PURPOSE: This rule incorporates the federal regulations in 40 CFR part 270 by reference and sets forth additional state requirements.

PUBLISHER’S NOTE: The secretary of state has determined that the publication of the entire text of the material which is incorporated by reference as a portion of this rule would be unduly cumbersome or expensive. Therefore, the material which is so incorporated is on file with the agency who filed this rule, and with the Office of Secretary of State. Any interested person may view this material at either agency’s headquarters or the same will be made available at the Office of Secretary of State at a cost not to exceed actual cost of copy reproduction. The entire text of the rule is printed here. This note refers only to the incorporated by reference material.

1. (1) The regulations set forth in 40 CFR part 270, July 1, 2000, are incorporated by reference. Except as provided otherwise in this rule, the substitution of terms set forth in 10 CSR 25-3.260(1)(A) shall apply in this rule in addition to any other modifications set forth in section (2) of this rule. Where conflicting rules exist in 10 CSR 25, the more stringent shall control.

   1. (A) Any federal agency, administrator, regulation or statute that is referenced in 40 CFR part 270 shall be deleted and the comparable state department, director, rule or statute as provided in 10 CSR 25-3.260(1)(A) shall be added in its place except as specified in paragraph (2)(A)6. of this rule. The additional substitutions or changes noted in this subsection shall also apply.

      1. 1. “Owner/operator” as defined by 10

CSR 25-3.260(2)(O)3. shall be substituted for any reference to “owner and operator” or “owner or operator” in 40 CFR part 270.

1. (2) The owner/operator of a permitted hazardous waste treatment, storage or disposal

2. (TSD) facility shall comply with the requirements noted in this rule along with 40 CFR part 270, incorporated in this rule. (Comment: This section has been organized so that all Missouri additions, changes or deletions to any subpart of the federal regulations are noted within the corresponding subsection of this section. For example, the changes to 40 CFR part 270 subpart A are found in subsection (2)(A) of this rule.)

   1. (A) General Information. This subsection sets forth requirements which modify or add to those requirements in 40 CFR part 270 subpart A.

      1. 1. When a facility is owned by one (1)

person but is operated by another person, both the owner and operator shall sign the permit application, and the permit shall be issued to both.

1. 2. The owner/operator of a new haz-

ardous waste management facility shall contact the department and obtain an United States Environmental Protection Agency (EPA) identification number before commencing treatment, storage or disposal of hazardous waste.

1. 3. A permit is not required under this

rule for an elementary neutralization unit or a wastewater treatment unit receiving only hazardous waste that is generated on-site or generated by its operator or only one (1) generator if the owner/operator, upon request, can demonstrate to the satisfaction of the department the following:

1. A. There is sufficient evidence that

the unit is not leaking;

1. B. The unit is structurally sound and

there is no evidence that the unit will fail or collapse;

1. C. There are no incompatible wastes

being placed in the unit;

1. D. The owner/operator has been and

is in compliance with all present and prior permits and authorizations issued to the owner/operator; and

1. E. There is no evidence of any past

releases from the unit.

1. 4. In addition to the requirements in 40

CFR 270.1(b) incorporated in this rule, the owner/operator shall provide state notification to the department within sixty (60) days after the effective date of a state rule that first requires him/her to comply with 10 CSR 25 where that notification is required.

1. 5. 40 CFR 270.1(c)(2)(viii)(B) is not

incorporated into this rule.

1. 6. In 40 CFR 270.2, substitute “Facility

mailing list means the mailing list required of the permittee or applicant in accordance with 10 CSR 25-7.270(2)(B)10.” for the definition of “Facility mailing list” given in the incorporated regulation.

1. 7. In 40 CFR 270.3 “Considerations

Under Federal Law,” do not substitute any comparable Missouri statute or administrative rule for the federal acts and regulations. This does not relieve the owner/operator of his/her responsibility to comply with any applicable and comparable state law or rule in addition to complying with the federal acts and regulations.

1. (B) Permit Application. This subsection sets forth requirements which modify or add to those requirements in 40 CFR part 270 subpart B.

