A.R.S. tit. 49 ch. 5 — Arizona Revised Statutes Title 49 Chapter 5 — Hazardous Waste Disposal

49-901. Definitions In this chapter, unless the context otherwise requires: 1. "Hazardous waste" means hazardous waste as defined in section 49-921. 2. "Hazardous waste disposal facility" means a hazardous waste disposal facility contracted for or operated by this state. 49-921. Definitions In this article, unless the context otherwise requires: 1. "Disposal" means discharging, depositing, injecting, dumping, spilling, leaking or placing hazardous waste into or on land or water so that hazardous waste or any constituent of hazardous waste may enter the environment, be emitted into the air or discharged into any waters, including groundwater. 2. "Facility" includes all contiguous land and structures, other appurtenances and improvements on the land used for treating, storing or disposing of hazardous waste. A facility may consist of several treatment, storage or disposal units. 3. "Federal act" means the solid waste disposal act, as amended by the resource conservation and recovery act of 1976 and the hazardous and solid waste amendments of 1984 (P.L. 94-580; 90 Stat. 2795). 4. "Generation" means the act or process of producing hazardous waste. 5. "Hazardous waste" means garbage, refuse, sludge from a waste treatment plant, water supply treatment plant or air pollution control facility, or other discarded materials, including solid, liquid, semisolid or contained gaseous material, resulting from industrial, commercial, mining and agricultural operations or from community activities which because of its quantity, concentration or physical, chemical or infectious characteristics may cause or significantly contribute to an increase in mortality or an increase in serious irreversible or incapacitating reversible illness or pose a substantial present or potential hazard to human health or the environment if improperly treated, stored, transported, disposed of or otherwise managed or any waste identified as hazardous pursuant to section 49-922. Hazardous waste does not include solid or dissolved material in domestic sewage, 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 (P.L. 92-500; 86 Stat. 816), as amended, or source, special nuclear or by-product material as defined by the atomic energy act of 1954 (68 Stat. 919), as amended. 6. "Key employee" means any person employed by an applicant or permittee in a supervisory capacity or empowered to make discretionary decisions with respect to the solid waste or hazardous waste operations of the business concern. Key employee does not include an employee exclusively engaged in the physical or mechanical collection, transportation, treatment, storage or disposal of solid or hazardous waste. 7. "Manifest" means the form 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. 8. "Person" means an individual, trust, firm, joint stock company, corporation, including a government corporation, partnership, association, state, municipality, commission, political subdivision of the state, interstate body or federal facility. 9. "Storage" means the holding of hazardous waste for a temporary period at the end of which the hazardous waste is treated, disposed of or stored elsewhere. 10. "Transportation" means the movement of hazardous waste by air, rail, highway or water. 11. "Treatment" means a method, technique or process designed to change the physical, chemical or biological character or composition of hazardous waste so as to neutralize such waste or to render such waste nonhazardous, safer for transport, amenable for recovery, amenable for storage or reduced in volume. 49-922. Department rules and standards; prohibited permittees A. The director shall adopt rules to establish a hazardous waste management program equivalent to and consistent with the federal hazardous waste regulations promulgated pursuant to subtitle C of the federal act. Federal hazardous waste regulations may be adopted by reference. The director shall not adopt a nonprocedural standard that is more stringent than or conflicts with those found in 40 Code of Federal Regulations parts 260 through 268, 270 through 272, 279 and 124. The director shall not identify a waste as hazardous if not so identified in the federal hazardous waste regulations unless the director finds, based on all the factors in 40 Code of Federal Regulations section 261.11(a)(1), (2), or (3), that the waste may cause or significantly contribute to an increase in serious irreversible or incapacitating reversible illness or pose a substantial present or potential hazard to human health or the environment when it is improperly treated, stored, transported, disposed or otherwise managed. B. These rules shall establish criteria and standards for the characteristics, identification, listing, generation, transportation, treatment, storage and disposal of hazardous waste within this state. In establishing the standards the director shall, where appropriate, distinguish between new and existing facilities. The criteria and standards shall include requirements respecting: 1. Maintaining records of hazardous waste identified under this article and the manner in which the waste is generated, transported, treated, stored or disposed. 2. Submitting reports, data, manifests and other information necessary to ensure compliance with such standards. 3. Transporting hazardous waste, including appropriate packaging, labeling and marking requirements and requirements respecting the use of a manifest system, which are consistent with the regulations of the state and United States departments of transportation governing transporting hazardous materials. 4. The operation, maintenance, location, design and construction of hazardous waste treatment, storage or disposal facilities, including such additional qualifications as to ownership, continuity of operation, contingency plans, corrective actions and abatement of continuing releases, monitoring and inspection programs, personnel training, closure and postclosure requirements and financial responsibility as may be necessary and appropriate. 5. Requiring a permit for a hazardous waste treatment, storage or disposal facility including the modification and termination of permits, the authority to continue activities and permits existing on July 27, 1983 consistent with the federal hazardous waste regulations and the payment of reasonable fees. The director shall establish and collect reasonable fees from the applicant to cover the cost of administrative services and other expenses associated with evaluating the application and issuing or denying the permit. The director shall establish by rule an application fee to cover the cost of administrative services and other expenses associated with evaluating the application and issuing or denying the permit, including a maximum fee. The fees shall be deposited, pursuant to sections 35-146 and 35-147, in the hazardous waste management fund established by section 49-927. 6. Providing the right of entry for inspection and sampling to ensure compliance with the standards. 7. Providing for appropriate public participation in developing, revising, implementing, amending and enforcing any rule, guideline, information or program under this article consistent with the federal hazardous waste program. C. The director may refuse to issue a permit for a facility for storage, treatment or disposal of hazardous waste to a person if any of the following applies: 1. The person fails to demonstrate sufficient reliability, expertise, integrity and competence to operate a hazardous waste facility. 