Part VII. Virginia Pollutant Discharge Elimination System (VPDES) Permits
Article 1
Definitions
9VAC25-875-850. Definitions.
For the purposes of this part only, the following words and terms have the following meanings unless the context clearly indicates otherwise:
"Administrator" means the Administrator of the U.S. Environmental Protection Agency or an authorized representative.
"Applicable standards and limitations" means all state, interstate, and federal standards and limitations to which a discharge or a related activity is subject under the Clean Water Act (CWA) (33 USC § 1251 et seq.) and VESMA, including effluent limitations, water quality standards, standards of performance, toxic effluent standards or prohibitions, best management practices, and standards for sewage sludge use or disposal under §§ 301, 302, 303, 304, 306, 307, 308, 403, and 405 of the CWA.
"Approved program" or "approved state" means a state or interstate program that has been approved or authorized by EPA under 40 CFR Part 123.
"Bypass" means the intentional diversion of waste streams from any portion of a treatment facility.
"Contiguous zone" means the entire zone established by the United States under Article 24 of the Convention on the Territorial Sea and the Contiguous Zone (37 FR 11906 June 15, 1972).
"Continuous discharge" means a discharge that occurs without interruption throughout the operating hours of the facility, except for infrequent shutdowns for maintenance, process changes, or other similar activities.
"Co-permittee" means a permittee to a VPDES permit that is only responsible for permit conditions relating to the discharge for which it is the operator.
"Daily discharge" means the discharge of a pollutant measured during a calendar day or any 24-hour period that reasonably represents the calendar day for purposes of sampling. For pollutants with limitations expressed in units of mass, the daily discharge is calculated as the total mass of the pollutant discharged over the day. For pollutants with limitations expressed in other units of measurement, the daily discharge is calculated as the average measurement of the pollutant over the day.
"Discharge" when used without qualification, means the discharge of a pollutant.
"Discharge of a pollutant" means:
1. Any addition of any pollutant or combination of pollutants to state waters from any point source; or
2. Any addition of any pollutant or combination of pollutants to the waters of the contiguous zone or the ocean from any point source other than a vessel or other floating craft that is being used as a means of transportation.
This definition includes additions of pollutants into surface waters from surface runoff that is collected or channeled by man; discharges through pipes, sewers, or other conveyances owned by a state, municipality, or other person that do not lead to a treatment works; and discharges through pipes, sewers, or other conveyances, leading into privately owned treatment works. This term does not include an addition of pollutants by any indirect discharger.
"Discharge Monitoring Report" or "DMR" means the form supplied by the department, or an equivalent form developed by the operator and approved by the department, for the reporting of self-monitoring results by operators.
"Draft permit" means a document indicating the department's tentative decision to issue or deny, modify, revoke and reissue, terminate, or reissue an individual or general permit. A notice of intent to deny an individual or general permit is a type of draft permit. A denial of a request for modification, revocation and reissuance, or termination is not a draft permit.
"Effluent limitation" means any restriction imposed by the board on quantities, discharge rates, and concentrations of pollutants that are discharged from point sources into surface waters, the waters of the contiguous zone, or the ocean.
"Effluent limitations guidelines" means a regulation published by the administrator under § 304(b) of the CWA to adopt or revise effluent limitations.
"Existing permit" means for the purposes of this chapter a permit issued by the department and currently held by a permit applicant.
"Existing source" means any source that is not a new source or a new discharger.
"Facilities or equipment" means buildings, structures, process or production equipment, or machinery that form a permanent part of a new source and that will be used in its operation if these facilities or equipment are of such value as to represent a substantial commitment to construct. The term excludes facilities or equipment used in connection with feasibility, engineering, and design studies regarding the new source or water pollution treatment for the new source.
"Facility or activity" means any VPDES point source or treatment works treating domestic sewage or any other facility or activity, including land or appurtenances thereto, that is subject to regulation under the VPDES program.
"Hazardous substance" means any substance designated under the Code of Virginia or 40 CFR Part 116 pursuant to § 311 of the CWA.
"Illicit discharge" means any discharge to a municipal separate storm sewer that is not composed entirely of stormwater, except discharges pursuant to a separate VPDES or permit (other than the permit for discharges from the municipal separate storm sewer), discharges resulting from firefighting activities, and discharges identified by and in compliance with 9VAC25-875-970 D 2 c (3).
"Indian country" means (i) all land within the limits of any Indian reservation under the jurisdiction of the United States government, notwithstanding the issuance of any patent, and including rights-of-way running through the reservation; (ii) all dependent Indian communities within the borders of the United States whether within the originally or subsequently acquired territory thereof, and whether within or without the limits of a state; and (iii) all Indian allotments, the Indian titles to which have not been extinguished, including rights-of-way running through the same.
"Indirect discharger" means a nondomestic discharger introducing "pollutants" to a "publicly owned treatment works (POTW)."
"Large municipal separate storm sewer system" means all municipal separate storm sewers that are either:
1. Located in an incorporated place with a population of 250,000 or more as determined by the 1990 decennial census by the Bureau of Census (40 CFR Part 122 Appendix F);
2. Located in the counties listed in 40 CFR Part 122 Appendix H, except municipal separate storm sewers that are located in the incorporated places, townships, or towns within such counties;
3. Owned or operated by a municipality other than those described in subdivision 1 or 2 of this definition and that are designated by the department as part of the large or medium municipal separate storm sewer system due to the interrelationship between the discharges of the designated storm sewer and the discharges from municipal separate storm sewers described under subdivision 1 or 2 of this definition. In making this determination the department may consider the following factors:
a. Physical interconnections between the municipal separate storm sewers;
b. The location of discharges from the designated municipal separate storm sewer relative to discharges from municipal separate storm sewers described in subdivision 1 of this definition;
c. The quantity and nature of pollutants discharged to surface waters;
d. The nature of the receiving surface waters; and
e. Other relevant factors;
4. The department may, upon petition, designate as a large municipal separate storm sewer system, municipal separate storm sewers located within the boundaries of a region defined by a stormwater management regional authority based on a jurisdictional, watershed, or other appropriate basis that includes one or more of the systems described in this definition.
"Major facility" means any facility or activity classified as such by the regional administrator in conjunction with the board.
"Major municipal separate storm sewer outfall" or "major outfall" means a municipal separate storm sewer outfall that discharges from a single pipe with an inside diameter of 36 inches or more or its equivalent (discharge from a single conveyance other than circular pipe which is associated with a drainage area of more than 50 acres); or for municipal separate storm sewers that receive stormwater from lands zoned for industrial activity (based on comprehensive zoning plans or the equivalent), with an outfall that discharges from a single pipe with an inside diameter of 12 inches or more or from its equivalent (discharge from other than a circular pipe associated with a drainage area of two acres or more).
"Maximum daily discharge limitation" means the highest allowable daily discharge.
"Maximum extent practicable" or "MEP" means the technology-based discharge standard for municipal separate storm sewer systems established by CWA § 402(p). MEP is achieved, in part, by selecting and implementing effective structural and nonstructural best management practices (BMPs) and rejecting ineffective BMPs and replacing them with effective best management practices (BMPs). MEP is an iterative standard, which evolves over time as urban runoff management knowledge increases. As such, the operator's MS4 program must continually be assessed and modified to incorporate improved programs, control measures, and BMPs to attain compliance with water quality standards.
"Medium municipal separate storm sewer system" means all municipal separate storm sewers that are either:
1. Located in an incorporated place with a population of 100,000 or more but less than 250,000 as determined by the 1990 decennial census by the Bureau of Census (40 CFR Part 122 Appendix G);
2. Located in the counties listed in 40 CFR Part 122 Appendix I, except municipal separate storm sewers that are located in the incorporated places, townships, or towns within such counties;
3. Owned or operated by a municipality other than those described in subdivision 1 or 2 of this definition and that are designated by the department as part of the large or medium municipal separate storm sewer system due to the interrelationship between the discharges of the designated storm sewer and the discharges from municipal separate storm sewers described under subdivision 1 or 2 of this definition. In making this determination the department may consider the following factors:
a. Physical interconnections between the municipal separate storm sewers;
b. The location of discharges from the designated municipal separate storm sewer relative to discharges from municipal separate storm sewers described in subdivision 1 of this definition;
c. The quantity and nature of pollutants discharged to surface waters;
d. The nature of the receiving surface waters; or
e. Other relevant factors;
4. The department may, upon petition, designate as a medium municipal separate storm sewer system, municipal separate storm sewers located within the boundaries of a region defined by a stormwater management regional authority based on a jurisdictional, watershed, or other appropriate basis that includes one or more of the systems described in subdivisions 1, 2, and 3 of this definition.
"Municipality" means a city, town, county, district, association, or other public body created by or under state law and having jurisdiction over disposal of sewage, industrial wastes, or other wastes or an Indian tribe or an authorized Indian tribal organization or a designated and approved management agency under § 208 of the CWA.
"New discharger" means any building, structure, facility, or installation:
1. From which there is or may be a discharge of pollutants;
2. That did not commence the discharge of pollutants at a particular site prior to August 13, 1979;
3. Which is not a new source; and
4. Which has never received a finally effective separate VPDES or permit for discharges at that site.
This definition includes an indirect discharger that commences discharging into surface waters after August 13, 1979. It also includes any existing mobile point source (other than an offshore or coastal oil and gas exploratory drilling rig or a coastal oil and gas developmental drilling rig) such as a seafood processing rig, seafood processing vessel, or aggregate plant that begins discharging at a site for which it does not have a separate VPDES or permit, and any offshore or coastal mobile oil and gas exploratory drilling rig or coastal mobile oil and gas developmental drilling rig that commences the discharge of pollutants after August 13, 1979.
"New source" means any building, structure, facility, or installation from which there is or may be a discharge of pollutants, the construction of which commenced:
1. After promulgation of standards of performance under § 306 of the CWA that are applicable to such source; or
2. After proposal of standards of performance in accordance with § 306 of the CWA that are applicable to such source, but only if the standards are promulgated in accordance with § 306 of the CWA within 120 days of their proposal.
"Oil and gas exploration, production, processing, or treatment operations or transmission facilities" means all field activities or operations associated with exploration, production, or treatment operations, or transmission facilities, including activities necessary to prepare a site for drilling and for the movement and placement of drilling equipment, whether or not such field activities or operations may be considered to be construction activity. (33 USC § 1362(24))
"Outfall," when used in reference to municipal separate storm sewers, means a point source at the point where a municipal separate storm sewer discharges to surface waters and does not include open conveyances connecting two municipal separate storm sewers, or pipes, tunnels, or other conveyances that connect segments of the same stream or other surface waters and are used to convey surface waters.
"Overburden" means any material of any nature, consolidated or unconsolidated, that overlies a mineral deposit, excluding topsoil or similar naturally occurring surface materials that are not disturbed by mining operations.
"Permit" means a VPDES permit issued by the department pursuant to § 62.1-44.15 of the Code of Virginia for stormwater discharges from a land-disturbing activity or MS4.
"Pollutant" means dredged spoil, solid waste, incinerator residue, filter backwash, sewage, garbage, sewage sludge, munitions, chemical wastes, biological materials, radioactive materials (except those regulated under the Atomic Energy Act of 1954, as amended (42 USC § 2011 et seq.)), heat, wrecked or discarded equipment, rock, sand, cellar dirt and industrial, municipal, and agricultural waste discharged into water. It does not mean:
1. Sewage from vessels; or
2. Water, gas, or other material that is injected into a well to facilitate production of oil or gas or water derived in association with oil and gas production and disposed of in a well if the well is used either to facilitate production or for disposal purposes is approved by the department and if the department determines that the injection or disposal will not result in the degradation of groundwater or surface water resources.
"Privately owned treatment works" or "PVOTW" means any device or system that is (i) used to treat wastes from any facility whose operator is not the operator of the treatment works and (ii) not a POTW.
"Publicly owned treatment works" or "POTW" means a treatment works as defined by § 212 of the CWA that is owned by a state or municipality (as defined by § 502(4) of the CWA). This definition includes any devices and systems used in the storage, treatment, recycling, and reclamation of municipal sewage or industrial wastes of a liquid nature. It also includes sewers, pipes, and other conveyances only if they convey wastewater to a POTW treatment plant. The term also means the municipality as defined in § 502(4) of the CWA, that has jurisdiction over the indirect discharges to and the discharges from such a treatment works.
"Recommencing discharger" means a source that recommences discharge after terminating operations.
"Regional administrator" means the Regional Administrator of Region III of the Environmental Protection Agency or the authorized representative of the regional administrator.
"Revoked" means an existing VPDES permit that is terminated by the department before its expiration.
"Runoff coefficient" means the fraction of total rainfall that will appear at a conveyance as runoff.
"Schedule of compliance" means a schedule of remedial measures included in a permit, including an enforceable sequence of interim requirements (for example, actions, operations, or milestone events) leading to compliance with the VESMA, the CWA, and regulations.
"Secretary" means the Secretary of the Army, acting through the Chief of Engineers.
"Severe property damage" means substantial physical damage to property, damage to the treatment facilities that causes them to become inoperable, or substantial and permanent loss of natural resources that can reasonably be expected to occur in the absence of a bypass. Severe property damage does not mean economic loss caused by delays in production.
"Significant materials" means but is not limited to raw materials; fuels; materials such as solvents, detergents, and plastic pellets; finished materials such as metallic products; raw materials used in food processing or production; hazardous substances designated under § 101(14) of CERCLA (42 USC § 9601(14)); any chemical the facility is required to report pursuant to § 313 of Title III of SARA (42 USC § 11023); fertilizers; pesticides; and waste products such as ashes, slag, and sludge that have the potential to be released with stormwater discharges.
"Small municipal separate storm sewer system" or "small MS4" means all separate storm sewers that are (i) owned or operated by the United States, a state, city, town, borough, county, parish, district, association, or other public body (created by or pursuant to state law) having jurisdiction over disposal of sewage, industrial wastes, stormwater, or other wastes, including special districts under state law such as a sewer district, flood control district or drainage district, or similar entity or an Indian tribe or an authorized Indian tribal organization or a designated and approved management agency under § 208 of the CWA that discharges to surface waters and (ii) not defined as "large" or "medium" municipal separate storm sewer systems or designated under 9VAC25-875-950 A 1. This term includes systems similar to separate storm sewer systems in municipalities, such as systems at military bases, large hospital or prison complexes, and highway and other thoroughfares. The term does not include separate storm sewers in very discrete areas, such as individual buildings.
"Source" means any building, structure, facility, or installation from which there is or may be a discharge of pollutants.
"Stormwater discharge associated with construction activity" means a discharge of stormwater runoff from areas where land-disturbing activities (e.g., clearing, grading, or excavation); construction materials or equipment storage or maintenance (e.g., fill piles, borrow area, concrete truck washout, fueling); or other industrial stormwater directly related to the construction process (e.g., concrete or asphalt batch plants) are located.
"Stormwater discharge associated with large construction activity" means the discharge of stormwater from large construction activities.
"Stormwater discharge associated with small construction activity" means the discharge of stormwater from small construction activities.
"Total dissolved solids" means the total dissolved (filterable) solids as determined by use of the method specified in 40 CFR Part 136.
"Toxic pollutant" means any pollutant listed as toxic under § 307(a)(1) of the CWA or, in the case of sludge use or disposal practices, any pollutant identified in regulations implementing § 405(d) of the CWA.
"Upset" means an exceptional incident in which there is unintentional and temporary noncompliance with technology based permit effluent limitations because of factors beyond the reasonable control of the operator. An upset does not include noncompliance to the extent caused by operational error, improperly designed treatment facilities, inadequate treatment facilities, lack of preventive maintenance, or careless or improper operation.
