La. Admin. Code tit. 33 § V-321

Current through Register Vol. 50, No. 6, June 20, 2024

Section V-321 - Modification of Permits

A. Any proposed major modification of a facility or a site, any change in wastes handled in either volume or composition, and any other change in the site, facility, or operations that materially deviates from a permit or materially increases danger to the public health or the environment must be reported in writing to the Office of Environmental Services prior to such an occurrence, and a permit modification must be obtained in accordance with the application, public notice, and permit requirements of this Chapter and in accordance with LAC 33:I.Chapter 15. Any operator or ownership change shall be made in accordance with LAC 33:I.Chapter 19.

B. Transfer of Permits

1. A permit may be transferred by the permittee to a new owner or operator only if the permit has been modified or revoked and reissued under LAC 33:V.321.B.2 or 323.B.2 to identify the new permittee and incorporate such other requirements as may be necessary.

2. Changes in the ownership or operational control of a facility shall be made in accordance with LAC 33:I.Chapter 19.

C. Permit Modification at the Request of the Permittee

1. Class 1 Modifications

a. Except as provided in LAC 33:V.321.C.1.b, the permittee may put into effect Class 1 modifications listed in LAC 33:V.322 under the following conditions.

i. The permittee must notify the Office of Environmental Services 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 the applicable information required by LAC 33:V.515-533, 2707, and 3115.

ii. The permittee must send a notice of the modification to all persons on the facility mailing list, maintained by the administrative authority in accordance with LAC 33:V.717.A.1.e, and the appropriate units of state and local government, as specified in LAC 33:V.717.A.1.b and d. This notification must be made within 90 calendar days after the change is put into effect. For the Class 1 modifications that require prior administrative authority approval, the notification must be made within 90 calendar days after the administrative authority approves the request.

iii. Any person may request that the administrative authority review, and the administrative authority may for cause reject, any Class 1 modification. The administrative authority 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 LAC 33:V.322 by a superscript "1" may be made only with the prior written approval of the administrative authority.

c. For a Class 1 permit modification, the permittee may elect to follow the procedures in LAC 33:V.321.C.2 for Class 2 modifications instead of the Class 1 procedures. The permittee must inform the administrative authority of this decision in the notice required in LAC 33:V.321.C.2.a.

2. Class 2 Modifications

a. For Class 2 modifications, listed in LAC 33:V.322, the permittee must submit a modification request to the Office of Environmental Services that:

i. describes the exact change to be made to the permit conditions and supporting documents referenced by the permit;

ii. identifies the modification as a Class 2 modification;

iii. explains why the modification is needed; and

iv. provides the applicable information required by LAC 33:V.515-533, 2707, and 3115.

b. The permittee must send a notice of the modification request to all persons on the facility mailing list maintained by the administrative authority and to the appropriate units of state and local government as required in LAC 33:V.717.A.1.b 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 administrative authority evidence of the mailing and publication. The notice must include:

i. announcement of a 60-day comment period, in accordance with LAC 33:V.321.C.2.e, and the name and address of a department contact to whom comments must be sent;

ii. announcement of the date, time, and place for a public meeting held in accordance with LAC 33:V.321.C.2.d;

iii. name and telephone number of the permittee's contact person;

iv. name and telephone number of a department 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 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 15 days after the publication of the notice required in LAC 33:V.321.C.2.b 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.

e. 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 department contact identified in the public notice.

f. No later than 90 days after receipt of the notification request, the administrative authority must do one of the following:

i. approve the modification request with or without changes, and modify the permit accordingly;

ii. deny the request;

iii. determine that the modification request must follow the procedures in LAC 33:V.321.C.3 for Class 3 modifications for the following reasons:

(a). there is significant public concern about the proposed modification; or

(b). the complex nature of the change requires the more extensive procedures of Class 3;

iv. approve the request, with or without changes, as a temporary authorization having a term of up to 180 days;

v. notify the permittee that the administrative authority will decide the request within the next 30 days.

g. If the administrative authority notifies the permittee of a 30-day extension for a decision, the administrative authority must, no later than 120 days after receipt of the modification request, take one of the following actions:

i. approve the modification request, with or without changes, and modify the permit accordingly;

ii. deny the request;

iii. determine that the modification request must follow the procedures in LAC 33:V.321.C.3 for Class 3 modifications for the following reasons:

(a). there is significant public concern about the proposed modification; or

(b). the complex nature of the change requires the more extensive procedures of Class 3;

iv. approve the request, with or without changes, as a temporary authorization having a term of up to 180 days.

h. If the administrative authority fails to make one of the decisions specified in LAC 33:V.321.C.2.g 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 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 LAC 33:V.Chapter 43. If the administrative authority approves, with or without changes, or denies the modification request during the term of the temporary or automatic authorization provided for in LAC 33:V.321.C.2.f, g, and h, such action cancels the temporary or automatic authorization.

