This chapter may be cited as the "Hazardous Wastes Management and Minimization Act." (Acts 1978, 2nd Ex. Sess., No. 129, p. 1843, §1; Acts 1987, No. 87-807, p. 1590, §1.)
The Legislature finds that the generation and management of hazardous waste is a continuing problem. Further, that without adequate safeguards, the generation, transportation, treatment, storage and disposal of such wastes can create conditions which threaten human health or the environment. The Legislature, therefore, declares that in order to minimize and control any such hazardous conditions, it is in the public interest to establish and to maintain a statewide program, administered by the Alabama Department of Environmental Management, to provide for the safe management of hazardous wastes. It is the intent of the Legislature that the Alabama Department of Environmental Management seek and retain authorization to operate the State Hazardous Waste Management Program. It is also the intent of the Legislature that the rules, regulations, guidelines and criteria promulgated under authority of this chapter encourage the minimization of hazardous waste generation, transportation and land disposal and that if necessary, to achieve consistency with the Federal Hazardous Waste Management Program, the rules, regulations, guidelines and criteria promulgated under authority of this chapter may ban or limit certain hazardous waste management technologies or the application of certain hazardous waste management technologies to specified wastes. (Acts 1978, 2nd Ex. Sess., No. 129, p. 1843, §2; Acts 1987, No. 87-807, p. 1590, §2.)
When used in this chapter and except where the context prohibits, the following words and terms shall have the following meanings:
(1) COMMISSION. The Environmental Management Commission of the Alabama Department of Environmental Management as created by Section 22-22A-6.
(2) DEPARTMENT. The Alabama Department of Environmental Management as created by Section 22- 22A-4.
(3) DIRECTOR. The Director of the Alabama Department of Environmental Management.
(4) DISPOSAL. The discharge, deposit, injection, dumping, spilling, leaking or placing of any hazardous waste into or on any land or water so that such hazardous waste or any constituent thereof may enter the environment or be emitted into the air or discharged into any waters, including ground waters.
(5) HAZARDOUS WASTE. A solid waste, or combination of solid wastes, which, because of its quantity, concentration or physical, chemical or infectious characteristics may: a. Cause, or significantly contribute to, an increase in mortality or an increase in serious irreversible, or incapacitating reversible, illness; or b. Pose a substantial present or potential hazard to human health or the environment when improperly treated, stored, transported or disposed of, or otherwise managed.
(6) HAZARDOUS WASTE GENERATION. The act or process of producing hazardous waste.
(7) HAZARDOUS WASTE MANAGEMENT. The systematic control of the collection, source separation, storage, transportation, processing, treatment, recovery and disposal of hazardous wastes.
(8) MANIFEST. The form adopted by the department used for identifying the quantity, composition, origin, routing and destination of hazardous waste during its transportation from the point of generation to the point of disposal, treatment or storage.
(9) PERSON. Any and all persons, natural or artificial, including, but not limited to any individual, partnership, association, society, joint stock company, firm, company, corporation, institution, trust, estate, or other legal entity or other business organization or any governmental entity, and any successor, representative, agent or agency of the foregoing.
(10) RCRA. The Federal Resource Conservation and Recovery Act of 1976, 42 U.S.C. §6901 et seq., as amended.
(11) SOLID WASTE. Any garbage, refuse, sludge from a waste treatment plant, water supply treatment plant or air pollution control facility and other discarded material, including solid, liquid, semisolid or contained gaseous material resulting from industrial, commercial, mining and agricultural operations and from community activities, including any material to be discarded by a generator, but such term does not include solid or dissolved material in domestic sewage, or solid or dissolved materials in irrigation return flows or industrial discharges which are point sources subject to permits under Section 402 of the Federal Water Pollution Control Act, as amended (86 Stat. 880), or source, special nuclear or by-product material as defined by the Atomic Energy Act of 1954, as amended (68 Stat. 923).
(12) STORAGE. The actual or intended containment of wastes, either on a temporary basis or for a period of years, in such a manner as not to constitute disposal of such wastes.
(13) TRADE SECRET. Such term includes, but is not limited to, any formula, plan, pattern, process, tool, mechanism, compound or procedure, as well as production data or compilation of information, financial and marketing data, which is not patented, which is known only to certain individuals within a commercial concern who are using it to fabricate, produce or compound an article of trade or a service having commercial value, and which gives its user an opportunity to obtain a business advantage over competitors who do not know of it.
(14) TREATMENT. Any method, technique or process including neutralization, designed to change the physical, chemical or biological character or composition of any hazardous waste so as to neutralize such waste or so as to render such waste nonhazardous, safer for transport, amenable for recovery, amenable for storage or reduced in volume. Such term includes any activity or processing designed to change the physical form or chemical composition of hazardous waste so as to render it nonhazardous. (Acts 1978, 2nd Ex. Sess., No. 129, p. 1843, §3; Acts 1982, No. 82-612, p. 1111, §11(h); Acts 1984, No. 84-50, §1; Acts 1987, No. 87-807, p. 1590, §3.)
FOR HAZARDOUS WASTES; FEES; HEARINGS AND INVESTIGATIONS.