"Variance" means any mechanism or provision under § 301 or 316 of the CWA or under 40 CFR Part 125, or in the applicable federal effluent limitations guidelines that allows modification to or waiver of the generally applicable effluent limitation requirements or time deadlines of the CWA. This includes provisions that allow the establishment of alternative limitations based on fundamentally different factors or on § 301(c), (g), (h), or (i), or 316(a) of the CWA.
"Virginia Pollutant Discharge Elimination System permit" or "VPDES permit" means a document issued by the department pursuant to the State Water Control Law authorizing, under prescribed conditions, the potential or actual discharge of pollutants from a point source to surface waters.
"Water quality standards" or "WQS" means provisions of state or federal law that consist of a designated use or uses for the waters of the Commonwealth and water quality criteria for such waters based on such uses. Water quality standards are to protect the public health or welfare, enhance the quality of water, and serve the purposes of the State Water Control Law (§ 62.1-44.2 et seq. of the Code of Virginia), the VESMA (§ 62.1-44.15:24 et seq. of the Code of Virginia), and the CWA (33 USC § 1251 et seq.).
"Whole effluent toxicity" means the aggregate toxic effect of an effluent measured directly by a toxicity test.
Statutory Authority
§ 62.1-44.15:28 of the Code of Virginia.
Historical Notes
Derived from Virginia Register Volume 40, Issue 8, eff. July 1, 2024.
Article 2
General Program Requirements Related to Ms4s and Land-Disturbing Activities
9VAC25-875-860. Exclusions.
The following discharges do not require permits:
1. Any discharge of sewage from vessels, effluent from properly functioning marine engines, laundry, shower, and galley sink wastes, or any other discharge incidental to the normal operation of a vessel. This exclusion neither applies to rubbish, trash, garbage, or other such materials discharged overboard nor to other discharges when the vessel is operating in a capacity other than as a means of transportation such as when used as an energy or mining facility, a storage facility, or a seafood processing facility or when secured to a storage facility or a seafood processing facility or when secured to the bed of the ocean, contiguous zone, or surface waters for the purpose of mineral or oil exploration or development.
2. Discharges of dredged or fill material into surface waters that are regulated under § 404 of the CWA.
3. The introduction of sewage, industrial wastes, or other pollutants into publicly owned treatment works by indirect dischargers. Plans or agreements to switch to this method of disposal in the future do not relieve dischargers of the obligation to have and comply with permits until all discharges of pollutants to surface waters are eliminated. This exclusion does not apply to the introduction of pollutants to privately owned treatment works or to other discharges through pipes, sewers, or other conveyances owned by a state, municipality, or other party not leading to treatment works.
4. Any discharge in compliance with the instructions of an on-scene coordinator pursuant to 40 CFR Part 300 (The National Oil and Hazardous Substances Pollution Contingency Plan) or 33 CFR 153.10(e) (Pollution by Oil and Hazardous Substances).
5. Any introduction of pollutants from nonpoint source agricultural and silvicultural activities, including stormwater runoff from orchards, cultivated crops, pastures, range lands, and forest lands, but not discharges from concentrated animal feeding operations, discharges from concentrated aquatic animal production facilities, discharges to aquaculture projects, and discharges from silvicultural point sources.
6. Return flows from irrigated agriculture.
7. Discharges into a privately owned treatment works, except as the department may otherwise require.
Statutory Authority
§ 62.1-44.15:28 of the Code of Virginia.
Historical Notes
Derived from Virginia Register Volume 40, Issue 8, eff. July 1, 2024.
9VAC25-875-870. Prohibitions.
A. Except in compliance with a permit issued by the department pursuant to the Virginia Erosion and Stormwater Management Act, it shall be unlawful for any person to discharge stormwater into state waters from municipal separate storm sewer systems or land-disturbing activities.
B. Any person in violation of subsection A of this section that discharges or causes or allows a discharge of stormwater into or upon state waters from municipal separate storm sewer systems or land-disturbing activities or that discharges or causes or allows a discharge that may reasonably be expected to enter state waters in violation of subsection A of this section, shall notify the department of the discharge immediately upon discovery of the discharge but in no case later than 24 hours after said discovery. A written report of the unauthorized discharge shall be submitted by the owner to the department within five days of discovery of the discharge. The written report shall contain:
1. A description of the nature and location of the discharge;
2. The cause of the discharge;
3. The date on which the discharge occurred;
4. The length of time that the discharge continued;
5. The volume of the discharge;
6. If the discharge is continuing, how long it is expected to continue;
7. If the discharge is continuing, what the expected total volume of the discharge will be; and
8. Any steps planned or taken to reduce, eliminate, and prevent a recurrence of the present discharge or any future discharges not authorized by the permit.
C. No permit may be issued:
1. When the conditions of the permit do not provide for compliance with the applicable requirements of the CWA or the State Water Control Law or regulations promulgated under the CWA or the State Water Control Law;
2. When the permit applicant is required to obtain a state or other appropriate certification under § 401 of the CWA and that certification has not been obtained or waived;
3. When the regional administrator has objected to issuance of the permit;
4. When the imposition of conditions cannot ensure compliance with the applicable water quality requirements of all affected states;
5. When, in the judgment of the Secretary of the Army, anchorage and navigation in or on any of the waters of the United States would be substantially impaired by the discharge;
6. For the discharge of any radiological, chemical, or biological warfare agent or high-level radioactive waste;
7. For any discharge inconsistent with a plan or plan amendment approved under § 208(b) of the CWA;
8. For any discharge to the territorial sea, the waters of the contiguous zone, or the oceans in the following circumstances:
a. Before the promulgation of guidelines under § 403(c) of the CWA (for determining degradation of the waters of the territorial seas, the contiguous zone, and the oceans) unless the department determines permit issuance to be in the public interest; or
b. After promulgation of guidelines under § 403(c) of the CWA, when insufficient information exists to make a reasonable judgment whether the discharge complies with them.
9. To a new source or a new discharger if the discharge from its construction or operation will cause or contribute to the violation of water quality standards. The owner or operator of a new source or new discharger proposing to discharge into a water segment that does not meet applicable water quality standards or is not expected to meet those standards even after the application of the effluent limitations required by the State Water Control Law and § 301(b)(1)(A) and (b)(1)(B) of the CWA, and for which the department has performed a pollutants load allocation for the pollutant to be discharged, must demonstrate, before the close of the public comment period, that:
a. There are sufficient remaining pollutant load allocations to allow for the discharge; and
b. The existing dischargers into that segment are subject to compliance schedules designed to bring the segment into compliance with applicable water quality standards. The department may waive the submission of information by the new source or new discharger required by this subdivision 9 b if the department determines that it already has adequate information to evaluate the request. An explanation of the development of limitations to meet the criteria of this subdivision 9 b is to be included in the fact sheet to the permit under 9VAC25-875-1090.
Statutory Authority
§ 62.1-44.15:28 of the Code of Virginia.
Historical Notes
Derived from Virginia Register Volume 40, Issue 8, eff. July 1, 2024.
9VAC25-875-880. Effect of a permit.
A. Except for any toxic effluent standards and prohibitions imposed under § 307 of the CWA and standards for sewage sludge use or disposal under § 405(d) of the CWA, compliance with a permit during its term constitutes compliance, for purposes of enforcement, with the State Water Control Law and with §§ 301, 302, 306, 307, 318, 403, and 405(a) through (b) of the CWA. However, a permit may be modified, revoked and reissued, or terminated during its term for cause as set forth in this chapter.
B. The issuance of a permit does not convey any property rights of any sort or any exclusive privilege.
C. The issuance of a permit does not authorize any injury to persons or property or invasion of other private rights or any infringement of state or local law or regulations.
Statutory Authority
§ 62.1-44.15:28 of the Code of Virginia.
Historical Notes
Derived from Virginia Register Volume 40, Issue 8, eff. July 1, 2024.
9VAC25-875-890. Continuation of expiring permits.
A. The permit shall expire at the end of its term, except that the conditions of an expired permit continue in force until the effective date of a new permit if:
1. The permittee has submitted a timely application as required by this chapter, which is a complete application for a new permit; and
2. The department, through no fault of the permittee, does not issue a new permit with an effective date on or before the expiration date of the previous permit.
B. Permits continued under this section remain fully effective and enforceable.
C. When the permittee is not in compliance with the conditions of the expiring or expired permit, the department may choose to do any or all of the following:
1. Initiate enforcement action based upon the permit which has been continued;
2. Issue a notice of intent to deny the new permit. If the permit is denied, the owner or operator would then be required to cease the activities authorized by the continued permit or be subject to enforcement action for operating without a permit;
3. Issue a new permit with appropriate conditions; or
4. Take other actions authorized by this chapter.
Statutory Authority
§ 62.1-44.15:28 of the Code of Virginia.
Historical Notes
Derived from Virginia Register Volume 40, Issue 8, eff. July 1, 2024.
9VAC25-875-900. Confidentiality of information.
A. The department or the VESMP authority may require every permit applicant or permittee to furnish when requested such application materials, plans, specifications, and other pertinent information as may be necessary to determine the effect of permit applicant's or permittee's discharge on the quality of state waters, or such other information as may be necessary to accomplish the purposes of the State Water Control Law and this chapter. Any personal information shall not be disclosed except to an appropriate official of the department or VESMP authority or as may be authorized pursuant to the Virginia Freedom of Information Act (§ 2.2-3700 et seq. of the Code of Virginia). However:
1. Disclosure of records of the department or the VESMP authority relating to (i) active federal environmental enforcement actions that are considered confidential under federal law and (ii) enforcement strategies, including proposed sanctions for enforcement actions, is prohibited. Upon request, such records shall be disclosed after a proposed sanction resulting from the investigation has been determined by the department or the VESMP authority.
2. Any secret formula, secret processes, or secret methods other than effluent data submitted to the department pursuant to this chapter may be claimed as confidential by the submitter in accordance with 40 CFR 122.7. Any such claim must be asserted at the time of submission in the manner prescribed on the application form or instructions or, in the case of other submissions, by stamping the words "secret formulae," "secret processes," or "secret methods" on each page containing such information. If no claim is made at the time of submission, the department may make the information available to the public without further notice. If a claim is asserted, the information will be treated in accordance with the procedures in the Virginia Freedom of Information Act (§ 2.2-3700 et seq. of the Code of Virginia).
3. This section shall not be construed to prohibit the disclosure of records related to inspection reports, notices of violation, and documents detailing the nature of any land-disturbing activity that may have occurred, or similar documents.
B. Claims of confidentiality for the following information will be denied:
1. The name and address of any permit applicant or permittee; and
2. Permit applications, permits, and effluent data.
C. Information required by permit application forms provided by the department may not be claimed confidential. This includes information submitted on the forms themselves and any attachments used to supply information required by the forms.
Statutory Authority
§ 62.1-44.15:28 of the Code of Virginia.
Historical Notes
Derived from Virginia Register Volume 40, Issue 8, eff. July 1, 2024.
9VAC25-875-910. Guidance documents.
The department may develop and use guidance, as appropriate, to implement technical and regulatory details of the VPDES permit program. Such guidance is distinguished from regulation by the fact that it is not binding on either the department or permittees. If a more appropriate methodology than that called for in guidance is available in a given situation, the more appropriate methodology shall be used to the extent it is consistent with applicable regulations and the Virginia Erosion and Stormwater Management Act.
Statutory Authority
§ 62.1-44.15:28 of the Code of Virginia.
Historical Notes
Derived from Virginia Register Volume 40, Issue 8, eff. July 1, 2024.
Article 3
Permit Applications
9VAC25-875-920. Application for a permit.
A. Duty to apply. Any person who discharges or proposes to discharge stormwater into or upon state waters from municipal separate storm sewer systems or land-disturbing activities and who does not have an effective permit, except persons covered by general permits, excluded from the requirement for a permit by this chapter, shall submit a complete application in accordance with this section.
B. Who applies. When a facility or activity is owned by one person but is operated by another person, it is the operator's duty to obtain a permit.
C. Time to apply. Any person proposing a new discharge shall submit an application at least 180 days before the date on which the discharge is to commence, unless permission for a later date has been granted by the department. Stormwater discharges from large construction activities and stormwater discharges associated with small construction activities shall submit applications at least 90 days before the date on which construction is to commence. Different submittal dates may be required under the terms of applicable general permits. Persons proposing a new discharge are encouraged to submit their applications well in advance of the 90-day or 180-day requirements to avoid delay.
D. Duty to reapply. All permittees with a currently effective permit shall submit a new application at least 180 days before the expiration date of the existing permit 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 permit.
E. Completeness. The department shall not issue a permit before receiving a complete application for a permit except for general permits. An application for a permit is complete when the department receives an application form and any supplemental information which are completed to its 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.
F. Information requirements. All applicants for permits shall provide the following information using the application form provided by the department:
1. The activities conducted by the permit applicant which require it to obtain a permit;
2. Name, mailing address, and location of the facility for which the application is submitted;
3. Up to four SIC codes which best reflect the principal products or services provided by the facility;
4. The operator's name, address, telephone number, email address, ownership status, and status as federal, state, private, public, or other entity;
5. Whether the facility is located on Indian lands;
6. A listing of all permits or construction approvals received, applied for, or to be applied for under any of the following programs:
a. Hazardous Waste Management program under the Resource Conservation and Recovery Act (RCRA) (42 USC § 6921);
b. Underground Injection Control (UIC) program under the Safe Drinking Water Act (SDWA) (42 USC § 300h);
c. VPDES program under the CWA and the State Water Control Law;
d. Prevention of Significant Deterioration (PSD) program under the Clean Air Act (42 USC § 4701 et seq.);
e. Nonattainment program under the Clean Air Act (42 USC § 4701 et seq.);
f. National Emission Standards for Hazardous Pollutants (NESHAPS) preconstruction approval under the Clean Air Act (42 USC § 4701 et seq.);
g. Ocean dumping permits under the Marine Protection Research and Sanctuaries Act (33 USC § 14 et seq.);
h. Dredge or fill permits under § 404 of the CWA;
i. A permit under the CWA and the Virginia Erosion and Stormwater Management Act; and
j. Other relevant environmental permits;
7. A topographic map (or other map if a topographic map is unavailable) extending one mile beyond the property boundaries of the source, that depicts: the facility and (i) each of the source's intake and discharge structures; (ii) each of the source's hazardous waste treatment, storage, or disposal facilities; (iii) each well where fluids from the facility are injected underground; and (iv) those wells, springs, other surface water bodies, and drinking water wells listed in public records or otherwise known to the permit applicant in the map area; and
8. A brief description of the nature of the business.
G. Variance requests. A discharger which is not a publicly owned treatment works (POTW) may request a variance from otherwise applicable effluent limitations under any of the following statutory or regulatory provisions within the times specified in this subsection:
1. Fundamentally different factors.
a. A request for a variance based on the presence of fundamentally different factors from those on which the effluent limitations guideline was based shall be filed as follows:
(1) For a request from best practicable control technology currently available (BPT), by the close of the public comment period for the draft permit; or
(2) For a request from best available technology economically achievable (BAT) or best conventional pollutant control technology (BCT), by no later than 180 days after the date on which an effluent limitation guideline is published in the Federal Register for a request based on an effluent limitation guideline promulgated on or after February 4, 1987.
b. The request shall explain how the requirements of the applicable regulatory or statutory criteria have been met.
