Permit modification at the request of the permittee

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 chapter 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 chapter 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 chapter 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 chapter 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 chapter 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 chapter 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.