   1. 1. Existing hazardous waste manage-

ment facilities must submit a state Part A permit application to the department no later than sixty (60) days after the effective date of state rules which first require them to comply with the requirements set forth in 10 CSR 25- 7.265 or 10 CSR 25-7.266. A facility which did not meet federal notification and Part A submittal requirements under the Hazardous and Solid Waste Amendments (HSWA) shall not qualify for state interim status. State interim status is granted to those facilities which either meet federal interim status requirements, are required to meet state interim status requirements because no federal interim status requirements affect the filing, or become subject to regulations under state rules which are not promulgated to meet the requirements of 40 CFR part 271.

1. 2. Confidentiality may be requested for

the information required in 40 CFR 270.13(a)–(m) incorporated in this rule. 10 CSR 25-3.260(1)(B) sets forth requirements for protection of confidential business information and the availability of information provided under 10 CSR 25. Therefore, 40 CFR 270.12 is not incorporated by reference in this rule.

1. 3. The topographic map required in 40

CFR 270.13(l) incorporated in this rule shall also depict surrounding land uses such as residential, commercial, agricultural and recreational.

1. 4. Seismic evaluation requirements for

hazardous waste management facility permit applicants. 40 CFR 270.14(b)(11)(i) and (ii) are not incorporated in this rule. An applicant for a hazardous waste management facility permit (excluding post-closure) shall design and construct the facility to withstand stresses due to earthquake loading or certify that the existing facility is able to withstand stresses due to earthquake loading. In the event that the regulated unit cannot withstand stresses, the facility shall certify that a release or situation which will endanger human health and/or the environment is not likely to occur. The applicant shall submit as part of the permit application a certification of the adequacy of the design or the ability of the existing facility to withstand stresses due to earthquake loading. The certification shall consider the location of the facility (e.g., the proximity of the facility to an active seismic zone) and must be completed by a qualified independent professional engineer registered in Missouri. 10 CSR 25-7

1. 5. In addition to the topographic map

required in 40 CFR 270.14(b)(19) incorporated in this rule, an applicant for a landbased hazardous waste management facility permit shall submit drawings which depict at a minimum—

1. A. Original contours;
2. B. Proposed final contours;
3. C. Original surface water drainage

patterns;

1. D. Proposed final surface water

drainage patterns;

1. E. Layout of the leachate collection

system;

1. F. Layout of the monitoring system;
2. G. Access roads;
3. H. Location of soil borings and

trenches;

1. I. Major rock outcrops and sinkholes

within the map area;

1. J. Occupied permanent residential

dwelling houses within one-fourth (1/4) mile of the disposal facility boundaries;

1. K. All available information on pri-

vate and public wells, public water supply lines and any aquifers, seeps, sinkholes, caves or mining areas within one-fourth (1/4) mile of the facility; and

1. L. For landfills only, a coordinate sys-

tem referenced to a benchmark and baseline that have been permanently established on the site and referenced to Government Land Office corners and the legal boundaries of the facility as described by a registered land surveyor licensed by Missouri.

1. 6. All submitted engineering plans and

reports shall be approved by a registered professional engineer licensed by Missouri. The engineering plans and reports shall specify the materials, equipment, construction methods, design standards and specifications for hazardous waste management facilities and processes that will be utilized in the construction and operation of the facility. The engineering plans and reports shall also include a diagram of any piping, instrumentation or process flows and descriptions of any feed systems, safety cutoffs, bypass systems and pressure controls (for example, vents).

1. 7. The applicant for a hazardous waste

facility permit to construct or operate a facility shall submit the application to the department in triplicate (quadruplicate, if application is made for a land-based management facility). If a permit is issued, the permittee shall submit two (2) copies of the entire approved application to the department.

1. 8. The permit application fee set forth in

10 CSR 25-12.010 shall be submitted with the application.

1. 9. The department will supervise any

field work undertaken to collect geologic and engineering data which is to be submitted with the application. The applicant shall contact the department at least five (5) working days prior to conducting any field work that is undertaken to collect geologic and engineering data which is to be submitted with the application. A fee shall also be assessed pursuant to 10 CSR 25-12.010 for all costs incurred by the department in the observation of field work, engineering and geological review of the application and all other review necessary by the department to verify that the application complies with section 260.395.7., RSMo.

