IDEM Establishes New Policy for Late Solid Waste Renewal Applications
By Jennifer K. Thompson, Partner, Bingham Greenebaum Doll LLP
The Indiana Department of Environmental Management’s (IDEM’s) Office of Land Quality has adopted a policy entitled Solid Waste Permits and Registrations – Late Renewal Application Policy, Non-Rule Policy Document No. WASTE-0062-NPD. IDEM created the policy to establish a consistent approach for handling late permit/registration renewal applications from the following regulated operations: solid waste land disposal facilities; solid waste processing facilities; waste tire storage sites, transporters and processing facilities; biomass digestion or gasification facilities; mobile home salvage facilities; and facilities operating pursuant to an alternative fuel source registration.
Pursuant to IC § 13-15-3-6, if a timely renewal application is submitted to IDEM, these approvals are administratively extended until a final determination is made on the renewal application. Therefore, if a renewal application is not timely submitted to IDEM, IDEM must either try to review the late submittal and issue the approval before the existing approval expires or the facility must cease operations until the renewal is issued. Late submittals have also forced IDEM to set aside timely submitted renewal applications in order to meet the tight deadlines for the late applications.
The new policy addresses the late renewal applications through IDEM’s Office of Enforcement. IDEM will issue a Notice of Violation for failure to submit a timely renewal application and will offer the facility the opportunity to enter into an Agreed Order which assesses a non-negotiable civil penalty and establishes a new renewal application due date. According to the guidance, once the permittee complies with the terms of the Agreed Order, the permittee may continue to operate under the terms of its current permit or registration until a new decision is issued by IDEM. The civil penalties are intended to provide motivation to submit timely renewal applications without causing a significant hardship, and are lower than the usual matrix penalties calculated in accordance with IDEM’s Civil Penalty Policy (CPP), Non-Rule Policy Document No. ENFORCEMENT-99-0002-NPD. The penalties set forth in the new policy for failure to submit a timely renewal application are as follows:
a. Solid Waste Disposal Facilities: $500
b. Transfer Station: $400
c. Solid Waste Processing Facility: $400
d. Waste Tire Storage and/or Processing Facility: $250
e. Waste Tire Transporter: $100
f. Biomass Anaerobic Digestion or Biomass Gasification Facility: $100
g. Mobile Home Salvage Operation: $100
h. Alternative Fuel Source Facility: $100.
Although the penalties are low, they do not appear consistent with the renewal application fees for the regulated facilities. For instance, the renewal application fee for a restricted waste site Type I or II is $15,350 while there is no fee for a renewal for an Alternative Fuel Source Registration, yet the civil penalties for failure to submit a timely renewal application for these two types of facilities only differs by $400.
If a facility does not enter into an Agreed Order with IDEM as set forth in the guidance, and the facility operates without a permit, the facility will be subject to IDEM’s CPP.
Although the new guidance creates a procedure for IDEM to follow when renewal applications are not filed on time, it raises the following issues: (1) can IDEM issue a Notice of Violation to a facility for failure to submit a renewal application before its permit has expired (this creates an assumption that the facility intends/will operate past the expiration date of its current permit); (2) does IDEM has the authority to extend a permit through an Agreed Order which is not public noticed; (3) does this policy leave facilities vulnerable to third party suits; and (4) are the mandatory civil penalties equitable given the renewal application fees for each of the affected operations?
A copy of IDEM’s new guidance document can be accessed at http://www.in.gov/idem/4694.htm.
To view a complete PDF of the Environmental Letter March 2014 Issue, click HERE.