R 299.9502 Operating licenses for existing facilities; applicability and general application requirements.

Rule 502. (1) Part 111 requires an operating license for the treatment, storage, and disposal of any hazardous waste, except for those facilities identified in subrules (3), (4), and (5) of this rule and except as provided in R 299.9623, as identified or listed in parts 2 and 8 of these rules. Requirements for remedial action plans, special forms of operating licenses, are specified in R 299.9524. Owners or operators of hazardous waste management units shall have an operating license during the active life of the unit, including the closure period. Owners or operators of surface impoundments, landfills, land treatment units, and waste pile units that received wastes after July 26, 1982, or that certified closure after January 26, 1983, shall have an operating license for the postclosure period, unless they demonstrate closure by removal pursuant to subrules (8) and (9) of this rule or they obtain an enforceable document in place of an operating license for the postclosure period, as provided for in subrule (12) of this rule. If an operating license for the postclosure period is required, then the license must incorporate the applicable groundwater monitoring, corrective action, and postclosure care requirements of part 6 of these rules. The denial of an operating license for the continued operation of a hazardous waste management facility or unit does not affect the requirement of obtaining a postclosure operating license. Owners or operators of certain facilities require operating licenses that are issued pursuant to part 111 and, in addition, permits that are issued pursuant to other programs for certain aspects of the facility operation. Operating licenses that are issued pursuant to part 111 are required for all the following: (a) Injection wells that dispose of hazardous waste, except as provided by R 299.9503(3)(a). (b) The treatment, storage, or disposal of hazardous waste at facilities that require a permit pursuant to part 31, except as provided by R 299.9503(3)(b). (c) Barges or vessels that dispose of hazardous waste by ocean disposal and onshore hazardous waste treatment or storage facilities that are associated with an ocean disposal operation. (2) An owner or operator of a facility that is licensed pursuant to part 111 on the effective date of these rules may continue to operate under the existing license if all the following conditions are met: (a) The facility is being operated in compliance with its existing operating license; the applicable statutory and regulatory requirements promulgated under part 111 after license issuance, as required pursuant to R 299.9516; and all other applicable environmental statutes. (b) The facility is either of the following: (i) A facility that qualifies for interim status pursuant to 40 CFR 270.70 and complies with all the following provisions: (A) Has filed a part A application pursuant to 40 CFR 270.10(e). (B) Has amended the part A application, as necessary, pursuant to 40 CFR 270.10(g). (C) Has not had interim status terminated pursuant to 40 CFR 270.73. (D) Has complied with the applicable provisions of 40 CFR part 265 and 270.71 and the applicable provisions of parts 6 and 8 of these rules. (E) Has not made changes to the hazardous waste management facility during interim status that amount to reconstruction of the facility. Reconstruction occurs when the capital investment in the changes to the facility is more than 50% of the capital cost of a comparable entirely new hazardous waste management facility. Changes pursuant to this subparagraph do not include changes made solely for complying with the requirements of R 299.9615 for tanks and ancillary equipment. Changes pursuant to this subparagraph do not include changes made solely for managing wastes generated from releases that originate within the facility boundary, pursuant to R 299.9503(4)(c). (ii) A facility that is permitted pursuant to 40 CFR part 270 and complies with the permit or license issued. (c) The owner or operator submits an application for a new license to the director not less than 180 days before license expiration. (d) The owner or operator complies with all applicable requirements of parts 6, 7, and 8 of these rules. (3) An owner or operator of a storage facility that is in existence on March 30, 1983, and that is subject to the licensing requirements of part 111 solely due to the 1982 amendments to part 111 may continue to operate until the director acts upon the facility's application for an operating license, if all the following conditions are met: (a) The facility complies with subrule (2)(b) of this rule. (b) The owner or operator submits a complete operating license application within 180 days after being requested to do so by the director. (c) The owner or operator complies with the applicable requirements of parts 6, 7, and 8 of these rules and all applicable environmental statutes. (4) The owner or operator of a treatment, storage, or disposal facility that is in existence on the effective date of amendments to part 111 or these rules that render the facility subject to the licensing requirements of part 111 may continue to operate until the director acts upon the owner or operator's application for an operating license, if the conditions of subrule (3) of this rule are met. (5) An owner or operator of a facility that is in existence on January 1, 1980, and that is subject to the licensing requirements of part 111, but that has not yet obtained an operating license pursuant to part 111, may continue to operate until the director acts upon the facility's application for an operating license if the owner or operator meets the conditions of subrule (3) of this rule. (6) Allowing continued operation pursuant to subrules (2) to (5) of this rule does not do any of the following: (a) Reduce the owner or operator's responsibility to dispose of all hazardous waste in a manner that protects the environment and human health. (b) Eliminate or reduce past, present, or future liability incurred during the operation. (c) Restrict the ability of state or local governmental agencies to take action to enforce existing laws, statutes, rules, or regulations. (7) A person who proposes to initiate the operation of any treatment, storage, or disposal facility shall submit, to the director, on forms provided by the director or