LDEQ's Proposed Revisions to the Solid Waste Regulations
The LDEQ has published a proposed update to the solid waste regulations. No. SW053. A public hearing will be held on April 27, 2011 and comments are due by May 4, 2011.
The proposed rule contains revisions to the regulations which LDEQ states "will change the way solid waste permits are issued along with the application process for solid waste permits." Notice of Intent, SW053. Several of the more important revisions will be highlighted.
1. Non-Processing Transfer Stations
The definition of non-processing transfer station is being amended in two respects. The proposed rule amends the definition to state that waste may be transferred "directly or indirectly" from collection vehicles to transport vehicles. Presumably, this will allow some sort of tipping floor onto which collection trucks may deposit waste prior to its placement into transport vehicles. Secondly, "compaction used for the reduction of volume in waste" (which is a form of processing) is now allowed at a non-processing transfer station. A conforming amendment to the definition of process is being made.
2. Buffer Zones
To fulfill the requirements of Act 983 of 2010, the buffer zone requirement is being increased at Type I and II disposal facilities (Section 709), Type I-A and II-A processing facilities (Section 717), and Type III disposal and processing facilities (Section 719).
Generally, in addition to other buffer zone requirements, a buffer zone of 300 feet is now required between the facility and the property line "where the property line is adjacent to a structure currently being used as a church and having been used as a church prior to the submittal of the" application. This requirements does not apply to a landfill or disposal facility existing prior to April 1, 2010, to any portion of any such facility that has been closed or ceased operations, or to future expansions of the permitted disposal area of any such facility.
It should be noted that Act 983 states that "no solid waste landfill or any solid waste disposal facility which receives residential or commercial solid waste shall store, process, or dispose of such waste" within 300 feet of a church. The 300 foot requirement, as written in the regulation, is broader than the statutory requirement as the regulation applies to processing facilities that may not dispose of 'such waste.' See Proposed Sections 717 and 719. Additionally, if the phrase 'which receives residential or commercial solid waste' applies to solid waste landfills, the regulation is again broader than the statutory prohibition as the regulation applies to Type I (industrial waste) and Type II (residential and commercial) landfills. Proposed Section 709.
In addition to the new 300 foot buffer from a church at Type III facilities, a new 200 foot buffer zone is established for all new facilities. Proposed Section 719. This requirements does not apply to "any facility existing on" the date the proposed regulation is promulgated, to any portion of any such facility that has been closed or ceased operations, or to future expansions of the permitted disposal area of any such facility. As a result, there will be four separate buffer zone requirements at Type III facilities - 50 feet for existing facilities, 200 feet for new facilities permitted after the effective date of the regulation and for Type III air curtain destructors and composting facilities that receive putrescible, residential, or commercial waste, 300 feet from a church for facilities permitted after April 10, 2010, and 1,000 feet from a dwelling for air curtain destructors.
3. Certificates of Compliance
To fulfill the requirements of Act 982 of 2010, LDEQ proposes that every permitted facility "submit an annual certification of compliance." Proposed Section 525. The certification will include a standard Part I portion and a site-specific Part II portion. The certification, which must be signed by a responsible official (a definition is included in the new rule), must identify "each deviation from specific permit conditions," the steps taken to correct the deviation, and the steps taken to prevent the deviation from re-occurring. The proposed rule also specifies approximately twenty items that must be certified on an annual basis.
While the merits of this approach for LDEQ are evident, there is no doubt that this proposed regulation is a fundamental 'game-changer' in the LDEQ - solid waste facility relationship. First, because the facility has certified that the 'deviation' occurred, LDEQ is relieved of the burden of providing independent evidence, based on its own investigation, that the reported violation occurred. Secondly, it provides LDEQ with leverage in penalty resolution discussions. LDEQ may add any 'deviations' to the list of issues to be settled, thus increasing the amount of the penalty settlement amount. Plus, because it is a criminal offense to knowingly and willfully make a false statement in required submissions to LDEQ (La. R.S. 30:2025(F)(2)), LDEQ may threaten to criminalize minor mistakes or omissions in reporting or a failure to report something that LDEQ later considers to be a violation.