2. The person has been convicted of, or pled guilty or no contest to, a felony in any state or federal court during the five years before the date of the permit application. 3. In the case of a corporation or business entity, if any of its officers, directors, partners, key employees or persons or business entities holding ten percent or more of its equity or debt liability has been convicted of, or pled guilty or no contest to, a felony in any state or federal court during the five years before the date of the permit application. D. This article does not affect the validity of any existing rules adopted by the director that are equivalent to and consistent with the federal hazardous waste regulations until new rules for hazardous waste are adopted. E. This article does not authorize the regulation of small quantity generators as defined by 40 Code Of Federal Regulations part 262 in a manner inconsistent with the federal hazardous waste regulations. However, the director may require reports of any small quantity generator or group of small quantity generators regarding the treatment, storage, transportation, disposal or management of hazardous waste if the hazardous waste of such generator or generators may pose a substantial present or potential hazard to human health or the environment when it is improperly treated, stored, transported, disposed or otherwise managed. 49-923. Compliance orders; civil penalties; injunctive relief A. If the director has reasonable cause to believe that a person is violating this article or a permit or rule issued or adopted pursuant to this article, the director may serve on the person an order requiring compliance with such provision, permit or rule. The order shall state with reasonable particularity the nature of the violation and shall specify either immediate compliance or a time period for compliance that the director determines is reasonable, taking into account the seriousness of the violation and any good faith efforts to comply with applicable legal requirements. The alleged violator may request a hearing pursuant to title 41, chapter 6, article 10. B. If a violator fails to take corrective action within the time specified in a compliance order issued pursuant to subsection A of this section, the director may issue an order assessing a civil penalty of not more than $1,000 for each day of continued noncompliance with the order. The alleged violator may request a hearing pursuant to title 41, chapter 6, article 10. An attorney or corporate officer or employee of a corporation may represent the corporation at that hearing. C. Before issuing an order assessing a civil penalty pursuant to subsection B of this section, the director shall give reasonable notice of the director's intent to issue the order and the circumstances of the case to the attorney general. D. If the director has reasonable cause to believe that an order issued pursuant to this section is being violated or that a person is engaging in an act or practice that constitutes a violation for which the director is authorized to issue an order pursuant to this section, the director or the attorney general may apply to the superior court in the county in which the violation is occurring for a temporary restraining order, preliminary injunction or permanent injunction. Such action has precedence over all other matters pending in the court. E. All civil penalties assessed pursuant to this section shall be deposited, pursuant to sections 35-146 and 35-147, in the state general fund. 49-924. Violations; civil penalty A. A person who violates this article or any permit, rule or order issued or adopted pursuant to this article is subject to a civil penalty not exceeding twenty-five thousand dollars for each day of violation. B. The attorney general shall bring an action to recover penalties under this section in the name of this state in the superior court in the county in which the violation occurred or in a county in which the department maintains an office. C. The director may suspend or revoke any permit issued to a person who violates this article or any permit, rule or order issued or adopted pursuant to this article, unless the director has previously assessed a civil penalty for the violation pursuant to section 49-923, subsection B. D. All civil penalties assessed pursuant to this section shall be deposited, pursuant to sections 35-146 and 35-147, in the state general fund. 49-925. Violation; classification; definition A. A person who knowingly does any of the following is guilty of a class 5 felony, a person who recklessly does any of the following is guilty of a class 6 felony and a person who knowingly or recklessly manifests an extreme indifference for human life in doing any of the following is guilty of a class 3 felony: 1. Transports any hazardous waste to a facility not authorized to receive that hazardous waste under this article or under the federal act. 2. Causes or allows any hazardous waste to be transported to a facility not authorized to receive that hazardous waste under this article or under the federal act. 3. Treats, stores, transports or disposes of hazardous waste without appropriate authority under this article or under the federal act. 4. Violates a material permit condition issued pursuant to this article or a material interim status standard adopted pursuant to this article. B. A person who knowingly does any of the following is guilty of a class 6 felony: 1. Fails to file a hazardous waste manifest required to be filed to comply with this article or the rules adopted pursuant to this article. 2. Transports, or causes to be transported, hazardous waste without a manifest as required under this article or the rules adopted pursuant to this article. C. The attorney general may enforce the provisions of this section. 49-926. Enforcement The attorney general may bring a civil or criminal action to enforce the provisions of this article or any statute relating to the production, distribution, storage, transportation or disposal of hazardous waste. 49-927. Hazardous waste management fund A. The hazardous waste management fund is established to be administered by the department. The fund consists of monies appropriated by the legislature, monies collected pursuant to section 49-931 and monies collected as fees for issuing permits under section 49-922, subsection B, paragraph 5. Monies in the fund are subject to legislative appropriation and are exempt from section 35-190 relating to lapsing of appropriations. On notice from the director, the state treasurer shall invest and divest monies in the fund as provided by section 35-313, and monies earned from investment shall be credited to the fund. B. Monies in the hazardous waste management fund shall be used for the following purposes: 1. Informing, educating and training the general public, treatment, storage and disposal facility operators, hazardous waste handlers and others. 2. Supporting statewide hazardous waste planning and program development activities. 3. Processing, issuing and maintaining permits for treatment, storage or disposal facilities. 