7 Del. Admin. Code § 1302-122-D-122.42

Current through Reigster Vol. 28, No. 6, December 1, 2024

Section 1302-122-D-122.42 - Permit modification at the request of the permittee

(a)Class 1 modifications.

(1) Except as provided in paragraph (a)(2) of this section, the permittee may put into effect Class 1 modifications listed in Appendix I of this section under the following conditions:

(i) The permittee must notify the Secretary 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 Section Section 122.13 through 122.21, and Section Section 122.62 and 122.63.

(ii) The permittee must send a notice of the modification to all persons on the facility mailing list, maintained by the Secretary in accordance with Section 124.10(c)(iv), and the appropriate units of State and local government, as specified in Section 124.10 (c)(v). This notification must be made within 90 calendar days after the change is put into effect. For the Class I modifications that require prior Secretary approval, the notification must be made within 90 calendar days after the Secretary approves the request.

(iii) Any person may request the Secretary to review, and the Secretary may for cause reject, any Class 1 modification. The Secretary 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.

(2) Class 1 permit modifications identified in Appendix I of this section by a footnote may be made only with the prior written approval of the Secretary.

(3) For a Class 1 permit modification, the permittee may elect to follow the procedures in Section 122.42 (b) for Class 2 modifications instead of the Class 1 procedures. The permittee must inform the Secretary of this decision in the notice required in Section 122.42(b)(1).

(b)Class 2 modifications.

(1) For Class 2 modifications, listed in Appendix I of this section, the permittee must submit a modification request to the Secretary that:

(i) Describes the exact change to be made to the permit conditions and supporting documents referenced by the permit;

(ii) Identifies that the modification is a Class 2 modification;

(iii) Explains why the modification is needed; and

(iv) Provides the applicable information required by Section Section 122.13 through 122.21, 122.62, and 122.63.

(2) The permittee must send a notice of the modification request to all persons on the facility mailing list maintained by the Secretary and to the appropriate units of State and local government as specified in Section 124.10 (c)(v) 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 Secretary evidence of the mailing and publication. The notice must include:

(i) Announcement of a 60-day comment period, in accordance with Section 122.42 (b)(5), and the name and address of a DNREC contact to whom comments must be sent;

(ii) Announcement of the date, time, and place for a public meeting held in accordance with Section 122.42(b)(4);

(iii) Name and telephone number of the permittee's contact person;

(iv) Name and telephone number of a DNREC contact person;

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

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

(3) The permittee must place a copy of the permit modification request and support documents in a location accessible to the public in the vicinity of the permitted facility.

(4) The permittee must hold a public meeting not earlier than 15 days after the publication of the notice required in paragraph (b)(2) 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.

(5) The public shall be provided 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 DNREC contact identified in the public notice.

(6)

(i) No later than 90 days after receipt of the notification request, the Secretary 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 Section 122.42 (c) 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 180 days, or

(E) Notify the permittee that he or she will decide on the request within the next 30 days.

(ii) If the Secretary notifies the permittee of a 30-day extension of a decision, the Secretary must, no later than 120 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 Section 122.42 (c) 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 180 days;

(iii) If the Secretary fails to make one of the decisions specified in paragraph (b)(6)(ii) 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 DNREC action. The authorized activities must be conducted as described in the permit modification request and must be in compliance with all appropriate standards of Part 265. If the Secretary approves, with or without changes, or denies the modification request during the term of the temporary or automatic authorization provided for in paragraphs (b)(6)(i), (ii), or (iii) of this section, such action cancels the temporary or automatic authorization.

(iv)

(A) In the case of an automatic authorization under paragraph (b)(6)(iii) of this section, or a temporary authorization under paragraph (b)(6)(i)(D) or (ii)(D) of this section, if the Secretary has not made a final approval or denial of the modification request by the date 50 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 describe in the permit modification request, and

(2) Unless the Secretary 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/operator fails to notify the public by the date specified in paragraph (b)(6)(iv)(A) of this section, the effective date of the permanent authorization will be deferred until 50 days after the owner/operator notifies the public.

(v) Except as provided in paragraph (b)(6)(vii) of this section, if the Secretary 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 122.41 or Section 122.42. 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 Part 265.

(vi) 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 Secretary must consider all written comments submitted to the DNREC during the public comment period and must respond in writing to all significant comments in his or her decision.

(vii) With the written consent of the permittee, the Secretary may extend indefinitely or for a specified period the time 46-C periods for final approval or denial of a modification request or for reclassifying a modification as a Class 3.

(7) The Secretary may deny or change the terms of a Class 2 permit modification request under paragraphs (b)(6)(i) through (iii) of this section for the following reasons:

(i) The modification request is incomplete;

(ii) The requested modification does not comply with the appropriate requirements of Part 264 or other applicable requirements; or

(iii) The conditions of the modification fail to protect human health and the environment.

(8) The permittee may perform any construction associated with a Class 2 permit modification request beginning 50 days after the submission of the request unless the Secretary establishes a later date for commencing construction and informs the permittee in writing before day 60.

(c)Class 3 modifications.

(1) For Class 3 modifications listed in Appendix I of this section, the permittee must submit a modification request to the Secretary that:

(i) Describes the exact change to be made to the permit conditions and supporting documents referenced by the permit;

(ii) Identifies that the modification is a Class 3 modification;

(iii) Explains why the modification is needed; and

(iv) Provides the applicable information required by Section Section 122.13 through 122.22, 122.62, 122.63 and 122.66.

