Wis. Admin. Code Department of Natural Resources NR 670.042

Current through October 28, 2024

Section NR 670.042 - License modification at the request of the licensee

(1) CLASS 1 MODIFICATIONS.

(a) Except as provided in par. (b), the licensee may put into effect class 1 modifications listed in ch. NR 670 Appendix I if all of the following conditions are met:

1. The licensee shall notify the department 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 shall specify the changes being made to license conditions or supporting documents referenced by the license and shall explain why they are necessary. Along with the notice, the licensee shall provide the applicable information required by ss. NR 670.013 to 670.029 and 670.062.

2. The licensee shall send a notice of the modification to all persons on the facility mailing list and the appropriate units of state and local government, as identified in s. NR 670.410(3) (a) 9. to 11. This notification shall be made within 90 calendar days after the change is put into effect. For the class I modifications that require prior department approval, the notification shall be made within 90 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 shall inform the licensee 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 licensee shall comply with the original license conditions.

(b) Class 1 license modifications identified in ch. NR 670 Appendix I as Class 1-1 by a footnote may be made only with the prior written approval of the department.

(c) For a class 1 license modification, the licensee may elect to follow the procedures in sub. (2) for class 2 modifications instead of the class 1 procedures. The licensee shall inform the department of this decision in the notice required in sub. (2) (a).

(2) CLASS 2 MODIFICATIONS.

(a) For class 2 modifications, listed in ch. NR 670 Appendix I, the licensee shall submit a modification request to the department that does all of the following:

1. Describes the exact change to be made to the license conditions and supporting documents referenced by the license.

2. Identifies that the modification is a class 2 modification.

3. Explains why the modification is needed.

4. Provides the applicable information required by ss. NR 670.013 to 670.029 and 670.062.

(b) The licensee shall send a notice of the modification request to all persons on the facility mailing list and to the appropriate units of state and local government as identified in s. NR 670.410(3) (a) 9. to 11., and shall publish this notice in a major local newspaper of general circulation. This notice shall be mailed and published within 7 days before or after the date of submission of the modification request, and the licensee shall provide to the department evidence of the mailing and publication. The notice shall include all of the following:

1. Announcement of a 45-day comment period, according to par. (e), and the name and address of a department contact to whom comments shall be sent.

2. Announcement of the date, time and place for a public meeting held according to par. (d).

3. Name and telephone number of the licensee's contact person.

4. Name and telephone number of a department-designated contact person.

5. Location where copies of the modification request and any supporting documents can be viewed and copied.

6. The following statement: "The licensee's compliance history during the life of the license being modified is available from the department contact person."

(c) The licensee shall place a copy of the license modification request and supporting documents in a location accessible to the public in the vicinity of the licensed facility.

(d) The licensee shall hold a public meeting no earlier than 15 days after the publication of the notice required in par. (b) and no later than 15 days before the close of the 45-day comment period. The meeting shall be held to the extent practicable in the vicinity of the licensed facility.

(e) The public shall be provided 45 days to comment on the modification request. The comment period will begin on the date the licensee publishes the notice in the local newspaper. Comments shall be submitted to the department contact identified in the public notice.

(f)

1. No later than 90 days after receipt of the notification request, the department shall do one of the following:

a. Approve the modification request, with or without changes, and modify the license accordingly.

b. Deny the request.

c. Determine that the modification request shall follow the procedures in sub. (3) for class 3 modifications for either of the following reasons:

1) There is significant public concern about the proposed modification.

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.

3. If the department approves or denies the modification request during the term of the temporary authorization provided for in subd. 1., this action cancels the temporary authorization.

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 shall consider all written comments submitted to the department during the public comment period and shall respond in writing to all significant comments in the department's decision.

(g) The department may deny or change the terms of a class 2 license modification request under par. (f) 1. and 3. for any of the following reasons:

1. The modification request is incomplete.

2. The requested modification does not comply with ch. NR 664 or other applicable requirements.

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

(h) The licensee may perform any construction associated with a class 2 license modification request beginning 60 days after the submission of the request unless the department establishes a later date for commencing construction and informs the licensee in writing before day 60.