4. Compliance monitoring, investigation and enforcement activities pertaining to generating, transporting, treating, storing and disposing of hazardous waste under this article. 5. Funding the pollution prevention technical assistance program established pursuant to section 49-965 and providing matching funds under section 6605 of the pollution prevention act of 1990 (P.L. 101-508). 6. Administering the pollution prevention program pursuant to article 4 of this chapter. C. Ten percent of the monies in the fund shall be transmitted to the emergency response fund established by section 49-132 to be used for staffing local emergency planning committees and equipping local fire departments, fire districts and public safety agencies for the development of hazardous materials emergency response teams. 49-928. Availability of information to the public A. Any record, reports or information obtained from any person pursuant to this chapter, including records, reports or information obtained or prepared by the director or a department employee, shall be available to the public, except that the information or a particular part of the information shall be considered confidential on either: 1. Notice from the person, accompanying the information, stating that the information or a particular part of the information, if made public, would divulge the trade secrets of the person as defined in section 49-201 or other information likely to cause substantial harm to the person's competitive position. 2. A determination by the attorney general that disclosure of the information or a particular part of the information would be detrimental to an ongoing criminal investigation or to an ongoing or contemplated civil enforcement action under this title in superior court. B. If the director, on his own or following a request for disclosure, disagrees with the confidentiality notice, he may request the attorney general to seek a court order authorizing disclosure. If a court order is sought, the person shall be served with a copy of the court filing and shall have twenty business days from the date of service to request a hearing on whether a court order should be issued. The hearing shall be conducted in camera, and any order resulting from the hearing is appealable as provided by law. The director may not disclose the confidential information until a court order authorizing disclosure has been obtained and becomes final. The court may award costs of litigation including reasonable attorney and expert witness fees to the prevailing party. C. Notwithstanding subsection A of this section, the following information obtained from any person pursuant to this chapter shall be available to the public: 1. The name and address of any permit applicant, permittee, generator or transporter. 2. The types and amounts of any hazardous wastes generated, stored, treated or disposed. 3. The types and amounts of any toxic substances released to the environment. D. Notwithstanding subsection A of this section, the director may disclose, with accompanying confidentiality notice, any records, reports or information obtained from any person under this article, including records, reports or information obtained by the director or department employees, to: 1. Other state employees concerned with administering this chapter or if the records, reports or information are relevant to any administrative or judicial proceeding under this chapter. 2. Employees of the United States environmental protection agency if such information is necessary or required to administer and implement or comply with federal statutes or regulations. 49-929. Annual registration of hazardous waste treatment, storage and disposal facilities, transporters and generators; fee; disposition of revenue A. All hazardous waste treatment, storage and disposal facilities, hazardous waste transporters and hazardous waste generators, except hazardous waste resource recovery facilities as defined in section 49-930, shall register annually with the department at the time and in the manner prescribed by the director. The registration is valid for one year from the date of registration. B. The application for registration shall be accompanied by a registration fee based on the following: 1. Hazardous waste treatment, storage and disposal facilities, $1,500 plus $2 per ton of hazardous waste received for treatment, storage for more than ten days or disposal during the preceding calendar year. 2. Hazardous waste transporters, $200. 3. Large quantity hazardous waste generators that generate one thousand kilograms per month or more, $300. 4. Small quantity hazardous waste generators that generate between one hundred and one thousand kilograms per month, $100. C. All monies collected under this section shall be deposited in the water quality assurance revolving fund established by section 49-282. The director may authorize expenditures from the fund, pursuant to section 49-282, subsection E, to pay the reasonable and necessary costs of administering the registration program. 49-930. Annual registration of hazardous waste resource recovery facilities; fee; maximum annual payment of fees and taxes; disposition of revenue; definitions A. All hazardous waste resource recovery facilities shall register annually with the department at the time and in the manner prescribed by the director. The registration is valid for one year after the date of registration. B. The application for registration shall be accompanied by a registration fee of $1,500 plus $2 per ton of hazardous waste received for resource recovery during the preceding calendar year, except that a person engaging in hazardous waste resource recovery is not required to pay fees and taxes listed in section 49-282, subsection A, paragraphs 2 through 8 in excess of the lesser of: 1. $10,000 in a calendar year per individual hazardous waste resource recovery site. 2. $25,000 in a calendar year per hazardous waste resource recovery entity. C. A person who pays such fees and taxes for hazardous waste resource recovery facilities in the amount specified in subsection B of this section may submit evidence of such payment to the appropriate entity in lieu of paying additional fees and taxes for that calendar year for hazardous waste resource recovery facilities. D. If a hazardous waste resource recovery facility is owned or operated by more than one person, the payment of fees or the compliance with this section for the facility by one person constitutes compliance by all other owners and operators. E. All monies collected under this section shall be deposited in the water quality assurance revolving fund established by section 49-282. The director may authorize expenditures from the fund, pursuant to section 49-282, subsection E, to pay the reasonable and necessary costs of administering the registration program. F. For the purposes of this section: 1. "Hazardous waste resource recovery entity" means a person that owns or operates more than one individual hazardous waste resource recovery site in this state. 2. "Hazardous waste resource recovery facility" means a facility that receives for recovery of material resources fifty or more tons per year of hazardous waste generated by a facility owned by a person other than the owner of the facility receiving the hazardous waste for recovery of material resources. 