i. In the case of an automatic authorization under LAC 33:V.321.C.2.h, or a temporary authorization under LAC 33:V.321.C.2.f.iv or C.2.g.iv, if the administrative authority 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:

i. the permittee has been authorized temporarily to conduct the activities described in the permit modification request; and

ii. unless the administrative authority 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.

j. If the owner/operator fails to notify the public by the date specified in LAC 33:V.321.C.2.i, the effective date of the permanent authorization will be deferred until 50 days after the owner/operator notifies the public.

k. Except as provided in LAC 33:V.321.C.2.m, if the administrative authority 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 up to 180 days. The activities authorized under this Subsection must be conducted as described in the permit modification request and must be in compliance with all appropriate standards of LAC 33:V.Chapter 43.

l. 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 administrative authority 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.

m. With the written consent of the permittee, the administrative authority 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.

n. The administrative authority may deny or change the terms of a Class 2 permit modification request under LAC 33:V.321.C.2.f-h for the following reasons:

i. the modification request is incomplete;

ii. the requested modification does not comply with the appropriate requirements of LAC 33 :V.Chapters 10, 11, 15, 17, 19, 21, 23, 25, 27, 28, 29, 31, 32, 33, 35, and 37 or other applicable requirements;

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

o. 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 administrative authority establishes a later date for commencing construction and informs the permittee in writing before day 60.

3. Class 3 Modifications

a. For Class 3 modifications listed in LAC 33:V.322, the permittee must submit a modification request to the administrative authority that:

i. describes the exact change to be made to the permit conditions and supporting documents referenced by the permit;

ii. identifies the modification as a Class 3 modification;

iii. explains why the modification is needed; and

iv. provides the applicable information required by LAC 33:V.515, 516, 517, 519, 520, 521, 523, 525, 526, 527, 528, 529, 530, 531, 532, 533, 534, 535, 537, 2707, and 3115 and LAC 33:V.Chapter 15.

i. announcement of a 60-day comment period, and a name and address of a department 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 LAC 33:V.321.C.3.d;

iii. name and telephone number of the permittee's contact person;

iv. name and telephone number of a department 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 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 15 days after the publication of the notice required in LAC 33:V.321.C.3.b 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.

e. 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 department contact identified in the notice.

f. After the conclusion of the 60-day comment period, the administrative authority must grant or deny the permit modification request according to the permit modification procedures of LAC 33:V.Chapter 3. In addition, the administrative authority must consider and respond to all significant written comments received during the 60-day comment period.

4. Other Modifications

a. In the case of modifications not explicitly listed in LAC 33:V.322, the permittee may submit a Class 3 modification request to the department, or he or she may request a determination by the administrative authority 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 department with the necessary information to support the requested classification.

b. The administrative authority shall make the determination described in LAC 33:V.321.C.4.a as promptly as practicable. In determining the appropriate class for a specific modification, the administrative authority shall consider the similarity of the modification to other modifications codified in LAC 33:V.322 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 and the environment. In the case of Class 1 modifications, the administrative authority 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.

5. Temporary Authorizations

a. Upon request of the permittee, the administrative authority may, without prior public notice and comment, grant the permittee a temporary authorization in accordance with this Paragraph. Temporary authorizations must have a term of not more than 180 days.

b. The permittee may request a temporary authorization for:

i. any Class 2 modification meeting the criteria in LAC 33:V.321.C.5.d.ii; and

ii. any Class 3 modification that meets the criteria in LAC 33:V.321.C.5.d.ii.(a) or (b), or that meets the criteria in LAC 33:V.321.C.5.d.ii.(c)-(e) and provides improved management or treatment of a hazardous waste already listed in the facility permit.

c. The temporary authorization request must include:

i. a description of the activities to be conducted under the temporary authorization;

ii. an explanation of why the temporary authorization is necessary;

iii. sufficient information to ensure compliance with LAC 33:V.Chapters 10, 11, 15, 17, 19, 21, 23, 25, 27, 28, 29, 31, 32, 33, 35, and 37 standards; and

iv. the permittee must send a notice about the temporary authorization request to all persons on the facility mailing list maintained by the administrative authority and to appropriate units of state and local governments. This notification must be made within seven days of submission of the authorization request.

d. The administrative authority shall approve or deny the temporary authorization as quickly as practicable. To issue a temporary authorization, the administrative authority must find the following:

i. the authorized activities are in compliance with the standards of LAC 33:V.Chapters 10, 11, 15, 17, 19, 21, 23,25, 27, 28, 29, 31, 32, 33, 35, and 37; and

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 containment buildings in accordance with LAC 33:V.Chapter 22;

(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.

e. 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 administrative authority's decision on a Class 2 permit modification in accordance with LAC 33:V.321.C.2.f.iv or C.2.g.iv; or

ii. the administrative authority 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 LAC 33:V.321.C.3 are conducted.