1. 10. The permit application shall include

the following information for the purpose of notification:

1. A. Names and address of all person

listed on the facility mailing list as defined in 10 CSR 25-8.124(1)(A)10.C.(I)(c) shall be submitted in the form of an alphabetical list with five (5) sets of addressed, self-adhesive mailing labels also included; and

1. B. The name, address and telephone

number of the location where the permit application and supporting documents are to be placed, as described in 10 CSR 25- 8.124(1)(B)3.B.(II)(c) and the name of the person at that location who may be contacted to schedule a review of the documents.

1. 11. The applicant shall submit the infor-

mation required by subsection (2)(H) of this rule in the form of a disclosure statement as part of the permit application.

1. 12. An applicant may be required to

submit other information as may be necessary to enable the department to carry out its duties.

1. 13. In addition to the requirements in 40

CFR 270.15 incorporated in this rule, an owner/operator of a facility that treats hazardous waste in containers shall meet the requirements in 40 CFR 270.23 incorporated in this rule.

1. 14. In addition to the requirements in 40

CFR 270.16 incorporated in this rule, an owner/operator of a facility that treats hazardous waste in a tank system shall meet the requirements in 40 CFR 270.23 incorporated in this rule.

1. 15. 40 CFR 270.16(h)(2) is not incorpo-

rated in this rule.

1. 16. An owner/operator who stores,

treats or disposes of hazardous waste in surface impoundments shall provide the following information in addition to the requirements of 40 CFR 270.17 incorporated in this rule: detailed plans and an engineering report explaining the location of the saturated zone in relation to the surface impoundment and the design of a double-liner system that incorporates a leak detection system between liners.

1. 17. An owner/operator who disposes of

hazardous waste in landfills shall provide the following information in addition to the requirements of 40 CFR 270.21 incorporated in this rule:

1. A. Engineering reports which

describe the geology and hydrology of the site and demonstrate the site suitability as required in 10 CSR 25-7.264(2)(N)1.;

1. B. Detailed plans and an engineering

report addressing the following items:

1. (I) Management of run off from the

disposal facility or unit;

1. (II) Minimization of erosion, land-

slides and sloughing;

1. (III) Control of horizontal migra-

tion of leachate where applicable;

1. (IV) Delineation of a three hundred

foot (300') buffer between the property line of the disposal facility and area to be permitted;

1. (V) Control of wind dispersal of

waste particulate matter where applicable;

1. (VI) Control of odor dispersal

where applicable; and

1. (VII) Control of escape of gases

where applicable.

1. C. Detailed plans and engineering

report explaining the location of the saturated zone in relation to the landfill and the design of a double-liner system that incorporates a leachate collection and removal system above and between the liners; and

1. D. An explanation of how the volatile

waste standards in 10 CSR 25-7.264(2)(N)4. are met.

1. 18. An owner/operator of a hazardous

waste treatment facility or operating disposal facility shall submit a health profile as set forth in 10 CSR 25-7.264(2)(P).

1. 19. The person applying for a permit

under sections 260.350–260.434, RSMo shall notify the department in the permit application of any convictions for any acts occurring after July 9, 1990, which would have the effect of limiting competition. The applicant, after submission of the permit application and prior to permit issuance, shall notify the department in writing within thirty (30) days of any conviction for any act which would have the effect of limiting competition.

1. 20. 40 CFR 270.26 is not incorporated

in this rule.

1. 21. The owner/operator of a TSD facili-

ty that accepts and/or ships hazardous waste via railroad tank car (railcar) shall submit a railcar management plan in accordance with the requirements set forth in 10 CSR 25- 7.264(3).

1. 22. The person applying for a permit

under sections 260.350–260.434, RSMo shall comply with the requirements of 10 CSR 25-8.124(1).

1. (C) Permit Conditions. This subsection sets forth requirements which modify or add to those requirements in 40 CFR part 270 subpart C.

   1. 1. This paragraph sets forth the proce-

dures for issuance of a hazardous waste facility permit, construction certification and authorization to begin operation.

1. A. If, after public notice in accor-

dance with 10 CSR 25-8.124 and review of the application, the department determines that the application conforms with the provisions of sections 260.350–260.434, RSMo and all standards and rules corresponding, the department shall issue the hazardous waste facility permit to the applicant upon payment of a fee of one thousand dollars ($1000) for each facility for each year the permit is to be in effect beyond the first year. The department will issue an EPA identification number to the facility at the time.

