N.D. Admin. Code 33-24-06-32

Current through Supplement No. 393, July, 2024

Section 33-24-06-32 - Remedial action plan approval process

1. Completeness and technical review. The department will not issue a permit before receiving a complete application for a remedial action plan. An application for a remedial action plan is complete when the department receives an application form and any supplemental information which is completed to the department's satisfaction. The completeness of any application for a permit shall be judged independently of the status of any other permit application or permit for the same facility or activity. An application for a permit is complete notwithstanding the failure of the owner or operator to submit the exposure information described in subsection 10 of section 33-24-06-01. The department may deny a permit for a remedial action plan before receiving a complete application for a permit.

a. If the department tentatively finds that a remedial action plan application includes all of the information required by subsection 4 of section 33-24-06-31 and that the proposed remediation waste management activities meet the regulatory standards, the department may make a tentative decision to approve the remedial action plan application. The department will then prepare a draft remedial action plan and provide an opportunity for public comment before making a final decision on the remedial action plan application, according to sections 33-24-06-30 through 33-24-06-35.

b. If the department tentatively finds that the remedial action plan application does not include all of the information required by subsection 4 of section 33-24-06-31 or that the proposed remediation waste management activities do not meet the regulatory standards, the department may request additional information or ask the owner or operator to correct deficiencies in the application. If the owner or operator fails or refuses to provide any additional information the department requests, or to correct any deficiencies in the remedial action plan application, the department may make a tentative decision to deny the remedial action plan application. After making this tentative decision, the department will prepare a notice of intent to deny the remedial action plan application ("notice of intent to deny") and provide an opportunity for public comment before making a final decision on the remedial action plan application, according to the requirements in sections 33-24-06-30 through 33-24-06-35. The department may deny the remedial action plan application either in its entirety or in part.

2. Contents of the draft remedial action plan. If the department prepares a draft remedial action plan, the department must include the following information:

a. Information required under subdivisions a through f of subsection 4 of section 33-24-06-31;

b. The following terms and conditions:

(1) Terms and conditions necessary to ensure that the operating requirements specified in the remedial action plan comply with applicable requirements of sections 33-24-05-01 through 33-24-05-559 and 33-24-05-800 through 33-24-05-929 (including any recordkeeping and reporting requirements). In satisfying this provision, the department may incorporate, expressly or by reference, applicable requirements of sections 33-24-05-01 through 33-24-05-559 and 33-24-05-800 through 33-24-05-929 into the remedial action plan or establish site-specific conditions as required or allowed by sections 33-24-05-01 through 33-24-05-559 and 33-24-05-800 through 33-24-05-929;

(2) Terms and conditions in section 33-24-06-04;

(3) Terms and conditions for modifying, revoking and reissuing, and terminating the remedial action plan, as provided in subsection 1 of section 33-24-06-33; and

(4) Any additional terms or conditions that the department determines are necessary to protect human health and the environment, including any terms and conditions necessary to respond to spills and leaks during use of any units permitted under the remedial action plan; and

c. If the draft remedial action plan is part of another document, as described in paragraph 2 of subdivision d of subsection 1 of section 33-24-06-30, the department must clearly identify the components of that document that constitute the draft remedial action plan.

3. Once the department has prepared the draft remedial action plan or notice of intent to deny, then the department must also prepare the following documents:

a. A fact sheet that briefly describes the derivation of the conditions of the draft remedial action plan and the reasons for them, or the rationale for the notice of intent to deny;

b. The following documentation, including:

(1) The remedial action plan application, and any supporting data furnished by the applicant;

(2) The draft remedial action plan or notice of intent to deny;

(3) The fact sheet and all documents cited therein (material readily available at the department or published material that is generally available need not be physically included , as long as it is specifically referred to in the fact sheet); and

(4) Any other documents that support the decision to approve or deny the remedial action plan; and

c. Information contained in subdivision b must be available for review by the public upon request.

4. Procedures for public comment.

a. The department must:

(1) Send notice to the owner or operator of the intention to approve or deny the remedial action plan application and send the owner or operator a copy of the fact sheet;

(2) Publish a notice of the intention to approve or deny the remedial action plan application in a major local newspaper of general circulation;

(3) Broadcast the intention to approve or deny the remedial action plan application over a local radio station; and

(4) Send a notice of the intention to approve or deny the remedial action plan application to each unit of local government having jurisdiction over the area in which the site is located, and to each state agency having any authority under state law with respect to any construction or operations at the site.

b. The notice required by subdivision a must provide an opportunity for the public to submit written comments on the draft remedial action plan or notice of intent to deny within at least forty-five days.

c. The notice required by subdivision a must include:

(1) The name and address of the office processing the remedial action plan application;

