Nebraska Administrative Code
Topic - ENVIRONMENT AND ENERGY
Title 128 - DEPARTMENT OF ENVIRONMENTAL QUALITY
Chapter 15 - PERMIT ISSUANCE; CHANGES; RENEWAL; TERMINATION; CLOSURES; DURATION
Section 128-15-012 - Modification, revocation and reissuance, or termination of permits

Universal Citation: 128 NE Admin Rules and Regs ch 15 ยง 012

Current through September 17, 2024

Modification, revocation and reissuance, or termination of permits.

012.01 A permit may be modified or revoked and reissued, or terminated under Section 015 of this chapter, either at the request of any interested person (including the permittee) or upon the Director's initiative. However, permits may only be modified, revoked and reissued, or terminated for the reasons specified in Sections 012.01 and 015 of this chapter. All requests shall be in writing and shall contain facts or reasons supporting the request. If the Director decides the request is not justified, he or she shall send the requester a brief written response giving a reason for the decision. Denials of requests for modification, revocation and reissuance, or termination are not subject to public notice, comment, or hearings. Class 1 and Class 2 modifications as defined in Section 012.02 of this chapter are not subject to the requirements of Section 012.01.

012.01A When the Director receives any information (for example, inspects the facility, receives information submitted by the permittee as required in the permit, receives a request for revocation and reissuance from any interested person or the permittee or conducts a review of the permit file), he or she may determine whether one or more of the causes listed in 012.01B and 012.01C of this section for modification, or revocation and reissuance or both exist. If cause exists, the Director may modify or revoke and reissue the permit accordingly, subject to the limitations of 012.01D of this section, and may request an updated application if necessary. When a permit is modified, only the conditions subject to modification are reopened. All other aspects of the existing permit shall remain in effect for the duration of the unmodified permit. If a permit is revoked and reissued, the entire permit is reopened and subject to revision and the permit is reissued for a new term. During any revocation and reissuance proceeding, the permittee shall comply with all conditions of the existing permit until a new final permit is reissued. If cause does not exist under this section, the Director shall not modify or revoke and reissue the permit, except on request of the permittee. If a permit modification is requested by the permittee, the Director shall approve or deny the request according to the procedures of 012.02.

012.01B Causes for modification. The following are causes for modification, but not revocation and reissuance, of permits; the following may be causes for revocation and reissuance, as well as modification, when the permittee requests or agrees.
012.01B1 Alterations. There are material and substantial alterations or additions to the permitted facility or activity which occurred after permit issuance which justify the application of permit conditions that are different or absent in the existing permit.

012.01B2 Information. The Director has received information. Permits may be modified during their terms for this cause only if the information was not available at the time of permit issuance (other than revised regulations, guidance, or test methods) and would have justified the application of different permit conditions at the time of issuance.

012.01B3 New statutory requirements or regulations. The standards or regulations on which the permit was based have been changed by statute, through promulgation of new or amended standards or regulations, or by judicial decision after the permit was issued.

012.01B4 Compliance schedules. The Director determines good cause exists for modification of a compliance schedule, such as an act of God, strike, flood, or materials shortage or other events over which the permittee has little or no control and for which there is no reasonably available remedy.

012.01B5 Notwithstanding any other provision in this section, when a permit for a land disposal facility is reviewed by the Director under Section 014.03, the Director shall modify the permit as necessary to assure that the facility continues to comply with the currently applicable requirements in Chapters 1 through 19 and 21 through 26.

012.01C Causes for modification or revocation and reissuance. The following are causes to modify or, alternatively, revoke and reissue a permit:
012.01C1 Cause exists for termination under Chapter 15, 015, and the Director determines that modification or revocation and reissuance is appropriate.

012.01C2 The Director has received notification of a proposed transfer of the permit.

012.01D Facility siting. Suitability of the facility location will not be considered at the time of permit modification or revocation and reissuance unless new information or standards indicate that a threat to human health or the environment exists which was unknown at the time of permit issuance.