(3) CLASS 3 MODIFICATIONS.

(a) For class 3 modifications listed in ch. NR 670 Appendix I, the licensee shall submit a modification request to the department that does all of the following:

1. Describes the exact change to be made to the license conditions and supporting documents referenced by the license.

2. Identifies that the modification is a class 3 modification.

3. Explains why the modification is needed.

4. Provides the applicable information required by ss. NR 670.007, 670.013 to 670.029, 670.062 and 670.066.

1. Announcement of a 45-day comment period, and a name and address of a department contact to whom comments shall be sent.

2. Announcement of the date, time and place for a public meeting on the modification request, according to par. (d).

3. Name and telephone number of the licensee'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.

6. The following statement: "The licensee's compliance history during the life of the license being modified is available from the department contact person."

(c) The licensee shall place a copy of the license modification request and supporting documents in a location accessible to the public in the vicinity of the licensed facility.

(e) The public shall be provided at least 45 days to comment on the modification request. The comment period will begin on the date the licensee publishes the notice in the local newspaper. Comments shall be submitted to the department contact identified in the notice.

(f) After the conclusion of the 45-day comment period, the department shall grant or deny the license modification request according to the license modification procedures of this chapter. In addition, the department shall consider and respond to all significant written comments received during the 45-day comment period.

(4) OTHER MODIFICATIONS.

(a) In the case of modifications not explicitly listed in ch. NR 670 Appendix I, the licensee may submit a class 3 modification request to the department, or the licensee may request a determination by the department that the modification shall be reviewed and approved as a class 1 or class 2 modification. If the licensee requests that the modification be classified as a class 1 or 2 modification, the licensee shall provide the department with the necessary information to support the requested classification.

(b) The department shall make the determination described in par. (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 ch. NR 670 Appendix I and all of the following criteria:

1. Class 1 modifications apply to minor changes that keep the license current with routine changes to the facility or its operation. These changes do not substantially alter the license 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 licensee to respond, in a timely manner, such as the following:

a. Common variations in the types and quantities of the wastes managed under the facility license.

b. Technological advancements.

c. Changes necessary to comply with new rules, where these changes can be implemented without substantially changing design specifications or management practices in the license.

3. Class 3 modifications substantially alter the facility or its operation.

(5) TEMPORARY AUTHORIZATIONS.

(a) Upon request of the licensee, the department may, without prior public notice and comment, grant the licensee a temporary authorization according to this subsection. Temporary authorizations shall have a term of not more than 180 days.

(b)

1. The licensee may request a temporary authorization for:

a. Any class 2 modification meeting the criteria in par. (c) 2.

b. Any class 3 modification that meets the criteria in par. (c) 2. a. or b.; or that meets the criteria in pars. (c) 2. c. to e. and provides improved management or treatment of a hazardous waste already listed in the facility license.

2. The temporary authorization request shall include all of the following:

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

b. An explanation of why the temporary authorization is necessary.

c. Sufficient information to ensure compliance with ch. NR 664 standards.

3. The licensee shall send a notice about the temporary authorization request to all persons on the facility mailing list and to appropriate units of state and local governments as identified in s. NR 670.410(3) (a) 9. to 11. This notification shall be made within 7 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 shall find:

1. The authorized activities are in compliance with the standards of ch. NR 664.

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 according to ch. NR 668.

c. To prevent disruption of ongoing waste management activities.

d. To enable the licensee to respond to sudden changes in the types or quantities of the wastes managed under the facility license.

e. To facilitate other changes to protect human health and the environment.

(d) A temporary authorization may be reissued for one additional term of up to 180 days if the licensee has requested a class 2 or 3 license modification for the activity covered in the temporary authorization, and

1. The reissued temporary authorization constitutes the department's decision on a class 2 license modification according to sub. (2) (f) 1. d.

2. The department determines that the reissued temporary authorization involving a class 3 license modification request is warranted to allow the authorized activities to continue while the modification procedures of sub. (3) are conducted.

(6) PUBLIC NOTICE AND APPEALS OF LICENSE MODIFICATION DECISIONS.