3. "Individual hazardous waste resource recovery site" means a hazardous waste resource recovery facility or group of hazardous waste resource recovery facilities located in a contiguous geographical area and owned or operated by the same person. 49-931. Hazardous waste fees; definitions A. The following fees apply: 1. A person that generates hazardous waste that is shipped off site shall pay a fee for each ton of waste generated. The department shall establish by rule a fee for the generation of hazardous waste that is shipped off site, including a maximum fee. Hazardous waste that is shipped off site to a facility that is in this state and that is owned or operated by the same person that generates the waste is exempt from the fees in this paragraph. 2. An owner or operator of a facility that disposes of hazardous waste shall pay a fee for each ton of waste disposed. The department shall establish by rule a fee for an owner or operator of a facility that disposes of hazardous waste, including a maximum fee. Hazardous waste that is disposed at a facility that is owned or operated by the same person that generates the waste is exempt from the fee in this paragraph. 3. A person that generates hazardous waste that is retained on site for disposal or that is shipped off site for disposal to a facility that is owned or operated by that generator shall pay a fee for each ton of hazardous waste delivered to the disposal facility. The department shall establish by rule a fee for each ton of hazardous waste delivered to the disposal facility, including a maximum fee. B. Each operator or person that is required to pay a fee as prescribed by this section shall make the fee payment as determined by the department. C. The department shall collect all fees due under this section and shall deposit, pursuant to sections 35-146 and 35-147, those fees in the hazardous waste management fund established by section 49-927. Each fee payment shall be accompanied by a form furnished by the department and completed by the operator or person. The form shall state the total volume or weight of hazardous waste generated or disposed at that facility during the payment period and shall provide any other information deemed necessary by the department. The operator or person shall sign the form. D. If an operator or person fails to pay the fee prescribed by this section, the operator or person is additionally liable for interest on the unpaid amount at the rate prescribed by section 44-1201. E. State agencies, including state universities, are not exempt from the fees prescribed by this section. F. For the purposes of this section: 1. "Generates" means the act or process of producing hazardous waste and includes importing hazardous waste into this state for disposal. 2. "Off site" means any transportation that is not on site as defined in section 49-851. 3. "Person" means an individual, trust, firm, joint stock company, corporation, including a government corporation, partnership, association, state, municipality, commission, political subdivision of this state, interstate body or federal facility. 49-932. Hazardous waste fuel penalty; disposition of revenue A. A hazardous waste fuel penalty of forty cents per gallon is established for hazardous waste fuel and hazardous waste that are burned for energy recovery and that are not generated by the operation of the business of the burner. B. The director shall collect the penalty established by subsection A of this section from the burner of the hazardous waste fuel or hazardous waste. C. Monies collected pursuant to subsection B of this section shall be deposited, pursuant to sections 35-146 and 35-147, in the state general fund. 49-941. Hazardous waste facilities; notice of site to property owners; time and area requirements A. Any agency or political subdivision of this state which is required to select or permit a possible permanent site for any facility designed to permanently store, treat or dispose of any hazardous waste shall send written notice of the selection of the possible permanent site by first class mail to property owners in the following areas: 1. If the proposed permanent site is in an unincorporated area, within a three mile radius of the outer boundaries of the proposed permanent site unless the three mile radius intersects a municipal corporate boundary. In such a case, property owners inside the municipal corporate boundary within three hundred feet of the outer boundary of the proposed permanent site shall be notified as well as those property owners outside the municipal corporate boundary within the three mile radius of the outer boundary of the proposed permanent site. 2. If the proposed permanent site is in an incorporated area, within a three hundred foot radius of the outer boundaries of the proposed permanent site. B. The notice required by subsection A shall be mailed to each owner of real property as shown on the list of property owners furnished by the county assessor and the department of revenue. Within fifteen days after a request for such a list, the county assessor and the department of revenue shall furnish to the agency or political subdivision a written list stating the name and address of each owner in the areas specified in subsection A. 49-942. Site selection by political subdivision; hearing; notice Before a political subdivision makes a final decision on a possible permanent site for a facility specified in section 49-941, the political subdivision shall hold a public hearing in the nearest public facility in the general vicinity of the proposed permanent sites, at which interested persons may appear and present their views. The political subdivision shall give notice of the hearing, to include both of the following: 1. Publication of notice in a daily or weekly newspaper of general circulation in the area of the proposed permanent site published once each week, beginning at least two weeks before the hearing. 2. Mailed notice as provided in section 49-941, sent at least two weeks before the hearing. 49-943. Agency grant of final permit; prerequisites Before any agency grants a final permit for a facility specified in section 49-941, the agency shall: 1. If the applicant is a political subdivision, require the applicant to certify that a public hearing concerning a possible permanent site selection for the facility has been held in the nearest public facility in the general vicinity of the proposed permanent site, at which interested persons were allowed to appear and present their views. 2. Hold a public hearing at least thirty days before a final decision concerning the permanent site, if such a hearing is warranted by the public interest, to be held in the nearest public facility in the general vicinity of the proposed permanent site, at which interested persons may appear and present their views. If such a hearing is held the agency shall send written notice of the selection of the possible permanent site as provided in section 49-941. 49-944. Exemption The provisions of this article shall not be construed to apply to any facility which receives funding under section 201 of the federal clean water act as amended (P.L. 97-117). 49-961. Definitions In this article, unless the context otherwise requires: 1. "Disposal" means discharging, depositing, injecting, dumping, spilling, leaking or placing a toxic substance or hazardous waste into or on land or water so that the toxic substance or hazardous waste or any constituent of hazardous waste may enter the environment, be emitted into the air or be released into or commingled with any waters, including groundwater. 