1. B. The applicant may begin construc-

tion or alterations at the facility in accordance with the approved plans, reports, design specifications and procedures after receiving the facility permit. When construction is completed as approved in the permit and the financial requirements of this chapter have been fulfilled, the owner/operator shall submit a written request as required in 40 CFR 270.30(l)(2) incorporated in this rule to the department for authorization to begin operation.

1. C. If the permit is for a facility oper-

ating under interim status, the department may deny authority to operate under the permit if the construction required under the permit is not completed in accordance with the approved plans within the time period specified in the permit or within the time period as extended by the department for cause due to circumstances beyond the permittee’s control.

1. D. The appeal period for a permit or

any condition of a permit shall begin on the date of issuance of the permit as required in subparagraph (2)(C)1.A. of this rule. However, for the purposes of termination of interim status pursuant to 40 CFR 270.73(a) incorporated in this rule, final administrative disposition of the permit application shall occur either—

1. (I) Thirty (30) days after issuance

of a letter of authorization pursuant to subparagraph (2)(C)1.B. of this rule, unless a notice of appeal is filed with the commission within that time;

1. (II) Thirty (30) days after denial of

authorization to operate pursuant to subparagraph (2)(C)1.C. of this rule, unless a notice of appeal is filed with the commission within that time; or

1. (III) Upon the issuance of a deci-

sion by the commission, after timely appeal of an action under subparagraph (2)(C)1.B. or C. of this rule.

1. 2. The department may deny the permit

application if—

1. A. The applicant fails to submit a

complete application in accordance with, and within the time specified in, a notice of deficiency issued pursuant to 10 CSR 25- 8.124(1)(A)3.;

1. B. The applicant has failed to fully

disclose all relevant information in the application or during the permit issuance process or has misrepresented facts at any time;

1. C. The department determines that

the application does not conform with the provisions of sections 260.350–260.434, RSMo and all corresponding standards and rules, or that the facility cannot be effectively operated and maintained in full compliance with sections 260.350–260.434, RSMo and all corresponding standards and rules, or that the facility is being operated or maintained in violation of a present permit, or that continued operation of the facility presents an unreasonable threat to human health or the environment or will create or allow for the continuance of a public nuisance;

1. D. The department determines that

the applicant owner/operator is an habitual violator as defined in subsection (2)(H) of this rule;

1. E. The department determines that

one (1) of the conditions specified in section 260.395.17., RSMo is present; or

1. F. The applicant owner/operator fails

to submit the permit fees required by subparagraph (2)(C)1.A. of this rule within thirty (30) days of receipt of notice from the department that the fees are due.

1. 3. In 40 CFR 270.30(l)(2) introductory

text incorporated in this rule, delete “except as provided in 270.42.”

1. 4. The owner/operator of a facility per-

mitted under sections 260.350–260.434, RSMo shall notify the department in writing of any conviction for any act occurring after July 9, 1990, which would have the effect of limiting competition. This written notification shall be provided within thirty (30) days of the conviction or plea and shall comply with the requirements at subsection (2)(I) of this rule.

1. (D) Changes to Permit. This subsection sets forth requirements which modify or add to those requirements in 40 CFR part 270 subpart D.

   1. 1. In addition to the requirements of 40

CFR 270.40(b), the department shall determine, in accordance with subsection (2)(H) of this rule, whether the proposed owner or operator, including an officer or management employee of the proposed owner or operator, is a person described in section 260.395.16, RSMo and whether any of the conditions specified in section 260.395.17, RSMo would exist if the proposed transfer were to take place.

1. 2. “Revocation and reissuance” of a per-

mit, as that term is used in 40 CFR part 270 incorporated in this rule shall mean the same as “total modification” as that term is used in 10 CSR 25-8.124.

1. 3. The “termination” of a permit as used

in 40 CFR part 270 incorporated in this rule shall mean the same as “revocation” of a permit as used in 10 CSR 25-8.124.

