North Dakota Administrative Code
Title 33.1 - Department of Environmental Quality
Article 33.1-24 - Hazardous Waste Management
Chapter 33.1-24-06 - Permits
Section 33.1-24-06-14 - Permit modification at the request of the permittee
Universal Citation: ND Admin Code ยง 33.1-24-06-14
Current through Supplement No. 394, October, 2024
1. Class 1 modifications.
a. Except as provided
in subdivision b, the permittee may put into effect class 1 modifications
listed in appendix I of this section under the following conditions:
(1) The permittee must notify the department
concerning the modification by certified mail or other means that establish
proof of delivery within seven 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 applicable
information required by section
33.1-24-06-17 and subsections 2
and 3 of section
33.1-24-06-19.
(2) The permittee must send a notice of the
modification to all persons on the facility mailing list, maintained by the
department in accordance with 33.1-24-07, and the appropriate units of state
and local governments, as specified in section
33.1-24-07-06. This notification
must be made within ninety calendar days after the change is put into effect.
For the class 1 modifications that require prior department approval, the
notification must be made within ninety calendar days after the department
approves the request.
(3) Any
person may request the department to review, and the department may for cause
reject, any class 1 modification. The department 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.
b. Class 1 permit modifications identified in
appendix I by an asterisk may be made only with the prior written approval of
the department.
c. For a class 1
permit modification, the permittee may elect to follow the procedures in
subsection 2 of section 33.1-24-06-14 for class 2 modifications instead of the
class 1 procedures. The permittee must inform the department of this decision
in the notice required in subdivision a of subsection 2 of section
33.1-24-06-14.
2. Class 2 modifications.
a. For
class 2 modifications listed in appendix I of this section, the permittee must
submit a modification request to the department that:
(1) Describes the exact change to be made to
the permit conditions and supporting documents referenced by the
permit;
(2) Identifies that the
modification is a class 2 modification;
(3) Explains why the modification is needed;
and
(4) Provides the applicable
information required by section
33.1-24-06-17 and subsections 2
and 3 of section
33.1-24-06-19.
b. The permittee must send a
notice of the modification request to all persons on the facility mailing list
maintained by the department and to the appropriate units of state and local
government as specified in section
33.1-24-07-06 and must publish
this notice in a major local newspaper of general circulation. This notice must
be mailed and published within seven days before or after the date of
submission of the modification request, and the permittee must provide to the
department evidence of the mailing and publication. The notice must include:
(1) Announcement of a sixty-day comment
period, in accordance with subdivision e of subsection 2 of section
33.1-24-06-14, and the name and address of a department contact to whom
comments must be sent;
(2)
Announcement of the date, time, and place for a public meeting held in
accordance with subdivision d of subsection 2 of section
33.1-24-06-14;
(3) Name and
telephone number of the permittee's contact person;
(4) Name and telephone number of a department
contact person;
(5) Location where
copies of the modification request and any supporting documents can be viewed
and copied; and
(6) The following
statement: "The permittee's compliance history during the life of the permit
being modified is available from the department contact person."
c. The permittee must 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.
d. The permittee must hold a public meeting
no earlier than fifteen days after the publication of the notice required in
subdivision b and no later than fifteen days before the close of the sixty-day
comment period. The meeting must be held to the extent practicable in the
vicinity of the permitted facility.
e. The public must be provided sixty 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.
f. Notification request.
(1) No later than ninety days after receipt
of the notification request, the department must:
(a) Approve the modification request, with or
without changes, and modify the permit accordingly;
(b) Deny the request;
(c) Determine that the modification request
must follow the procedures in subsection 3 of section 33.1-24-06-14 for class 3
modifications for the following reasons:
[1]
There is significant public concern about the proposed modification;
or
[2] The complex nature of the
change requires the more extensive procedures of class 3;
(d) Approve the request, with or without
changes, as a temporary authorization having a term of up to one hundred eighty
days; or
(e) Notify the permittee
that the department will decide on the request within the next thirty
days.
(2) If the
department notifies the permittee of a thirty-day extension for a decision, the
department must, no later than one hundred twenty days after receipt of the
modification request:
(a) Approve the
modification request with or without changes, and modify the permit
accordingly;
(b) Deny the request;
or
(c) Determine that the
modification request must follow the procedures in subsection 3 of section
33.1-24-06-14 for class 3 modifications for the following reasons:
[1] There is significant public concern about
the proposed modification; or
[2]
The complex nature of the change requires the more extensive procedures of
class 3.
