49-762.06. Changes to solid waste facilities and amended plans

A. The department shall adopt rules that establish the criteria to be used in determining the category type of a proposed change to a solid waste facility. The categories are as follows:

1. A type I change is an insignificant modification that does not require notification to the department. This includes changes to a facility that are not directly related to the physical management of solid waste or the replacement of equipment or structures with similar items.

2. A type II change is a minor modification that requires notification to the department. This includes changes to a facility that are directly related to the physical management of solid waste and that do not require detailed review by the department.

3. A type III change is a substantial change that does not require public notice. This includes changes that are significant, that require detailed review by the department and that are equally or more protective of the public health and environment, changes that are required by statute or regulation or other substantial changes that are not type IV changes.

4. A type IV change is a substantial change that requires public notice. This includes significant changes in the total storage, process, treatment or disposal capacity of the solid waste facility. A type IV change also includes a lateral expansion of an existing solid waste landfill or the addition of a process or a major piece of equipment for which the net effect of the change will be an increase in discharges.

B. Before implementation, the director shall approve a type III or type IV change to the design or operation of an approved solid waste facility identified in section 49-762.

C. The owner or operator of an approved solid waste facility identified in section 49-762 shall submit a notice of any type II, type III or type IV change to the director. The notice shall describe the purpose and scope of the proposed change and shall state what category of change is requested. The director shall make the final determination of the category of change that is requested and whether an amended facility plan shall be submitted for a type III or type IV change. The director may request that additional information be submitted to assist in making the determination.

D. The determination required by subsection C of this section shall be made within the time limits prescribed by this subsection. If the director fails to make a determination within those time limits, the proposed change shall be deemed to be a type II change and in accordance with the facility's approved plan and may be implemented by the owner or operator without further review by the department. The time limits prescribed by this subsection do not apply if the proposed change conflicts with or is inconsistent with the requirements of 40 C.F.R. part 257 or 40 C.F.R. part 258. The time limits are as follows:

1. Fifteen days for solid waste facilities that are not landfills.

2. Thirty days for landfills that are not municipal solid waste landfills.

3. Sixty days for municipal solid waste landfills.

E. If the director determines that the change is a type IV change that requires a public notice, within thirty days after receipt of the amended plan the director shall give public notice of the substantial change as prescribed by section 49-762.04, subsection A, paragraph 2. If there is sufficient public interest as evidenced by written comments submitted pursuant to section 49-762.04, subsection A, paragraph 2 in opposition to the substantial change to the solid waste facility, the department shall hold a public hearing in accordance with the procedures in section 49-762.04, subsection A, paragraph 6. Testimony at a public hearing shall be limited to whether the substantial change to the plan meets the criteria prescribed in section 49-762.04, subsection A, paragraph 5. Testimony on the substantial change shall include the name and address of the person presenting the testimony and, if in writing, the signature of that person. The director shall issue a notice of any technical deficiencies and a responsiveness summary in accordance with section 49-762.04, subsection A, paragraph 8.

F. The director shall approve or deny the amended plan within ninety days after receipt of the amended plan. During the ninety day review period, the department shall comply with the procedures prescribed by section 49-762.04, subsection A, paragraph 3 for new solid waste facilities. If a public hearing is to be held, the director has an additional thirty days to hold the public hearing, issue a responsiveness summary and approve or disapprove the amended plan. A person who has submitted a type II, III or IV change to a solid waste facility plan for department approval may extend these time limits for an additional thirty days on a written request from the department that changes to the solid waste facility plan or additional information is needed before the department can make a decision to approve or deny the plan.