued permits, the department will require
the submission of a new application.
(c) In a permit modification under this subsection, only
those conditions to be modified will be reopened when a new draft
permit is prepared. All other aspects of the existing permit
will remain in effect for the duration of the unmodified permit. When a permit is revoked and reissued under this section, the
entire permit is reopened just as if the permit had expired and
was being reissued. During any revocation and reissuance
proceeding the permittee must comply with all conditions of the
existing permit until a new final permit is reissued.
(d) "Class 1 and class 2 modifications" as defined in WAC 173-303-830 (4)(a) and (b) are not subject to the requirements of
this subsection.
(e) If the department tentatively decides to terminate an
interim status permit under WAC 173-303-805 or a final permit
under WAC 173-303-806, it will issue a notice of intent to
terminate. A notice of intent to terminate is a type of draft
permit which follows the same procedures as any draft permit
prepared under WAC 173-303-840(2).