The department has exclusive regulatory authority over all hazardous waste generation, transportation, storage, treatment and disposal and other management practices in the state, and shall, from time to time, investigate and monitor sources of generation, transportation, storage, treatment and disposal of hazardous waste. However, nothing in this chapter shall be construed to limit the authority of the Alabama Department of Public Health to regulate wastes containing radioactive materials under Chapter 14 of this title.
In exercising such exclusive authority, the department shall provide sufficient personnel with training in hazardous waste management and a minimum of a bachelor's degree in the sciences or engineering to comprehensively monitor all commercial sites for the disposal of hazardous wastes. Such personnel shall be hired by the director and shall be members of the department's staff.
(1) For the purposes of this section, a commercial site for the disposal of hazardous waste is defined as one receiving hazardous waste not generated on site for disposal and to which a fee is paid for such disposal.
(2) The personnel shall primarily be responsible for the monitoring of landfill and disposal programs at such sites, but their responsibilities shall include the monitoring and inspection of all activities related to such on site programs whether on site or off site. These responsibilities shall include but not be limited to monitoring of transportation near the site, monitoring of testing procedures, monitoring of the unloading of wastes, monitoring of waste storage, monitoring of waste disposal and monitoring of on site and off site areas of known or suspected contamination.
(3) To finance such monitoring operations, there is hereby levied on the operators of such sites a fee of $1.00 per ton on all waste received for disposal at such sites which fee shall be payable to the department by certified or cashier check or via electronic transfer each month. Notwithstanding the foregoing, no fee set forth in Section 22-27-17 shall be applicable to such sites. Any proceeds from such fees over and above those necessary to adequately provide for such monitoring operations may be used by the department for general operation.
The director, or any employee of the department designated by the director, may administer oaths to witnesses and may conduct hearings and investigations, and the director may sign and issue subpoenas requiring persons to appear before him or her, the department or any employee of the department designated by the director to give testimony or produce papers, books, accounts, payrolls, documents (including writings, drawings, graphs, charts, photographs, electronic readings and other data compilations from which information can be obtained, translated, if necessary, by the person subpoenaed, through detection devices into reasonably usable form), records or tangible things and the department through its designated employees, shall have the power to serve the subpoenas upon such person either personally or by sending a copy of such subpoena through the United States mail, postage prepaid, which mail shall be registered or certified with return receipt attached, such service being complete when the registered or certified mail shall be delivered to the person and such receipt returned to the department, or its designated employee, signed by the person sought to be subpoenaed. Obedience to a subpoena issued by the director may be enforced by application to any judge of the circuit court of the county in which the subpoena was issued or to the judge of any circuit court in which such person subpoenaed resides in the same manner as is provided by law for the grand jury of a county to enforce its subpoenas and with the same penalty as provided therefor for the failure of any person failing or refusing to comply with such subpoena. The fees of witnesses for attendance and travel shall be the same as fees of witnesses before courts of record and shall be paid from the funds of the board. (Acts 1978, 2nd Ex. Sess., No. 129, p. 1843, §4; Acts 1984, No. 84-447, p. 1056; Acts 1985, No. 85-751, p. 1244, §1; Acts 1987, No. 87-807, p. 1590, §4; Act 2013-174, p. 325, §1.)
FACILITIES OR DISPOSAL SITES PER COUNTY; LEGISLATIVE APPROVAL OF SITES.
The term "hazardous waste" shall mean the same as defined by Section 22-30-3(5).
Committee shall mean the continuing Select Joint Nuclear Energy Activities and Hazardous Chemical Toxic Waste Oversight Committee as created by Act No. 81-307, H.J.R. 254 (p. 392), as amended by Act No. 84-329, S.J.R. 214 (pp. 754-755).
There shall be no more than one commercial hazardous waste treatment facility or disposal site as defined by subdivisions (4) and (14) of Section 22-30-3 situated within any one county of the state. Provided, however, no commercial hazardous waste treatment or disposal site not in existence on or before December 31, 1988, shall be situated until: (1) a written proposal or application addressing the items found in subdivisions (d)(1) through (d)(7) of this section is submitted by the applicant wishing to construct such facility for review to the Select Joint Nuclear Activities and Hazardous Chemical Toxic Waste Oversight Committee, and; (2) said committee, upon due consideration of said application, presents to both houses of the Legislature its written report and recommendations regarding the proposed siting or construction of said facility, and; (3) the Legislature thereafter gives approval therefor by joint resolution. Provided, however, legislative approval shall not be required for industries with on site treatment, storage, and disposal of their own hazardous wastes.
In determining whether to recommend approval to the proposed siting or construction of a commercial hazardous waste treatment facility or disposal site, the committee shall consider and include in its written report to the Legislature an evaluation of the following criteria:
(1) The social and economic impacts of the proposed facility on the affected community, including changes in property values, community perception, and other costs;
(2) Costs and availabilities of public services, facilities, and improvements required to support the facility and protect public health, safety and the environment;
(3) The relationship of the proposed facility to local planning and existing development to major transportation arteries, to existing state primary and secondary roads and to the hydrology of the area;
(4) The location of the proposed facility in relationship to existing industries in the state that generate large volumes of hazardous waste and to the areas projected for development of industries that will generate hazardous waste so as to minimize the transportation distance between the major generators of hazardous waste and the proposed facility. The Alabama Department of Environmental Management and the Alabama Department of Economic and Community Affairs and other appropriate state agencies shall provide the committee with data concerning said existing and projected areas of hazardous waste generation in the state;
(5) The impact of the proposed facility on public safety and provisions made to minimize the risk to public health and safety;
(6) The consistency of the proposed facility with the state's hazardous waste management needs;
(7) The need for additional hazardous waste facilities.