2. "Facility" means all buildings, equipment, structures and other stationary items located on a single site or on contiguous or adjacent sites and owned or operated by the same person or by any person who controls, is controlled by or is under common control with any person. Facility does not include a household hazardous waste collection facility or a facility that is primarily engaged in receiving waste from off site and that has a permit issued or plan approved under this title for the storage, treatment or disposal of solid, special or hazardous waste. 3. "Generator" means a person who, by virtue of ownership, management or control, is responsible for causing or allowing to be caused the creation of hazardous waste. 4. "Hazardous waste" means hazardous waste as defined in section 49-921. 5. "Person" means an individual, the United States, this state or a public or private corporation, local government unit, public agency, partnership, association, firm, trust or estate or any other legal entity. 6. "Pollution" means the disposal of a toxic substance or hazardous waste into the air, land, surface water or groundwater. 7. "Pollution prevention" means operational procedures and processes and improvements in housekeeping or management techniques that reduce potential or actual releases of pollutants to the overall environment including all air, water and land resources affected by those pollutants. Pollution prevention includes any of the following: (a) Toxics use reduction, source reduction, recycling of wastes or secondary materials, waste minimization, reuse, reclamation, conservation and substitution. (b) Proportionate changes in the total volume, quantity or toxicity of a particular pollutant as prescribed in this subsection as the release of that pollutant changes as a result of production changes or other business changes. For the purposes of this subdivision, "business changes" includes improvements in operating practices, spill and leak prevention measures, inventory control and other changes that proportionately reduce or eliminate the release of pollutants to the overall environment but does not include the transfer or relocation of an operation or process to another facility in this state with no subsequent proportionate reduction in toxics use or the release of pollutants to the overall environment. (c) On-site or off-site treatment if that treatment can be shown to confer a higher degree of protection to the public health and safety and the environment than other technically and economically practicable waste reduction alternatives. 8. "Recycling" means a reuse, further use, reclamation or extraction through a process or activity that is separate from the process or activity that produced the waste stream but does not include combustion or incineration. 9. "Toxic substance" or "toxics" means a toxic chemical listed pursuant to the pollution prevention act of 1990 (42 United States Code section 13102 (3)). 10. "Treatment" has the same meaning as prescribed in 40 Code of Federal Regulations section 260.10 but does not include recycling. 49-962. Toxic data report; progress report; exemption A. A person who owns or operates a facility shall file a toxic data report on July 1 for the preceding calendar year if either of the following applies: 1. During the preceding calendar year, the owner or operator was required to file an annual toxic chemical release form for the facility pursuant to section 313 of the superfund amendments and reauthorization act of 1986 (P.L. 99-499). 2. During the preceding calendar year, the facility generated an average of one kilogram per month of acutely hazardous waste as defined in 40 Code of Federal Regulations part 261 or an average of one thousand kilograms per month of hazardous waste in a calendar year, exclusive of an episodic, accidental or remediation related release or occurrence. B. The owner or operator of a facility shall file the report prescribed in subsection A of this section on July 1 each year for the preceding calendar year until either of the following applies: 1. The facility ceases operation. 2. The facility does not meet the requirements of both: (a) Subsection A, paragraph 1 of this section. (b) Subsection A, paragraph 2 of this section, for two consecutive years. C. The toxic data report required in subsection A of this section shall include both of the following: 1. The report form required by the United States environmental protection agency pursuant to 42 United States Code section 13106. 2. Any annual progress report required to be submitted pursuant to section 49-963. 49-963. Pollution prevention plan; progress report; exemption A. A person who owns or operates a facility that meets the reporting requirements prescribed by section 49-962 shall prepare and implement a pollution prevention plan that addresses a reduction in the use of toxic substances and the generation of hazardous wastes. By January 1, 1994, the director shall establish a numeric goal for the state for waste minimization. By January 1, 1999 the director shall establish a numeric goal for the state for toxic use reduction. For purposes of this section, "toxic substance" does not include material used or produced in connection with a mining or metallurgical operation. B. By December 31, 1992, the following shall file a plan as prescribed by this section: 1. A facility that shipped off site for purposes other than recycling the lesser of: (a) Twelve thousand or more kilograms cumulative total of hazardous wastes in calendar year 1991. (b) An average of one thousand kilograms or more per month cumulative total of hazardous waste in calendar year 1991. 2. A facility that shipped off site for purposes other than recycling an average of one kilogram or more per month cumulative total of acutely hazardous wastes, as defined in 40 Code of Federal Regulations part 261, in calendar year 1991. C. By December 31, 1995, a facility that shipped off site for purposes other than recycling from ten thousand kilograms to twelve thousand kilograms cumulative total of hazardous wastes in calendar year 1994 shall file a plan as prescribed by this section. D. From and after December 31, 1994, a facility that uses in excess of ten thousand pounds in a calendar year of a toxic substance as defined in section 49-961 shall file a pollution prevention plan by December 31 of the following year covering those toxic substances that exceed the threshold quantity. From and after December 31, 1998, the director may adopt by rule threshold quantities of toxic substances different from those established pursuant to this section if the director determines there is sufficient evidence to establish any one of the following: 1. The chemical is known to cause or can reasonably be anticipated to cause significant acute adverse human health effects at concentration levels that are reasonably likely to exist beyond the boundaries of a facility site as a result of continuous or frequently recurring releases, or to cause or can reasonably be anticipated to cause a significant adverse effect on the environment of sufficient seriousness to warrant inclusion in the pollution planning program because of any of the following: (a) Its toxicity and persistence in the environment. (b) Its toxicity and tendency to bioaccumulate in the environment. 