Section 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;

(ii) Applicable conditions under WAC 173-303-830 and 173-303-815; and

(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).

[Statutory Authority: Chapters 70.105, 70.105D, 15.54 RCW and RCW 70.105.007. WSR 00-11-040 (Order 99-01), § 173-303-840, filed 5/10/00, effective 6/10/00. Statutory Authority: Chapters 70.105 and 70.105D RCW. WSR 98-03-018 (Order 97-03), § 173-303-840, filed 1/12/98, effective 2/12/98; WSR 95-22-008 (Order 94-30), § 173-303-840, filed 10/19/95, effective 11/19/95; WSR 94-01-060 (Order 92-33), § 173-303-840, filed 12/8/93, effective 1/8/94. Statutory Authority: Chapter 70.105 RCW. WSR 84-14-031 (Order DE 84-22), § 173-303-840, filed 6/27/84. Statutory Authority: Chapter 70.105 RCW and RCW 70.95.260. WSR 82-05-023 (Order DE 81-33), § 173-303-840, filed 2/10/82.]

Chapters 70.105, 70.105D, 15.54 RCW and RCW 70.105.007. WSR 00-11-040 (Order 99-01), § 173-303-840, filed 5/10/00, effective 6/10/00. Statutory Authority: Chapters 70.105 and 70.105D RCW. WSR 98-03-018 (Order 97-03), § 173-303-840, filed 1/12/98, effective 2/12/98; WSR 95-22-008 (Order 94-30), § 173-303-840, filed 10/19/95, effective 11/19/95; WSR 94-01-060 (Order 92-33), § 173-303-840, filed 12/8/93, effective 1/8/94. Statutory Authority: Chapter 70.105 RCW. WSR 84-14-031 (Order DE 84-22), § 173-303-840, filed 6/27/84. Statutory Authority: Chapter 70.105 RCW and RCW 70.95.260. WSR 82-05-023 (Order DE 81-33), § 173-303-840, filed 2/10/82.

Rules

173-303-810,173-303-810,173-303-815,173-303-830,173-303-815,173-303-281,173-303-830,173-303-805,173-303-830,173-303-830,173-303-830,173-303-805,173-303-806,