The committee's written report shall be prepared and submitted to both houses of the Legislature in accordance with the committee's standard rules of procedure for transacting business. (Acts 1981, 3rd Ex. Sess., No. 81-1189, p. 523, §§1, 2; Acts 1988, No. 88-266, p. 422, §2.)
The provisions of Section 22-30-5.1 are to be construed in pari materia with the provisions of the Southeast Interstate Low-Level Radioactive Waste Management Compact, Section 22-32-1 et seq. If any provision of this section shall be held to be inconsistent with any provision of said compact, the provisions of said compact shall govern. (Acts 1988, No. 88-266, p. 422, §5.)
The operation of any and all sites for the storage, treatment or disposal of hazardous wastes shall be under the direct regulation and supervision of the department and shall be in accordance with rules and regulations promulgated and enforced by the department to protect human health or the environment. (Acts 1978, 2nd Ex. Sess., No. 129, p. 1843, §6; Acts 1987, No. 87-807, p. 1590, §5.)
The responsibilities of the department include the following:
(1) The department may adopt procedures for granting variances and is empowered to grant such variances.
(2) The department, acting through the commission, may promulgate, and may revise when appropriate, rules and regulations and may enter into agreements to ensure that information obtained by the department regarding facilities and sites for the treatment, storage and disposal of hazardous waste is available to the public in substantially the same manner, and to the same degree, as would be the case under the Federal Hazardous Waste Management Program administered by the United States Environmental Protection Agency under authority of the RCRA and shall establish procedures to ensure that trade secrets used by any person regarding methods of hazardous wastes handling and disposal are utilized by the department, or any authorized representative of the department, only in connection with the responsibilities of the department pursuant to this chapter, and that such trade secrets are not otherwise disseminated by the department or any authorized representative of the department without the express written consent of the affected person.
(3) The department shall take all appropriate measures to monitor and enforce rules and regulations pertaining to hazardous waste generation, transportation, treatment, storage, and disposal.
(4) The department shall maintain records and, through a system of record keeping, tabulate the volume, nature and location of hazardous wastes generated, transported, treated, stored or disposed of within the state.
(5) The department is authorized to seek and to receive federal funds, grants and services applicable for Hazardous Wastes Management Programs.
(6) The department shall establish procedures for the evaluation and coordination of research and development regarding methods of hazardous waste transportation, storage, treatment and disposal, and may enter into contracts in order to conduct appropriate studies relating to hazardous wastes.
(7) The department shall promulgate regulations for the transportation of hazardous wastes that are consistent with the requirements of the Hazardous Materials Transportation Act, 49 U.S.C. §1802 et seq., and the regulations promulgated thereunder. (Acts 1978, 2nd Ex. Sess., No. 129, p. 1843, §9; Acts 1987, No. 87-807, p. 1590, §6.)
WASTES.
The department, acting through the commission, shall promulgate and revise criteria for identifying hazardous waste.
When developing these criteria, the department shall determine whether the concentrations being disposed of present immediate or persistent toxic hazards to human health or the environment, or the resistance of such wastes to natural degradation or detoxification and/or whether such wastes are bioconcentrative, ignitable, reactive, toxic, irritating, corrosive or infectious in addition to any hazardous characteristics.
The department shall compile, and revise from time to time thereafter, a listing of solid wastes which have been determined to be hazardous by using these criteria. Unless specifically excluded, all solid wastes identified as hazardous by application of the criteria are hazardous wastes and must be managed in accordance with this chapter and the regulations promulgated under authority of this chapter.
In developing the criteria the department shall, to the extent feasible, consider actions taken by contiguous states and the federal government for the development and application of uniform criteria.
The department shall exclude from regulation under this act such solid wastes and processes producing solid wastes as are excluded from regulation by the RCRA or the regulations promulgated under authority of the RCRA. (Acts 1978, 2nd Ex. Sess., No. 129, p. 1843, §10; Acts 1987, No. 87-807, p. 1590, §7.)
DEPARTMENT; STATES FROM WHICH HAZARDOUS WASTES CANNOT BE ACCEPTED; PENALTY; CONTRACTS TO SATISFY FEDERAL CAPACITY ASSURANCE PROGRAMS LIMITED.
The department, acting through the commission, is authorized to promulgate, and may revise when appropriate, rules and regulations, guidelines, criteria and standards for all hazardous waste management practices.