012.02 A permit may be modified at the request of the permittee in accordance with the following conditions and requirements:

012.02A Class 1 modifications. The permittee may put into effect Class 1 modifications listed in Appendix V under the following conditions:
012.02A1 Class 1 permit modifications identified in Appendix V by the footnote may be made only with the prior written approval of the Director.

012.02A2 The permittee must notify the Director concerning the modification by certified mail or other means that establish proof of delivery within 7 calendar days after the change is put into effect. This notice must specify the changes being made to permit conditions or supporting documents referenced by the permit and must explain why they are necessary. Along with the notice, the permittee must provide the applicable information required by Chapter 13, 012 and Chapter 12, 001.04C and 001.04D.

012.02A3 The permittee must send a notice of the modification to all persons on the facility mailing list, maintained by the Department in accordance with Chapter 15, 006.01. This notification must be made within 90 calendar days after the change is put into effect. For the Class 1 modifications that require prior Director approval, the notification must be made within 90 calendar days after the Director approves the request.

012.02A4 Any person may request the Director to review, and the Director may for cause reject, any Class 1 modification. The Director must inform the permittee by certified mail that a Class 1 modification has been rejected, explaining the reasons for the rejection. If a Class 1 modification has been rejected, the permittee must comply with the original permit conditions.

012.02A5 The permittee may elect to follow the procedures for Class 2 modifications instead of the Class 1 procedures. The permittee must inform the Director of this decision in the notice required in 012.02B.

012.02B For Class 2 modifications, listed in Appendix V, the permittee must:
012.02B1 Submit a modification request to the Director that:
012.02B1(a) Describes the exact change to be made to the permit conditions and supporting documents referenced by the permit;

012.02B1(b) Identifies that the modification is a Class 2 modification;

012.02B1(c) Explains why the modification is needed; and

012.02B1(d) Provides the applicable information required by Chapter 13, 012 and Chapter 12, 001.04C and 001.04D.

012.02B2 Send a notice of the modification request to all persons on the facility mailing list maintained by the Department in accordance with Chapter 15, 006.01 and must publish this notice in a major local newspaper of general circulation. This notice must be mailed and published within 7 days before or after the date of submission of the modification request, and the permittee must provide to the Director evidence of the mailing and publication. The notice must include:
012.02B2(a) Announcement of a 60-day comment period, in accordance with 012.02B5, and the name and address of the Department contact to whom comments must be sent;

012.02B2(b) Announcement of the date, time, and place for a public meeting held in accordance with 012.02B4;

012.02B2(c) Name and telephone number of the permittee's contact person;

012.02B2(d) Name and telephone number of a Department contact person;

012.02B2(e) Location where copies of the modification request and any supporting documents can be viewed and copied; and

012.02B2(f) The following statement: "The permittee's compliance history during the life of the permit being modified is available from the Department contact person."

012.02B3 Place a copy of the permit modification request and supporting documents in a location accessible to the public in the vicinity of the permitted facility.

012.02B4 Hold a public meeting no earlier than 15 days after the publication of the notice required in paragraph 012.02B2 of this section and no later than 15 days before the close of the 60-day comment period. The meeting must be held to the extent practicable in the vicinity of the permitted facility.

012.02B5 Provide the public 60 days to comment on the modification request. The comment period will begin on the date the permittee publishes the notice in the local newspaper. Comments should be submitted to the Department contact identified in the public notice.

012.02C For Class 2 modifications listed in Appendix V the Director must:
012.02C1 No later than 90 days after receipt of the notification request, unless extended in accordance with 012.02C2:
012.02C1(a) Approve the modification request, with or without changes, and modify the permit accordingly;

012.02C1(b) Deny the request because the modification request is incomplete or the requested modification does not comply with the appropriate requirements of Chapter 21 or other applicable requirements or the conditions of the modifications fail to protect human health and the environment.