(d) Approve the
request, with or without changes, as a temporary authorization having a term of
up to one hundred eighty days.
(3) If the department fails to make one of
the decisions specified in paragraph 2 by the one hundred twentieth day after
receipt of the modification request, the permittee is automatically authorized
to conduct the activities described in the modification request for up to one
hundred eighty days, without formal department action. The authorized
activities must be conducted as described in the permit modification request
and must be in compliance with all appropriate standards of section
33.1-24-06-16. If the department
approves, with or without changes, or denies the modification request during
the term of the temporary or automatic authorization provided for in paragraph
1, 2, or 3, such action cancels the temporary or automatic
authorization.
(4) The following
applies:
(a) In the case of an automatic
authorization under paragraph 3, or a temporary authorization under
subparagraph d of paragraph 1 or subparagraph d of paragraph 2, if the
department has not made a final approval or denial of the modification request
by the date fifty days prior to the end of the temporary or automatic
authorization, the permittee must, within seven days of that time, 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:
[1] The permittee
has been authorized temporarily to conduct the activities described in the
permit modification request; and
[2] Unless the department 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.
(b) If the
owner or operator fails to notify the public by the date specified in
subparagraph a of paragraph 4, the effective date of the permanent
authorization will be deferred until fifty days after the owner or operator
notifies the public.
(5)
Except as provided in paragraph 7, if the department 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 section
33.1-24-06-12 or 33.1-24-06-14.
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 section
33.1-24-06-16.
(6) 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 department must consider all
written comments submitted to the department during the public comment period
and must respond in writing to all significant comments in the department's
decision.
(7) With the written
consent of the permittee, the department may extend, indefinitely or for a
specified period, the time periods for final approval or denial of a
modification request or for reclassifying a modification as a class
3.
g. The department may
deny or change the terms of a class 2 permit modification request under
paragraphs 1 through 3 of subdivision f for the following reasons:
(1) Modification request is
incomplete;
(2) The requested
modification does not comply with the appropriate requirements of 33.1-24-05 or
other applicable requirements; or
(3) The conditions of the modification fail
to protect human health and the environment.
h. The permittee may perform any construction
associated with a class 2 permit modification request beginning sixty days
after the submission of the request unless the department establishes a later
date for commencing construction and informs the permittee in writing before
day sixty.
3. Class 3 modifications.
a. For
class 3 modifications listed in appendix I of this section, the permittee must
submit a modification request to the department that:
(1) Describes the exact change to be made to
the permit conditions and supporting documents referenced by the
permit;
(2) Identifies that the
modification is a class 3 modification;
(3) Explains why the modification is needed;
and
(4) Provides the applicable
information required by section
33.1-24-06-17 and subsections 2,
3, and 4 of section
33.1-24-06-19.
b. The permittee must send a
notice of the modification request to all persons on the facility mailing list
maintained by the department and to the appropriate units of state and local
government as specified in section
33.1-24-07-06 and must publish
this notice in a major local newspaper of general circulation. This notice must
be mailed and published within seven days before or after the date of
submission of the modification request, and the permittee must provide to the
department evidence of the mailing and publication. The notice must include:
(1) Announcement of a sixty-day comment
period, and a name and address of a department contact to whom comments must be
sent;
(2) Announcement of the date,
time, and place for a public meeting on the modification request, in accordance
with subdivision d of subsection 3 of section 33.1-24-06-14;
(3) Name and telephone number of the
permittee's contact person;
(4)
Name and telephone number of a department contact person;
(5) Location where copies of the modification
request and any supporting documents can be viewed and copied; and
(6) The following statement: "The permittee's
compliance history during the life of the permit being modified is available
from the department contact person."
c. The permittee must 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.
d. The permittee must hold a public meeting
no earlier than fifteen days after the publication of the notice required in
subdivision b and no later than fifteen days before the close of the sixty-day
comment period. The meeting must be held to the extent practicable in the
vicinity of the permitted facility.
e. The public must be provided at least sixty
days to comment on modification requests. 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.
f. After the conclusion of the sixty-day
comment period, the department must grant or deny the permit modification
request according to the permit modification procedures of 33.1-24-07. In
addition, the department must consider and respond to all significant written
comments received during the sixty-day comment period.
4. Other modifications.
a. In the case of modifications not
explicitly listed in appendix I of this section, the permittee may submit a
class 3 modification request to the department, or the permittee may request a
determination by the department 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, the permittee
must provide the department with the necessary information to support the
requested classification.
b. The
department shall make the determination described in subdivision a as promptly
as practicable. In determining the appropriate class for a specific
modification, the department shall consider the similarity of the modification
to other modifications codified in appendix I and the following criteria:
(1) Class 1 modifications apply to minor
changes to 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 department may require prior
approval.