2. The chemical is known to cause or can reasonably be anticipated to cause in humans either of the following: (a) Cancer or teratogenic effects. (b) Serious or irreversible reproductive dysfunctions, neurological disorders, heritable genetic mutation or other chronic health effects. E. After December 31, 1992, a facility that meets the quantitative threshold filing requirements prescribed in subsection B of this section and that has not filed a plan with the department shall file a plan no later than December 31 of the following year. F. Notwithstanding any other provision of law, a person required to file a toxic data report under section 49-962, subsection A, paragraph 1 shall prepare, submit and begin to implement a pollution prevention plan no later than December 31, 1992. G. A facility required to prepare a pollution prevention plan under this section shall maintain and implement that plan until the facility ceases operation or the facility no longer meets the quantitative threshold filing requirements prescribed in this section. H. A person who is not required to prepare a pollution prevention plan may voluntarily comply with this section and shall be deemed a generator who may certify compliance as prescribed by section 49-931, subsection A. I. A person who owns or operates more than one facility that is required to prepare and implement a pollution prevention plan pursuant to subsection A of this section may prepare and implement a single pollution prevention plan that covers more than one facility. J. The pollution prevention plan required by this section shall include all of the following: 1. The name and location of and principal business activities at the facility. 2. The name, address and telephone number of the owner or operator of the facility and of the senior official with management responsibility at the facility. 3. A certification by the senior official with management responsibility at the facility that he has read the plan and that it is to the best of his knowledge true, accurate and complete. 4. Specific performance goals for the prevention of pollution, including an explanation of the rationale for each performance goal. The plan must include a goal for the facility and may include goals for individual production processes. 5. A written policy setting forth management and corporate support for the pollution prevention plan and a commitment to implement the plan to achieve the plan goals. 6. A statement of the plan's scope and objectives. 7. An analysis identifying pollution prevention opportunities to reduce or eliminate toxic substance releases and hazardous waste generation. 8. An analysis of pollution prevention activities that are already in place and that are consistent with the requirements of this article. 9. Employee awareness and training programs to involve employees in pollution prevention planning and implementation to the maximum extent feasible. 10. Provisions to incorporate the plan into management practices and procedures in order to ensure its institutionalization. 11. A description of the options considered and an explanation of why the options considered were not implemented. K. The pollution prevention plan, at a minimum, shall cover a two-year time period and may cover a longer time period at the discretion of the facility. L. Each owner and operator required to prepare and maintain a pollution prevention plan under this section shall file an annual progress report. The annual progress report shall both: 1. Analyze the progress made, if any, in pollution prevention including toxics use reduction, source reduction and hazardous waste minimization relative to each performance goal established and relative to the plan contents prescribed in subsection J, paragraphs 4 through 11 of this section. Pollution prevention achieved under previously implemented activities may also be included. 2. Set forth amendments to the pollution prevention plan and explain the need for the amendments. M. A facility that causes a one-time event that generates a hazardous waste or an acutely hazardous waste from an unused hazardous substance is exempt from filing a pollution prevention plan and an annual progress report if all of the following conditions are met: 1. The unused hazardous substance cannot lawfully be used due to changes in statute or rule. 2. A toxic data report has been filed for the event as prescribed in section 49-962. 3. The toxic data report is required solely as a result of the one-time generation event. N. This section does not apply to an episodic, accidental or remediation related release or occurrence. O. A person who would be required to file a plan as prescribed by subsection A of this section solely due to the storage, supply, application or use of a pesticide as defined in section 3-361 for agricultural application and who is subject to reporting or record keeping requirements pursuant to section 49-305 or rules adopted pursuant to section 3-363 or a person who is issued an agricultural general permit pursuant to section 49-247 is exempt from the plan filing prescribed in subsection A of this section. 49-964. Review of reports and plans; enforcement; contempt A. The department shall review the submissions required under this article, including the plan and any amendments and reports, to determine if the submission is complete and correct as prescribed in sections 49-962 and 49-963. B. If a facility required to submit a plan or report under this article files an inadequate submission, the department shall notify the facility in writing of the inadequacy, identifying the specific deficiencies. In reviewing the adequacy of a plan or report, or any amendment to a plan or report, the department shall base its determination on whether the plan, report or amendment is complete and correct in accordance with the requirements of this article. If the submission is inadequate, the department shall specify a reasonable time of at least ninety days within which the facility shall file a modified submission addressing the specified deficiencies. C. If, after the specified time, the facility has not filed a modified submission or the modified submission is otherwise inadequate, the department may enter a formal notice of inadequacy. D. If a formal notice of inadequacy is entered, the department, pursuant to title 41, chapter 6, article 10, may hold a public hearing after providing written notice to the facility. The department may issue an administrative order requiring the facility to correct the deficiencies. If the facility fails to comply with an administrative order, the department may enforce that order in a judicial proceeding including an action for contempt. E. In reviewing for adequacy an amendment or annual progress report, the department's review is restricted to the scope of the current submission. Previous amendments to the plan and annual progress reports that were found to be adequate are not subject to review. F. If a facility required under this article to submit a plan or annual progress report fails to submit the plan or report, the department shall order that facility to submit an adequate plan or report within a reasonable time period of at least ninety days. If the facility fails to develop an adequate plan or progress report in response to that order within the time period specified in that order, the department may do any of the following: 1. Under procedures established by rule, provide for inspecting the facility, gathering necessary information and preparing a plan or progress report for the facility at the facility's expense. 