1. 4. The director shall suspend, revoke or

not renew the permit of any person to treat, store and dispose of hazardous waste if that person has had two (2) or more convictions in any court of the United States or of any state other than Missouri, or two (2) or more convictions within a Missouri court for crimes or criminal acts occurring after July 9, 1990, an element of which involves restraint of trade, price fixing, intimidation of the customers of any person or for engaging in any other acts which may have the effect of restraining or limiting competition concerning activities regulated under Chapter 260, RSMo, the Resource Conservation and Recovery Act or similar laws of other states within any five (5)-year period. Convictions by entities which occurred prior to the purchase or acquisition by a permittee shall not be included. The permittee shall submit a written report to the department within thirty (30) days of the conviction or plea. The report shall include information explaining the charge(s) on which the permittee was convicted, the date(s) of the conviction(s), and the date(s) and charge(s) of previous convictions.

1. 5. The owner/operator of a facility that

has had his/her permit (issued under the provisions of sections 260.350–260.434, RSMo) revoked under section 260.379, RSMo may apply to the department for reinstatement of his/her permit after five (5) years has elapsed from the date of the last conviction of crimes or criminal acts as described in section 260.379, RSMo. The application must be in writing and accompanied by a reapplication fee, updated permit application and any other information the department deems necessary in order to reinstate the permit. 10 CSR 25-7

1. 6. 40 CFR 270.42(j)(1) and 40 CFR

270.42(j)(2) are not incorporated in this rule.

1. (E) Expiration and Continuation of Permits. The director will review all permits for operating disposal facilities every five (5) years after issuance for conformance with applicable current hazardous waste rules and laws. The permit will be modified as necessary to conform with the applicable rules and laws.
2. (F) Special Forms of Permits. (Reserved)

3. (G) Interim Status. This subsection sets forth requirements which modify or add to those requirements in 40 CFR part 270 subpart G.

   1. 1. An owner/operator who becomes reg-

ulated under 10 CSR 25-7 shall operate in compliance with interim status in accordance with paragraphs (2)(A)4. and (2)(B)1. of this rule.

1. 2. In addition to the items in 40 CFR

270.73 incorporated in this rule, interim status terminates when the department issues an order or commences an action pursuant to paragraph (2)(G)4. of this rule requiring the owner/operator to cease operations and undertake closure actions at the facility or at a unit.

1. 3. The owner/operator, at any time, vol-

untarily may submit a permit application pursuant to this rule.

1. 4. Upon a determination by the depart-

ment that the facility is not being operated or cannot be operated in full compliance with the requirements of 10 CSR 25-7.265, the department, in lieu of or in addition to requiring the submittal of a permit application pursuant to paragraph (2)(G)1. of this rule, may take an enforcement action pursuant to sections 260.410, 260.420 and 260.425, RSMo, as it deems appropriate under the circumstances in order to fully and effectively protect public health and the environment.

1. (H) Habitual Violators. This subsection describes how the department shall determine whether a hazardous waste management facility permit applicant is an habitual violator for purposes of implementing section 260.395.16, RSMo. This subsection applies to the issuance, reissuance or total modification of hazardous waste management facility permits, excluding post-closure and corrective action only permits, and to hazardous waste resource recovery facilities for the activities subject to permit requirements in 10 CSR 25-7.264.

   1. 1. The department shall consider the

applicant’s prior operating history pursuant to section 260.395.16, RSMo during the review of an application for a permit to operate a hazardous waste management or commercial polychlorinated biphenyl (PCB) facility. All documentation required by this subsection shall be submitted along with the information specified in 40 CFR part 270 subparts B and D incorporated by reference in section (1) of this rule and modified in subsection (2)(B) of this rule, paragraph (2)(D)1. of this rule and 10 CSR 25-13.010(9)(B).

1. 2. Definitions. The definitions in this

paragraph apply to subsection (2)(H) of this rule.

1. A. Facility, for purposes of calculat-

ing violations as required in paragraph (2)(H)5. of this rule, means each permitted, licensed interim status, unpermitted or unlicensed hazardous waste management or commercial PCB facility, solid waste disposal area, solid waste processing facility, certified hazardous waste resource recovery facility, or solid or hazardous waste transporter or transfer station.

1. B. Person, in addition to the definition

in section 260.360(17) RSMo, shall mean an officer or management employee of the applicant, any officer or management employee of any corporation or business which owns an interest in the applicant any officer or management employee of any business in which an interest is owned by any person, corporation or business which owns an interest in the applicant, or any officer or management employee of any corporation or business in which an interest is owned by the applicant.