(a) The department shall notify persons on the facility mailing list and appropriate units of state and local government as identified in s. NR 670.410(3) (a) 9. to 11. within 10 days of any decision under this section to grant or deny a class 2 or 3 license modification request.

(b) The department's decision to grant or deny a class 2 or 3 license modification request under this section may be appealed under the license appeal procedures of ss. 227.52 and 227.53, Stats. Department determinations under this chapter are made as part of the process for approving a feasibility and plan of operation report or license under subch. III of ch. 289, Stats., or ch. 291, Stats., and are therefore exempt from s. 227.42(1), Stats.

(7) NEWLY REGULATED WASTES AND UNITS.

(a) The licensee is authorized to continue to manage wastes listed or identified as hazardous under ch. NR 661, or to continue to manage hazardous waste in units newly regulated as hazardous waste management units, if all of the following apply:

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 on the effective date of the final rule listing or identifying the waste, or regulating the unit.

2. The licensee 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 licensee is in compliance with the applicable standards of chs. NR 665 and 666.

4. The licensee 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 ch. 291, Stats., and chs. NR 660 to 673 management standards.

5. In the case of land disposal units, the licensee certifies that each unit is in compliance with ch. NR 665 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, the owner or operator will lose authority to operate under this section.

(8) MILITARY HAZARDOUS WASTE MUNITIONS TREATMENT AND DISPOSAL. The licensee is authorized to continue to accept waste military munitions notwithstanding any license conditions barring the licensee from accepting off-site wastes, if all of the following apply:

(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 licensee submits a class 1 modification request to remove or amend the license provision restricting the receipt of off-site waste munitions.

(c) The licensee 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) LICENSE MODIFICATION LIST. The department shall maintain a list of all approved license modifications and shall 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 MACT STANDARDS. The following procedures apply to hazardous waste combustion facility license modifications requested under section L (9) of ch. NR 670 Appendix I.

(a) Facility owners or operators shall 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 part 63.1200 to 63.1499 revised as of July 1, 2000) in order to request a license 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 shall comply with the notification of intent to comply (NIC) requirements of 40 CFR 63.1210(b) and 63.1212(a) before a license modification may 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.

(11) WAIVER OF LICENSE CONDITIONS IN SUPPORT OF TRANSITION TO THE PART 63 MACT STANDARDS.

(a) The owner or operator may request to have specific facility operating and emissions limits waived by submitting a class 1 license modification request under section L (10) of ch. NR 670 Appendix I. The owner or operator shall:

1. Identify the specific license 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 license and MACT compliance.

3. Discuss how the revised provisions will be sufficiently protective.

(b) The department shall approve or deny the request within 30 days of receipt of the request. The department may, at its discretion, extend this 30 day deadline one time for up to 30 days by notifying the facility owner or operator.

(c) To request this modification in conjunction with MACT 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 720 hours of operation (renewable at the discretion of the department) the owner or operator shall submit a modification request to the department at the same time the test plans are submitted to the department. The department may elect to approve or deny the request contingent upon approval of the test plans.

Wis. Admin. Code Department of Natural Resources NR 670.042

CR 05-032: cr. Register July 2006 No. 607, eff. 8-1-06; corrections in (1) (a) (intro.), (b), (2) (a) (intro.), (3) (a) (intro.), (4) (a), (b), (10) (intro.) made under s. 13.92(4) (b) 7, Stats., Register March 2013 No. 687.

Amended by, CR 16-007: am. (1) (a) (intro.), 2., (2) (b) (intro.), (g) (intro.), (3) (b) (intro.), (5) (b) 3., r. and recr. (10), cr. (11) Register July 2017 No. 739, eff. 8-1-17; correction in (5) (b) 3. made under s. 13.92(4) (b) 7, Stats., Register July 2017 No. 739, eff.8/1/2017

Amended by, CR 19-082: am. (1) (a) 2., (b), (2) (b) (intro.), (3) (b) (intro.), (4) (b) 2., (5) (b) 3. and (6) (a) Register August 2020 No. 776, eff. 9-1-20; correction in (1) (b) made under s. 35.17, Stats., Register August 2020 No. 776, eff. 9/1/2020