2. Pursuant to title 41, chapter 6, article 10, enter an administrative order for compliance that is enforceable in a judicial proceeding including an action for contempt. G. The attorney general, at the request of the director, may bring an action in superior court to recover the department's costs incurred under subsection F of this section. The facility owner or operator may appeal the department's determination to proceed under this subsection and subsection F of this section pursuant to title 41, chapter 6, article 10 before the department prepares the plan or progress report. Except as provided in section 41-1092.08, subsection H, any final agency order issued pursuant to this section is subject to judicial review pursuant to title 12, chapter 7, article 6. H. Failure to implement the pollution prevention plan is a violation of this article and the attorney general, at the request of the director, may bring an action in superior court to compel implementation of the provisions of an approved plan, and the director pursuant to title 41, chapter 6, article 10 may enter an administrative order for compliance that is enforceable in a judicial proceeding including an action for contempt. I. Reports and submissions made to the department pursuant to this article shall be deemed adequate for purposes of this article unless the department notifies the facility in writing of any deficiencies within ninety days after receipt of the submission. 49-965. Pollution prevention technical assistance program A. The department shall establish a technical assistance program designed to assist all persons in reducing to the fullest extent possible the amount and toxicity of the hazardous waste that is generated or toxic substances that are used in this state. The assistance program may include: 1. The establishment of a hazardous waste reduction clearinghouse of all available information concerning hazardous waste reduction, toxic substances minimization, recycling programs, economic and energy savings, and production and environmental improvements. 2. The production of workshops, conferences and handbooks on the topics described in paragraph 1 of this subsection. 3. Cooperation with university programs to develop hazardous waste reduction and toxic substances minimization curricula and training. 4. Presentation of on-site technical assistance for hazardous waste generators and toxic substances users. 5. Researching and recommending incentive programs for innovative hazardous waste management and toxic substances reduction. 6. Conducting a public education program to reduce emissions of ozone forming substances and accelerate pollution prevention technical assistance efforts to avoid ozone violations. B. Presentation of on-site technical assistance by the department in accordance with subsection A of this section shall not be considered engineering practice as defined in section 32-101 as long as the assistance does not involve engineering calculations or design in connection with any building, machine, equipment, process, work or project and is limited to assisting in the identification of pollution prevention opportunities and potential alternatives to existing processes or practices. C. Persons receiving on-site technical assistance pursuant to this section are solely liable for any civil or other damages arising from on-site technical assistance. This state and the department, its officers, employees and agents and any other persons assisting in providing on-site technical assistance are not liable for any civil or other damages arising from the on-site technical assistance, including damages claimed by third parties. D. The technical assistance program shall be funded from monies allocated from the hazardous waste management fund as prescribed in section 49-927, except that the portion of the program prescribed by subsection A, paragraph 6 of this section shall be funded from monies allocated from the air quality fund as prescribed in section 49-551. Notwithstanding section 49-551, subsection C, paragraph 5, priority for funding shall be given to the portion of the program prescribed by subsection A, paragraph 6 of this section. 49-967. Availability of information to the public A. Any records, reports or information obtained from any person under this article, including records, reports or information obtained or prepared by the director or a department employee, shall be available to the public, except that the information, or a particular part of the information, shall be considered confidential on either: 1. Notice from the person, accompanying the information, stating that the information, or a particular part of the information, if made public, would divulge the trade secrets of the person or other information likely to cause substantial harm to the person's competitive position. 2. A determination by the attorney general that disclosure of the information or a particular part of the information would be detrimental to an ongoing criminal investigation or to an ongoing or contemplated civil enforcement action under this chapter in superior court. B. If the director, on his own or following a request for disclosure, disagrees with the confidentiality notice, he may request the attorney general to seek a court order authorizing disclosure. If a court order is sought, the person shall be served with a copy of the court filing and shall have twenty business days from the date of service to request a hearing on whether a court order should be issued. The hearing shall be conducted in camera, and any order resulting from the hearing is appealable as provided by law. The director may not disclose the confidential information until a court order authorizing disclosure has been obtained and becomes final. The court may award costs of litigation including reasonable attorney and expert witness fees to the prevailing party. C. Notwithstanding subsection A, the following information obtained from any person under this article shall be available to the public: 1. The name and address of any permit applicant or permittee. 2. The types and amounts of any hazardous waste generated, stored, treated or disposed. 3. The types and amounts of any toxic substances released to the environment. D. Notwithstanding subsection A, the director may disclose, with accompanying confidentiality notice, any records, reports or information obtained from any person under this article, including records, reports or information obtained by the director or department employees, to: 1. Other state employees concerned with administering this chapter or if the records, reports or information are relevant to any administrative or judicial proceeding under this chapter. 2. Employees of the United States environmental protection agency if such information is necessary or required to administer and implement or comply with federal statutes or regulations. 