1. C. Management employee means any

individual, including a supervisor, who has the authority to serve as an agent for the employer in that the employee has the authority to perform or effectively recommend any one (1) or more of the following actions: hiring, firing, assigning or directing other employees with respect to waste management operations.

1. D. Violation means any one (1) or

more of the following actions or an equivalent action by this or another regulatory agency or competent authority in response to any violation of the Missouri solid or hazardous waste management law, the solid or hazardous waste management law of another state or any federal law governing the management of solid waste, hazardous waste, PCB material or PCB units:

1. (I) Final administrative order;
2. (II) Final permit revocation;
3. (III) Final permit suspension;
4. (IV) Civil judgment against the

applicant;

1. (V) Criminal conviction; or
2. (VI) Settlement agreement in con-

nection with a civil action which has been filed in court.

1. E. Interest, as used in “owning an

interest in,” means having control of at least seven and one-half percent (7.5%) of an applicant or person as defined in subparagraph (2)(H)2.B. of this rule. This is determined by multiplying the percentages of ownership at each successive level and comparing this result to a seven and one-half percent (7.5%) cutoff level. For city, county, state, federal, and military-owned facilities, interest, or owning an interest in, is defined as one (1) level above or below the facility applying for the permit. (For example, a military-owned facility shall consider one (1) command level above the base on which the facility will be operated as having an interest in the facility. Likewise, the “command” shall consider itself as having an interest in all facilities within the command).

1. F. Habitual violator means a person

who has failed the habitual violator test set out in paragraph (2)(H)5. of this rule.

1. 3. For the purpose of this subsection,

any administrative action or order, judgment or criminal conviction that has been ruled on appeal in favor of the applicant by a final decision of a competent authority will not be considered to be a violation. If the applicant has an appeal pending, the outcome of which will affect the issuance of a permit, the department shall delay issuance of the permit until a final decision is rendered.

1. 4. The permit applicant shall submit the

following information on the Habitual Violator Disclosure Statement form provided by the department, incorporated by reference in this rule, and published in the appendix to this rule as part of the permit application:

1. A. Names and addresses of all per-

sons meeting any of the following criteria:

1. (I) Any person who owns an inter-

est in the applicant;

1. (II) Any person in whom an inter-

est is owned by any person who owns an interest in the applicant; and

1. (III) Any person in whom the appli-

cant owns an interest;

1. B. A list of all solid waste manage-

ment, infectious waste management, commercial PCB management and hazardous waste management permits (Part A and Part B), licenses, certifications or equivalent documents held within the last ten (10) years by the applicant or any person(s) reported under subparagraph (2)(H)4.A. of this rule, for the operation or post-closure of a solid waste management, infectious waste management, commercial PCB or hazardous waste management facility, or a combination of these, as defined in subparagraph (2)(H)2.A. of this rule, in Missouri or in the United States and for each provide the following information:

1. (I) Permit or identification number;
2. (II) Type of permit, license, certifi-

cation or equivalent document and dates held;

1. (III) Name(s) of the person(s) to

whom each permit, license, certification or equivalent document was issued;

1. (IV) Address or location of each

facility; and

1. (V) Issuing agency;
2. C. The structure of the applicant in

relation to any person(s) reported in accordance with subparagraph (2)(H)4.A.;

1. D. Names and addresses of the offi-

cers and management employees of any person(s) reported in accordance with subparagraph (2)(H)4.A.;

1. E. A list of all violations, including

the identification of any action for which an appeal or final judgment is pending, as defined in subparagraph (2)(H)2.D. of this rule cited within ten (10) years preceding the date of the permit application incurred by any persons required to be reported under subparagraph (2)(H)4.A. or (2)(H)4.D. of this rule. Each listing shall include the following information:

1. (I) Dates of violations;
2. (II) A brief description of each vio-

lation, including the type of regulatory action taken;

1. (III) Statutory or regulatory refer-

ences, or both, to each specific statute or administrative rule that was violated;

1. (IV) Name and location of the

facility cited; and

1. (V) Name and address of the issu-

ing agency, and name and address of any competent authority with final jurisdiction regarding each violation;

1. F. A brief description of all incidents

in which any person(s) reported under subparagraph (2)(H)4.A or (2)(H)4.D. of this rule have been adjudged in contempt of any court order enforcing the provisions of any state’s solid or hazardous waste laws, or federal laws pertaining to hazardous waste;

1. G. A listing of all facilities as defined

at (2)(H)2.A. owned or operated by any person required to be reported at (2)(H)4.A. or (2)(H)4.D. A brief justification as to why the facility has been included on the listing; and

1. H. All other information requested by

the department necessary for the department to conduct an evaluation of the overall operating history of the applicant.

