| (C) the conditions of the modification fail to protect
human health and the environment.
(15) 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 executive director establishes
a later date for commencing construction and informs the permittee
in writing before the 60th day.
(d) Class 3 modifications of solid waste permits.
(1) For Class 3 modifications listed in Appendix I
of subsection (k) of this section, the permittee must submit a modification
request to the executive director that:
(A) describes the exact change to be made to the permit
conditions and supporting documents referenced by the permit;
(B) identifies that the modification is a Class 3 modification;
(C) explains why the modification is needed; and
(D) provides the applicable information in the form
and manner specified in §1.5(d) of this title and §§305.41
- 305.45 and 305.47 - 305.53 of this title; and Subchapter Q of this
chapter (relating to Permits for Boilers and Industrial Furnaces Burning
(2) The permittee must send a notice of the modification
request by first-class mail to all persons listed in §39.413
of this title and must cause this notice to be published 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 evidence of the mailing and publication
of the notice shall be provided to the executive director. The notice
shall include the following:
(A) all information required by §39.411 of this
title (relating to Text of Public Notice);
(B) announcement of a 60-day comment period, and the
name and address of an agency contact person to whom comments must
(C) announcement of the date, time, and place for a
public meeting on the modification request, to be held in accordance
with paragraph (4) of this subsection;
(D) name and telephone number of the permittee's contact
(E) name and telephone number of an agency contact
(F) identification of the location where copies of
the modification request and any supporting documents can be viewed
and copied; and
(G) the following statement: "The permittee's compliance
history during the life of the permit being modified is available
from the agency contact person."
(3) 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.
(4) The permittee must hold a public meeting no earlier
than 15 days after the publication of the notice required in paragraph
(2) of this subsection 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.
(5) 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 agency contact person identified
in the public notice.
(6) After the conclusion of the 60-day comment period,
the permit modification request shall be granted or denied in accordance
with the applicable requirements of Chapter 39 of this title (relating
to Public Notice), Chapter 50 of this title (relating to Action on
Applications and Other Authorizations), and Chapter 55 of this title
(relating to Requests for Reconsideration and Contested Case Hearings;
Public Comment). When a permit is modified, only the conditions subject
to modification are reopened.
(7) Except as otherwise required by Chapter 39 of this
title, the notice requirements in this section do not apply to Class
3 modification applications for industrial or hazardous waste facility
permits that are declared administratively complete on or after September
(e) Other modifications.
(1) In the case of modifications not explicitly listed
in Appendix I of subsection (k) of this section, the permittee may
submit a Class 3 modification request to the agency, or the permittee
may request a determination by the executive director 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 Class 2 modification, the permittee must provide the agency
with the necessary information to support the requested classification.
(2) The executive director shall make the determination
described in paragraph (1) of this subsection as promptly as practicable.
In determining the appropriate class for a specific modification,
the executive director shall consider the similarity of the modification
to other modifications codified in Appendix I of subsection (k) of
this section and the following criteria.
(A) 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 or
the environment. In the case of Class 1 modifications, the executive
director may require prior approval;
(B) Class 2 modifications apply to changes that are
necessary to enable a permittee to respond, in a timely manner, to:
(i) common variations in the types and quantities of
the wastes managed under the facility permit;
(ii) technological advancements; and
(iii) changes necessary to comply with new regulations,
where these changes can be implemented without substantially changing
design specifications or management practices in the permit; and
(C) Class 3 modifications reflect a substantial alteration
of the facility or its operations.
(f) Temporary authorizations.
(1) Upon request of the permittee, the commission may
grant the permittee a temporary authorization having a term of up
to 180 days, in accordance with this subsection, and in accordance
with the following public notice requirements:
(A) notice of a hearing on the temporary authorization
shall be given not later than the 20th day before the hearing on the
(B) this notice of hearing shall provide that an affected
person may request an evidentiary hearing on issuance of the temporary
(2) The permittee may request a temporary authorization
(A) any Class 2 modification meeting the criteria in
paragraph (5)(B) of this subsection; and
(B) any Class 3 modification that meets the criteria
in paragraph (5)(B)(i) or (ii) of this subsection, or that meets any
of the criteria in paragraph (5)(B)(iii) - (v) of this subsection
and provides improved management or treatment of a hazardous waste
already listed in the facility permit.