(2) The name and address of the remedial action plan applicant, and if different, the remediation waste management site or activity the remedial action plan will regulate;

(3) A brief description of the activity the remedial action plan will regulate;

(4) The name, address, and telephone number of the department's person from whom interested persons may obtain further information, including copies of the draft remedial action plan or notice of intent to deny, fact sheet, and the remedial action plan application;

(5) A brief description of the comment procedures in this subsection, and any other procedures by which the public may participate in the remedial action plan decision;

(6) If a hearing is scheduled, the date, time, location, and purpose of the hearing;

(7) If a hearing is not scheduled, a statement of procedures to request a hearing;

(8) The location of additional information and times when it will be open for public inspection; and

(9) Any additional information the department considers necessary or proper.

d. If, within the comment period, the department receives written notice of opposition to the intention to approve or deny the remedial action plan application and a request for a hearing, the department must hold an informal public hearing to discuss issues relating to the approval or denial of the remedial action plan application. The department may also determine on the department's own initiative that an informal hearing is appropriate. The hearing must include an opportunity for any person to present written or oral comments. Whenever possible, the department must schedule this hearing at a location convenient to the nearest population center to the remediation waste management site and give notice according to the requirements in subdivision a. This notice must, at a minimum, include the information required by subdivision c and:

(1) Reference to the date of any previous public notices relating to the remedial action plan application;

(2) The date, time, and place of the hearing; and

(3) A brief description of the nature and purpose of the hearing, including the applicable rules and procedures.

5. Basis for final decision.

a. The department must consider and respond to any significant comments raised during the public comment period, or during any hearing on the draft remedial action plan or notice of intent to deny, and revise the draft remedial action plan based on those comments, as appropriate.

b. If the department determines that the remedial action plan includes the information and terms and conditions required in subsection 2, then the department will issue a final decision approving the remedial action plan and, in writing, notify the owner or operator and all commenters on the draft remedial action plan that the remedial action plan application has been approved.

c. If the department determines that the remedial action plan does not include the information required in subsection 2, then the department will issue a final decision denying the remedial action plan and, in writing, notify the owner or operator and all commenters on the draft remedial action plan that the remedial action plan application has been denied.

d. If the department's final decision is that the tentative decision to deny the remedial action plan application was incorrect, the department will withdraw the notice of intent to deny and proceed to prepare a draft remedial action plan, according to the requirements in sections 33-24-06-30 through 33-24-06-35.

e. When the department issues a final remedial action plan decision, the final decision must refer to the procedures for appealing the decision under subsection 6.

f. The department shall maintain the following documents:

(1) All comments received during the public comment period;

(2) Tapes or transcripts of any hearings;

(3) Any written materials submitted at these hearings;

(4) The responses to comments;

(5) Any new material placed in the record since the draft remedial action plan was issued;

(6) Any other documents supporting the remedial action plan; and

(7) A copy of the final remedial action plan.

g. The department must make information available for review by the public upon request.

6. Administrative appeal process of the department's decision to approve or deny a remedial action plan application.

a. Any commenter on the draft remedial action plan or notice of intent to deny, or any participant in any public hearing on the draft remedial action plan, may appeal the department's decision to approve or deny the remedial action plan application. Any person who did not file comments, or did not participate in any public hearing on the draft remedial action plan, may petition for administrative review only to the extent of the changes from the draft to the final remedial action plan decision. Appeals of remedial action plans may be made to the same extent as for final permit decisions under section 33-24-07-11. Instead of the notice required under subsection 3 of section 33-24-07-14, and section 33-24-07-06, the department will give public notice of any grant of review of remedial action plans through the same means used to provide notice under subsection 4 of section 33-24-06-32. The notice will include:

(1) The briefing schedule for the appeal as provided by the department;

(2) A statement that any interested person may file an amicus brief with the department; and

(3) The information specified in subdivision c of subsection 4, as appropriate.

b. This appeal is a prerequisite to seeking judicial review of these department actions.

7. Effective date of a remedial action plan. A remedial action plan becomes effective thirty days after the department notifies the owner or operator and all commenters that the remedial action plan is approved unless:

a. The department specifies a later effective date in the final decision;

b. The owner or operator or another person has appealed the remedial action plan under subsection 6 (if the remedial action plan is appealed, and the request for review is granted under subsection 6, conditions of the remedial action plan are stayed according to section 33-24-07-12); or

c. No commenters requested a change in the draft remedial action plan, in which case the remedial action plan becomes effective immediately when it is issued.

8. The owner or operator may not begin physical construction of new units permitted under the remedial action plan for treating, storing, or disposing of hazardous remediation waste before receiving a finally effective remedial action plan.

N.D. Admin Code 33-24-06-32

Effective 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, 23-20.3-05, 23-20.3-09