It is unlawful for any person who owns or operates a commercial hazardous waste treatment or disposal facility within this state to dispose or treat any hazardous wastes generated in any state outside the State of Alabama which:
(1) Prohibits by law or regulation the treatment or disposal of hazardous wastes within that state and which has no facility permitted or existing within that state for the treatment or disposal of hazardous wastes; or
(2) Has no facility permitted or existing within that state for the treatment or disposal of hazardous wastes; unless that state has entered into an interstate or regional agreement for the safe disposal of hazardous wastes pursuant to the Federal Comprehensive Environmental Response, Compensation, and Liability Act. The department shall establish and maintain a list of states from which hazardous wastes cannot be accepted for treatment or disposal pursuant to this paragraph and there shall be no liability under the paragraph for disposal of wastes from a state until 15 days after a state has been listed by the department. Such list shall be publicly available and set forth the reasons why each state is listed. The date on which a state is included on such list shall be provided. The list of states shall be revised monthly. The state of generation as shown on the hazardous waste manifest shall be used in determining whether a person has treated or disposed of waste in violation of this subsection, and any person who alters the state of generation on any manifest or misrepresents the state of generation of any hazardous waste for the purpose of circumventing this statute shall be punishable in accordance with Section 22-30-19 herein.
Subsequent to the effective date of Acts 1989, No. 89-788, no commercial hazardous waste treatment or disposal facility operating in this state may contract with states other than the State of Alabama in order to satisfy the capacity assurance programs required by 42 U.S.C. §9604(c)(9) of the Comprehensive Environmental Response, Compensation, and Liability Act, as amended.
For the purpose of this section, the following additional terms are defined:
(1) AGREEMENT. Any interstate or regional contract or agreement made pursuant to capacity assurance requirements of Section 42 U.S.C. §9604(c)(9) of CERCLA and which one of the signatories to such contract or agreement is the State of Alabama.
(2) COMMERCIAL HAZARDOUS WASTE TREATMENT OR DISPOSAL FACILITY. A facility which receives for disposal only, or for treatment and disposal, hazardous wastes that are not generated on-site and to which facility a fee is paid or other consideration given for such treatment or disposal.
(3) OPERATOR. The person responsible for overall operations of a commercial hazardous waste treatment or disposal facility.
(4) REGION(AL). Region(al) shall mean any or all of the following states: Alabama, Arkansas, Florida, Georgia, Kentucky, Louisiana, Mississippi, North Carolina, South Carolina, and Tennessee.
(5) STATE OF GENERATION. A state of the United States in which the hazardous waste is generated in the form in which it is received by a commercial hazardous waste treatment or disposal facility located in Alabama for treatment or disposal. (Acts 1978, 2nd Ex. Sess., No. 129, p. 1843, §11; Acts 1982, No. 82-612, p. 1111, §14(a)(6); Acts 1987, No. 87-807, p. 1590, §8; Acts 1989, No. 89-788, p. 1572, §2.)
The department, acting through the commission, is authorized to promulgate a permit program for hazardous waste management practices and, acting through the commission, to promulgate criteria for issuing permits and rules identifying procedures for obtaining permits.
Except as provided by this subsection or subsections (i) and ( j) of this section, no person shall engage in the transportation, treatment, storage or disposal of hazardous waste without having applied for and obtained a permit from the department issued under authority of this section. The department, acting through the commission, may promulgate rules which exempt certain hazardous waste management practices from the requirement to obtain a permit under this section.
Unless specifically exempted from regulation by this chapter or rules promulgated under authority of this chapter, no person may commence or continue construction or operation of any hazardous waste treatment, storage or disposal facility without having applied for and obtained a permit from the department issued under authority of this section. Each permit issued under this section shall contain such terms and conditions as the director determines necessary to protect human health or the environment.
Permits for hazardous waste treatment, storage or disposal facilities shall be for a fixed term, not to exceed 10 years. Each permit for a land disposal facility shall be reviewed five years after the date of issuance or reissuance and shall be modified as necessary to assure that the facility continues to comply with the applicable requirements of this section and Section 22-30-16. Nothing in this subsection shall preclude the department from reviewing and modifying a permit at any time during its term.
Permits for hazardous waste transportation shall be for a fixed term, not to exceed three years. Nothing in this subsection shall preclude the department from reviewing and modifying a permit at any time during its term.
Any person proposing to transport hazardous waste or to construct or operate a hazardous waste treatment, storage or disposal facility shall submit, prior to issuance of any permit, such financial assurance in such form and amount as the department, acting through the commission, may specify by rule.
Before issuance of any permit for a hazardous waste treatment, storage or disposal facility, the department shall give notice of the application therefor to the local governing bodies having jurisdiction over the facility and the citizens of the county in which the facility is to be located, receive public comment, and may, where significant interest is expressed or on its own initiative, hold a public hearing on the application.
Upon a determination by the department that a facility for which an application has been received is in compliance with the requirements of this section, Section 22-30-16 and the applicable rules and regulations promulgated under authority of this chapter, the department shall issue a permit for such facility. In the event permit applicants propose modification of existing facilities, or in the event the department determines that modifications are necessary to conform to the requirements under this section, Section 22-30-16 or applicable rules and regulations promulgated under authority of this chapter, the permit shall specify the time allowed to complete the modifications. (i) Interim status.
