4271 DECISION-MAKING PROCEDURES FOR THE DEPARTMENT-ADMINISTERED HAZARDOUS WASTE PERMIT PROGRAM

4271.1 This section incorporates by reference, subject to the general modifications in 20 DCMR §§ 4200 through 4206 and the specific modifications in this section, the provisions of 40 CFR Part 124 applicable to RCRA permits as the decision-making procedures the Department will follow when issuing, modifying, suspending and reissuing, and revoking hazardous waste permits issued pursuant to this chapter (20 DCMR chapter 42).

4271.2 The provisions of 40 CFR § 124.3 (application for a permit) are adopted with the following modifications:

1. (a) With respect to 40 CFR § 124.3(a)(1), the provisions of 40 CFR § 270.1, incorporated by reference, are subject to modification in 20 DCMR § 4270.3; and
2. (b) With respect to 40 CFR § 124.3(d), if an applicant fails or refuses to correct deficiencies in an application, the Director may deny the permit and take enforcement action under §§ 4, 11, or 12 of the District of Columbia Hazardous Waste Management Act of 1977, D.C. Official Code §§ 8-1303(b), 8-1310, or 8-1311, and 20 DCMR chapter 43.

4271.3 The provisions of 40 CFR § 124.5 (modification, revocation and reissuance, or termination of permits) are adopted with the following modifications:

1. (a) Only paragraphs (a), (c), and (d)(1) in 40 CFR § 124.5 are incorporated by reference. The cross-references in the federal regulation to 40 CFR §§ 270.41 and 270.43 shall refer instead to 20 DCMR §§ 4270.9 and 4270.11 respectively;
2. (b) If the Director determines that a request for the modification, revocation and reissuance, or termination of a permit is not justified, he or she shall send the requestor a brief written response giving the reasons for the decision. Denials of requests for modification, revocation and reissuance, or termination are not subject to public notice, comment, or hearing. Denials may be appealed administratively to the District of Columbia Office of Administrative Hearings (OAH), pursuant to procedures established in 20 DCMR § 4271.7. This appeal is a prerequisite to seeking judicial review of the Director's determination to deny a request for modification, revocation and reissuance, or termination; and
3. (c) Where there has been a history of repeated violations or a permit has been previously revoked and reissued, or where there is an initial violation and the violation presents an imminent and substantial endangerment to the public health, public welfare, or the environment, the Director may proceed under § 10 of the District of Columbia Hazardous Waste Management Act, D.C. Official Code § 8-1309(c) and (d), and 20 DCMR chapter 43 to terminate the permit in lieu of proceeding under this subsection.

4271.4 The provisions of 40 CFR § 124.10 (public notice of permit actions and public comment period) are adopted with the following modifications:

1. (a) With respect to 40 CFR § 124.10(a)(1)(iv), the Director shall give public notice whenever a request for a hearing under 20 DCMR § 4271.7 to review a permit decision is received; and
2. (b) In addition to the methods specified in 40 CFR § 124.10(e), the Director shall give notice by publication in the D.C. Register, and by providing notice in accordance

with the requirements of § 13 of the Advisory Neighborhood Commission Act of 1975, effective October 10, 1975, as amended (D.C. Law 1-21; D.C. Official Code § 1-309.10 (2001)).

4271.5 In addition to the notice required under 40 CFR § 124.15(a) for a final permit decision or a decision to deny a permit for the active life of a hazardous waste management facility or unit, the Director shall provide notice in accordance with the requirements of § 13 of the Advisory Neighborhood Commission Act of 1975, D.C. Official Code § 1-309.10.4271.6 In 40 CFR § 124.16(a)(2)(ii), pertaining to requests for reviews of permit conditions, the term 'District of Columbia Office of Administrative Hearings' shall supplant the term 'EAB.'4271.7 The provisions of 40 CFR § 124.19, pertaining to appeals of permits, are excluded from the incorporation by reference. Instead, the following procedures shall govern appeals:- (a) Within fifteen (15) days of the date of a hazardous waste permit decision or a decision under 40 CFR § 270.29 to deny a permit for the active life of a hazardous waste management facility or unit under 40 CFR § 124.15, any person adversely affected by the decision may appeal the decision pursuant to § 9 of the District of Columbia Hazardous Waste Management Act of 1977, effective March 16, 1978 (D.C. Law 2-64; D.C. Official Code § 8-1308 (2001)), by requesting the District of Columbia Office of Administrative Hearings (OAH) pursuant to 1 DCMR § 2805 to conduct a hearing to review the decision;