(2) The permittee must send a notice of the modification request to all persons on the facility mailing list maintained by the Secretary and to the appropriate units of State and local government as specified in Section 124.10 (c)(v) 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 Secretary evidence of the mailing and publication. The notice must include:

(i) Announcement of a 60-day comment period, and a name and address of a DNREC contact to whom comments must be sent;

(ii) Announcement of the date, time, and place for a public meeting on the modification request, in accordance with Section 122.42 (c)(4);

(iii) Name and telephone number of the permittee's contact person;

(iv) Name and telephone number of a DNREC contact person;

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

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

(3) 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.

(4) The permittee must hold a public meeting not earlier than 15 days after the publication of the notice required in paragraph (c)(2) 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.

(5) The public shall be provided 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 DNREC contact identified in the notice.

(6) After the conclusion of the 60-day comment period, the Secretary must grant or deny the permit modification request according to the permit modification procedures of Part 124. In addition, the Secretary must consider and respond to all significant written comments received during the 60-day comment period.

(d)Other modifications.

(1) 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 DNREC, or he or she may request a determination by the Secretary 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 DNREC with the necessary information to support the requested classification.

(2) The Secretary shall make the determination described in paragraph (d)(1) of this section as promptly as practicable. In determining the appropriate class for a specific modification, the Secretary shall consider the similarity of the modification to other modifications codified in Appendix I and the following criteria:

(i) 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 Secretary may require prior approval.

(ii) 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 advancements, 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.

(iii) Class 3 modifications substantially alter the facility or its operation.

(e)Temporary authorizations.

(1) Upon request of the permittee, the Secretary 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.

(2)

(i) The permittee may request a temporary authorization for:

(A) Any Class 2 modification meeting the criteria in paragraph (e)(3)(ii) of this section, and

(B) Any Class 3 modification that meets the criteria in paragraph (3)(ii)(A) or (B) of this section; or that meets the criteria in paragraphs (3)(ii)(C) through (E) of this section and provides improved management or treatment of a hazardous waste already listed in the facility permit.

(ii) 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 Part 264 standards.

(iii) The permittee must send a notice about the temporary authorization request to all persons on the facility mailing list maintained by the Secretary and to appropriate units of State and local governments as specified in Section 124.10(c)(iv). This notification must be made within seven days of submission of the authorization request.

(3) The Secretary shall approve or deny the temporary authorization as quickly as practical. To issue a temporary authorization, the Secretary must find:

(i) The authorized activities are in compliance with the standards of Part 264;

(ii) 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, containers, or in containment buildings in accordance with Part 268;

(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.

(4) 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:

(i)The reissued temporary authorization constitutes the Secretary's decision on a Class 2 permit modification in accordance with paragraph (b)(6)(i)(D) or (ii)(D) of this section, or

(ii) The Secretary 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 paragraph (c) of this section are conducted.

(f)Public notice and appeals of permit modification decisions.

(1) The Secretary shall notify persons on the facility mailing list and appropriate units of State and local government within 10 days of any decision under this section to grant or deny a Class 2 or 3 permit modification request. The Secretary shall also notify such persons within 10 days after an automatic authorization for a Class 2 modification goes into effect under Section 122.42 (b)(6)(iii) or (v).

(2) The Secretary's decision to grant or deny a Class 2 or 3 permit modification request under this section may be appealed under the appeal procedures of 7 Del.C., Chapter 63.

(3) An automatic authorization that goes into effect under Section 122.42 (b)(6)(iii) or (v) may be appealed under the permit appeal procedures of 7 Del.C., Chapter 63; however, the permittee may continue to conduct the activities pursuant to the automatic authorization until the appeal determination has been made pursuant to 7 Del.C., Chapter 63.

(g)Newly listed or identified wastes.

(1) The permittee is authorized to continue to manage wastes listed or identified as hazardous under Part 261 of these regulations, or to continue to manage hazardous waste in units newly regulated as hazardous waste management units, if:

(i) 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;

(ii) 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;

(iii) The permittee is in compliance with the applicable standards of Parts 265 and 266 of these regulations;

(iv) 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 RCRA Subtitle C management standards;

(v) In the case of land disposal units, the permittee certifies that each such unit is in compliance with all applicable requirements of Part 265 of these regulations 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.

(2) 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.

(h)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 off-site wastes, if:

(1) 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;

(2) 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 off-site waste munitions; and

(3) The permittee submits a complete Class 2 modification request within 180 days of the date when the waste military munitions became subject to hazardous waste regulatory requirements.

(i)Reserved.

(j)Combustion facility changes to meet part 63 MACT standards. The following procedures apply to hazardous waste combustion facility permit modifications requested under Appendix I of this section, section L(9).

(1) Facility owners or operators must comply with the Notification of Intent to Comply (NIC) requirements of 40 CFR 63.1211 before a permit modification can be requested under this section.

(2) If the Secretary does not approve or deny the request within 90 days of receiving it, the request shall be deemed approved. The Secretary 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.

(Amended July 26, 1994, August 1, 1995, January 1, 1999, August 23, 1999)

13 DE Reg. 852 (12/01/09)

7 Del. Admin. Code § 1302-122-D-122.42