2. A request for a variance from the BAT requirements for CWA § 301(b)(2)(F) pollutants (commonly called nonconventional pollutants) pursuant to § 301(c) of the CWA because of the economic capability of the owner or operator, or pursuant to § 301(g) of the CWA (provided, however, that a § 301(g) variance may only be requested for ammonia, chlorine, color, iron, total phenols (when determined by the administrator to be a pollutant covered by § 301(b)(2)(F) of the CWA), and any other pollutant that the administrator lists under § 301(g)(4) of the CWA) must be made as follows:
a. For those requests for a variance from an effluent limitation based upon an effluent limitation guideline by:
(1) Submitting an initial request to the regional administrator, as well as to the department, stating the name of the discharger, the permit number, the outfall number, the applicable effluent guideline, and whether the discharger is requesting a § 301(c) or § 301(g) of the CWA modification, or both. This request must have been filed not later than 270 days after promulgation of an applicable effluent limitation guideline; and
(2) Submitting a completed request no later than the close of the public comment period for the draft permit demonstrating that: (i) all reasonable ascertainable issues have been raised and all reasonably available arguments and materials supporting their position have been submitted; and (ii) that the applicable requirements of 40 CFR Part 125 have been met. Notwithstanding this provision, the complete application for a request under § 301(g) of the CWA shall be filed 180 days before EPA must make a decision (unless the Regional Administrator establishes a shorter or longer period); or
b. For those requests for a variance from effluent limitations not based on effluent limitation guidelines, the request need only comply with subdivision 2 a (2) of this subsection and need not be preceded by an initial request under subdivision 2 a (1) of this subsection.
3. A modification under § 302(b)(2) of the CWA of requirements under § 302(a) of the CWA for achieving water quality related effluent limitations may be requested no later than the close of the public comment period for the draft permit on the permit from which the modification is sought.
4. A variance for alternate effluent limitations for the thermal component of any discharge must be filed with a timely application for a permit under this section, except that if thermal effluent limitations are established on a case-by-case basis or are based on water quality standards the request for a variance may be filed by the close of the public comment period for the draft permit. A copy of the request shall be sent simultaneously to the department.
H. Expedited variance procedures and time extensions.
1. Notwithstanding the time requirements in subsection G of this section, the department may notify a permit applicant before a draft permit is issued that the draft permit will likely contain limitations that are eligible for variances. In the notice the department may require the permit applicant as a condition of consideration of any potential variance request to submit a request explaining how the requirements of 40 CFR Part 125 applicable to the variance have been met and may require its submission within a specified reasonable time after receipt of the notice. The notice may be sent before the permit application has been submitted. The draft or final permit may contain the alternative limitations that may become effective upon final grant of the variance.
2. A discharger who cannot file a timely complete request required under subdivisions G 2 a (2) or G 2 b of this section may request an extension. The extension may be granted or denied at the discretion of the department. Extensions shall be no more than six months in duration.
I. Recordkeeping. Permit applicants shall keep records of all data used to complete permit applications and any supplemental information submitted under this section for a period of at least three years from the date the application is signed.
Statutory Authority
§ 62.1-44.15:28 of the Code of Virginia.
Historical Notes
Derived from Virginia Register Volume 40, Issue 8, eff. July 1, 2024.
9VAC25-875-930. Permit rationale.
In granting a permit pursuant to this chapter, the department shall provide in writing a clear and concise statement of the legal basis, scientific rationale, and justification for the decision reached. When the decision of the department is to deny a permit, the department shall, in consultation with legal counsel, provide a clear and concise statement explaining the reason for the denial, the scientific justification for the same, and how the department's decision is in compliance with applicable laws and regulations. Copies of the decision, certified by the director, shall be mailed by certified mail to the permittee or applicant.
Statutory Authority
§ 62.1-44.15:28 of the Code of Virginia.
Historical Notes
Derived from Virginia Register Volume 40, Issue 8, eff. July 1, 2024.
9VAC25-875-940. Signatories to permit applications and reports.
A. All permit applications shall be signed as follows:
1. For a corporation: by a responsible corporate officer. For the purpose of this section, a responsible corporate officer means: (i) a president, secretary, treasurer, or vice-president of the corporation in charge of a principal business function, or any other person who performs similar policy-making or decision-making functions for the corporation, or (ii) the manager of one or more manufacturing, production, or operating facilities, provided the manager is authorized to make management decisions that govern the operation of the regulated facility, including having the explicit or implicit duty of making major capital investment recommendations, and initiating and directing other comprehensive measures to assure long-term environmental compliance with environmental laws and regulations; the manager can ensure that the necessary systems are established or actions taken to gather complete and accurate information for permit application requirements; and where authority to sign documents has been assigned or delegated to the manager in accordance with corporate procedures;
2. For a partnership or sole proprietorship: by a general partner or the proprietor, respectively; or
3. For a municipality, state, federal, or other public agency: by either a principal executive officer or ranking elected official. For purposes of this section, a principal executive officer of a federal agency includes (i) the chief executive officer of the agency, or (ii) a senior executive officer having responsibility for the overall operations of a principal geographic unit of the agency.
B. All reports required by permits, and other information requested by the department shall be signed by a person described in subsection A of this section, or by a duly authorized representative of that person. A person is a duly authorized representative only if:
1. The authorization is made in writing by a person described in subsection A of this section;
2. The authorization specifies either an individual or a position having responsibility for the overall operation of the regulated facility or activity such as the position of plant manager, operator of a well or a well field, superintendent, position of equivalent responsibility, or an individual or position having overall responsibility for environmental matters for the company. A duly authorized representative may thus be either a named individual or any individual occupying a named position; and
3. The written authorization is submitted to the department.
C. If an authorization under subsection B of this section is no longer accurate because a different individual or position has responsibility for the overall operation of the facility, a new authorization satisfying the requirements of subsection B of this section must be submitted to the department prior to or together with any reports, or information to be signed by an authorized representative.
D. Any person signing a document under subsection A or B of this section shall make the following certification:
"I certify under penalty of law that this document and all attachments were prepared under my direction or supervision in accordance with a system designed to assure that qualified personnel properly gather and evaluate the information submitted. Based on my inquiry of the person or persons who manage the system, or those persons directly responsible for gathering the information, the information submitted is, to the best of my knowledge and belief, true, accurate, and complete. I am aware that there are significant penalties for submitting false information, including the possibility of fine and imprisonment for knowing violations."
E. Electronic reporting. If documents described in subsection A or B of this section are submitted electronically by or on behalf of a VPDES-regulated facility, any person providing the electronic signature for such documents shall meet all relevant requirements of this section and shall ensure that all of the relevant requirements of Part XI (9VAC25-31-950 et seq.) of the Virginia Pollutant Discharge Elimination System (VPDES) Permit Regulation and 40 CFR Part 3 (including, in all cases, 40 CFR Part 3 Subpart D) are met for that submission.
Statutory Authority
§ 62.1-44.15:28 of the Code of Virginia.
Historical Notes
Derived from Virginia Register Volume 40, Issue 8, eff. July 1, 2024.
9VAC25-875-950. Stormwater discharges.
A. Permit requirements.
1. Prior to October 1, 1994, discharges composed entirely of stormwater shall not be required to obtain a permit except:
a. A discharge with respect to which a permit has been issued prior to February 4, 1987;
b. A stormwater discharge associated with large construction activity;
c. A discharge from a large municipal separate storm sewer system;
d. A discharge from a medium municipal separate storm sewer system; or
e. A discharge that either the department or the regional administrator determines to contribute to a violation of a water quality standard or is a significant contributor of pollutants to surface waters. This designation may include a discharge from any conveyance or system of conveyances used for collecting and conveying stormwater runoff or a system of discharges from municipal separate storm sewers, except for those discharges from conveyances that do not require a permit under subdivision 2 of this subsection or agricultural stormwater runoff that is exempted from the definition of point source.
The department may designate discharges from municipal separate storm sewers on a system-wide or jurisdiction-wide basis. In making this determination the department may consider the following factors:
(1) The location of the discharge with respect to surface waters;
(2) The size of the discharge;
(3) The quantity and nature of the pollutants discharged to surface waters; and
(4) Other relevant factors.
2. The department may not require a permit for discharges of stormwater runoff from mining operations or oil and gas exploration, production, processing, or treatment operations or transmission facilities, composed entirely of flows that are from conveyances or systems of conveyances, including pipes, conduits, ditches, and channels, used for collecting and conveying precipitation runoff and that are not contaminated by contact with or that has not come into contact with, any overburden, raw material, intermediate products, finished product, byproduct, or waste products located on the site of such operations.
3. a. Permits must be obtained for all discharges from large and medium municipal separate storm sewer systems.
b. The department may either issue one system-wide permit covering all discharges from municipal separate storm sewers within a large or medium municipal storm sewer system or issue distinct permits for appropriate categories of discharges within a large or medium municipal separate storm sewer system, including all discharges owned or operated by the same municipality; located within the same jurisdiction; all discharges within a system that discharge to the same watershed; discharges within a system that are similar in nature; or for individual discharges from municipal separate storm sewers within the system.
c. The operator of a discharge from a municipal separate storm sewer that is part of a large or medium municipal separate storm sewer system must either:
(1) Participate in a permit application (to be a permittee or a state co-permittee) with one or more other operators of discharges from the large or medium municipal storm sewer system that covers all, or a portion of all, discharges from the municipal separate storm sewer system;
(2) Submit a distinct permit application that only covers discharges from the municipal separate storm sewers for which the operator is responsible; or
(3) A regional authority may be responsible for submitting a permit application under the following guidelines:
(a) The regional authority together with permit co-applicants shall have authority over a stormwater management program that is in existence or shall be in existence at the time Part 1 of the application is due;
(b) The permit applicant or co-applicants shall establish their ability to make a timely submission of Part 1 and Part 2 of the municipal application;
(c) Each of the operators of municipal separate storm sewers within large or medium municipal separate storm sewer systems, which are under the purview of the designated regional authority, shall comply with the application requirements of subsection C of this section.
d. One permit application may be submitted for all or a portion of all municipal separate storm sewers within adjacent or interconnected large or medium municipal separate storm sewer systems. The department may issue one system-wide permit covering all or a portion of all municipal separate storm sewers in adjacent or interconnected large or medium municipal separate storm sewer systems.
e. Permits for all or a portion of all discharges from large or medium municipal separate storm sewer systems that are issued on a system-wide, jurisdiction-wide, watershed, or other basis may specify different conditions relating to different discharges covered by the permit, including different management programs for different drainage areas that contribute stormwater to the system.
f. State co-permittees need only comply with permit conditions relating to discharges from the municipal separate storm sewers for which they are operators.
4. In addition to meeting the requirements of subsection B of this section, an operator of a stormwater discharge associated with a large construction activity that discharges through a large or medium municipal separate storm sewer system shall submit to the operator of the municipal separate storm sewer system receiving the discharge no later than May 15, 1991, or 180 days prior to commencing such discharge, the name of the facility; a contact person and telephone number; the location of the discharge; a description, including Standard Industrial Classification, that best reflects the principal products or services provided by each facility; and any existing permit number.
5. The department may issue permits for municipal separate storm sewers that are designated under subdivision A 1 e of this section on a system-wide basis, jurisdiction-wide basis, watershed basis, or other appropriate basis or may issue permits for individual discharges.
6. Conveyances that discharge stormwater runoff combined with municipal sewage are point sources that must obtain separate VPDES permits in accordance with the procedures of 9VAC25-31 and are not subject to the provisions of this section.
7. Whether a discharge from a municipal separate storm sewer is or is not subject to regulation under this subsection shall have no bearing on whether the owner or operator of the discharge is eligible for funding under Title II, Title III, or Title VI of the CWA.
8. a. On and after October 1, 1994, for discharges composed entirely of stormwater, that are not required by subdivision 1 of this subsection to obtain a permit, operators shall be required to obtain a permit only if:
(1) The discharge is from a small MS4 required to be regulated pursuant to 9VAC25-875-970 B;
(2) The discharge is a stormwater discharge associated with small construction activity as defined in 9VAC25-875-20;
(3) The department or the EPA regional administrator determines that stormwater controls are needed for the discharge based on wasteload allocations that are part of total maximum daily loads (TMDLs) that address the pollutants of concern; or
(4) The department or the EPA regional administrator determines that the discharge or category of discharges within a geographic area contributes to a violation of a water quality standard or is a significant contributor of pollutants to surface waters.
b. Operators of small MS4s designated pursuant to subdivisions 8 a (1), (3), and (4) of this subsection shall seek coverage under a permit in accordance with 9VAC25-875-970 C, D, and E. Operators of nonmunicipal sources designated pursuant to subdivisions 8 a (2), (3), and (4) of this subsection shall seek coverage under a permit in accordance with subdivision B 1 of this section.
c. Operators of stormwater discharges designated pursuant to subdivisions 8 a (3) and (4) of this subsection shall apply to the department for a permit within 180 days of receipt of notice, unless permission for a later date is granted by the department.
B. Application requirements for stormwater discharges associated with large and small construction activity. Dischargers of stormwater associated with large and small construction activity are required to apply for an individual permit or seek coverage under a promulgated stormwater general permit. Facilities that are required to obtain an individual permit or any discharge of stormwater that the department is evaluating for designation under subdivision A 1 e of this section and is not a municipal separate storm sewer shall submit a state application in accordance with the requirements of 9VAC25-875-920 as modified and supplemented by the provisions of this subsection.
1. The operator of an existing or new stormwater discharge that is associated with a large or small construction activity shall provide a narrative description of:
a. The location, including a map, and the nature of the construction activity;
b. The total area of the site and the area of the site that is expected to undergo excavation during the life of the permit;
c. Proposed measures, including best management practices, to control pollutants in stormwater discharges during construction, including a brief description of applicable state and VESCP requirements;
d. Proposed measures to control pollutants in stormwater discharges that will occur after construction operations have been completed, including a brief description of applicable state or local VESCP requirements;
e. An estimate of the runoff coefficient of the site and the increase in impervious area after the construction addressed in the permit application is completed, the nature of fill material and existing data describing the soil, or the quality of the discharge;
f. The name of the receiving water; and
g. The location of Chesapeake Bay Preservation Areas.
2. Permit applicants shall provide such other information the department may reasonably require to determine whether to issue a permit.
C. Application requirements for large and medium municipal separate storm sewer discharges. The operator of a discharge from a large or medium municipal separate storm sewer or a municipal separate storm sewer that is designated by the department under subdivision A 1 e of this section may submit a jurisdiction-wide or system-wide permit application. Where more than one public entity owns or operates a municipal separate storm sewer within a geographic area (including adjacent or interconnected municipal separate storm sewer systems), such operators may be a permit co-applicant to the same application. Permit applications for discharges from large and medium municipal storm sewers or municipal storm sewers designated under subdivision A 1 e of this section shall include;
1. Part 1 of the application shall consist of:
a. The permit applicant's name, address, telephone number, and email address; ownership status; status as a state or local government entity; and the name, address, telephone number, and email address of a contact person;
b. A description of existing legal authority to control discharges to the municipal separate storm sewer system. When existing legal authority is not sufficient to meet the criteria provided in subdivision 2 a of this subsection, the description shall list additional authorities as will be necessary to meet the criteria and shall include a schedule and commitment to seek such additional authority that will be needed to meet the criteria;
c. Source identification.
(1) A description of the historic use of ordinances, guidance, or other controls that limited the discharge of nonstormwater discharges to any publicly owned treatment works serving the same area as the municipal separate storm sewer system.
(2) A USGS 7.5 minute topographic map (or equivalent topographic map with a scale between 1:10,000 and 1:24,000, if cost effective) extending one mile beyond the service boundaries of the municipal storm sewer system covered by the permit application. The following information shall be provided:
(a) The location of known municipal storm sewer system outfalls discharging to surface waters;
(b) A description of the land use activities (e.g., divisions indicating undeveloped, residential, commercial, agricultural, and industrial uses) accompanied with estimates of population densities and projected growth for a 10-year period within the drainage area served by the separate storm sewer. For each land use type, an estimate of an average runoff coefficient shall be provided;
(c) The location and a description of the activities of the facility of each currently operating or closed municipal landfill or other treatment, storage, or disposal facility for municipal waste;
(d) The location and the permit number of any known discharge to the municipal storm sewer that has been issued a permit;
(e) The location of major structural controls for stormwater discharge (retention basins, detention basins, major infiltration devices, etc.); and
(f) The identification of publicly owned parks, recreational areas, and other open lands;
d. Discharge characterization.