6. Public Notice and Appeals of Permit Modification Decisions

a. The administrative authority shall notify persons on the facility mailing list and appropriate units of state and local government within 10 days of any decision under this Subsection to grant or deny a Class 2 or 3 permit modification request. The administrative authority shall also notify such persons within 10 days after an automatic authorization for a Class 2 modification goes into effect under LAC 33:V.321.C.2.h or k.

b. The administrative authority's decision to grant or deny a Class 2 or 3 permit modification request under this Subsection may be appealed under the permit appeal procedures of R.S. 30:2024.

c. An automatic authorization that goes into effect under LAC 33:V.321.C.2.h or k may be appealed under the permit appeal procedures of R.S. 30:2024; however, the permittee may continue to conduct the activities pursuant to the automatic authorization until the appeal has been granted pursuant to R.S. 30:2024, notwithstanding the provisions of LAC 33:V.705.B.2.

7. Newly Listed or Identified Wastes

a. The permittee is authorized to continue to manage wastes listed or identified as hazardous under LAC 33:V.Chapter 49, or to continue to manage hazardous waste in units newly regulated as hazardous waste management units, if he or she:

i. manages them at a facility that 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. submits a Class 1 modification request on or before the date on which the waste or unit becomes subject to the new requirements;

iii. is in compliance with the standards of LAC 33:V.Chapters 41 and 43;

iv. also submits a complete Class 2 or 3 permit modification request within 180 days after the effective date of the rule listing or identifying the waste, or subjecting the unit to RCRA Subtitle C management standards; and

v. in the case of land disposal units, certifies that such unit is in compliance with all applicable requirements of LAC 33:V.4369 and 4397-4413 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 these requirements, he or she shall lose authority to operate under this Subsection.

b. New wastes or units added to a facility's permit under this Paragraph do not constitute expansions for the purpose of the 25 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 off-site 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 off-site waste munitions; and

c. 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.

9. Permit Modification List. The administrative authority 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 (MACT) Standards, as Incorporated by Reference at LAC 33:III.5122. The following procedures apply to hazardous waste combustion facility permit modifications requested under LAC 33:V.322.L.9.

a. 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 63.1200-1499, 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 63.1203-1205.

b. Facility owners or operators must comply with the NIC 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 63.1215-1221 standards promulgated on October 12, 2005.

c. If the administrative authority does not approve or deny the request within 90 days of receiving it, the request shall be deemed approved. The administrative authority 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.

11. Waiver of RCRA Permit Conditions in Support of Transition to the 40 CFR Part 63 MACT Standards, as Incorporated by Reference at LAC 33:III.5122

a. Facility owners or operators may request to have specific RCRA operating and emissions limits waived by submitting a Class 1 permit modification request under the requirements of this Section and LAC 33:V.322.L.10. As part of this request, the facility owner or operator must:

i. identify the specific RCRA permit operating and emissions limits which the facility owner or operator is requesting to waive;

ii. provide an explanation of why the changes are necessary in order to minimize or eliminate conflicts between the RCRA permit and MACT compliance; and

iii. provide an explanation of how the revised provisions will be sufficiently protective.

b. The administrative authority shall approve or deny the request within 30 days of receipt of the request. The administrative authority may extend, at his or her discretion, this 30-day deadline one time for up to 30 days by notifying the facility owner or operator.

c. The facility owner or operator may request this modification in conjunction with MACT performance testing where permit limits may only be waived during actual test events and pretesting, as defined in 40 CFR 63.1207(h)(2)(i) and (ii), for an aggregate time not to exceed 720 hours of operation (renewable at the discretion of the administrative authority). The modification request shall be submitted to the administrative authority at the same time that the test plans are submitted. The administrative authority may elect to approve or deny this request contingent upon approval of the test plans.

La. Admin. Code tit. 33, § V-321

Promulgated by the Department of Environmental Quality, Office of Solid and Hazardous Waste, Hazardous Waste Division, LR 10:200 (March 1984), amended LR 13:433 (August 1987), LR 15:378 (May 1989), LR 16:614 (July 1990), LR 18:1375 (December 1992), LR 20:1000 (September 1994), LR 21:266 (March 1995), LR 21:944 (September 1995), amended by the Office of Waste Services, Hazardous Waste Division, LR 24:1691 (September 1998), LR 25:435 (March 1999), amended by the Office of Environmental Assessment, Environmental Planning Division, LR 26:2466 (November 2000), LR 28:1000 (May 2002), LR 29:319 (March 2003), amended by the Office of the Secretary, Legal Affairs Division, LR 31:2430, 2454 (October 2005), LR 33:2100 (October 2007), LR 34:619 (April 2008), LR 35:1879 (September 2009), Amended by the Office of the Secretary, Legal Affairs and Criminal Investigations Division, LR 46900 (7/1/2020).

AUTHORITY NOTE: Promulgated in accordance with R.S. 30:2180 et seq.