012.02C1(c) Determine that the modification request must follow the procedures in 012.02K for Class 3 modifications for the reason that there is significant public concern about the proposed modification or the complex nature of the change requires the more extensive procedures of Class 3.

012.02C1(d) Approve the request, with or without changes, as a temporary authorization having a term of up to 180 days, or

012.02C2 Notify the permittee no later than 90 days after receipt of the notification request if he or she extends the time period for making a decision under 012.02C1. The director shall make a decision no later than 120 days after receipt of the modification request.

012.02D For Class 2 modifications, if the Director fails to make one of the decisions specified in 012.02C1 of this section by the 120th day after receipt of the modification request, the permittee is automatically authorized to conduct the activities described in the modification request for up to 180 days, without formal action by the Department. The authorized activities must be conducted as described in the permit modification request and must be in compliance with all appropriate standards of Chapter 22. The Director may approve, with or without changes, or deny the modification request during the term of the temporary or automatic authorization of this section. Such action cancels the temporary or automatic authorization.

012.02E Within 7 days of the date of an automatic or temporary authorization under this section, the permittee must send a notification to persons on the facility mailing list, and make a reasonable effort to notify other persons who submitted written comments on the modification request, that:
012.02E1 The permittee has been authorized temporarily to conduct the activities described in the permit modification request, and

012.02E2 Unless the Director acts to give final approval or denial of the request by the end of the authorization period, the permittee will receive authorization to conduct such activities for the life of the permit.

012.02F If the permittee fails to notify the public by the date 50 days prior to the end of the temporary or automatic authorization, the effective date of the permanent authorization will be deferred for 50 days after the permittee notifies the public.

012.02G Except as provided in 012.02I of this section, if the Director does not finally approve or deny a modification request before the end of the automatic or temporary authorization period or reclassify the modification as a Class 3, the permittee is authorized to conduct the activities described in the permit modification request for the life of the permit unless modified later under this chapter. The activities authorized under this paragraph must be conducted as described in the permit modification request and must be in compliance with all appropriate standards of Chapter 22.

012.02H In making a decision to approve or deny a modification request, including a decision to issue a temporary authorization or to reclassify a modification as a Class 3, the Director must consider all written comments submitted to the Department during the public comment period and must respond in writing to all significant comments in his or her decision.

012.02I With the written consent of the permittee, the Director may extend indefinitely or for a specified period the time periods for final approval or denial of a modification.

012.02J The permittee may perform any construction associated with a Class 2 permit modification request beginning 60 days after the submission of the request unless the Director establishes a later date for commencing construction and informs the permittee in writing before day 60.

012.02K For Class 3 modifications listed in Appendix V of this section, the permittee must:
012.02K1 Submit a modification request to the Director that:
012.02K1(a) Describes the exact change to be made to the permit conditions and supporting documents referenced by the permit;

012.02K1(b) Identifies that the modification is a Class 3 modification;

012.02K1(c) Explains why the modification is needed; and

012.02K1(d) Provides the applicable information required by Chapter 13, 012 Chapter 12, 001.04C through 001.04F.

012.02K2 Send a notice of the modification request to all persons on the facility mailing list maintained by the Department in accordance with Chapter 15, 006.01 and must publish this notice in a major local newspaper of general circulation. This notice must be mailed and published within 7 days before or after the date of submission of the modification request, and the permittee must provide to the Director evidence of the mailing and publication. The notice must include:
012.02K2(a) Announcement of a 60-day comment period, and a name and address of a Department contact to whom comments must be sent;

012.02K2(b) Announcement of the date, time, and place for a public meeting on the modification request, in accordance with 012.02K4;

012.02K2(c) Name and telephone number of the permittee's contact person;

012.02K2(d) Name and telephone number of a Department contact person;

012.02K2(e) Location where copies of the modification request and any supporting documents can be viewed and copied; and

012.02K2(f) The following statement: "The permittee's compliance history during the life of the permit being modified is available from the Department contact person."