(1) Monthly mean rain and snow fall estimates (or summary of weather bureau data) and the monthly average number of storm events.
(2) Existing quantitative data describing the volume and quality of discharges from the municipal storm sewer, including a description of the outfalls sampled, sampling procedures, and analytical methods used.
(3) A list of water bodies that receive discharges from the municipal separate storm sewer system, including downstream segments, lakes, and estuaries, where pollutants from the system discharges may accumulate and cause water degradation and a brief description of known water quality impacts. At a minimum, the description of impacts shall include a description of whether the water bodies receiving such discharges have been:
(a) Assessed and reported in § 305(b) of the CWA reports submitted by the state, the basis for the assessment (evaluated or monitored), a summary of designated use support and attainment of the State Water Control Law and the CWA goals (fishable and swimmable waters), and causes of nonsupport of designated uses;
(b) Listed under § 304(l)(1)(A)(i), (1)(A)(ii), or (l)(1)(B) of the CWA that is not expected to meet water quality standards or water quality goals;
(c) Listed in State Nonpoint Source Assessments required by § 319(a) of the CWA that, without additional action to control nonpoint sources of pollution, cannot reasonably be expected to attain or maintain water quality standards due to storm sewers, construction, highway maintenance, and runoff from municipal landfills and municipal sludge adding significant pollution (or contributing to a violation of water quality standards);
(d) Identified and classified according to eutrophic condition of publicly owned lakes listed in state reports required under § 314(a) of the CWA (include the following: a description of those publicly owned lakes for which uses are known to be impaired; a description of procedures, processes, and methods to control the discharge of pollutants from municipal separate storm sewers into such lakes; and a description of methods and procedures to restore the quality of such lakes);
(e) Areas of concern of the Great Lakes identified by the International Joint Commission;
(f) Designated estuaries under the National Estuary Program under § 320 of the CWA;
(g) Recognized by the permit applicant as highly valued or sensitive waters;
(h) Defined by the state or U.S. Fish and Wildlife Service's National Wetlands Inventory as wetlands; and
(i) Found to have pollutants in bottom sediments, fish tissue or biosurvey data.
(4) Results of a field screening analysis for illicit connections and illegal dumping for either selected field screening points or major outfalls covered in the permit application. At a minimum, a screening analysis shall include a narrative description, for either each field screening point or major outfall, of visual observations made during dry weather periods. If any flow is observed, two grab samples shall be collected during a 24-hour period with a minimum period of four hours between samples. For all such samples, a narrative description of the color, odor, turbidity, and the presence of an oil sheen or surface scum, as well as any other relevant observations regarding the potential presence of nonstormwater discharges or illegal dumping shall be provided. In addition, a narrative description of the results of a field analysis using suitable methods to estimate pH, total chlorine, total copper, total phenol, and detergents (or surfactants) shall be provided along with a description of the flow rate. Where the field analysis does not involve analytical methods approved under 40 CFR Part 136, the permit applicant shall provide a description of the method used, including the name of the manufacturer of the test method along with the range and accuracy of the test. Field screening points shall be either major outfalls or other outfall points (or any other point of access such as manholes) randomly located throughout the storm sewer system by placing a grid over a drainage system map and identifying those cells of the grid that contain a segment of the storm sewer system or major outfall. The field screening points shall be established using the following guidelines and criteria:
(a) A grid system consisting of perpendicular north-south and east-west lines spaced 1/4 mile apart shall be overlaid on a map of the municipal storm sewer system, creating a series of cells;
(b) All cells that contain a segment of the storm sewer system shall be identified; one field screening point shall be selected in each cell; major outfalls may be used as field screening points;
(c) Field screening points should be located downstream of any sources of suspected illegal or illicit activity;
(d) Field screening points shall be located to the degree practicable at the farthest manhole or other accessible location downstream in the system, within each cell; however, safety of personnel and accessibility of the location should be considered in making this determination;
(e) Hydrological conditions; total drainage area of the site; population density of the site; traffic density; age of the structures or buildings in the area; history of the area; and land use types;
(f) For medium municipal separate storm sewer systems, no more than 250 cells need to have identified field screening points; in large municipal separate storm sewer systems, no more than 500 cells need to have identified field screening points; cells established by the grid that contain no storm sewer segments will be eliminated from consideration; if fewer than 250 cells in medium municipal sewers are created, and fewer than 500 in large systems are created by the overlay on the municipal sewer map, then all those cells that contain a segment of the sewer system shall be subject to field screening (unless access to the separate storm sewer system is impossible); and
(g) Large or medium municipal separate storm sewer systems that are unable to utilize the procedures described in subdivisions 1 d (4) (a) through (f) of this subsection because a sufficiently detailed map of the separate storm sewer systems is unavailable shall field screen no more than 500 or 250 major outfalls respectively (or all major outfalls in the system, if fewer); in such circumstances, the permit applicant shall establish a grid system consisting of north-south and east-west lines spaced 1/4 mile apart as an overlay to the boundaries of the municipal storm sewer system, thereby creating a series of cells; the permit applicant will then select major outfalls in as many cells as possible until at least 500 major outfalls (large municipalities) or 250 major outfalls (medium municipalities) are selected; a field screening analysis shall be undertaken at these major outfalls.
(5) Information and a proposed program to meet the requirements of subdivision 2 c of this subsection. Such description shall include: the location of outfalls or field screening points appropriate for representative data collection under subdivision 2 c (1) of this subsection, a description of why the outfall or field screening point is representative, the seasons during which sampling is intended, and a description of the sampling equipment. The proposed location of outfalls or field screening points for such sampling should reflect water quality concerns (see subdivision 1 d (3) of this subsection) to the extent practicable;
e. Management programs.
(1) A description of the existing management programs to control pollutants from the municipal separate storm sewer system. The description shall provide information on existing structural and source controls, including operation and maintenance measures for structural controls, that are currently being implemented. Such controls may include procedures to control pollution resulting from construction activities, floodplain management controls, wetland protection measures, best management practices for new subdivisions, and emergency spill response programs. The description may address controls established under state law as well as local requirements.
(2) A description of the existing program to identify illicit connections to the municipal storm sewer system. The description should include inspection procedures and methods for detecting and preventing illicit discharges and describe areas where this program has been implemented; and
f. Fiscal resources. A description of the financial resources currently available to the municipality to complete Part 2 of the permit application. A description of the municipality's budget for existing stormwater programs, including an overview of the municipality's financial resources and budget, including overall indebtedness and assets, and sources of funds for stormwater programs.
2. Part 2 of the application shall consist of:
a. A demonstration that the permit applicant can operate pursuant to legal authority established by statute, ordinance, or series of contracts that authorizes or enables the permit applicant at a minimum to:
(1) Control through ordinance, permit, contract, order, or similar means the contribution of pollutants to the municipal storm sewer by stormwater discharges associated with industrial activity and the quality of stormwater discharged from sites of industrial activity;
(2) Prohibit through ordinance, order, or similar means illicit discharges to the municipal separate storm sewer;
(3) Control through ordinance, order, or similar means the discharge to a municipal separate storm sewer of spills, dumping, or disposal of materials other than stormwater;
(4) Control through interagency agreements among permit co-applicants the contribution of pollutants from one portion of the municipal system to another portion of the municipal system;
(5) Require compliance with conditions in ordinances, permits, contracts, or orders; and
(6) Carry out all inspection, surveillance, and monitoring procedures necessary to determine compliance and noncompliance with permit conditions, including the prohibition on illicit discharges to the municipal separate storm sewer;
b. The location of any major outfall that discharges to surface waters that was not reported under subdivision 1 c (2) (a) of this subsection. Provide an inventory, organized by watershed of the name and address, and a description (such as SIC codes) that best reflects the principal products or services provided by each facility that may discharge, to the municipal separate storm sewer, stormwater associated with industrial activity;
c. When quantitative data for a pollutant are required under subdivision 2 c (1) (c) of this subsection, the permit applicant must collect a sample of effluent in accordance with 9VAC25-875-960 and analyze it for the pollutant in accordance with analytical methods approved under 40 CFR Part 136. When no analytical method is approved the permit applicant may use any suitable method but must provide a description of the method. The permit applicant must provide information characterizing the quality and quantity of discharges covered in the permit application, including:
(1) Quantitative data from representative outfalls designated by the department (based on information received in Part 1 of the application, the department shall designate between five and 10 outfalls or field screening points as representative of the commercial, residential, and industrial land use activities of the drainage area contributing to the system or where there are less than five outfalls) covered in the application, the department shall designate all outfalls developed as follows:
(a) For each outfall or field screening point designated under this subsection, samples shall be collected of stormwater discharges from three storm events occurring at least one month apart in accordance with the requirements at 9VAC25-875-960 (the department may allow exemptions to sampling three storm events when climatic conditions create good cause for such exemptions);
(b) A narrative description shall be provided of the date and duration of the storm event or events sampled, rainfall estimates of the storm event that generated the sampled discharge, and the duration between the storm event sampled and the end of the previous measurable (greater than 0.1 inch rainfall) storm event;
(c) For samples collected and described under subdivisions 2 c (1) (a) and (1) (b) of this subsection, quantitative data shall be provided for the organic pollutants listed in Table II; the pollutants listed in Table III (toxic metals, cyanide, and total phenols) of 40 CFR Part 122 Appendix D, and for the following pollutants:
Total suspended solids (TSS)
Total dissolved solids (TDS)
Chemical oxygen demand (COD)
Biochemical oxygen demand (BOD5)
Oil and grease
Fecal coliform
Fecal streptococcus
pH
Total Kjeldahl nitrogen
Nitrate plus nitrite
Dissolved phosphorus
Total ammonia plus organic nitrogen
Total phosphorus
(d) Additional limited quantitative data required by the department for determining permit conditions (the department may require that quantitative data shall be provided for additional parameters and may establish sampling conditions, such as the location, season of sample collection, form of precipitation (snow melt, rainfall) and other parameters necessary to ensure representativeness);
(2) Estimates of the annual pollutant load of the cumulative discharges to surface waters from all identified municipal outfalls and the event mean concentration of the cumulative discharges to surface waters from all identified municipal outfalls during a storm event (as described under 9VAC25-875-960) for BOD5, COD, TSS, dissolved solids, total nitrogen, total ammonia plus organic nitrogen, total phosphorus, dissolved phosphorus, cadmium, copper, lead, and zinc. Estimates shall be accompanied by a description of the procedures for estimating constituent loads and concentrations, including any modeling, data analysis, and calculation methods;
(3) A proposed schedule to provide estimates for each major outfall identified in either subdivision 2 b or 1 c (2) (a) of this subsection of the seasonal pollutant load and of the event mean concentration of a representative storm for any constituent detected in any sample required under subdivision 2 c (1) of this subsection; and
(4) A proposed monitoring program for representative data collection for the term of the permit that describes the location of outfalls or field screening points to be sampled (or the location of instream stations), why the location is representative, the frequency of sampling, parameters to be sampled, and a description of sampling equipment;
d. A proposed management program that covers the duration of the permit. It shall include a comprehensive planning process that involves public participation and, where necessary, intergovernmental coordination to reduce the discharge of pollutants to the maximum extent practicable using management practices, control techniques and system, design and engineering methods, and such other provisions that are appropriate. The program shall also include a description of staff and equipment available to implement the program. Separate proposed programs may be submitted by each permit co-applicant. Proposed programs may impose controls on a system wide basis, a watershed basis, a jurisdiction basis, or on individual outfalls. Proposed programs will be considered by the department when developing permit conditions to reduce pollutants in discharges to the maximum extent practicable. Proposed management programs shall describe priorities for implementing controls. Such programs shall be based on:
(1) A description of structural and source control measures to reduce pollutants from runoff from commercial and residential areas that are discharged from the municipal storm sewer system that are to be implemented during the life of the permit, accompanied with an estimate of the expected reduction of pollutant loads and a proposed schedule for implementing such controls. At a minimum, the description shall include:
(a) A description of maintenance activities and a maintenance schedule for structural controls to reduce pollutants (including floatables) in discharges from municipal separate storm sewers;
(b) A description of planning procedures, including a comprehensive master plan to develop, implement, and enforce controls to reduce the discharge of pollutants from municipal separate storm sewers that receive discharges from areas of new development and significant redevelopment. Such plan shall address controls to reduce pollutants in discharges from municipal separate storm sewers after construction is completed. Controls to reduce pollutants in discharges from municipal separate storm sewers containing construction site runoff are addressed in subdivision 2 d (4) of this subsection;
(c) A description of practices for operating and maintaining public streets, roads, and highways and procedures for reducing the impact on receiving waters of discharges from municipal storm sewer systems, including pollutants discharged as a result of deicing activities;
(d) A description of procedures to ensure that flood management projects assess the impacts on the water quality of receiving water bodies and that existing structural flood control devices have been evaluated to determine if retrofitting the device to provide additional pollutant removal from stormwater is feasible;
(e) A description of a program to monitor pollutants in runoff from operating or closed municipal landfills or other treatment, storage, or disposal facilities for municipal waste that shall identify priorities and procedures for inspections and establishing and implementing control measures for such discharges (this program can be coordinated with the program developed under subdivision 2 d (3) of this subsection); and
(f) A description of a program to reduce to the maximum extent practicable, pollutants in discharges from municipal separate storm sewers associated with the application of pesticides, herbicides, and fertilizer that will include, as appropriate, controls such as educational activities, permits, certifications, and other measures for commercial applicators and distributors and controls for application in public right-of-ways and at municipal facilities;
(2) A description of a program, including a schedule to detect and remove (or require the discharger to the municipal separate storm sewer to obtain a separate permit for) illicit discharges and improper disposal into the storm sewer. The proposed program shall include:
(a) A description of a program, including inspections, to implement and enforce an ordinance, orders, or similar means to prevent illicit discharges to the municipal separate storm sewer system; this program description shall address all types of illicit discharges, however the following category of nonstormwater discharges or flows shall be addressed where such discharges are identified by the municipality as sources of pollutants to surface waters: water line flushing, landscape irrigation, diverted stream flows, rising groundwaters, uncontaminated groundwater infiltration to separate storm sewers, uncontaminated pumped groundwater, discharges from potable water sources, foundation drains, air conditioning condensation, irrigation water, springs, water from crawl space pumps, footing drains, lawn watering, individual residential car washing, flows from riparian habitats and wetlands, dechlorinated swimming pool discharges, and street wash water (program descriptions shall address discharges or flows from firefighting only where such discharges or flows are identified as significant sources of pollutants to surface waters);
(b) A description of procedures to conduct on-going field screening activities during the life of the permit, including areas or locations that will be evaluated by such field screens;
(c) A description of procedures to be followed to investigate portions of the separate storm sewer system that, based on the results of the field screen, or other appropriate information, indicate a reasonable potential of containing illicit discharges or other sources of nonstormwater (such procedures may include: sampling procedures for constituents such as fecal coliform, fecal streptococcus, surfactants (Methylene Blue Active Substances - MBAS), residual chlorine, fluorides, and potassium; testing with fluorometric dyes; or conducting in storm sewer inspections where safety and other considerations allow. Such description shall include the location of storm sewers that have been identified for such evaluation.);
(d) A description of procedures to prevent, contain, and respond to spills that may discharge into the municipal separate storm sewer;
(e) A description of a program to promote, publicize, and facilitate public reporting of the presence of illicit discharges or water quality impacts associated with discharges from municipal separate storm sewers;
(f) A description of educational activities, public information activities, and other appropriate activities to facilitate the proper management and disposal of used oil and toxic materials; and
(g) A description of controls to limit infiltration of seepage from municipal sanitary sewers to municipal separate storm sewer systems where necessary.