49-969. Consumer product information A. The department may not prepare or distribute public education information relating to any claims regarding household hazardous waste or substitutes for any household consumer product unless the information is competent and reliable and based on a test, analysis, research, study or other evidence that yields accurate and reliable results. B. The department may publish or distribute the following without verification studies or analyses: 1. Information compiled pursuant to requirements set forth in state law. 2. Case studies of specific facilities or their processes. 3. Articles or views expressing the opinion of an author outside the department, provided that this material is prepared for discussion purposes only. C. The department may not recommend any substance as a pesticide unless the substance is either of the following: 1. Registered for use as a pesticide by this state and by the United States environmental protection agency, or its successor, and is to be used in a manner consistent with the label directions. 2. Listed by the environmental protection agency in 40 Code of Federal Regulations section 152.25, exemptions for pesticides of a character not requiring regulation under the federal insecticide, fungicide and rodenticide act, as amended by the food quality and protection act of 1996. 49-972. Pollution prevention plan for state agencies; definition A. A state agency that produces hazardous waste or uses toxic substances in excess of the threshold quantity and time limits prescribed in section 49-963 shall file a pollution prevention plan with the director. The pollution prevention plan shall have a goal of twenty percent reduction in hazardous waste within two years, fifty percent reduction in hazardous waste within five years and a seventy percent reduction in hazardous waste in ten years. B. The pollution prevention plan shall address a reduction in the use of toxic substances and the generation of hazardous wastes. The plan shall be completed on a form published by the director and shall be filed with the director on or before January 1, 1993 and every five years thereafter. C. A state agency required to file a pollution prevention plan may include in the report a certification that there is no reasonably available and technically feasible alternative to the current level of generation of hazardous waste at its facilities. If approved by the director, the certification shall serve as demonstration of compliance with the goals stated in subsection A of this section. D. The state agency required to prepare a pollution prevention plan shall maintain a copy of the plan and annual summaries at the agency and at the facility, where they shall be available for inspection by the department and by the public. E. The pollution prevention plan summary shall include a summary of all data and information in the plan, including the following: 1. A statement of the scope and objectives of the pollution prevention plan considering toxicity, volume, disposal costs and liability costs, and a numerical statement of the reductions in facility use of each hazardous waste at the facility over the next five or more years. 2. An analysis identifying pollution prevention opportunities to reduce or eliminate toxic substance releases and hazardous waste generation. 3. The name and location of all facilities associated with the state agency that are included in the plan and the name, address and telephone number of the operator and the senior official with management responsibility at the facility. 4. Identification and explanation of technology, procedures and options considered available and technically feasible for reducing the use of each hazardous waste and toxic substance at the facility, an explanation of options not implemented and a time schedule for implementing chosen options. 5. A written certification that the agency has prepared a pollution prevention plan and that a copy of the plan is available at the agency or facility for the department's inspection and for inspection by the public on request to the department. 6. Specific performance goals for the prevention of pollution, including an explanation of the rationale for each performance goal. The plan shall include a goal for the facility and may include goals for individual processes, operations, toxic substance usage and hazardous waste generation. 7. A written certification by the senior official with management responsibility that he has read the plan and that to the best of his knowledge it is true, accurate and complete. 8. A written policy setting forth management support for the pollution prevention plan and a commitment to implement the plan to achieve the plan goals. 9. An analysis of pollution prevention activities that are already in place and that are consistent with the requirements of this article. 10. Employee awareness and training programs to involve employees in pollution prevention planning and implementation to the maximum extent feasible. 11. Provisions to incorporate the plan into management practices and procedures to ensure the plan's institutionalization. F. To the extent practicable, the information required for the preparation of a pollution prevention plan shall be based on information developed and forms completed by the state agency for the purposes of compliance with sections 49-127 and 49-131, the federal pollution prevention act, section 304(l) of the federal water pollution control act, pretreatment sludge permits pursuant to 40 Code of Federal Regulations part 503, or other required state and federal reports. G. The department shall make all pollution plans and pollution prevention plan summaries available to the public. H. If the department determines that a plan is not in compliance with the requirements of this section, the department may allow the person submitting the plan ninety days from the date of the notice of deficiency to correct the deficiency. I. Each state agency required to prepare and maintain a pollution prevention plan shall file an annual progress report. The annual progress report shall both: 1. Analyze the progress made, if any, in pollution prevention including toxics use reduction, source reduction and hazardous waste minimization relative to each performance goal established and relative to the plan contents. 2. Set forth amendments to the pollution prevention plan and explain the need for the amendments. J. If the threshold quantity prescribed in section 49-963 is exceeded due to an accidental or remediation related release or occurrence, the requirement to file a plan pursuant to this section does not apply. K. For purposes of this section, "state agency" includes all facilities controlled by an agency. 49-973. Toxic data report; progress report A. A state agency shall file a toxic data report on July 1 if the agency during the preceding calendar year generated ten thousand pounds or more of hazardous waste. For purposes of this section, the hazardous waste generated shall consist of the aggregate amount of hazardous waste generated from all facilities directly controlled by the state agency. B. The toxic data report required in subsection A of this section shall include the following: 1. An annual progress report as prescribed in section 49-972, subsection H. 2. Toxic chemical information in the format of a toxic chemical release form required by section 313 of the superfund amendments and reauthorization act of 1986 (P.L. 99-499) for each facility within the state agency that meets the threshold quantities as prescribed by the department and that is not subject to exemptions. 3. The address of each off-site treatme