Section 33-24-05-254 - Procedures for case-by-case extensions to an effective date1. Any person who generates, treats, stores, or disposes of a hazardous waste may submit an application to the administrator for an extension to the effective date of any applicable restriction established under sections 33-24-05-266 through 33-24-05-279. The applicant shall demonstrate the following: a. The applicant has made a good-faith effort to locate and contract with treatment, recovery, or disposal facilities nationwide to manage the applicant's waste in accordance with the effective date of the applicable restrictions established under sections 33-24-05-266 through 33-24-05-279;b. The applicant has entered into a binding contractual commitment to construct or otherwise provide alternative treatment, recovery, (for example, recycling), or disposal capacity that meets the treatment standards specified in sections 33-24-05-280 through 33-24-05-289 or, where treatment standards have not been specified, such treatment, recovery, or disposal capacity is protective of human health and the environment;c. Due to circumstances beyond the applicant's control, such alternative capacity cannot reasonably be made available by the applicable effective date. This demonstration may include a showing that the technical and practical difficulties associated with providing the alternative capacity will result in the capacity not being available by the applicable effective date;d. The capacity being constructed or otherwise provided by the applicant will be sufficient to manage the entire quantity of waste that is the subject of the application;e. The applicant provides a detailed schedule for obtaining required operating and construction permits or an outline of how and when alternative capacity will be available;f. The applicant has arranged for adequate capacity to manage the applicant's waste during an extension and has documented in the application the location of all sites at which the waste will be managed; andg. Any waste managed in a surface impoundment or landfill during the extension period will meet the requirements of subdivision b of subsection 8.2. An authorized representative signing an application described under subsection 1 shall make the following certification: I certify under penalty of law that I have personally examined and am familiar with the information submitted in this document and all attachments and that based on my inquiry of those individuals immediately responsible for obtaining the information, I believe that the information is true, accurate, and complete. I am aware that there are significant penalties for submitting false information, including the possibility of fine and imprisonment.3. After receiving an application for an extension, the administrator may request any additional information which the administrator deems as necessary to evaluate the application.4. An extension will apply only to the waste generated at the individual facility covered by the application and will not apply to restricted waste from any other facility.5. On the basis of the information referred to in subsection 1, after notice and opportunity for comment, and after consultation with appropriate state agencies in all affected states, the administrator may grant an extension of up to one year from the effective date. The administrator may renew this extension for up to one additional year upon the request of the applicant if the demonstration required in subsection 1 can still be made. In no event will an extension extend beyond twenty-four months from the applicable effective date specified in sections 33-24-05-266 through 33-24-05-279. The length of any extension authorized will be determined by the administrator based on the time required to construct or obtain the type of capacity needed by the applicant as described in the completion schedule discussed in subdivision e of subsection 1. The administrator will give public notice of the intent to approve or deny a petition and provide an opportunity for public comment. The final decision on a petition will be published in the federal register. 6. Any person granted an extension under this section shall immediately notify the administrator as soon as that person has knowledge of any change in the conditions certified to in the application.7. Any person granted an extension under this section shall submit written progress reports at intervals designated by the administrator. Such reports must describe the overall progress made toward constructing or otherwise providing alternative treatment, recovery, or disposal capacity; must identify any event which may cause or has caused a delay in the development of the capacity; and must summarize the steps taken to mitigate the delay. The administrator can revoke an extension at any time if the applicant does not demonstrate a good-faith effort to meet the schedule for completion, if the environmental protection agency denies or revokes any required permit, if conditions certified in the application change, or for any violation of this article.8. When the administrator establishes an extension to an effective date under this section, during the period for which such extension is in effect: a. The storage restrictions under subsection 1 of section 33-24-05-290 do not apply; andb. Such hazardous waste may be disposed in a landfill or surface impoundment only if such unit is in compliance with the technical requirements of the following provisions regardless of whether such unit is existing, new, or a replacement or lateral expansion. (1) The landfill, if in interim status, is in compliance with the applicable requirements of subsection 5 of section 33-24-06-16;(2) The landfill, if permitted, is in compliance with the requirements of sections 33-24-05-47 through 33-24-05-58 and subsections 3, 4, and 5 of section 33-24-05-177;(3) The surface impoundment, if in interim status, is in compliance with the applicable requirements of subsection 5 of section 33-24-06-16, and Resource Conservation and Recovery Act section 3005(j)(1);(4) The surface impoundment, if permitted, is in compliance with the requirements of sections 33-24-05-47 through 33-24-05-58 and subsections 3, 4, and 5 of section 33-24-05-119;(5) The surface impoundment, if newly subject to Resource Conservation and Recovery Act section 3005(j)(1) due to the promulgation of additional listings or characteristics for the identification of hazardous waste, is in compliance with the requirements of subsection 5 of section 33-24-06-16 (subpart F of 40 CFR part 265) within twelve months after the promulgation of additional listings or characteristics of hazardous waste, and with the requirements of subsection 5 of section 33-24-06-16 ( 40 CFR section 265.221(a), (c), and (d) ) within forty-eight months after the promulgation of additional listings or characteristics of hazardous waste. If a national capacity variance is granted, during the period the variance is in effect, the surface impoundment, if newly subject to Resource Conservation and Recovery Act section 3005(j)(1) due to the promulgation of additional listings or characteristics of hazardous waste, is in compliance with the requirements of subsection 5 of section 33-24-06-16 (subpart F of 40 CFR part 265) within twelve months after the promulgation of additional listings or characteristics of hazardous waste, and with the requirements of subsection 5 of section 33-24-06-16 ( 40 CFR section 265.221(a), (c), and (d) ) within forty-eight months after the promulgation of additional listings or characteristics of hazardous waste; or (6) The landfill, if disposing of containerized liquid hazardous wastes containing polychlorinated biphenyls of concentrations greater than or equal to fifty parts per million but less than five hundred parts per million, is also in compliance with the requirements of 40 CFR 761.75 and this article.9. Pending a decision on an application, the applicant is required to comply with all restrictions on land disposal under sections 33-24-05-250 through 33-24-05-299 once the effective date for the waste has been reached.N.D. Admin Code 33-24-05-254
Effective December 1, 1988; amended effective December 1, 1991; January 1, 1994; July 1, 1997; December 1, 2003.Amended by Administrative Rules Supplement 2016-359, January 2016, effective 1/1/2016.General Authority: NDCC 23-20.3-03
Law Implemented: NDCC 23-20.3-03, 23-20.3-04