(1) Any person who a. Owns or operates a facility required to have a permit under this section which facility 1. Was in existence on November 19, 1980, or 2. Is in existence on the effective date of statutory or regulatory changes under this chapter which render the facility subject to the requirement to have a permit under this section, and b. Has complied with the requirements of Section 3010(a) of the RCRA, and c. Has made an application for a permit under this section shall be treated as having been issued such permit until such time as final administrative disposition of such permit is made, unless the department proves that final administrative disposition of such application has not been made because of the failure of the applicant to furnish information reasonably required or requested in order to process the application. This subsection shall not apply to any facility which has previously been denied a permit under this section or if authority to operate the facility under this section has been previously terminated.
(2) Land disposal facilities which had qualified for federal interim status prior to November 8, 1984, and which failed to fully comply with the requirements of Section 3005(e)(2) of the RCRA by November 8, 1985, shall not be eligible for interim status under this subsection.
(3) In the case of each land disposal facility which is in existence on the effective date of statutory or regulatory changes under this act that render the facility subject to the requirement to have a permit under this section and which is granted interim status under this subsection, interim status shall terminate on the date 12 months after the date on which the facility first becomes subject to such permit requirement unless the owner or operator of such facility: a. Applies for a final determination regarding the issuance of a permit under subsection (c) of this section for such facility not later than 12 months after the date on which the facility first becomes subject to such permit requirement; and b. Certifies that such facility is in compliance with all applicable groundwater monitoring and financial responsibility requirements.
(4) The department, acting through the commission, shall promulgate rules and regulations establishing such additional requirements regarding qualifications for receiving and retaining interim status as may be deemed necessary to protect human health or the environment or to be consistent with federal interim status requirements. ( j) No permit shall be required under this section in order to construct a facility if such facility is constructed pursuant to an approval issued by the Administrator of the United States Environmental Protection Agency under Section 6 (e) of the Federal Toxic Substances Control Act for the incineration of polychlorinated biphenyls and any person owning or operating such a facility may at any time after operation or construction of such facility has begun, file an application for a permit pursuant to this section authorizing such facility to incinerate hazardous waste identified or listed under this chapter.
Upon a determination by the department of noncompliance by a facility or site having a permit or interim status under this section with the requirements of this chapter, the rules or regulations promulgated under authority of this chapter, a permit issued under authority of this chapter or any order issued under authority of this chapter, the department may suspend or revoke such permit or suspend or terminate such interim status.
Nothing in this act shall be construed to affect the applicability or effect of the Minus Act, Section 22-30-5.1. (Acts 1978, 2nd Ex. Sess., No. 129, p. 1843, §12; Acts 1984, No. 84-50, §1; Acts 1987, No. 87-807, p. 1590, §9.)
The department, acting through the commission, is authorized to promulgate rules and regulations establishing such standards, applicable to generators of hazardous waste as may be necessary to protect human health or the environment. Such standards shall include but not be limited to the following:
(1) Determining if solid wastes generated are hazardous wastes as defined by this chapter;
(2) Proper labeling of hazardous wastes;
(3) Assuring that all hazardous wastes generated are treated, or disposed of at treatment, storage or disposal facilities which: a. If in state, are permitted or have interim status under this chapter; or b. If out of state, are permitted or have interim status from a state authorized under Section 3006 of the RCRA to operate a hazardous waste permitting program in lieu of the federal program or are permitted or have interim status under the RCRA;
(4) Maintaining records of hazardous waste produced, generated, treated, stored or disposed of as may be required by the department, which records accurately identify the quantity of such waste, the constituents thereof which are significant in quantity or in potential harm to human health or the environment and the disposition of such waste;
(5) Using appropriate containers for such hazardous waste;
(6) Furnishing information on the general chemical composition of such hazardous waste to persons transporting, treating, storing or disposing of such wastes;
(7) Using the Manifest System under Section 22-30-17 for all hazardous waste transported from the site of generation to a treatment, storage or disposal facility;
(8) Submitting reports to the department at such times as the department deems necessary, setting out: a. The quantities and nature of hazardous waste identified or listed under this chapter that the generator has generated during a particular time period; b. The disposition of all hazardous waste reported under paragraph a of this subdivision; c. The efforts taken during the time period to reduce the volume and toxicity of waste generated; and d. The changes in volume and toxicity actually achieved during the time period in comparison with previous years, to the extent that such information is available for years prior to the enactment of this requirement.
(9) The manifest required under this section shall contain a certification by the generator that: a. The generator of the hazardous waste has a program in place to reduce the volume or quantity and toxicity of such waste to the degree determined by the generator to be economically practicable; and b. The proposed method of treatment, storage or disposal is the practicable method currently available to the generator which minimizes the present and future threat to human health and the environment.
The department, acting through the commission, is authorized to promulgate rules and regulations establishing such standards, applicable to generators of hazardous waste in a total quantity of greater than 100 kilograms but less than 1,000 kilograms during a calendar month as may be necessary to protect human health and the environment. Such standards, including requirements for the preparation of hazardous waste manifests, may vary from the standards applicable to generators of hazardous waste in a total quantity of 1,000 kilograms or greater during a calendar month, but such standards shall be sufficient to protect human health and the environment. (Acts 1978, 2nd Ex. Sess., No. 129, p. 1843, §14; Acts 1987, No. 87-807, p. 1590, §10.)