(3) The temporary authorization request must include:
(A) a specific description of the activities to be
conducted under the temporary authorization;
(B) an explanation of why the temporary authorization
is necessary and reasonably unavoidable; and
(C) sufficient information to ensure compliance with
the applicable standards of Chapter 335, Subchapter F of this title
and 40 Code of Federal Regulations (CFR) Part 264.
(4) The permittee must send a notice about the temporary
authorization request by first-class mail to all persons listed in §39.413
of this title. This notification must be made within seven days of
submission of the authorization request.
(5) The commission shall approve or deny the temporary
authorization as quickly as practicable. To issue a temporary authorization,
the commission must find:
(A) the authorized activities are in compliance with
the applicable standards of Chapter 335, Subchapter F of this title
and 40 CFR Part 264; and
(B) the temporary authorization is necessary to achieve
one of the following objectives before action is likely to be taken
on a modification request:
(i) to facilitate timely implementation of closure
or corrective action activities;
(ii) to allow treatment or storage in tanks, containers,
or containment buildings, of restricted wastes in accordance with
Chapter 335, Subchapter O of this title (relating to Land Disposal
Restrictions), 40 CFR Part 268, or Section 3004 of the Resource Conservation
and Recovery Act (RCRA), 42 United States Code, §6924;
(iii) to prevent disruption of ongoing waste management
(iv) to enable the permittee to respond to sudden changes
in the types or quantities of the wastes managed under the facility
(v) to facilitate other changes to protect human health
and the environment.
(6) 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:
(A) the reissued temporary authorization constitutes
the commission's decision on a Class 2 permit modification in accordance
with subsection (c)(6)(D) or (7)(D) of this section; or
(B) the commission 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 subsection (d) of this section are conducted.
(g) Public notice and appeals of permit modification
(1) The commission shall notify all persons listed
in §39.413 of this title within ten working days of any decision
under this section to grant or deny a Class 2 or 3 permit modification
request. The commission shall also notify such persons within ten
working days after an automatic authorization for a Class 2 modification
goes into effect under subsection (c)(8) or (11) of this section.
(2) The executive director's or the commission's decision
to grant or deny a Class 3 permit modification request under this
section may be appealed under the appropriate procedures set forth
in the commission's rules and in the Administrative Procedure Act,
Texas Government Code, Chapter 2001.
(h) Newly regulated wastes and units.
(1) The permittee is authorized to continue to manage
wastes listed or identified as hazardous under 40 CFR Part 261, or
to continue to manage hazardous waste in units newly regulated as
hazardous waste management units if:
(A) the unit was in existence as a hazardous waste
facility unit with respect to the newly listed or characteristic waste
or newly regulated waste management unit on the effective date of
the final rule listing or identifying the waste or regulating the
(B) the permittee submits a Class 1 modification request
on or before the date on which the waste or unit becomes subject to
the new requirements;
(C) the permittee is in substantial compliance with
the applicable standards of Chapter 335, Subchapter E of this title,
Chapter 335, Subchapter H, Divisions 1 through 4 of this title (relating
to Standards for the Management of Specific Wastes and Specific Types
of Facilities), and 40 CFR Part 265 and Part 266;
(D) the permittee also submits a complete Class 2 or
3 modification request within 180 days after the effective date of
the final rule listing or identifying the waste or subjecting the
unit to Section 6921 of the Resource Conservation and Recovery Act
Subtitle C (Subchapter III Hazardous Waste Management, 42 United States
Code, §§6921 - 6939e); and
(E) in the case of land disposal units, the permittee
certifies that each such unit is in compliance with all applicable
40 CFR Part 265 groundwater monitoring requirements and with Chapter
37 of this title (relating to Financial Assurance) on the date 12
months after the effective date of the final 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, the owner or operator shall lose authority
to operate under this section.
(2) New wastes or units added to a facility's permit
under this subsection do not constitute expansions for the purpose
of the 25% capacity expansion limit for Class 2 modifications.
(i) Combustion facility changes to meet 40 CFR Part
63, Maximum Achievable Control Technology (MACT) standards. The following
procedures apply to hazardous waste combustion facility permit modifications
requested under L.9. of Appendix I of subsection (k) of this section.
(1) Facility owners or operators must have complied
with the Notification of Intent to Comply (NIC) requirements of 40
CFR §63.1210(b) and (c) that were in effect prior to October
11, 2000, as amended in 40 CFR §270.42(j) through October 12,
2005 (70 Federal Register 59402), before a permit modification can
be requested under this section.