a. Pre-application Duties
First, the prospective applicant must conduct a capacity evaluation regarding the need for the type of facility within the proposed service area of the facility. The results of the evaluation must be forwarded to the LDEQ, who shall respond within 90 days and "shall indicate the [LDEQ's] concurrence or non-concurrence." Proposed Section 513.B.1. Two points regarding this proposed provision. It does not seem to apply to Type I-A or II-A processing facilities. Proposed Section 513.B.9. Second, the standard or basis for LDEQ's decision of 'concurrence or non-concurrence' is not established, nor is the consequence of LDEQ's non-concurrence. In other words, what is LDEQ basing its decision on? Is it concurring in the evaluation's methodology or the need for a new facility? What happens if LDEQ does not concur? May the applicant still submit the application? The vagueness of this provision will likely lead to problems of interpretation.
Second, the prospective applicant must obtain written confirmation from the local governing authority that the facility is or will be in compliance with all existing local zoning or land use restrictions. Proposed Section 513.B.2. The written confirmation must be provided to LDEQ "for review." If the local governing authority does not respond within 90 days of the request by the prospective applicant, the application may be filed and LDEQ will make an attempt to obtain the written confirmation. If LDEQ does not receive a response, LDEQ will consider the applicant in compliance within local zoning and land use restriction. As with the previous provision, it does not seem to apply to Type I-A or II-A processing facilities. Proposed Section 513.B.9.
Third, a prospective applicant must publish a notice of intent to submit an application at least 45 days prior to the submission and then, after submission of the application, the applicant must publish a notice of the application's submission within 45 days of the date of submission. Proposed Sections 513.B.3 and 513.B.4.
b. Permit Applications
The LDEQ has also changed the permit application for solid waste facilities. Section 519 will now include all the general items required for inclusion in permit applications. Most of the provisions of Sections 522 and 523 have simply been moved from those sections (which are repealed) into the expanded Section 519. LDEQ seems to contemplate a standardized permit application based on the type of facility for which the applicant is applying. Thus, it seems that the application will include applicable information from the expanded Section 519.B and any applicable information specific to that type of facility found in the solid waste regulations (i.e., Chapter 7 standards).
Although LDEQ states in the Notice of Intent that the rule will "allow a more direct permit approach that will limit the need for notices of deficiencies," the substantive changes to the regulations seem to be relatively few. The same information must be submitted pursuant to the new Section 519.B as was required under the prior rule.
c. New Permit Types
To fulfill the requirements of Act 153 of 2010, LDEQ includes a definition of regulatory permit, which is a "written authorization promulgated into the Solid Waste Regulations for . a facility used or intended to be used to process or dispose of solid waste." LDEQ will have to conduct additional rule-making for specific types of regulatory permits. See Proposed Section 509.A.4.
LDEQ also identifies general permits and closure permits. A general permit is a "written authorization issued by [LDEQ] to allow for a specific activity or type of operation, not based on a specific site, to process or dispose of solid waste." A closure permit is a "written authorization issued by [LDEQ] to a person for the closure of a facility used to process or dispose of solid waste." the issuance of general permits and regulatory permits. Proposed Sections 509.A.3 and 509.A.5.
d. Start-Up Inspections
The proposed rule also provides some flexibility regarding the requirement to have a start-up inspection. Proposed Section 407.C. LDEQ may conduct a start-up inspection upon issuance of a permit, modifications requiring upgrades to an existing unit, or construction of a newly permitted unit. A professional engineer must submit a certification of construction. If LDEQ decides to conduct a start-up inspection, it will be initiated within 15 days of the receipt of the certification. Whether or not a start-up inspection is conducted, LDEQ will issue an approval or notice of deficiency within 30 days of receipt of the certification.
While this provision seems to create flexibility, another provision mandates a start-up inspection in certain circumstances. Proposed Section 513.A.2. In a situation when a final permit has been issued prior to the date of the rule's promulgation but LDEQ has not issued an order to commence prior to the date of the rule's promulgation, a start-up inspection shall be conducted within 15 working days of receipt of the construction certification.
John B. King's principal areas of practice include environmental and oil and gas regulatory permitting and defense, compliance assistance, toxic tort defense, and litigation.