33.1-24-06-33. Modification, revocation, and reissuance or termination of a remedial action plan.

1. In the remedial action plan, the department must specify, either directly or by reference, procedures for future modifications, revocations and reissuance, or terminations of the remedial action plan. These procedures must provide adequate opportunities for public review and comment on any modification, revocation and reissuance, or termination that would significantly change the management of the remediation waste, or that otherwise merits public review and comment. If the remedial action plan has been incorporated into a traditional hazardous waste permit, as allowed under subdivision c of subsection 2 of section 33.1-24-06-30, then the remedial action plan will be modified according to the applicable requirements in sections 33.1-24-06-11, 33.1-24-06-12, and 33.1-24-06-14, revoked and reissued according to the applicable requirements in sections 33.1-24-06-12 and 33.1-24-06-13, or terminated according to the applicable requirements of section 33.1-24-06-13.

2. Modifications by the department.

a. The department may modify the final remedial action plan on the department's own initiative only if one or more of the following reasons exist. If one or more of these reasons do not exist, then the department will not modify the final remedial action plan, except at the request of the owner or operator. Reasons for modification are:

(1) The owner or operator made material and substantial alterations or additions to the activity that justify applying different conditions; (2) The department finds new information that was not available at the time of remedial action plan issuance and would have justified applying different remedial action plan conditions at the time of issuance; (3) The standards or regulations on which the remedial action plan was based have changed because of new or amended statutes, standards, or regulations, or by judicial decision after the remedial action plan was issued; (4) If the remedial action plan includes any schedules of compliance, the department may find reasons to modify the compliance schedule, such as an act of God, strike, flood, or materials shortage or other events over which the owner or operator have little or no control and for which there is no reasonably available remedy;

1. (5) The owner or operator is not in compliance with conditions of the remedial action plan;
2. (6) The owner or operator failed in the application or during the remedial action plan issuance process to disclose fully all relevant facts, or the owner or operator misrepresented any relevant facts at the time;
3. (7) The department has determined that the activity authorized by the remedial action plan endangers human health or the environment and can only be remedied by modifying; or
4. (8) The owner or operator have notified the department (as required in the remedial action plan under subdivision c of subsection 12 of section 33.1-24-06-04) of a proposed transfer of a remedial action plan.- b. Notwithstanding any other provision in this subsection, when the department reviews a remedial action plan for a land disposal facility under subsection 6, the department may modify the permit as necessary to assure that the facility continues to comply with the currently applicable requirements in chapters 33.1-24-01 through 33.1-24-04, 33.1-24-06, 33.1-24-07, sections 33.1-24-05-01 through 33.1-24-05-249, 33.1-24-05-300 through 33.1-24-05-559, and 33.1-24-05-800 through 33.1-24-05-929.
5. c. The department will not reevaluate the suitability of the facility location at the time of remedial action plan modification unless new information or standards indicate that a threat to human health or the environment exists that was unknown when the remedial action plan was issued.3. Revocation and reissuance of a remedial action plan.- a. The department may revoke and reissue the final remedial action plan on the department's own initiative only if one or more reasons for revocation and reissuance exist. If one or more reasons do not exist, then the department will not modify or revoke and reissue the final remedial action plan, except at the request of the owner or operator. Reasons for modification or revocation and reissuance are the same as the reasons listed for remedial action plan modifications in paragraphs 5 through 8 of subdivision a of subsection 2 if the department determines that revocation and reissuance of the remedial action plan is appropriate.
6. b. The department will not reevaluate the suitability of the facility location at the time of remedial action plan revocation and reissuance, unless new information or standards indicate that a threat to human health or the environment exists that was unknown when the remedial action plan was issued.4. Termination or denial of a renewal application of a remedial action plan. The department may terminate the final remedial action plan on the department's own initiative, or deny the renewal application for the same reasons as those listed for remedial action plan modifications in paragraphs 5 through 7 of subdivision a of subsection 2 if the department determines that termination of the remedial action plan or denial of the remedial action plan renewal application is appropriate.5. Administrative appeal of a decision to deny a modification, revocation and reissuance, or termination of a remedial action plan.- a. Any commenter on the modification, revocation and reissuance, or termination, or any person who participated in any hearing on these actions, may appeal the department's decision to approve a modification, revocation and reissuance, or termination of the remedial action plan, according to subsection 6 of section 33.1-24-06-32. Any person

who did not file comments or did not participate in any public hearing on the modification, revocation and reissuance, or termination may petition for administrative review only of the changes from the draft to the final remedial action plan decision.

b. Any commenter on the modification, revocation and reissuance, or termination, or any person who participated in any hearing on these actions, may informally appeal the department's decision to deny a request for modification, revocation and reissuance, or termination to the department. Any person who did not file comments, or did not participate in any public hearing on the modification, revocation and reissuance, or termination may petition for administrative review only of the changes from the draft to the final remedial action plan decision.

c. The process for informal appeals of remedial action plans is as follows:

(1) The person appealing the decision must send a letter to the department. The letter must briefly set forth the relevant facts.

(2) The department has sixty days after receiving the letter to act on it.

(3) If the department does not take action on the letter within sixty days after receiving it, the appeal shall be considered denied.

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

6. Expiration of a remedial action plan. Remedial action plans are effective for a fixed term of five years. Every five years any remedial action plan for hazardous waste land disposal must be modified as necessary to assure that the owner or operator continues to comply with currently applicable requirements in North Dakota Century Code sections 23.1-04-05 and 23.1-04-08, and take into account improvements in technology as well as applicable rules.

7. Renewal. Any facility with an effective remedial action plan shall submit a new application at least one hundred eighty days before the expiration date of the effective remedial action plan unless permission for a later date has been granted by the department (the department shall not grant permission for applications to be submitted later than the expiration date of the existing remedial action plan). The owner or operator must follow the process for application and issuance of remedial action plans in sections 33.1-24-06-30 through 33.1-24-06-35.

8. Continuance of an expiring remedial action plan. The conditions of an expired remedial action plan continue in force until the effective date of a new remedial action plan if:

a. The owner or operator has submitted a timely application which is a complete application for a new remedial action plan; and

b. The department, through no fault of the owner or operator, does not issue a new remedial action plan with an effective date on or before the expiration date of the previous remedial action plan (for example, when issuance is impractical due to time or resource constraints) or the denial of the remedial action plan application.

History: Effective January 1, 2019.

General Authority: NDCC 23.1-04-03; S.L. 2017, ch. 199, § 1

Law Implemented: NDCC 23.1-04-03, 23.1-04-05, 23.1-04-08, 23.1-04-15; S.L. 2017, ch. 199, § 19