012.02K3 Place a copy of the permit modification request and supporting documents in a location accessible to the public in the vicinity of the permitted facility.

012.02K4 Hold a public meeting no earlier than 15 days after the publication of the notice required in paragraph 012.02K2 of this section and no later than 15 days before the close of the 60-day comment period. The meeting must be held to the extent practicable in the vicinity of the permitted facility.

012.02K5 Provide the public at least 60 days to comment on the modification request. The comment period will begin on the date the permittee publishes the notice in the local newspaper. Comments should be submitted to the Department contact identified in the notice.

012.02L For a Class 3 modification, after the conclusion of the 60-day comment period, the Director must grant or deny the permit modification request according to the permit modification procedures of this chapter. In addition, the Director must consider and respond to all significant written comments received during the 60-day comment period.

012.02M Other modifications. In the case of modifications not explicitly listed in Appendix V, the permittee may submit a Class 3 modification request to the Department, or he or she may request a determination by the Director that the modification should be reviewed and approved as a Class 1 or Class 2 modification. If the permittee requests that the modification be classified as a Class 1 or 2 modification, he or she must provide the Director with the necessary information to support the requested classification.

012.02N The Director shall make the determination described 012.02M of this section as promptly as practicable. In determining the appropriate class for a specific modification, the Director shall consider the similarity of the modification to other modifications in Appendix V and the following criteria:
012.02N1 Class 1 modifications apply to minor changes that keep the permit current with routine changes to the facility or its operation. These changes do not substantially alter the permit conditions or reduce the capacity of the facility to protect human health or the environment. In the case of Class 1 modifications, the Director may require prior approval.

012.02N2 Class 2 modifications apply to changes that are necessary to enable a permittee to respond, in a timely manner, to:
012.02N2(a) Common variations in the types and quantities of the wastes managed under the facility permit, or

012.02N2(b) Technological advancements, and;

012.02N2(c) Changes necessary to comply with new regulations, where these changes can be implemented without substantially changing design specifications or management practices in the permit.

012.02N3 Class 3 modifications substantially alter the facility or its operation.

012.02O Temporary authorization. Upon request of the permittee, the Director may, without prior public notice and comment, grant the permittee a temporary authorization in accordance with this subsection. Temporary authorizations must have a term of not more than 180 days.
012.02O1 The permittee may request a temporary authorization for:
012.02O1(a) Any Class 2 modification meeting the criteria in 012.02O4(b) of this section, and

012.02O1(b) Any Class 3 modification that meets the criteria in 012.02O4(b)(1) or (2) of this section; or that meets the criteria in012.02O4(b)(3) through (b)(5) of this section and provides improved management or treatment of a hazardous waste already listed in the facility permit.

012.02O2 The temporary authorization request must include:
012.02O2(a) A description of the activities to be conducted under the temporary authorization;

012.02O2(b) An explanation of why the temporary authorization is necessary; and

012.02O2(c) Sufficient information to ensure compliance with Chapter 21.

012.02O3 The permittee must send a notice about the temporary authorization request to all persons on the facility mailing list maintained by the Department in accordance with Chapter 15, 006.01. This notification must be made within 7 days of submission of the authorization request.

012.02O4 The Director shall approve or deny the temporary authorization as quickly as practical. To issue a temporary authorization, the Director must find:
012.02O4(a) The authorized activities are in compliance with the standards of Chapter 21.

012.02O4(b) The temporary authorization is necessary to achieve one of the following objectives before action is likely to be taken on a modification request:
012.02O4(b)(1) To facilitate timely implementation of closure or corrective action activities;

012.02O4(b)(2) To allow treatment or storage in tanks or containers, or in containment buildings in accordance with Chapter 20.