(3) A description of a program to monitor and control pollutants in stormwater discharges to municipal systems from municipal landfills, hazardous waste treatment, disposal and recovery facilities, industrial facilities that are subject to § 313 of Title III of the Superfund Amendments and Reauthorization Act of 1986 (SARA, 42 USC § 11023), and industrial facilities that the municipal permit applicant determines are contributing a substantial pollutant loading to the municipal storm sewer system. The program shall:
(a) Identify priorities and procedures for inspections and establishing and implementing control measures for such discharges;
(b) Describe a monitoring program for stormwater discharges associated with the industrial facilities identified in subdivision 2 d (3) of this subsection, to be implemented during the term of the permit, including the submission of quantitative data on the following constituents: any pollutants limited in effluent guidelines subcategories, where applicable; any pollutant listed in an existing separate VPDES permit for a facility; oil and grease, COD, pH, BOD5, TSS, total phosphorus, total Kjeldahl nitrogen, nitrate plus nitrite nitrogen, and any information on discharges required under 9VAC25-875-960 G and H; and
(4) A description of a program to implement and maintain structural and nonstructural best management practices to reduce pollutants in stormwater runoff from construction sites to the municipal storm sewer system, which program shall include:
(a) A description of procedures for site planning that incorporate consideration of potential water quality impacts;
(b) A description of requirements for nonstructural and structural best management practices;
(c) A description of procedures for identifying priorities for inspecting sites and enforcing control measures that consider the nature of the construction activity, topography, and the characteristics of soils and receiving water quality; and
(d) A description of appropriate educational and training measures for construction site operators;
e. Estimated reductions in loadings of pollutants from discharges of municipal storm sewer constituents from municipal storm sewer systems expected as the result of the municipal stormwater quality management program. The assessment shall also identify known impacts of stormwater controls on groundwater;
f. For each fiscal year to be covered by the permit, a fiscal analysis of the necessary capital and operation and maintenance expenditures necessary to accomplish the activities of the programs under subdivisions 2 c and d of this subsection. Such analysis shall include a description of the source of funds that are proposed to meet the necessary expenditures, including legal restrictions on the use of such funds;
g. Where more than one legal entity submits an application, the application shall contain a description of the roles and responsibilities of each legal entity and procedures to ensure effective coordination; and
h. Where requirements under subdivisions 1 d (5), 2 b, 2 c (2), and 2 d of this subsection are not practicable or are not applicable, the department may exclude any operator of a discharge from a municipal separate storm sewer that is designated under subdivision A 1 e of this section or that is located in the counties listed in 40 CFR Part 122 Appendix H or Appendix I (except municipal separate storm sewers that are located in the incorporated places, townships, or towns within such counties) from such requirements. The department shall not exclude the operator of a discharge from a municipal separate storm sewer identified in 40 CFR Part 122 Appendix F, G, H, or I from any of the permit application requirements under this subdivision except where authorized under this subsection.
D. Petitions.
1. Any operator of a municipal separate storm sewer system may petition the appropriate authority or the department to require a separate permit for any discharge into the municipal separate storm sewer system.
2. Any person may petition the department to require a permit for a discharge that is composed entirely of stormwater that contributes to a violation of a water quality standard or is a significant contributor of pollutants to surface waters.
3. Any person may petition the department for the designation of a large, medium, or small municipal separate storm sewer system as defined by this chapter.
4. The department shall make a final determination on any petition received under this section within 90 days after receiving the petition with the exception of petitions to designate a small MS4, in which case the department shall make a final determination on the petition within 180 days after the petition's receipt.
Statutory Authority
§ 62.1-44.15:28 of the Code of Virginia.
Historical Notes
Derived from Virginia Register Volume 40, Issue 8, eff. July 1, 2024.
9VAC25-875-960. Effluent sampling procedures.
A. Permit applicants for discharges from large and small municipal storm sewers or municipal storm sewers designated under 9VAC25-875-950 A 1 e shall provide the following information to the department, using application forms provided by the department.
B. Information on stormwater discharges that is to be provided as specified in 9VAC25-875-950. When quantitative data for a pollutant are required, the permit applicant must collect a sample of effluent and analyze it for the pollutant in accordance with analytical methods approved under 40 CFR Part 136. When no analytical method is approved the permit applicant may use any suitable method but must provide a description of the method. When a permit applicant has two or more outfalls with substantially identical effluents, the department may allow the permit applicant to test only one outfall and report that the quantitative data also apply to the substantially identical outfalls. The requirements in subsections F and G of this section that a permit applicant must provide quantitative data for certain pollutants known or believed to be present do not apply to pollutants present in a discharge solely as the result of their presence in intake water; however, an applicant must report such pollutants as present. Grab samples must be used for pH, temperature, cyanide, total phenols, residual chlorine, oil and grease, fecal coliform, and fecal streptococcus. For all other pollutants, 24-hour composite samples must be used. However, a minimum of one grab sample may be taken for effluents from holding ponds or other impoundments with a retention period greater than 24 hours. In addition, for discharges other than stormwater discharges, the department may waive composite sampling for any outfall for which the permit applicant demonstrates that the use of an automatic sampler is infeasible and that the minimum of four grab samples will be a representative sample of the effluent being discharged.
C. For stormwater discharges, all samples shall be collected from the discharge resulting from a storm event that is greater than 0.1 inch and at least 72 hours from the previously measurable (greater than 0.1 inch rainfall) storm event. Where feasible, the variance in the duration of the event and the total rainfall of the event should not exceed 50% from the average or median rainfall event in that area. For all permit applicants, a flow-weighted composite shall be taken for either the entire discharge or for the first three hours of the discharge. The flow-weighted composite sample for a stormwater discharge may be taken with a continuous sampler or as a combination of a minimum of three sample aliquots taken in each hour of discharge for the entire discharge or for the first three hours of the discharge, with each aliquot being separated by a minimum period of 15 minutes. However, a minimum of one grab sample may be taken for stormwater discharges from holding ponds or other impoundments with a retention period greater than 24 hours. For a flow-weighted composite sample, only one analysis of the composite of aliquots is required. For stormwater discharge samples taken from discharges associated with industrial activities, quantitative data must be reported for the grab sample taken during the first 30 minutes (or as soon thereafter as practicable) of the discharge for all pollutants specified in 9VAC25-875-950 C 1. For all stormwater permit applicants taking flow-weighted composites, quantitative data must be reported for all pollutants specified in 9VAC25-875-950 except pH, temperature, cyanide, total phenols, residual chlorine, oil and grease, fecal coliform, and fecal streptococcus. The department may allow or establish appropriate site-specific sampling procedures or requirements, including sampling locations, the season in which the sampling takes place, the minimum duration between the previous measurable storm event and the storm event sampled, the minimum or maximum level of precipitation required for an appropriate storm event, the form of precipitation sampled (snow melt or rain fall), protocols for collecting samples under 40 CFR Part 136, and additional time for submitting data on a case-by-case basis. A permit applicant is expected to know or have reason to believe that a pollutant is present in an effluent based on an evaluation of the expected use, production, or storage of the pollutant or on any previous analyses for the pollutant. For example, any pesticide manufactured by a facility may be expected to be present in contaminated stormwater runoff from the facility.
D. Every permit applicant must report quantitative data for every outfall for the following pollutants:
Biochemical oxygen demand (BOD5)
Chemical oxygen demand
Total organic carbon
Total suspended solids
Ammonia (as N)
Temperature (both winter and summer)
pH
E. The department may waive the reporting requirements for individual point sources or for a particular industry category for one or more of the pollutants listed in subsection C of this section if the permit applicant has demonstrated that such a waiver is appropriate because information adequate to support issuance of a permit can be obtained with less stringent requirements.
F. Each permit applicant with processes in one or more primary industry category (see 40 CFR Part 122 Appendix A) contributing to a discharge must report quantitative data for the following pollutants in each outfall containing process wastewater:
1. The organic toxic pollutants in the fractions designated in Table I of 40 CFR Part 122 Appendix D for the permit applicant's industrial category unless the permit applicant qualifies as a small business. Table II of 40 CFR Part 122 Appendix D lists the organic toxic pollutants in each fraction. The fractions result from the sample preparation required by the analytical procedure that uses gas chromatography or mass spectrometry. A determination that a permit applicant falls within a particular industrial category for the purposes of selecting fractions for testing is not conclusive as to the permit applicant's inclusion in that category for any other purposes; and
2. The pollutants listed in Table III of 40 CFR Part 122 Appendix D (the toxic metals, cyanide, and total phenols).
G. 1. Each permit applicant must indicate whether the permit applicant knows or has reason to believe that any of the pollutants in Table IV of 40 CFR Part 122 Appendix D (certain conventional and nonconventional pollutants) is discharged from each outfall. If an applicable effluent limitations guideline either directly limits the pollutant or, by its express terms, indirectly limits the pollutant through limitations on an indicator, the permit applicant must report quantitative data. For every pollutant discharged that is not so limited in an effluent limitations guideline, the permit applicant must either report quantitative data or briefly describe the reasons the pollutant is expected to be discharged.
2. Each applicant must indicate whether the applicant knows or has reason to believe that any of the pollutants listed in Table II or Table III of 40 CFR Part 122 Appendix D (the toxic pollutants and total phenols) for which quantitative data are not otherwise required under subsection F of this section, is discharged from each outfall. For every pollutant expected to be discharged in concentrations of 10 ppb or greater the permit applicant must report quantitative data. For acrolein, acrylonitrile, 2,4 dinitrophenol, and 2-methyl-4,6 dinitrophenol, where any of these four pollutants are expected to be discharged in concentrations of 100 ppb or greater the permit applicant must report quantitative data. For every pollutant expected to be discharged in concentrations less than 10 ppb, or in the case of acrolein, acrylonitrile, 2,4 dinitrophenol, and 2-methyl-4,6 dinitrophenol, in concentrations less than 100 ppb, the permit applicant must either submit quantitative data or briefly describe the reasons the pollutant is expected to be discharged. A permit applicant qualifying as a small business is not required to analyze for pollutants listed in Table II of 40 CFR Part 122 Appendix D (the organic toxic pollutants).
H. Each permit applicant must indicate whether the permit applicant knows or has reason to believe that any of the pollutants in Table V of 40 CFR Part 122 Appendix D (certain hazardous substances and asbestos) are discharged from each outfall. For every pollutant expected to be discharged, the permit applicant must briefly describe the reasons the pollutant is expected to be discharged, and report any quantitative data it has for any pollutant.
I. Each permit applicant must report qualitative data, generated using a screening procedure not calibrated with analytical standards, for 2,3,7,8-tetrachlorodibenzo-p-dioxin (TCDD) if it:
1. Uses or manufactures 2,4,5-trichlorophenoxy acetic acid (2,4,5,-T); 2-(2,4,5-trichlorophenoxy) propanoic acid (Silvex, 2,4,5,-TP); 2-(2,4,5-trichlorophenoxy) ethyl, 2,2-dichloropropionate (Erbon); O,O-dimethyl O-(2,4,5-trichlorophenyl) phosphorothioate (Ronnel); 2,4,5-trichlorophenol (TCP); or hexachlorophene (HCP); or
2. Knows or has reason to believe that TCDD is or may be present in an effluent.
Statutory Authority
§ 62.1-44.15:28 of the Code of Virginia.
Historical Notes
Derived from Virginia Register Volume 40, Issue 8, eff. July 1, 2024.
9VAC25-875-970. Small municipal separate storm sewer systems.
A. Objectives of the stormwater regulations for small MS4s.
1. Subsections A through G of this section are written in a "readable regulation" format that includes both rule requirements and guidance. The recommended guidance is distinguished from the regulatory requirements by putting the guidance in a separate subdivision headed by the word "Note."
2. Under the statutory mandate in § 402(p)(6) of the Clean Water Act, the purpose of this portion of the stormwater program is to designate additional sources that need to be regulated to protect water quality and to establish a comprehensive stormwater program to regulate these sources.
3. Stormwater runoff continues to harm the nation's waters. Runoff from lands modified by human activities can harm surface water resources in several ways, including by changing natural hydrologic patterns and by elevating pollutant concentrations and loadings. Stormwater runoff may contain or mobilize high levels of contaminants, such as sediment, suspended solids, nutrients, heavy metals, pathogens, toxins, oxygen-demanding substances, and floatables.
4. The department strongly encourages partnerships and the watershed approach as the management framework for efficiently, effectively, and consistently protecting and restoring aquatic ecosystems and protecting public health.
B. As an operator of a small MS4, am I regulated under the state's stormwater program?
1. Unless you qualify for a waiver under subdivision 3 of this subsection, you are regulated if you operate a small MS4, including systems operated by federal, state, tribal, and local governments, including the Virginia Department of Transportation; and
a. Your small MS4 is located in an urbanized area as determined by the latest decennial census by the Bureau of the Census (if your small MS4 is not located entirely within an urbanized area, only the portion that is within the urbanized area is regulated); or
b. You are designated by the department, including where the designation is pursuant to subdivisions C 3 a and b of this section or is based upon a petition under 9VAC25-875-950 D.
2. You may be the subject of a petition to the department to require a permit for your discharge of stormwater. If the department determines that you need a permit, you are required to comply with subsections C through E of this section.
3. The department may waive the requirements otherwise applicable to you if you meet the criteria of subdivision 4 or 5 of this subsection B. If you receive a waiver under this section, you may subsequently be required to seek coverage under a permit in accordance with subdivision C 1 of this section if circumstances change. (See also subdivision E 2 of this section).
4. The department may waive permit coverage if your MS4 serves a population of less than 1,000 within the urbanized area and you meet the following criteria:
a. Your system is not contributing substantially to the pollutant loadings of a physically interconnected MS4 that is regulated by the department; and
b. If you discharge any pollutants that have been identified as a cause of impairment of any water body to which you discharge, stormwater controls are not needed based on wasteload allocations that are part of an approved "total maximum daily load" (TMDL) that addresses the pollutants of concern.
5. The department may waive permit coverage if your MS4 serves a population under 10,000 and you meet the following criteria:
a. The department has evaluated all surface waters, including small streams, tributaries, lakes, and ponds, that receive a discharge from your MS4;
b. For all such waters, the department has determined that stormwater controls are not needed based on wasteload allocations that are part of an approved TMDL that addresses the pollutants of concern or, if a TMDL has not been developed or approved, an equivalent analysis that determines sources and allocations for the pollutants of concern;
c. For the purpose of subdivision 5 of this subsection, the pollutants of concern include biochemical oxygen demand (BOD), sediment or a parameter that addresses sediment (such as total suspended solids, turbidity or siltation), pathogens, oil and grease, and any pollutant that has been identified as a cause of impairment of any water body that will receive a discharge from your MS4; and
d. The department has determined that future discharges from your MS4 do not have the potential to result in exceedances of water quality standards, including impairment of designated uses or other significant water quality impacts, including habitat and biological impacts.
C. If I am an operator of a regulated small MS4, how do I apply for a permit and when do I have to apply?
1. If you operate a regulated small MS4 under subsection B of this section, you must seek coverage under a permit issued by the department.
2. You must seek authorization to discharge under a general or individual permit, as follows:
a. If the department has issued a general permit applicable to your discharge and you are seeking coverage under the general permit, you must submit a registration statement that includes the information on your best management practices and measurable goals required by subdivision D 4 of this section. You may file your own registration statement, or you and other municipalities or governmental entities may jointly submit a registration statement. If you want to share responsibilities for meeting the minimum measures with other municipalities or governmental entities, you must submit a registration statement that describes which minimum measures you will implement and identify the entities that will implement the other minimum measures within the area served by your MS4. The general permit will explain any other steps necessary to obtain permit authorization.
b. (1) If you are seeking authorization to discharge under an individual permit and wish to implement a program under subsection D of this section, you must submit an application to the department that includes the information required under 9VAC25-875-920 F and subdivision D 4 of this section, an estimate of square mileage served by your small MS4, and any additional information that the department requests. A storm sewer map that satisfies the requirement of subdivision D 2 c (1) of this section will satisfy the map requirement in 9VAC25-875-920 F 7.