1. 5. The habitual violator test.

   1. A. A total of calculated violations

shall be determined by the following formula: Number of violations (as defined in subparagraph (2)(H)2.D. of this rule), occurring within the ten (10) years preceding the date of the permit application, incurred by any person required to be reported under (2)(H)4.A. or (2)(H)4.D., divided by the total number of facilities (as defined in subparagraph (2)(H)2.A. of this rule) equals the number of calculated violations.

Number of Violations Calculated = Total Number of Facilities Violations

1. B. If the total of calculated violations

is two (2.0) or less, the applicant has passed the habitual violator test. If the total of calculated violations is greater than two (2.0), the department will notify the applicant of his/her score. Upon receipt of notification, the applicant shall have thirty (30) days to produce clear and convincing evidence to the department which demonstrates that the applicant is not an habitual violator. The department shall determine whether the evidence is clear and convincing for the purpose of the habitual violator determination. If the evidence produced by the applicant is not found to be clear and convincing, or if no evidence is produced, the department will determine the applicant to be an habitual violator, and the department will notify the applicant of permit denial. If the evidence produced by the applicant is found to be clear and convincing, the department may determine that the applicant has not failed the habitual violator test (if the department determines the applicant has failed, a notice of denial will be sent to the applicant by the department) only after the department has considered the following factors:

1. (I) The nature and severity of vio-

lations;

1. (II) Any substantial realignment of

corporate structure or corporate philosophy, or both;

1. (III) Any significant pattern of

improved environmental compliance;

1. (IV) The complexity of the facili-

ties and the volume of waste handled; and

1. (V) Any other relevant factors pre-

sented as evidence.

1. 6. The department shall deny a permit

for failure of the applicant to provide the required information or for submission of false information.

1. 7. The department may deny a permit

for failure of the applicant to provide complete information when submission of the information is required by this rule.

1. 8. The department shall deny a permit if

the applicant has failed the habitual violator test specified in paragraph (2)(H)5. of this rule.

1. 9. The department shall not issue a per-

mit to an applicant or a person who has offered in person or through an agent any inducement, including any discussion of possible employment opportunities, to any department employee when that person has an application for a permit pending or a permit under review. Distribution of job announcements from an applicant to the department, which are made in the regular course of business and are intended for general dissemination, shall not be considered improper inducements.

1. 10. The department shall deny a permit

if any person(s) reported in accordance with subparagraph (2)(H)4.A. or (2)(H)4.D. of this rule has been adjudged in contempt of any court order enforcing the provisions of any state’s solid or hazardous waste management laws, or federal laws pertaining to hazardous waste.

1. 11. Any person aggrieved by a permit

denial under this subsection may appeal the decision by filing a petition with the Missouri Hazardous Waste Management Commission within thirty (30) days of notice of denial. The appeal hearing shall be conducted in accordance with section 260.400, RSMo and 10 CSR 25-8.124(2).

1. (I) Restraint of Trade.

   1. 1. Any person, as defined in section

260.379.1, RSMo, applying for a permit to operate a hazardous waste treatment, storage or disposal facility shall notify the director of any conviction occurring after July 9, 1990, for any crimes or criminal acts specified in section 260.379, RSMo. The person shall include any crimes or criminal acts for which an appeal or about which a final judgment is pending. The applicant shall submit this information with the permit application. Any person with a permit application pending, or to whom a permit has been granted, shall notify the department within thirty (30) days of the conviction or plea. The information shall be submitted in the form of a disclosure statement worded as specified in paragraph (2)(I)4. and shall include the following information:

1. A. Date of conviction or plea;
2. B. The specific charge and statutory

citation;

1. C. Statutory or regulatory references,

or both, and citations to each specific statute or administrative rule that was violated;

1. D. Name and location of each facility

or person cited;

1. E. Name and address of the court;

and

1. F. Any other information requested by

the department. 10 CSR 25-7

1. 2. The department shall deny, suspend,

revoke or not renew a permit if the applicant or permittee fails to submit the required information, the information submitted is false, or the applicant or permittee exceeds the number of convictions allowed under section 260.379, RSMo.