(2) Class 2 modifications
apply to changes that are necessary to enable a permittee to respond, in a
timely manner, to:
(a) Common variations in
the types and quantities of the wastes managed under the facility
permit;
(b) Technological
advancement; and
(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.
(3) Class 3 modifications substantially alter
the facility or its operation.
5. Temporary authorizations.
a. Upon request of the permittee, the
department may, without prior public notice and comment, grant the permittee a
temporary authorization in accordance with this section. Temporary
authorizations must have a term of not more than one hundred eighty
days.
b. Temporary authorizations.
(1) The permittee may request a temporary
authorization for:
(a) Any class 2
modification meeting the criteria of paragraph 2 of subdivision c;
and
(b) Any class 3 modification
that meets the criteria in subparagraph a or b of paragraph 2 of subdivision c;
or that meets the criteria in subparagraphs c through e of paragraph 2 of
subdivision c and provides improved management or treatment of a hazardous
waste already listed in the facility permit.
(2) The temporary authorization request must
include:
(a) A description of the activities
to be conducted under the temporary authorization;
(b) An explanation of why the temporary
authorization is necessary; and
(c)
Sufficient information to ensure compliance with 33.1-24-05
standards.
(3) The
permittee must send a notice about the temporary authorization request to all
persons on the facility mailing list maintained by the department and to
appropriate units of state and local governments as specified in section
33.1-24-07-06. This notification
must be made within seven days of submission of the authorization
request.
c. The
department shall approve or deny the temporary authorization as quickly as
practical. To issue a temporary authorization, the department must find:
(1) The authorized activities are in
compliance with the standards of 33.1-24-05.
(2) The temporary authorization is necessary
to achieve one of the following objectives before action is likely to be taken
on a modification request:
(a) To facilitate
timely implementation of closure or corrective action activities;
(b) To allow treatment or storage in tanks or
containers, or in containment buildings, in accordance with sections
33.1-24-05-250 through
33.1-24-05-299;
(c) To prevent disruption of ongoing waste
management activities;
(d) To
enable the permittee to respond to sudden changes in the types or quantities of
the wastes managed under the facility permit; or
(e) To facilitate other changes to protect
human health and the environment.
d. A temporary authorization may be issued
for one additional term of up to one hundred eighty days provided that the
permittee has requested a class 2 or 3 permit modification for the activity
covered in the temporary authorization, and:
(1) The reissued temporary authorization
constitutes the department's decision on a class 2 permit modification in
accordance with subparagraph d of paragraph 1 of subdivision f of subsection 2
or subparagraph d of paragraph 2 of subdivision f of subsection 2; or
(2) The department determines that the
reissued temporary authorization involving a class 3 permit modification
request is warranted to allow the authorized activities to continue while the
modification procedures of subsection 3 are conducted.
6. Public notice and appeals of permit modification decisions.
a.
The department shall notify persons on the facility mailing list and
appropriate units of state and local government within ten days of any decision
under this section to grant or deny a class 2 or 3 permit modification request.
The department shall also notify such persons within ten days after an
automatic authorization for a class 2 modification goes into effect under
paragraph 3 or 5 of subdivision f of subsection 2.
b. The department's decision to grant or deny
a class 2 or 3 permit modification request under this section may be appealed
under the permit appeal procedures of section
33.1-24-07-14.
c. An automatic authorization that goes into
effect under paragraph 3 or 5 of subdivision f of subsection 2 may be appealed
under the permit appeal procedure of section
33.1-24-07-14; however, the
permittee may continue to conduct the activities pursuant to the automatic
authorization until the appeal has been granted pursuant to subsection 3 of
section 33.1-24-07-14, notwithstanding
the provisions of subsection 2 of section
33.1-24-07-11.