(2) If you are seeking authorization to discharge under an individual permit and wish to implement a program that is different from the program under subsection D of this section, you will need to comply with the permit application requirements of 9VAC25-875-950 C. You must submit both parts of the application requirements in 9VAC25-875-950 C 1 and 2 by March 10, 2003. You do not need to submit the information required by 9VAC25-875-950 C 1 b and C 2 regarding your legal authority, unless you intend for the permit writer to take such information into account when developing your other permit conditions.
(3) If allowed by the department, you and another regulated entity may jointly apply under either subdivision 2 b (1) or (2) of this subsection to be state co-permittees under an individual permit.
c. If your small MS4 is in the same urbanized area as a medium or large MS4 with a permit and that other MS4 is willing to have you participate in that MS4's stormwater program, you and the other MS4 may jointly seek a modification of the other MS4 permit to include you as a limited state co-permittee. As a limited state co-permittee, you will be responsible for compliance with the permit's conditions applicable to your jurisdiction. If you choose this option you will need to comply with the permit application requirements of 9VAC25-875-950, rather than the requirements of subsection D of this section. You do not need to comply with the specific application requirements of 9VAC25-875-950 C 1 c and d and 9VAC25-875-950 C 2 c (discharge characterization). You may satisfy the requirements in 9VAC25-875-950 C 1 e and 2 d (identification of a management program) by referring to the other MS4's stormwater management program.
d. NOTE: In referencing an MS4's stormwater management program, you should briefly describe how the existing plan will address discharges from your small MS4 or would need to be supplemented in order to adequately address your discharges. You should also explain your role in coordinating stormwater pollutant control activities in your MS4 and detail the resources available to you to accomplish the plan.
3. If you operate a regulated small MS4:
a. Designated under subdivision B 1 a of this section, you must apply for coverage under a permit or apply for a modification of an existing permit under subdivision 2 c of this subsection within 180 days of notice, unless the department grants a later date.
b. Designated under subdivision B 1 b of this section, you must apply for coverage under a permit or apply for a modification of an existing permit under subdivision 2 c of this subsection within 180 days of notice, unless the department grants a later date.
D. As an operator of a regulated small MS4, what will my MS4 permit require?
1. Your MS4 permit will require at a minimum that you develop, implement, and enforce a stormwater management program designed to reduce the discharge of pollutants from your MS4 to the maximum extent practicable (MEP), to protect water quality, and to satisfy the appropriate water quality requirements of the Clean Water Act, the Virginia Erosion and Stormwater Management Act, and the State Water Control Law. Your stormwater management program must include the minimum control measures described in subdivision 2 of this subsection unless you apply for a permit under 9VAC25-875-950 C. For purposes of this section, narrative effluent limitations requiring implementation of best management practices (BMPs) are generally the most appropriate form of effluent limitations when designed to satisfy technology requirements (including reductions of pollutants to the maximum extent practicable) and to protect water quality. Implementation of best management practices consistent with the provisions of the stormwater management program required pursuant to this section and the provisions of the permit required pursuant to subsection C of this section constitutes compliance with the standard of reducing pollutants to the maximum extent practicable. The department will specify a time period of up to five years from the date of permit issuance for you to develop and implement your program.
2. Minimum control measures.
a. Public education and outreach on stormwater impacts.
(1) You must implement a public education program to distribute educational materials to the community or conduct equivalent outreach activities about the impacts of stormwater discharges on water bodies and the steps that the public can take to reduce pollutants in stormwater runoff.
(2) NOTE: You may use stormwater educational materials provided by the state, your tribe, EPA, environmental, public interest or trade organizations, or other MS4s. The public education program should inform individuals and households about the steps they can take to reduce stormwater pollution, such as ensuring proper septic system maintenance, ensuring the proper use and disposal of landscape and garden chemicals including fertilizers and pesticides, protecting and restoring riparian vegetation, and properly disposing of used motor oil or household hazardous wastes. The department recommends that the program inform individuals and groups how to become involved in local stream and beach restoration activities as well as activities that are coordinated by youth service and conservation corps or other citizen groups. The department recommends that the public education program be tailored, using a mix of locally appropriate strategies, to target specific audiences and communities. Examples of strategies include: distributing brochures or fact sheets, sponsoring speaking engagements before community groups, providing public service announcements, implementing educational programs targeted at school-age children, and conducting community-based projects such as storm drain stenciling, and watershed and beach cleanups. In addition, the department recommends that some of the materials or outreach programs be directed toward targeted groups of commercial, industrial, and institutional entities likely to have significant stormwater impacts. For example, providing information to restaurants on the impact of grease clogging storm drains and to garages on the impact of oil discharges. You are encouraged to tailor your outreach program to address the viewpoints and concerns of all communities, particularly minority and disadvantaged communities, as well as any special concerns relating to children.
b. Public involvement/participation.
(1) You must, at a minimum, comply with state, tribal, and local public notice requirements when implementing a public involvement/participation program.
(2) The department recommends that the public be included in developing, implementing, and reviewing your stormwater management program and that the public participation process should make efforts to reach out and engage all economic and ethnic groups. Opportunities for members of the public to participate in program development and implementation include serving as citizen representatives on a local stormwater management panel, attending public hearings, working as citizen volunteers to educate other individuals about the program, assisting in program coordination with other pre-existing programs, or participating in volunteer monitoring efforts. (Citizens should obtain approval where necessary for lawful access to monitoring sites.)
c. Illicit discharge detection and elimination.
(1) You must develop, implement, and enforce a program to detect and eliminate illicit discharges (as defined in 9VAC25-875-850) into your small MS4.
(2) You must:
(a) Develop, if not already completed, a storm sewer system map, showing the location of all outfalls and the names and location of all surface waters that receive discharges from those outfalls;
(b) To the extent allowable under state, tribal, or local law effectively prohibit, through ordinance or other regulatory mechanism, nonstormwater discharges into your storm sewer system and implement appropriate enforcement procedures and actions;
(c) Develop and implement a plan to detect and address nonstormwater discharges, including illegal dumping, to your system; and
(d) Inform public employees, businesses, and the general public of hazards associated with illegal discharges and improper disposal of waste.
(3) You need to address the following categories of nonstormwater discharges or flows (i.e., illicit discharges) only if you identify them as significant contributors of pollutants to your small MS4: water line flushing, landscape irrigation, diverted stream flows, rising groundwaters, uncontaminated groundwater infiltration (as defined in 40 CFR 35.2005(20)), uncontaminated pumped groundwater, discharges from potable water sources, foundation drains, air conditioning condensation, irrigation water, springs, water from crawl space pumps, footing drains, lawn watering, individual residential car washing, flows from riparian habitats and wetlands, dechlorinated swimming pool discharges, and street wash water. (Discharges or flows from fire-fighting activities are excluded from the effective prohibition against nonstormwater and need only be addressed where they are identified as significant sources of pollutants to surface waters.)
(4) NOTE: The department recommends that the plan to detect and address illicit discharges include the following four components: (i) procedures for locating priority areas likely to have illicit discharges, (ii) procedures for tracing the source of an illicit discharge, (iii) procedures for removing the source of the discharge, and (iv) procedures for program evaluation and assessment. The department recommends visually screening outfalls during dry weather and conducting field tests of selected pollutants as part of the procedures for locating priority areas. Illicit discharge education actions may include storm drain stenciling; a program to promote, publicize, and facilitate public reporting of illicit connections or discharges; and distribution of outreach materials.
d. Construction site stormwater runoff control.
(1) You must develop, implement, and enforce a program to reduce pollutants in any stormwater runoff to your small MS4 from construction activities that result in a land disturbance of greater than or equal to one acre, or equal to or greater than 2,500 square feet in all areas of the jurisdictions designated as subject to the Chesapeake Bay Preservation Area Designation and Management Regulations adopted pursuant to the Chesapeake Bay Preservation Act. Reduction of stormwater discharges from construction activity disturbing less than one acre must be included in your program if that construction activity is part of a larger common plan of development or sale that would disturb one acre or more. If the department waives requirements for stormwater discharges associated with small construction activity in accordance with the definition in 9VAC25-875-20, you are not required to develop, implement, or enforce a program to reduce pollutant discharges from such sites.
(2) Your program must include the development and implementation of, at a minimum:
(a) An ordinance or other regulatory mechanism to require erosion and sediment controls, as well as sanctions to ensure compliance, to the extent allowable under state, tribal, or local law;
(b) Requirements for construction site operators to implement appropriate erosion and sediment control best management practices;
(c) Requirements for construction site operators to control waste such as discarded building materials, concrete truck washout, chemicals, litter, and sanitary waste at the construction site that may cause adverse impacts to water quality;
(d) Procedures for site plan review which incorporate consideration of potential water quality impacts;
(e) Procedures for receipt and consideration of information submitted by the public; and
(f) Procedures for site inspection and enforcement of control measures.
(3) NOTE: Examples of sanctions to ensure compliance include nonmonetary penalties, fines, bonding requirements, or permit denials for noncompliance. The department recommends that procedures for site plan review include the review of individual pre-construction site plans to ensure consistency with erosion and sediment control requirements. Procedures for site inspections and enforcement of control measures could include steps to identify priority sites for inspection and enforcement based on the nature of the construction activity, topography, and the characteristics of soils and receiving water quality. You are encouraged to provide appropriate educational and training measures for construction site operators. You may wish to require a stormwater pollution prevention plan for construction sites within your jurisdiction that discharge into your system. (See 9VAC25-875-1030 L and subdivision E 2 of this section.) The department may recognize that another government entity may be responsible for implementing one or more of the minimum measures on your behalf.
e. Post-construction stormwater management in new development and redevelopment.
(1) You must develop, implement, and enforce a program to address stormwater runoff from new development and redevelopment projects that disturb greater than or equal to one acre, including projects less than one acre that are part of a larger common plan of development or sale, that discharge into your small MS4. Your program must ensure that controls are in place that would prevent or minimize water quality impacts.
(2) You must:
(a) Develop and implement strategies that include a combination of structural and nonstructural best management practices (BMPs) appropriate for your community;
(b) Use an ordinance or other regulatory mechanism to address post-construction runoff from new development and redevelopment projects to the extent allowable under state, tribal, or local law; and
(c) Ensure adequate long-term operation and maintenance of BMPs.
(3) NOTE: If water quality impacts are considered from the beginning stages of a project, new development and potentially redevelopment provide more opportunities for water quality protection. The department recommends that the BMPs chosen be appropriate for the local community, minimize water quality impacts, and attempt to maintain pre-development runoff conditions. In choosing appropriate BMPs, the department encourages you to participate in locally based watershed planning efforts that attempt to involve a diverse group of stakeholders, including interested citizens. When developing a program that is consistent with this measure's intent, the department recommends that you adopt a planning process that identifies the municipality's program goals (e.g., minimize water quality impacts resulting from post-construction runoff from new development and redevelopment), implementation strategies (e.g., adopt a combination of structural and nonstructural BMPs), operation and maintenance policies and procedures, and enforcement procedures. In developing your program, you should consider assessing existing ordinances, policies, programs, and studies that address stormwater runoff quality. In addition to assessing these existing documents and programs, you should provide opportunities to the public to participate in the development of the program. Nonstructural BMPs are preventative actions that involve management and source controls such as: (i) policies and ordinances that provide requirements and standards to direct growth to identified areas, protect sensitive areas such as wetlands and riparian areas, maintain and increase open space (including a dedicated funding source for open space acquisition), provide buffers along sensitive water bodies, minimize impervious surfaces, and minimize disturbance of soils and vegetation; (ii) policies or ordinances that encourage infill development in higher density urban areas, and areas with existing infrastructure; (iii) education programs for developers and the public about project designs that minimize water quality impacts; and (iv) measures such as minimization of percent impervious area after development and minimization of directly connected impervious areas. Structural BMPs include: storage practices such as wet ponds and extended-detention outlet structures; filtration practices such as grassed swales, sand filters, and filter strips; and infiltration practices such as infiltration basins and infiltration trenches. The department recommends that you ensure the appropriate implementation of the structural BMPs by considering some or all of the following: pre-construction review of BMP designs; inspections during construction to verify BMPs are built as designed; post-construction inspection and maintenance of BMPs; and penalty provisions for the noncompliance with design, construction, or operation and maintenance. Stormwater technologies are constantly being improved, and the department recommends that your requirements be responsive to these changes, developments, or improvements in control technologies.
f. Pollution prevention/good housekeeping for municipal operations.
(1) You must develop and implement an operation and maintenance program that includes a training component and has the ultimate goal of preventing or reducing pollutant runoff from municipal operations. Using training materials that are available from EPA, state, tribe, or other organizations, your program must include employee training to prevent and reduce stormwater pollution from activities such as park and open space maintenance, fleet and building maintenance, new construction and land disturbances, and stormwater system maintenance.
(2) NOTE: The department recommends that, at a minimum, you consider the following in developing your program: maintenance activities, maintenance schedules, and long-term inspection procedures for structural and nonstructural stormwater controls to reduce floatables and other pollutants discharged from your separate storm sewers; controls for reducing or eliminating the discharge of pollutants from streets, roads, highways, municipal parking lots, maintenance and storage yards, fleet or maintenance shops with outdoor storage areas, salt/sand storage locations and snow disposal areas operated by you, and waste transfer stations; procedures for properly disposing of waste removed from the separate storm sewers and areas listed above (such as dredge spoil, accumulated sediments, floatables, and other debris); and ways to ensure that new flood management projects assess the impacts on water quality and examine existing projects for incorporating additional water quality protection devices or practices. Operation and maintenance should be an integral component of all stormwater management programs. This measure is intended to improve the efficiency of these programs and require new programs where necessary. Properly developed and implemented operation and maintenance programs reduce the risk of water quality problems.
3. If an existing VESMP requires you to implement one or more of the minimum control measures of subdivision 2 of this subsection, the department may include conditions in your permit that direct you to follow that VESMP's requirements rather than the requirements of subdivision 2 of this subsection. A VESMP is a local, state, or tribal municipal stormwater management program that imposes, at a minimum, the relevant requirements of subdivision 2 of this subsection.
4. a. In your permit application (either a registration statement for coverage under a general permit or an individual permit application), you must identify and submit to the department the following information:
(1) The best management practices (BMPs) that you or another entity will implement for each of the stormwater minimum control measures provided in subdivision 2 of this subsection;
(2) The measurable goals for each of the BMPs including, as appropriate, the months and years in which you will undertake required actions, including interim milestones and the frequency of the action; and
(3) The person responsible for implementing or coordinating your stormwater management program.
b. If you obtain coverage under a general permit, you are not required to meet any measurable goals identified in your registration statement in order to demonstrate compliance with the minimum control measures in subdivisions 2 c through f of this subsection unless, prior to submitting your registration statement, EPA or the department has provided or issued a menu of BMPs that addresses each such minimum measure. Even if no regulatory authority issues the menu of BMPs, however, you still must comply with other requirements of the general permit, including good faith implementation of BMPs designed to comply with the minimum measures.
c. NOTE: Either EPA or the department will provide a menu of BMPs. You may choose BMPs from the menu or select others that satisfy the minimum control measures.
5. a. You must comply with any more stringent effluent limitations in your permit, including permit requirements that modify or are in addition to the minimum control measures based on an approved total maximum daily load (TMDL) or equivalent analysis. The department may include such more stringent limitations based on a TMDL or equivalent analysis that determines such limitations are needed to protect water quality.
b. NOTE: The department strongly recommends that until the evaluation of the stormwater program in subsection G of this section, no additional requirements beyond the minimum control measures be imposed on regulated small MS4s without the agreement of the operator of the affected small MS4, except where an approved TMDL or equivalent analysis provides adequate information to develop more specific measures to protect water quality.
6. You must comply with other applicable permit requirements, standards and conditions established in the individual or general permit developed consistent with the provisions of 9VAC25-31-190 through 9VAC25-31-250, as appropriate.