Subject to Section 22-30-21, the department, acting through the commission, is authorized to promulgate regulations establishing such standards, applicable to transporters of hazardous waste identified or listed under this chapter, as may be necessary to protect human health or the environment. Such standards shall include but not be limited to the following:
(1) Unless exempted from regulation by this chapter or rules promulgated under authority of this chapter, obtaining a permit from the department;
(2) Completing the manifest form in conjunction with the generator;
(3) Assuring that all hazardous wastes are transported to the permitted or interim status hazardous waste treatment, storage facility or disposal facility or alternate facility designated on the manifest or, if rejected by such facility, returned to the generator;
(4) Maintaining records of hazardous waste transported, and their source and delivery points; and
(5) Transporting such waste only if properly labeled. (Acts 1978, 2nd Ex. Sess., No. 129, p. 1843, §15; Acts 1984, No. 84-50, §1; Acts 1987, No. 87-807, p. 1590, §11.)
Repealed by Act 98-493, p. 952, §5, effective August 1, 1998. (Acts 1987, No. 87-606, p. 1055, §1.)
HAZARDOUS WASTE DISPOSAL SITE OPERATORS.
The department, acting through the commission, is authorized to promulgate rules and regulations establishing such standards, applicable to owners and operators of hazardous waste treatment, storage or disposal facilities as may be necessary to protect human health or the environment. In establishing such standards, the department may, where appropriate, distinguish in such standards between requirements appropriate for new facilities and for facilities in existence on the date of promulgation of such regulations. Such standards shall include but not be limited to the following:
(1) Unless exempted from regulation by this chapter or rules promulgated under authority of this chapter, obtaining a permit from the department or interim status for each treatment, storage or disposal facility;
(2) Assuring that all hazardous wastes are stored, treated or disposed of in accordance with the applicable rules and regulations, standards, criteria and guidelines promulgated by the department;
(3) Maintaining records of all hazardous wastes stored, treated or disposed of, the manner in which such wastes were stored, treated or disposed of and the reporting of any new processing or disposal monthly;
(4) Developing contingency plans for effective action to minimize unanticipated damage from treatment, storage or disposal of hazardous waste;
(5) Satisfactory reporting, monitoring, and inspection for and compliance with the manifest system;
(6) Compliance with rules and regulations of the department concerning the location, design and construction of such hazardous waste treatment, disposal or storage facilities;
(7) Establishing and maintaining financial assurance in such form and amount as the department may specify by rule or regulation. The department may provide that, among other forms, such financial assurance may be established and maintained by a corporate guarantee from the owner's or operator's parent corporation.
(8) Requirements for disposing of nonhazardous liquid wastes in landfills subject to the permitting or interim status requirements of Section 22-30-12;
(9) Prohibiting the storage of hazardous waste which has been prohibited from one of more methods of land disposal by the RCRA or regulations promulgated thereunder unless such storage is solely for the purpose of accumulation of such quantities of hazardous waste as are necessary to facilitate proper recovery, treatment or disposal;
(10) Monitoring and control of air emissions at hazardous waste treatment, storage and disposal facilities, including but not limited to open tanks, surface impoundments and landfills, as may be necessary to protect human health or the environment; and
(11) The maintenance and operation of such facilities and observance of such additional qualifications as to ownership, methods of operation, training of personnel and financial responsibility, including financial responsibility for corrective action, as may be deemed necessary or desirable by the department.
Financial responsibility as required by subdivisions (7) and (11) of subsection (a) of this section and subsection (f) of Section 22-30-12 shall be subject to the following:
(1) In any case where the owner or operator is in bankruptcy, reorganization or arrangement pursuant to the Federal Bankruptcy Code or where, with reasonable diligence, jurisdiction in any state or federal court cannot be obtained over an owner or operator likely to be solvent at the time of judgment, any claim arising from conduct for which evidence of financial responsibility must be provided under this section or Section 22-30-12 or rules or regulations promulgated under said sections may be asserted directly against the guarantor providing such evidence of financial responsibility. In the case of any action pursuant to this subsection, such guarantor shall be entitled to invoke all rights and defenses which would have been available to the owner or operator if an action had been brought against the owner or operator by the claimant and which would have been available to the guarantor if an action had been brought against the guarantor by the owner or operator.
(2) The total liability of any guarantor shall be limited to the aggregate amount which the guarantor has provided as evidence of financial responsibility to the owner or operator under the requirements of this section or Section 22-30-12 or rules or regulations promulgated under said sections. Nothing in this subsection shall be construed to limit any other statutory, contractual or common law liability of a guarantor to its owner or operator.
(3) For the purposes of this subsection, the term "guarantor" means any person, other than the owner or operator, who provides evidence of financial responsibility for an owner or operator under this section or Section 22-30-12 or rules or regulations promulgated under said sections.