7. Newly regulated wastes and units.
a. The permittee is
authorized to continue to manage wastes listed or identified as hazardous under
33.1-24-02 or to continue to manage hazardous waste in units newly regulated as
hazardous waste management units if:
(1) 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 of the
effective date of the final rule listing or identifying the waste, or
regulating the unit;
(2) 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;
(3) The permittee is in compliance with the
applicable standards of subsection 5 of section
33.1-24-06-16 and sections
33.1-24-05-191 through
33.1-24-05-249,
33.1-24-05-525 through
33.1-24-05-549, and
33.1-24-05-820 through
33.1-24-05-929;
(4) The permittee also submits a complete
class 2 or 3 modification request within one hundred eighty days of the
effective date of the rule listing or identifying the waste or subjecting the
unit to hazardous waste management standards; and
(5) In the case of land disposal units, the
permittee certifies that each such unit is in compliance with all applicable
ground water monitoring and financial responsibility requirements in subsection
5 of section
33.1-24-06-16 on the date twelve
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, the
owner or operator will lose authority to operate under this
subsection.
b. New
wastes or units added to a facility's permit under this subsection do not
constitute expansions for the purpose of the twenty-five percent capacity
expansion limit for class 2 modifications.
8. Military hazardous waste munitions treatment and disposal. The permittee is authorized to continue to accept waste military munitions notwithstanding any permit conditions barring the permittee from accepting offsite wastes, if:
a. The facility was in existence as a
hazardous waste facility, and the facility was already permitted to handle the
waste military munitions, on the date when the waste military munitions became
subject to hazardous waste regulatory requirements;
b. On or before the date when the waste
military munitions become subject to hazardous waste regulatory requirements,
the permittee submits a class 1 modification request to remove or amend the
permit provision restricting the receipt of offsite waste munitions;
and
c. The permittee submits a
complete class 2 modification request within one hundred eighty days of the
date when the waste military munitions became subject to hazardous waste
regulatory requirements.
9. Permit modification list. The department must maintain a list of all approved permit modifications and must publish a notice once a year in a statewide newspaper that an updated list is available for review.
10. Combustion facility changes to meet 40 CFR part 63 maximum achievable control technology standards. The following procedures apply to hazardous waste combustion facility permit modifications requested under appendix I to this section, section L(9).
a.
Facility owners or operators must have complied with the notification of intent
to comply requirements of
40 CFR
63.1210 that were in effect prior to October
11, 2000 (see 40 CFR part 63 sections 63.1200 through 63.1499 revised as of
July 1, 2000) in order to request a permit modification under this section for
the purpose of technology changes needed to meet the standards under
40
CFR 63.1203,
63.1204,
and
63.1205.
b. Facility owners or operators must comply
with the notification of intent to comply requirements of
40 CFR
63.1210(b) and
63.1212(a)
before a permit modification can be requested under this section for the
purpose of technology changes needed to meet the
40
CFR 63.1215,
63.1216,
63.1217,
63.1218,
63.1219,
63.1220,
and
63.1221
standards promulgated on October 12, 2005.
c. If the department does not approve or deny
the requests within ninety days of receiving it, the request shall be deemed
approved. The department may, at the department's discretion, extend this
ninety-day deadline one time for up to thirty days by notifying the facility
owner or operator.
11. Waiver of hazardous waste permit conditions in support of transition to the 40 CFR part 63 maximum achievable control technology standards.
a. The owner or operator may request to have
specific hazardous waste operating and emissions limits waived by submitting a
class 1 permit modification request under appendix I of this section, section
L(10). The owner or operator must:
(1)
Identify the specific hazardous waste permit operating and emissions limits
which the owner or operator is requesting to waive;
(2) Provide an explanation of why the changes
are necessary in order to minimize or eliminate conflicts between the hazardous
waste permit and maximum achievable control technology compliance;
and
(3) Discuss how the revised
provisions will be sufficiently protective.
(4) The department shall approve or deny the
request within thirty days of receipt of the request. The department may, at
the department's discretion, extend this thirty-day deadline one time for up to
thirty days by notifying the facility owner or operator.
b. To request this modification in
conjunction with maximum achievable control technology performance testing
where permit limits may only be waived during actual test events and
pretesting, as defined under
40 CFR
63.1207(h)(2)(I) and (ii),
for an aggregate time not to exceed seven hundred twenty hours of operation
(renewable at the discretion of the department) the owner or operator must:
(1) Submit the modification request to the
department at the same time the owner or operator submits the owner's or
operator's test plans to the department; and
(2) The department may elect to approve or
deny the request contingent upon approval of the test plans.
General Authority: NDCC 23.1-04-03; S.L. 2017, ch. 199, § 1
Law Implemented: NDCC 23.1-04-03, 23.1-04-05, 23.1-04-08; S.L. 2017, ch. 199, § 19
Disclaimer: These regulations may not be the most recent version. North Dakota may have more current or accurate information. We make no warranties or guarantees about the accuracy, completeness, or adequacy of the information contained on this site or the information linked to on the state site. Please check official sources.
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