1. 3. Rehabilitation and reinstatement.

   1. A. A person may apply to the depart-

ment for reinstatement of a permit that has been revoked under the provisions of subsection (2)(I) of this rule and section 260.379, RSMo no sooner than five (5) years after revocation. The person shall demonstrate to the department that s/he had no convictions or pleas for any crimes or criminal acts as specified in section 260.379, RSMo in any court in any state, or any federal court, within five (5) years preceding the request for reinstatement. The person shall also prove that no litigation or appeal is pending against the person for any crimes or criminal acts specified in section 260.379, RSMo.

1. B. If the permit is reinstated, the per-

mittee, for a period of five (5) years from the date of reinstatement, shall file semi-annual disclosure statements prepared in accordance with the requirements of this subsection (2)(I).

1. C. If any conviction or plea for the

acts specified in section 260.379, RSMo is entered in any court in any state during the five (5)-year period immediately following reinstatement, the reinstated permit shall be revoked for a period of at least five (5) years. Following this five (5)-year period, the person may reapply for reinstatement of the permit.

1. 4. The disclosure statement specified in

paragraph (2)(I)1. of this rule shall be worded as follows, except that instructions in parentheses are to be replaced with the relevant information, and the parentheses deleted:

(Name of permit applicant) (insert, “EPA Identification Number_____________,” if applicable) hereby certifies that the following list contains all instances in which any person, as defined by section 260.379.1, RSMo, has been convicted or pled to any crimes or criminal acts an element of which involves restraint of trade, price-fixing, intimidation of the customers of any person or for engaging in any other acts which may have the effect of restraining or limiting competition concerning activities regulated under Chapter 260, RSMo, or similar laws of other states or the federal government; except that convictions for violations by entities purchased or acquired by an applicant or permittee which occurred prior to the purchase or acquisition, shall not be included. (For each conviction or plea required to be reported, provide a listing of the information required in 10 CSR 25- 7.270(2)(I)1.A.–F. If no conviction or plea is required to be reported, so state.) I hereby certify the following: a) The above information is complete and truthful as of the date this statement was signed; b) The wording of this disclosure statement is identical to the wording specified in 10 CSR 25-7.270(2)(I)4. on the date this statement was signed; and c) In such matters, I, the undersigned, do have the authority to act as agent for the permit applicant. (Signature) (Name) (Title) (Date) (Seal) (Notary seal and signature) AUTHORITY: sections 260.370, 260.390 and 260.395, RSMo 2000.* Original rule filed Dec. 16, 1985, effective Oct. 1, 1986. Amended: Filed Feb. 3, 1987, effective Aug. 1, 1987. Amended: Filed Dec. 1, 1987, effective Aug. 12, 1988. Amended: Filed Feb. 16, 1990, effective Dec. 31, 1990. Amended: Filed Jan. 15, 1991, effective Aug. 1, 1991. Amended: Filed Feb. 14, 1992, effective Dec. 3, 1992. Amended: Filed Jan. 5, 1993, effective Aug. 9, 1993. Amended: Filed June 3, 1993, effective Jan. 31, 1994. Amended: Filed Jan. 5, 1994, effective Aug. 28, 1994. Amended: Filed April 4, 1994, effective Oct. 30, 1994. Amended: Filed Aug. 16, 1995, effective April 30, 1996. Amended: Filed June 1, 1998, effective Jan. 30, 1999. Amended: Filed Feb. 1, 2001, effective Oct. 30, 2001. *Original authority: 260.370, RSMo 1977, amended 1980, 1988, 1993, 1995; 260.390, RSMo 1977, amended 1980, 1983, 1985, 1993; and 260.395, RSMo 1977, amended 1980, 1983, 1985, 1988, 2000.