Standards promulgated under this section and permits issued under authority of Section 22-30-12 shall require corrective action for all releases of hazardous waste or constituents from any solid waste management unit at a treatment, storage, or disposal facility seeking a permit under this chapter, regardless of the time at which waste was placed in such unit. Where corrective action cannot be completed prior to issuance of such permit, the permit shall contain schedules of compliance for such corrective actions and assurances of financial responsibility for completing such corrective actions.
The standards for corrective actions at treatment, storage and disposal facilities shall require that corrective action be taken beyond the facility boundary where necessary to protect human health or the environment unless the owner or operator of the facility concerned demonstrates to the satisfaction of the department that, despite the owner or operator's best efforts, the owner or operator was unable to obtain the necessary permission to undertake such action. Such rules and regulations shall apply to:
(1) All facilities operating under permits issued under Section 22-30-12; and
(2) All landfills, surface impoundments and waste pile units, including any new units, replacements of existing units or lateral expansions of existing units, which receive or have received waste after July 26, 1982.
The department, acting through the commission, is authorized to promulgate rules and regulations establishing such standards as are necessary to assure that hazardous wastes passing through sewer systems to publicly owned treatment works are adequately controlled to protect human health or the environment. (Acts 1978, 2nd Ex. Sess., No. 129, p. 1843, §16; Acts 1981, No. 81-863, p. 1650, §1; Acts 1984, No. 84- 50, p. 57, §1; Acts 1987, No. 87-807, p. 1590, §12.)
The department shall develop and, acting through the commission, promulgate a manifest.
A manifest shall be required to accompany transportation, for off-site storage, treatment or disposal of hazardous waste, provided, however, that regarding bulk shipments by rail or water, a shipping paper may be substituted for the manifest if the shipping paper meets the requirements set out in the rules and regulations promulgated under this chapter. The manifest shall be originated by the hazardous waste generator and shall identify the hazardous waste transported, the quantity of such waste, and such other information as the department may require.
A copy of each complete manifest shall be forwarded monthly to the department by owners or operators treating, storing or disposing of hazardous wastes received from off-site. (Acts 1978, 2nd Ex. Sess., No. 129, p. 1843, §17; Acts 1984, No. 84-50, p. 57, §1; Acts 1987, No. 87-807, p. 1590, §13.)
Every generator, transporter, and owner and operator of a treatment, storage or disposal facility of hazardous wastes shall establish and maintain such records for a three-year period, make such reports and furnish such information pertaining to the generation, transportation, treatment, storage or disposal of said waste, and install, use and maintain such monitoring equipment or methods, sample such wastes, materials, soils or waters, in accordance with such methods and procedures, at such locations and times, as the department shall require. The retention period for all records required to be maintained by this chapter or rules and regulations promulgated under this chapter is automatically extended during the period of any unresolved enforcement action regarding the facility or as requested by the department. Any records, reports or information obtained under this chapter shall be available to the public; except, that upon a showing satisfactory to the department by the person submitting the records, reports or information that the records, reports or information, or a particular part thereof, other than manifests and reports showing the quantities and characteristics of hazardous wastes generated, transported, treated, stored or disposed by any person, to which the department has access, if made public, would divulge production or sales figures or methods, processes or production unique to such person or would otherwise tend to affect adversely the competitive position of such person by revealing trade secrets, the department shall consider such record, report or information, or a particular part thereof, confidential in the administration of this chapter. If the department denies a request for information and the requester substantially prevails on judicial review, the court may award reasonable attorney fees, and other litigation costs reasonably incurred, to the requester. Nothing herein shall be construed to prevent disclosures of any such reports, records or information to federal, state or local representatives as necessary for the purposes of the administration of any federal, or state hazardous waste control laws or when relevant in any proceeding under such laws. (Acts 1978, 2nd Ex. Sess., No. 129, p. 1843, §18; Acts 1984, No. 84-50, p. 57, §1; Acts 1985, No. 85-751, p. 1244, §1; Acts 1987, No. 87-807, p. 1590, §14.)
Whenever, on the basis of any information, the department determines that any person is in violation of any requirement of this chapter, any rule or regulation promulgated by the department or any permit issued under authority granted by this chapter, the department may issue an order requiring compliance immediately or within a specified time period, and, in cases where an imminent threat to human health or the environment is demonstrated, suspend operations causing such threat until the department determines that adequate steps are being taken to correct such violations.
Whenever, on the basis of any information, the department determines that there is or has been a release of hazardous waste into the environment from a facility authorized to operate under Section 22-30-12(i), the department may issue an order requiring corrective action or such other response measure as it deems necessary to protect human health or the environment.
Any order issued pursuant to this section or Section 22-22A-5 may include a suspension or revocation of permit issued under this chapter or a suspension or termination of authorization to operate under Section 22-30-12(i) and shall state with reasonable specificity the nature of the required corrective action or other response measure and shall specify a time for compliance.