- (b) The fifteen-day (15-day) period within which a person may request a hearing under this section begins on the date of the service of the notice of the Director's action, unless a later date is specified in the notice. The rules governing the computation of time are found in 1 DCMR § 2811;

- (c) A request for a hearing under this section shall include a statement of the reasons supporting the request, including a demonstration that the person requesting the hearing is adversely affected by the Director's decision; that any issues being raised were raised during the public comment period (including any public hearings) to the extent required by these regulations; and, when appropriate, a showing that the condition in question is based upon a finding of fact or conclusion of law that is clearly erroneous;

- (d) Pursuant to § 9 of the District of Columbia Hazardous Waste Management Act, D.C. Official Code § 8-1308, a hearing on an appeal under this subsection, 20 DCMR § 4271.7, shall be held in accordance with the contested case procedures of § 10 of the District of Columbia Administrative Procedure Act, approved October 21, 1968, as amended (82 Stat. 1204; D.C. Official Code § 2-509 (2001));

- (e) The Director shall give public notice of an appeal under this subsection as provided in 20 DCMR § 4271.4. The public notice shall set forth the briefing schedule for the appeal as set by OAH, and shall provide instructions so as to afford any interested person the opportunity to seek intervention in the proceeding pursuant to 1 DCMR § 2816.2;

- (f) At any time prior to the rendering of a decision by OAH on the merits of the appeal, the Director may, upon notification to OAH and any parties to the proceeding, withdraw the permit and prepare a new draft permit under 40 CFR § 124.6, addressing the portions withdrawn. The new draft permit shall proceed through the same process of public comment and opportunity for a public hearing as would apply to any other draft permit subject to this section. Any portions of the permit that are not withdrawn and that are not stayed under 40 CFR § 124.16 continue to apply;

(g) An appeal to OAH pursuant to this section shall be a prerequisite to the seeking of judicial review of the final administrative decision;

(h) For purposes of judicial review, final administrative action occurs when a hazardous waste permit is issued, or when a decision under 40 CFR § 270.29 to deny a permit for the active life of a hazardous waste management facility or unit has been issued, and the administrative review procedures under this section are exhausted. The Director shall issue a final permit decision, and administrative review procedures shall be exhausted:

(1) When OAH issues a final decision on the merits of the appeal and the decision does not include a remand of the proceedings; or

(2) If the proceedings are remanded, upon the completion of remand proceedings, unless OAH's remand order specifically provides that appeal of the remand decision will be required to exhaust administrative remedies;

(i) The Director shall give public notice of the final decision in accordance with the procedures in § 4271.5; and

(j) A motion for reconsideration shall not stay the effective date of a final permit decision issued by the Director pursuant to paragraph (h) of this subsection, unless so ordered by OAH.

4271.8 The provisions of 40 CFR § 124.20 (computation of time) are excluded from the incorporation by reference. Instead, the provisions of 20 DCMR § 4316 shall govern time computation.

4271.9 With respect to 40 CFR Part 124, Subpart B (Specific Procedures Applicable to RCRA Permits):

(a) The provisions of 40 CFR §§ 124.31, 124.32, and 124.33 shall also apply to applications submitted to the Department; and

(b) In addition to the requirements of 40 CFR § 124.32 (b) for public notice at the application stage, the Director shall give notice by publication in the D.C. Register, and by providing notice in accordance with the requirements of § 13 of the Advisory Neighborhood Commission Act of 1975, effective October 10, 1975, as amended (D.C. Law 1-21; D.C. Official Code § 1-309.10 (2001)).

SOURCE: Final Rulemaking published at 52 DCR 9653 (October 28, 2005); as amended by Final Rulemaking published at 54 DCR 5586 (June 8, 2007).