the director’s designee, an operating license application that sets forth the information required by R 299.9508. (8) Owners or operators of surface impoundments, land treatment units, and waste piles closing by removal or decontamination pursuant to 40 CFR part 265 standards shall obtain an operating license for the postclosure period, unless the owners or operators can provide an equivalency demonstration to the director that the closure met the standards for closure by removal or decontamination specified in 40 CFR 264.228, 264.280(e), or 264.258, respectively. The demonstration must be made as follows: (a) If the owner or operator has submitted an operating license application for the postclosure period, the owner or operator may request a determination, based on information contained in the application, that 40 CFR part 264 closure-by-removal standards were met. If the director determines that 40 CFR part 264 standards were met, the director shall notify the public of the proposed decision, allow for public comment, and reach a final determination according to the procedures in subrule (9) of this rule. (b) If the owner or operator has not submitted an operating license for the postclosure period, then the owner or operator may petition the director for a determination that an operating license for the postclosure period is not required because the closure complies with the applicable 40 CFR part 264 closure standards. The petition must include all data that demonstrates that closure by removal or decontamination standards were met, or the petition must demonstrate that the unit closed pursuant to state requirements that met or exceeded the applicable 40 CFR part 264 closure by removal standard. The director shall approve or deny the petition according to the procedures outlined in subrule (9) of this rule. (9) If a facility owner or operator seeks an equivalency demonstration pursuant to subrule (8) of this rule, the director shall do all the following: (a) Provide the public, through a newspaper notice, the opportunity to submit written comments on the information submitted by the owner or operator within 30 days from the date of the notice. (b) In response to a request, hold a public hearing concerning the equivalence of the 40 CFR part 265 closure to a 40 CFR part 264 closure and give public notice of the hearing not less than 30 days before it occurs. (c) Determine whether the 40 CFR part 265 closure met the 40 CFR part 264 closure by removal or decontamination requirements within 90 days of receipt of the petition. (d) If the director finds that the closure did not meet the applicable standards of 40 CFR part 264, then provide the owner or operator with a written statement of the reasons why the closure failed to meet 40 CFR part 264 standards. (10) If the director determines, pursuant to subrule (9) of this rule, that a closure was not in compliance with the applicable 40 CFR part 264 standards, then the owner or operator may submit additional information in support of an equivalency demonstration within 30 days after receiving a written statement from the director. The director shall review any additional information submitted and make a final determination within 60 days. If the director determines that the facility did not close pursuant to 40 CFR part 264 closure by removal standards, then the facility is subject to operating license requirements for the postclosure period. (11) Owners or operators of waste military munitions treatment and disposal facilities may continue to accept waste munitions if all the following conditions are met: (a) The facility was in existence as a hazardous waste facility and already licensed to handle waste military munitions, on the effective date the waste munitions became subject to regulation under these rules. (b) On or before the effective date the waste military munitions became subject to regulation under these rules, the licensee submits an operating license modification to remove or amend the license provisions that restrict the receipt of off-site waste munitions. (c) The licensee submits a complete modification request within 180 days of the effective date on that the waste munitions became subject to regulation under these rules. (12) At the discretion of the director, an owner or operator may obtain, in place of an operating license for the postclosure period, an enforceable document that satisfies the requirements of R 299.9508(3) and (4), R 299.9612, and R 299.9629. The director, in issuing enforceable documents under this subrule, shall ensure a meaningful opportunity for public involvement which, at a minimum, includes public notice and opportunity for public comment when the department becomes involved in a remediation at the facility as a regulatory or enforcement matter, on the proposed preferred remedy and the assumptions the remedies are based on, in particular those related to land use and site characterizations, and at the time of a proposed decision that remedial action is complete at the facility. The public notice and public comment requirements of this subrule may be modified if the facility meets either of the following conditions: (a) If the director determines that even a short delay in the implementation of a remedy would adversely affect human health or the environment, the director may delay compliance with the public notice and public comment requirements of this subrule and implement the remedy immediately. However, the director shall ensure involvement of the public at the earliest opportunity, and, in all cases, upon making the decision that additional remedial action is not needed at the facility. (b) The director may allow a remediation initiated before October 22, 1998, to substitute for corrective action required under a postclosure license even if the public involvement requirements of this subrule have not been met if the director ensures that notice and comment on the decision that no further remediation is necessary to protect human health and the environment takes place at the earliest reasonable opportunity after October 22, 1998. (13) The provisions of 40 CFR 264.96, 264.117, 265.111, 265.114, 270.10(e) and (g), 270.70, 270.71, and 270.73 and part 265, except subparts E, H, and DD and 40 CFR 265.112(d)(1), 265.115, and 265.120, are adopted by reference in R 299.11003, with the exception that the word "director" replaces the term "regional administrator."