7. Evaluation and assessment.
a. You must evaluate program compliance, the appropriateness of your identified best management practices, and progress towards achieving your identified measurable goals. The department may determine monitoring requirements for you in accordance with monitoring plans appropriate to your watershed. Participation in a group monitoring program is encouraged.
b. You must keep records required by the permit for at least three years. You must submit your records to the department only when specifically asked to do so. You must make your records, including a description of your stormwater management program, available to the public at reasonable times during regular business hours (see 9VAC25-875-900 for confidentiality provision). You may assess a reasonable charge for copying. You may require a member of the public to provide advance notice.
c. Unless you are relying on another entity to satisfy your permit obligations under subdivision E 1 of this section, you must submit annual reports to the department for your first permit term. For subsequent permit terms, you must submit reports in years two and four unless the department requires more frequent reports. As of the start date in Table 1 of 9VAC25-31-1020, all reports submitted in compliance with this subsection shall be submitted electronically by the owner, operator, or the duly authorized representative of the small MS4 to the department in compliance with this section and 40 CFR Part 3 (including, in all cases, 40 CFR Part 3 Subpart D), 9VAC25-875-940, and Part XI (9VAC25-31-950 et seq.) of the Virginia Pollutant Discharge Elimination System (VPDES) Permit Regulation. Part XI of 9VAC25-31 is not intended to undo existing requirements for electronic reporting. Prior to this date, and independent of Part XI of 9VAC25-31, the owner, operator, or the duly authorized representative of the small MS4 may be required to report electronically if specified by a particular permit. Your report must include:
(1) The status of compliance with permit conditions, an assessment of the appropriateness of your identified best management practices and progress towards achieving your identified measurable goals for each of the minimum control measures;
(2) Results of information collected and analyzed, including monitoring data, if any, during the reporting period;
(3) A summary of the stormwater activities you plan to undertake during the next reporting cycle;
(4) A change in any identified best management practices or measurable goals for any of the minimum control measures; and
(5) Notice that you are relying on another governmental entity to satisfy some of your permit obligations (if applicable).
E. As an operator of a regulated small MS4, may I share the responsibility to implement the minimum control measures with other entities?
1. You may rely on another entity to satisfy your permit obligations to implement a minimum control measure if:
a. The other entity, in fact, implements the control measure;
b. The particular control measure, or component thereof, is at least as stringent as the corresponding permit requirement; and
c. The other entity agrees to implement the control measure on your behalf. In the reports you must submit under subdivision D 7 c of this section, you must also specify that you rely on another entity to satisfy some of your permit obligations. If you are relying on another governmental entity regulated under the permit program to satisfy all of your permit obligations, including your obligation to file periodic reports required by subdivision D 7 c of this section, you must note that fact in your registration statement, but you are not required to file the periodic reports. You remain responsible for compliance with your permit obligations if the other entity fails to implement the control measure (or component thereof). Therefore, the department encourages you to enter into a legally binding agreement with that entity if you want to minimize any uncertainty about compliance with your permit.
2. In some cases, the department may recognize, either in your individual permit or in a general permit, that another governmental entity is responsible under a permit for implementing one or more of the minimum control measures for your small MS4. Where the department does so, you are not required to include such minimum control measure(s) in your stormwater management program. Your permit may be reopened and modified to include the requirement to implement a minimum control measure if the entity fails to implement it.
F. As an operator of a regulated small MS4, what happens if I don't comply with the application or permit requirements in subsections C through E of this section? Permits are enforceable under the Clean Water Act and the Virginia Erosion and Stormwater Management Act. Violators may be subject to the enforcement actions and penalties described in Clean Water Act §§ 309(b), (c), and (g) and 505 or under §§ 62.1-44.15:39 through 62.1-44.15:48 of the Code of Virginia and Article 5 of the State Water Control Law. Compliance with a permit issued pursuant to § 402 of the Clean Water Act is deemed compliance, for purposes of §§ 309 and 505, with §§ 301, 302, 306, 307, and 403, except any standard imposed under § 307 for toxic pollutants injurious to human health. If you are covered as a state co-permittee under an individual permit or under a general permit by means of a joint registration statement, you remain subject to the enforcement actions and penalties for the failure to comply with the terms of the permit in your jurisdiction except as set forth in subdivision E 2 of this section.
G. Will the small MS4 stormwater program regulations at subsections B through F of this section change in the future? EPA intends to conduct an enhanced research effort and compile a comprehensive evaluation of the NPDES MS4 stormwater program. The board will reevaluate the regulations based on data from the EPA NPDES MS4 stormwater program, from research on receiving water impacts from stormwater, and the effectiveness of best management practices (BMPs), as well as other relevant information sources.
Statutory Authority
§ 62.1-44.15:28 of the Code of Virginia.
Historical Notes
Derived from Virginia Register Volume 40, Issue 8, eff. July 1, 2024.
9VAC25-875-980. General permits.
A. The department may issue a general permit in accordance with the following:
1. The general permit shall be written to cover one or more categories or subcategories of discharges, except those covered by individual permits, within a geographic area. The area should correspond to existing geographic or political boundaries, such as:
a. Designated planning areas under §§ 208 and 303 of CWA;
b. Sewer districts or sewer authorities;
c. City, county, or state political boundaries;
d. State highway systems;
e. Standard metropolitan statistical areas as defined by the Office of Management and Budget;
f. Urbanized areas as designated by the Bureau of the Census according to criteria in 30 FR 15202 (May 1, 1974); or
g. Any other appropriate division or combination of boundaries.
2. The general permit may be written to regulate one or more categories within the area described in subdivision 1 of this subsection, where the sources within a covered subcategory of discharges are stormwater point sources.
3. Where sources within a specific category of dischargers are subject to water quality-based limits imposed pursuant to 9VAC25-875-1030, the sources in that specific category or subcategory shall be subject to the same water quality-based effluent limitations.
4. The general permit must clearly identify the applicable conditions for each category or subcategory of dischargers covered by the permit.
5. The general permit may exclude specified sources or areas from coverage.
B. Administration.
1. General permits may be issued, modified, revoked and reissued, or terminated in accordance with applicable requirements of this chapter.
2. Authorization to discharge.
a. Except as provided in subdivisions 2 e and 2 f of this subsection, dischargers seeking coverage under a general permit shall submit to the department a written notice of intent to be covered by the general permit. A discharger who fails to submit a notice of intent in accordance with the terms of the permit is not authorized to discharge, under the terms of the general permit unless the general permit, in accordance with subdivision 2 e of this subsection, contains a provision that a notice of intent is not required or the department notifies a discharger (or treatment works treating domestic sewage) that it is covered by a general permit in accordance with subdivision 2 f of this subsection. A complete and timely notice of intent (NOI) to be covered in accordance with general permit requirements fulfills the requirements for permit applications for the purposes of this chapter. As of the start date in Table 1 of 9VAC25-31-1020, all notices of intent submitted in compliance with this subdivision shall be submitted electronically by the discharger (or treatment works treating domestic sewage) to the department in compliance with this subdivision 2 and 40 CFR Part 3 (including, in all cases, 40 CFR Part 3 Subpart D), 9VAC25-875-940, and Part XI (9VAC25-31-950 et seq.) of the Virginia Pollutant Discharge Elimination System (VPDES) Permit Regulation. Part XI of 9VAC25-31 is not intended to undo existing requirements for electronic reporting. Prior to this date, and independent of Part XI of 9VAC25-31, dischargers or treatment works treating domestic sewage may be required to report electronically if specified by a particular permit.
b. The contents of the notice of intent shall be specified in the general permit and shall require the submission of information necessary for adequate program implementation, including at a minimum, the legal name and address of the owner or operator, the facility name and address, type of facility or discharges, and the receiving stream, and other required data elements as identified in Appendix A to 40 CFR Part 127 as adopted by reference in 9VAC25-31-1030. All notices of intent shall be signed in accordance with 9VAC25-875-940.
c. General permits shall specify the deadlines for submitting notices of intent to be covered and the date or dates when a discharger is authorized to discharge under the permit.
d. General permits shall specify whether a discharger that has submitted a complete and timely notice of intent to be covered in accordance with the general permit and that is eligible for coverage under the permit is authorized to discharge in accordance with the permit either upon receipt of the notice of intent by the department after a waiting period specified in the general permit on a date specified in the general permit or upon receipt of notification of inclusion by the department. Coverage may be terminated or revoked in accordance with subdivision 3 of this subsection.
e. Stormwater discharges associated with small construction activity may, at the discretion of the department, be authorized to discharge under a general permit without submitting a notice of intent where the department finds that a notice of intent requirement would be inappropriate. In making such a finding, the department shall consider the (i) type of discharge, (ii) expected nature of the discharge, (iii) potential for toxic and conventional pollutants in the discharges, (iv) expected volume of the discharges, (v) other means of identifying discharges covered by the permit, and (vi) estimated number of discharges to be covered by the permit. The department shall provide in the public notice of the general permit the reasons for not requiring a notice of intent.
f. The department may notify a discharger that it is covered by a general permit, even if the discharger has not submitted a notice of intent to be covered. A discharger so notified may request an individual permit under subdivision 3 c of this subsection.
3. Requiring an individual permit.
a. The department may require any discharger authorized by a general permit to apply for and obtain an individual permit. Any interested person may request the department to take action under this subdivision. Cases where an individual permit may be required include the following:
(1) The discharger is not in compliance with the conditions of the general permit;
(2) A change has occurred in the availability of demonstrated technology or practices for the control or abatement of pollutants applicable to the point source;
(3) Effluent limitation guidelines are promulgated for point sources covered by the general permit;
(4) A water quality management plan, established by the department pursuant to 9VAC25-720, containing requirements applicable to such point sources is approved;
(5) Circumstances have changed since the time of the request to be covered so that the discharger is no longer appropriately controlled under the general permit, or either a temporary or permanent reduction or elimination of the authorized discharge is necessary;
(6) The discharge is a significant contributor of pollutants. In making this determination, the department may consider the following factors:
(a) The location of the discharge with respect to surface waters;
(b) The size of the discharge;
(c) The quantity and nature of the pollutants discharged to surface waters; and
(d) Other relevant factors;
b. Permits required on a case-by-case basis.
(1) The department may determine, on a case-by-case basis, that certain stormwater discharges, and certain other facilities covered by general permits that do not generally require an individual permit may be required to obtain an individual permit because of their contributions to water pollution.
(2) Whenever the department decides that an individual permit is required under this subsection, except as provided in subdivision 3 b (3) of this subsection, the department shall notify the discharger in writing of that decision and the reasons for it and shall send an application form with the notice. The discharger must apply for a permit within 60 days of notice, unless permission for a later date is granted by the department. The question whether the designation was proper will remain open for consideration during the public comment period for the draft permit and in any subsequent public hearing.
(3) Prior to a case-by-case determination that an individual permit is required for a stormwater discharge under this subsection, the department may require the discharger to submit a permit application or other information regarding the discharge under the State Water Control Law and § 308 of the CWA. In requiring such information, the department shall notify the discharger in writing and shall send an application form with the notice. The discharger must apply for a permit under 9VAC25-875-950 A 1 within 60 days of notice or under 9VAC25-875-950 A 8 within 180 days of notice, unless permission for a later date is granted by the department. The question whether the initial designation was proper will remain open for consideration during the public comment period for the draft permit and in any subsequent public hearing.
c. Any owner or operator authorized by a general permit may request to be excluded from the coverage of the general permit by applying for an individual permit. The owner or operator shall submit an application under 9VAC25-875-920 with reasons supporting the request. The request shall be processed under the applicable parts of this chapter. The request shall be granted by issuing of an individual permit if the reasons cited by the owner or operator are adequate to support the request.
d. When an individual permit is issued to an owner or operator otherwise subject to a general permit, the applicability of the general permit to the individual permit permittee is automatically terminated on the effective date of the individual permit.
e. A source excluded from a general permit solely because it already has an individual permit may request that the individual permit be revoked and that it be covered by the general permit. Upon revocation of the individual permit, the general permit shall apply to the source.
Statutory Authority
§ 62.1-44.15:28 of the Code of Virginia.
Historical Notes
Derived from Virginia Register Volume 40, Issue 8, eff. July 1, 2024.
9VAC25-875-990. New sources and new discharges.
A. Criteria for new source determination.
1. Except as otherwise provided in an applicable new source performance standard, a source is a new source if the source meets the definition of new source in this chapter and
a. The source is constructed at a site at which no other source is located;
b. The source totally replaces the process or production equipment that causes the discharge of pollutants at an existing source; or
c. The source's processes are substantially independent of an existing source at the same site. In determining whether these processes are substantially independent, the department shall consider such factors as the extent to which the new facility is integrated with the existing plant and the extent to which the new facility is engaged in the same general type of activity as the existing source.
2. A source meeting the requirements of subdivision 1 a, b, or c of this subsection is a new source only if a new source performance standard is independently applicable to it. If there is no such independently applicable standard, the source is a new discharger.
3. Construction on a site at which an existing source is located results in a permit modification subject to 9VAC25-875-1230 rather than a new source (or a new discharger) if the construction does not create a new building, structure, facility, or installation meeting the criteria of subdivision 1 b or c of this subsection but otherwise alters, replaces, or adds to existing process or production equipment.
4. Construction of a new source has commenced if the owner or operator has:
a. Begun, or caused to begin as part of a continuous onsite construction program:
(1) Any placement, assembly, or installation of facilities or equipment; or
(2) Significant site preparation work, including clearing, excavation, or removal of existing buildings, structures, or facilities that is necessary for the placement, assembly, or installation of new source facilities or equipment; or
b. Entered into a binding contractual obligation for the purchase of facilities or equipment that are intended to be used in the new source's operation within a reasonable time. Options to purchase or contracts that can be terminated or modified without substantial loss and contracts for feasibility engineering, and design studies do not constitute a contractual obligation under this subdivision 4 b.
B. Effect of compliance with new source performance standards. The provisions of this subsection do not apply to existing sources that modify the existing sources' pollution control facilities or construct new pollution control facilities and achieve performance standards, but that are neither new sources nor new dischargers or otherwise do not meet the requirements of this subsection.
1. Except as provided in subdivision 2 of this subsection, any new discharger, the construction of which commenced after October 18, 1972, or new source that meets the applicable promulgated new source performance standards before the commencement of discharge may not be subject to any more stringent new source performance standards or to any more stringent technology-based standards under § 301(b)(2) of the CWA for the soonest ending of the following periods:
a. 10 years from the date that construction is completed;
b. 10 years from the date the source begins to discharge process or other nonconstruction related wastewater; or
c. The period of depreciation or amortization of the facility for the purposes of § 167 or 169 (or both) of the Internal Revenue Code of 1954 (26 USC § 167 and 26 USC § 169, respectively).
2. The protection from more stringent standards of performance afforded by subdivision 1 of this subsection does not apply to:
a. Additional or more stringent permit conditions that are not technology based; for example, conditions based on water quality standards, or toxic effluent standards or prohibitions under the State Water Control Law and § 307(a) of the CWA; or
b. Additional permit conditions controlling toxic pollutants or hazardous substances that are not controlled by new source performance standards. This includes permit conditions controlling pollutants other than those identified as toxic pollutants or hazardous substances when control of these pollutants has been specifically identified as the method to control the toxic pollutants or hazardous substances.
3. When a separate VPDES or permit issued to a source with a protection period under subdivision 1 of this subsection will expire on or after the expiration of the protection period, that permit shall require the owner or operator of the source to comply with the requirements of § 301 of the CWA and any other then applicable requirements of the CWA and the State Water Control Law immediately upon the expiration of the protection period. No additional period for achieving compliance with these requirements may be allowed except when necessary to achieve compliance with requirements promulgated less than three years before the expiration of the protection period.