For the purposes of developing or assisting in the development of any regulation or enforcing the provisions of this chapter, duly designated officers, employees or representatives of the department are authorized to enter, at reasonable times, any establishment or other place maintained by any person where hazardous wastes are generated, stored, treated or disposed of or transported from, and such duly designated officers, employees or representatives of the department are authorized to enter at reasonable times, any premises where records required to be maintained under this chapter, rules or regulations promulgated under this chapter or permits or orders issued under this chapter are maintained and to inspect and copy such records. Each such inspection shall be commenced and completed with reasonable promptness. If the duly designated officer, employee or representative obtains any samples prior to leaving the premises, such officer, employee or representative shall give to the owner, operator or agent in charge a receipt describing the sample obtained and, if requested, a portion of each sample equal in volume or weight to the portion obtained. If any analysis is made of such sample, a copy of the results of such analysis shall be furnished promptly to the owner, operator or agent in charge. Any records, reports or information obtained by any duly designated officer, employee or representative of the department from any person under this section shall be subject to the provisions of Sections 22-30-9 and 22-30-18 concerning trade secrets and confidentiality.
Any person who intentionally, knowingly, recklessly or with criminal negligence:
(1) Transports or causes to be transported any hazardous waste identified or listed under this chapter to a facility or site which does not have a permit or interim status under Section 22-30-12;
(2) Treats, stores or disposes of any hazardous waste identified or listed under this chapter without having obtained a permit or interim status therefor under this chapter; provided, however, that any generator of a hazardous waste identified or listed under this chapter who stores such waste on-site in compliance with the applicable rules promulgated under this chapter for 90 days or less shall not be in violation of this subsection;
(3) Through his handling of any hazardous waste allows such waste to contaminate groundwater without having obtained a permit under this chapter; or, if permitted, violates the conditions of such permit;
(4) Makes, furnishes or files any material false statement, representation or omission in any application, label, manifest, record, report, permit or other document filed, maintained or used for purposes of compliance with this chapter;
(5) Destroys, alters, conceals or fails to maintain or file any application, label, manifest, record, report or other document required to be maintained or filed for purposes of compliance with this chapter; or
(6) Violates any provision of this chapter, any rule or regulation promulgated by the department, any provision of any permit issued by the department or any provision of any order issued under this chapter shall, upon conviction, be subject to a term of imprisonment of not more than 10 years nor less than one year and one day and in addition, may be fined not more than $50,000.00 for each violation; provided that if the conviction is for a violation committed after a first conviction of such person, under this chapter, such person shall be subject to a term of imprisonment of not more than 20 years nor less than two years and in addition, may be fined not more than $100,000.00 for each violation. Each day such violation continues shall constitute a separate violation for purposes of this subsection. (Acts 1978, 2nd Ex. Sess., No. 129, p. 1843, §19; Acts 1981, No. 81-863, p. 1650, §2; Acts 1984, No. 84- 50, p. 57, §1; Acts 1984, 2nd Ex. Sess., No. 85-45, p. 52, §1; Acts 1986, No. 86-542, p. 1053, §9; Acts 1987, No. 87-807, p. 1590, §15.)
To carry out the provisions and purposes of this chapter, the department is authorized and empowered to:
(1) Perform any and all acts necessary to carry out the purposes and requirements of this chapter relating to the promulgation and enforcement of criteria, standards, rules and regulations;
(2) Administer and enforce the provisions of this chapter and all rules and regulations and orders promulgated or issued hereunder;
(3) Enter into agreements, contracts or cooperative arrangements, under such terms and conditions as the department deems appropriate, with other state, federal or interstate agencies, local government units, political subdivisions, educational institutions or other organizations or persons;
(4) Receive financial and technical assistance from the federal government and other public or private agencies;
(5) Participate in related programs with the federal government, other states, interstate agencies or other public or private agencies or organizations;
(6) Establish adequate fiscal controls and accounting procedures to assure proper disbursement of and accounting for funds appropriated or otherwise provided for the purpose of administering this chapter;
(7) Maintain such records under such conditions as may be required to fulfill the provisions of this chapter;
(8) Delegate those responsibilities and duties as deemed appropriate for the purpose of administering the requirements of this chapter;
(9) Acting through the commission, promulgate such rules and regulations as are necessary and appropriate to carry out the purposes of this chapter;
(10) Issue such orders as are necessary to carry out the purposes of this chapter; and
(11) Enter upon, during reasonable hours, all generation, transportation, treatment, storage or disposal facilities owned or operated by persons subject to this chapter to inspect, monitor or observe such generation, transportation, treatment, storage or disposal facilities. (Acts 1978, 2nd Ex. Sess., No. 129, p. 1843, §20; Acts 1987, No. 87-807, p. 1590, §16.)
The provisions of this chapter shall apply to transporters regulated under the provisions of P.L. 91-458, enacted by the congress of the United States, October 16, 1970; provided, however, such transporters shall be subject only to standards equivalent to and no more stringent than standards in the Resource, Conservation and Recovery Act of 1976, as amended, 42 U.S.C. §6901 et seq., or regulations promulgated thereunder. (Acts 1978, 2nd Ex. Sess., No. 129, p. 1843, §21; Acts 1984, No. 84-50, §2.)
This chapter is intended to supplement existing law, and no part thereof shall be construed to repeal any existing laws enacted for the protection of the public health, the protection, maintenance and improvement of the quality of public water supplies or the control of radiation. (Acts 1978, 2nd Ex. Sess., No. 129, p. 1843, §24.)