012.02O4(b)(3) To prevent disruption of ongoing waste management activities;

012.02O4(b)(4) To enable the permittee to respond to sudden changes in the types or quantities of the wastes managed under the facility permit; or

012.02O4(b)(5) To facilitate other changes to protect human health and the environment.

012.02O5 A temporary authorization may be reissued for one additional term of up to 180 days provided that the permittee has requested a Class 2 or 3 permit modification for the activity covered in the temporary authorization, and:
012.02O5(a) The reissued temporary authorization constitutes the Director's decision on a Class 2 permit modification in accordance with 012.02C1(d) of this section, or

012.02O5(b) The Director determines that the reissued temporary authorization involving a Class 3 permit modification request is warranted to allow the authorized activities to continue while the Class 3 modification procedures of this section are conducted.

012.02P Public notice and appeals of permit modification decisions.
012.02P1 The Director shall notify persons on the facility mailing list within 10 days of any decision under this section to grant or deny a Class 2 or 3 permit modification request. The Director shall also notify such persons within 10 days after an automatic authorization for a Class 2 modification goes into effect under Sections 012.02D or 012.02G.

012.02P2 The Director's decision to grant or deny a Class 2 or 3 permit modification request or an automatic authorization under this section may be appealed in accordance with Title 115 and Nebraska Revised Statute 81-1509.

012.02Q Newly regulated wastes and units.
012.02Q1 The permittee is authorized to continue to manage wastes listed or identified as hazardous under Chapter 3, or to continue to manage hazardous waste in units newly regulated as hazardous waste management units, if:
012.02Q1(a) The unit was in existence as a hazardous waste facility with respect to the newly listed or characterized waste or newly regulated waste management unit on the effective date of the final rule listing or identifying the waste, or regulating the unit;

012.02Q1(b) The permittee submits a Class 1 modification request on or before the date on which the waste or unit becomes subject to the new requirements;

012.02Q1(c) The permittee is in compliance with the applicable standards of Chapter 7 and Chapter 22;

012.02Q1(d) The permittee also submits a complete Class 2 or 3 modification request within 180 days of the effective date of the rule listing or identifying the waste, or subjecting the unit to Title 128 management standards;

012.02Q1(e) In the case of land disposal units, the permittee certifies that each such unit is in compliance with all applicable requirements of Chapter 22 of this chapter for groundwater monitoring and financial responsibility on the date 12 months after the effective date of the rule identifying or listing the waste as hazardous, or regulating the unit as a hazardous waste management unit. If the owner or operator fails to certify compliance with all these requirements, he or she will lose authority to operate under this section.

012.02Q2 New wastes or units added to a facility's permit under this subsection do not constitute expansions for the purpose of the 25 percent capacity expansion limit for Class 2 modifications.

012.02R Permit modification list. The Director must maintain a list of all approved permit modifications and must publish a notice once a year in a State-wide newspaper that an updated list is available for review.

012.02S Combustion facility changes to meet 40 CFR part 63 MACT standards. The following procedures apply to hazardous waste combustion facility permit modifications requested under Appendix V, section L(9) of this Title.
012.02S1 Facility owners or operators must have complied with the Notification of Intent to Comply (NIC) requirements of 40 CFR 63.1210 that were in effect prior to October 11, 2000, (see 40 CFR Part 63 Revised as of July 1, 2000) in order to request a permit modification under this section.

012.02S2 If the Director does not approve or deny the request within 90 days of receiving it, the request shall be deemed approved. The Director may, at his or her discretion, extend this 90 day deadline one time for up to 30 days by notifying the facility owner or operator.

012.03 Permit modifications shall not be used to extend the term of a permit beyond the expiration date.

012.04 If the Director tentatively decides to modify or revoke and reissue a permit, under Sections 012.01 and 012.02K, he or she shall prepare a draft permit under Section 002 of this Chapter above incorporating the proposed changes. The Director may request additional information and, in the case of a modified permit, may require the submission of an updated application. In the case of revoked and reissued permits, the Director shall require the submission of a new application.

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