4. The owner or operator of a new source, a new discharger that commenced discharge after August 13, 1979, or a recommencing discharger shall install and have in operating condition and shall start up all pollution control equipment required to meet the conditions of its permits before beginning to discharge. Within the shortest feasible time (not to exceed 90 days), the owner or operator must meet all permit conditions. The requirements of this subdivision do not apply if the owner or operator is issued a permit containing a compliance schedule under 9VAC25-875-1060 A 2.
5. After the effective date of new source performance standards, it shall be unlawful for any owner or operator of any new source to operate the source in violation of those standards applicable to the source.
Statutory Authority
§ 62.1-44.15:28 of the Code of Virginia.
Historical Notes
Derived from Virginia Register Volume 40, Issue 8, eff. July 1, 2024.
Article 4
Permit Conditions
9VAC25-875-1000. Conditions applicable to all permits.
A. The following conditions apply to all permits. Additional conditions applicable to permits are in 9VAC25-875-1010. All conditions applicable to permits shall be incorporated into the permits either expressly or by reference. If incorporated by reference, a specific citation to this regulation must be given in the permit.
B. The permittee shall comply with all conditions of the permit. Any permit noncompliance constitutes a violation of the State Water Control Law and the CWA, except that noncompliance with certain provisions of the permit may constitute a violation of the State Water Control Law but not the CWA. Permit noncompliance is grounds for enforcement action; for permit termination, revocation and reissuance, modification, or denial of a permit renewal application.
The permittee shall comply with effluent standards or prohibitions established under § 307(a) of the CWA for toxic pollutants within the time provided in the chapters that establish these standards or prohibitions, even if the permit has not yet been modified to incorporate the requirement.
C. If the permittee wishes to continue an activity regulated by the permit after the expiration date of the permit, the permittee must apply for and obtain a new permit.
D. It shall not be a defense for a permittee in an enforcement action that it would have been necessary to halt or reduce the permitted activity in order to maintain compliance with the conditions of the permit.
E. The permittee shall take all reasonable steps to minimize or prevent any discharge in violation of the permit that has a reasonable likelihood of adversely affecting human health or the environment.
F. The permittee shall at all times properly operate and maintain all facilities and systems of treatment and control (and related appurtenances) that are installed or used by the permittee to achieve compliance with the conditions of the permit. Proper operation and maintenance also includes adequate laboratory controls and appropriate quality assurance procedures. This provision requires the operation of back-up or auxiliary facilities or similar systems that are installed by a permittee only when the operation is necessary to achieve compliance with the conditions of the permit.
G. Permits may be modified, revoked and reissued, or terminated for cause. The filing of a request by the permittee for a permit modification, revocation and reissuance, or termination or a notification of planned changes or anticipated noncompliance does not stay any permit condition.
H. Permits do not convey any property rights of any sort, or any exclusive privilege.
I. The permittee shall furnish to the department, within a reasonable time, any information that the department may request to determine whether cause exists for modifying, revoking and reissuing, or terminating the permit or to determine compliance with the permit. The department may require the permittee to furnish, upon request, such plans, specifications, and other pertinent information as may be necessary to determine the effect of the wastes from the permittee's discharge on the quality of state waters, or such other information as may be necessary to accomplish the purposes of the Virginia Erosion and Stormwater Management Act. The permittee shall also furnish to the department upon request, copies of records required to be kept by the permit.
J. The permittee shall allow the director, the department, or an authorized representative (including an authorized contractor acting as a representative of the administrator), upon presentation of credentials and other documents as may be required by law, to:
1. Enter upon the permittee's premises where a regulated facility or activity is located or conducted or where records must be kept under the conditions of the permit;
2. Have access to and copy, at reasonable times, any records that must be kept under the conditions of the permit;
3. Inspect at reasonable times any facilities, equipment (including monitoring and control equipment), practices, or operations regulated or required under the permit; and
4. Sample or monitor at reasonable times, for the purposes of assuring permit compliance or as otherwise authorized by the CWA and the Act, any substances or parameters at any location.
K. Monitoring and records.
1. Samples and measurements taken for the purpose of monitoring shall be representative of the monitored activity.
2. The permittee shall retain records of all monitoring information, including all calibration and maintenance records and all original strip chart recordings for continuous monitoring instrumentation, copies of all reports required by the permit, and records of all data used to complete the application for the permit, for a period of at least three years from the date of the sample, measurement, report, or application. This period of retention shall be extended automatically during the course of any unresolved litigation regarding the regulated activity or regarding control standards applicable to the permittee, or as requested by the department.
3. Records of monitoring information shall include:
a. The date, exact place, and time of sampling or measurements;
b. The individual who performed the sampling or measurements;
c. The dates analyses were performed;
d. The individual who performed the analyses;
e. The analytical techniques or methods used; and
f. The results of such analyses.
4. Monitoring results must be conducted according to test procedures approved under 40 CFR Part 136 or alternative EPA approved methods, unless other test procedures have been specified in the permit. Analyses performed according to test procedures approved under 40 CFR Part 136 shall be performed by an environmental laboratory certified under regulations adopted by the Department of General Services (1VAC30-45 or 1VAC30-46).
L. All applications, reports, or information submitted to the VESMP authority and department shall be signed and certified as required by 9VAC25-875-940.
M. Reporting requirements.
1. The permittee shall give notice to the department as soon as possible of any planned physical alterations or additions to the permitted facility. Notice is required only when:
a. The alteration or addition to a permitted facility may meet one of the criteria for determining whether a facility is a new source in 9VAC25-875-990 A; or
b. The alteration or addition could significantly change the nature or increase the quantity of pollutants discharged. This notification applies to pollutants that are not subject to effluent limitations in the permit.
2. The permittee shall give advance notice to the department of any planned changes in the permitted facility or activity that may result in noncompliance with permit requirements.
3. Permits are not transferable to any person except in accordance with 9VAC25-875-1220.
4. Monitoring results shall be reported at the intervals specified in the permit.
a. Monitoring results must be reported on a Discharge Monitoring Report (DMR) or forms provided or specified by the department. As of the start date in Table 1 of 9VAC25-31-1020, all reports and forms submitted in compliance with this subdivision shall be submitted electronically by the permittee to the department in compliance with this section and 40 CFR Part 3 (including, in all cases, 40 CFR Part 3 Subpart D), 9VAC25-875-940, and Part XI (9VAC25-31-950 et seq.) of the Virginia Pollutant Discharge Elimination System (VPDES) Permit Regulation. Part XI of 9VAC25-31 is not intended to undo existing requirements for electronic reporting. Prior to this date, and independent of Part XI of 9VAC25-31, permittees may be required to report electronically if specified by a particular permit.
b. If the permittee monitors any pollutant specifically addressed by the permit more frequently than required by the permit using test procedures approved under 40 CFR Part 136 or as otherwise specified in the permit, the results of this monitoring shall be included in the calculation and reporting of the data submitted in the DMR or reporting form specified by the department.
c. Calculations for all limitations that require averaging of measurements shall utilize an arithmetic mean unless otherwise specified in the permit.
5. Reports of compliance or noncompliance with or any progress reports on interim and final requirements contained in any compliance schedule of the permit shall be submitted no later than 14 days following each schedule date.
6. If any unusual or extraordinary discharge including a bypass or upset should occur from a facility and such discharge enters or could be expected to enter state waters, the permittee shall promptly notify, in no case later than 24 hours, the department by telephone after the discovery of such discharge. This notification shall provide all available details of the incident, including any adverse effects on aquatic life and the known number of fish killed. The permittee shall reduce the report to writing and shall submit it to the department within five days of discovery of the discharge in accordance with subdivision 7 a of this subsection. Unusual and extraordinary discharges include any discharge resulting from:
a. Unusual spillage of materials resulting directly or indirectly from processing operations;
b. Breakdown of processing or accessory equipment;
c. Failure or taking out of service of the treatment plant or auxiliary facilities (such as sewer lines or wastewater pump stations); and
d. Flooding or other acts of nature.
7. Twenty-four hour and five-day reporting.
a. The permittee shall report any noncompliance that may endanger health or the environment. Any information shall be provided orally within 24 hours from the time the permittee becomes aware of the circumstances. A report in the format required by the department shall also be provided within five days of the time the permittee becomes aware of the circumstances. The five-day report shall contain a description of the noncompliance and its cause; the period of noncompliance, including exact dates and times, and if the noncompliance has not been corrected, the anticipated time it is expected to continue; and steps taken or planned to reduce, eliminate, and prevent reoccurrence of the noncompliance.
(1) For noncompliance events related to combined sewer overflows, sanitary sewer overflows, or bypass events, these reports must include the data described in subdivision 7 a of this subsection (with the exception of time of discovery), as well as the type of event (i.e., combined sewer overflows, sanitary sewer overflows, or bypass events); type of sewer overflow structure (e.g., manhole, combine sewer overflow outfall); discharge volumes untreated by the treatment works treating domestic sewage; types of human health and environmental impacts of the sewer overflow event; and whether the noncompliance was related to wet weather.
(2) As of the start date in Table 1 of 9VAC25-31-1020, all reports related to combined sewer overflows, sanitary sewer overflows, or bypass events submitted in compliance with this subdivision 7 shall be submitted electronically by the permittee to the department in compliance with this subdivision 7 and 40 CFR Part 3 (including, in all cases, 40 CFR Part 3 Subpart D), 9VAC25-875-940, and Part XI (9VAC25-31-950 et seq.) of the Virginia Pollutant Discharge Elimination System (VPDES) Permit Regulation. Part XI of 9VAC25-31 is not intended to undo existing requirements for electronic reporting. Prior to this date, and independent of Part XI of 9VAC25-31, permittees may be required to electronically submit reports related to combined sewer overflows, sanitary sewer overflows, or bypass events under this subdivision 7 by a particular permit.
(3) The director may also require permittees to electronically submit reports not related to combined sewer overflows, sanitary sewer overflows, or bypass events under this subdivision 7.
b. The following shall be reported within 24 hours under this subdivision:
(1) Any unanticipated bypass that exceeds any effluent limitation in the permit.
(2) Any upset that exceeds any effluent limitation in the permit.
(3) Violation of a maximum daily discharge limitation for any of the pollutants listed in the permit to be reported within 24 hours.
c. The department may waive the five-day report on a case-by-case basis for reports under this subdivision if the oral report has been received within 24 hours.
8. The permittee shall report all instances of noncompliance not reported under subdivisions 4, 5, 6, and 7 of this subsection, in the format required by the department, at the time the next monitoring reports are submitted. The reports shall contain the information listed in subdivision 7 of this subsection.
a. For noncompliance events related to combined sewer overflows, sanitary sewer overflows, or bypass events, these reports shall contain the information described in subdivision 7 a of this subsection and the applicable required data in Appendix A to 40 CFR Part 127 as adopted by reference in 9VAC25-31-1030.
b. As of the start date in Table 1 of 9VAC25-31-1020, all reports related to combined sewer overflows, sanitary sewer overflows, or bypass events submitted in compliance with this subdivision 8 shall be submitted electronically by the permittee to the department in compliance with this subdivision 8 and 40 CFR Part 3 (including, in all cases, 40 CFR Part 3 Subpart D), 9VAC25-875-940, and Part XI (9VAC25-31-950 et seq.) of the Virginia Pollutant Discharge Elimination System (VPDES) Permit Regulation. Part XI of 9VAC25-31 is not intended to undo existing requirements for electronic reporting. Prior to this date, and independent of Part XI of 9VAC25-31, permittees may be required to electronically submit reports related to combined sewer overflows, sanitary sewer overflows, or bypass events under this section by a particular permit.
c. The director may also require permittees to electronically submit reports not related to combined sewer overflows, sanitary sewer overflows, or bypass events under this section.
9. Where the permittee becomes aware that it failed to submit any relevant facts in a permit application, or submitted incorrect information in a permit application or in any report to the department, it shall promptly submit such facts or information.
10. The owner, operator, or the duly authorized representative of an VPDES-regulated entity is required to electronically submit the required information, as specified in Appendix A to 40 CFR Part 127 as adopted by reference in 9VAC25-31-1030, to the department.
N. Bypass.
1. The permittee may allow any bypass to occur that does not cause effluent limitations to be exceeded, but only if it also is for essential maintenance to ensure efficient operation. These bypasses are not subject to the provisions of subdivisions 2 and 3 of this subsection.
2. Notice.
a. Anticipated bypass. If the permittee knows in advance of the need for a bypass, it shall submit prior notice, if possible at least 10 days before the date of the bypass. As of the start date in Table 1 of 9VAC25-31-1020, all notices submitted in compliance with this subdivision shall be submitted electronically by the permittee to the department in compliance with this subsection and 40 CFR Part 3 (including, in all cases, 40 CFR Part 3 Subpart D), 9VAC25-875-940, and Part XI (9VAC25-31-950 et seq.) of the Virginia Pollutant Discharge Elimination System (VPDES) Permit Regulation. Part XI of 9VAC25-31 is not intended to undo existing requirements for electronic reporting. Prior to this date, and independent of Part XI of 9VAC25-31, permittees may be required to report electronically if specified by a particular permit.
b. Unanticipated bypass. The permittee shall submit notice of an unanticipated bypass as required in subdivision M 7 of this section. As of the start date in Table 1 of 9VAC25-31-1020, all notices submitted in compliance with this subdivision shall be submitted electronically by the permittee to the department in compliance with this subdivision and 40 CFR Part 3 (including, in all cases, 40 CFR Part 3 Subpart D), 9VAC25-875-940, and Part XI (9VAC25-31-950 et seq.) of the Virginia Pollutant Discharge Elimination System (VPDES) Permit Regulation. Part XI of 9VAC25-31 is not intended to undo existing requirements for electronic reporting. Prior to this date, and independent of Part XI of 9VAC25-31, permittees may be required to report electronically if specified by a particular permit.
3. Prohibition of bypass.
a. Bypass is prohibited, and the department may take enforcement action against a permittee for bypass, unless:
(1) Bypass was unavoidable to prevent loss of life, personal injury, or severe property damage;
(2) There were no feasible alternatives to the bypass, such as the use of auxiliary treatment facilities, retention of untreated wastes, or maintenance during normal periods of equipment downtime. This condition is not satisfied if adequate back-up equipment should have been installed in the exercise of reasonable engineering judgment to prevent a bypass that occurred during normal periods of equipment downtime or preventive maintenance; and
(3) The permittee submitted notices as required under subdivision 2 of this subsection.
b. The department may approve an anticipated bypass, after considering its adverse effects, if the department determines that it will meet the three conditions listed in subdivision 3 a of this subsection.
O. Upset.
1. An upset constitutes an affirmative defense to an action brought for noncompliance with such technology based permit effluent limitations if the requirements of subdivision 2 of this subsection are met. No determination made during administrative review of claims that noncompliance was caused by upset, and before an action for noncompliance, is final administrative action subject to judicial review.
2. A permittee who wishes to establish the affirmative defense of upset shall demonstrate, through properly signed, contemporaneous operating logs, or other relevant evidence that:
a. An upset occurred and that the permittee can identify the cause of the upset;
b. The permitted facility was at the time being properly operated;
c. The permittee submitted notice of the upset as required in subdivision M 7 b (2) of this section (24-hour notice); and
d. The permittee complied with any remedial measures required under subsection E of this section.
3. In any enforcement proceeding the permittee seeking to establish the occurrence of an upset has the burden of proof.
Statutory Authority
§ 62.1-44.15:28 of the Code of Virginia.
Historical Notes
Derived from Virginia Register Volume 40, Issue 8, eff. July 1, 2024.
9VAC25-875-1010. Additional conditions applicable to municipal separate storm sewer system permits.
In addition to those conditions set forth in 9VAC25-875-1000, the operator of a large or medium municipal separate storm sewer system or a municipal separate storm sewer that has been designated by the department under 9VAC25-875-950 A 1 e must submit an annual report by a date specified in the permit for such system. As of the start date in Table 1 of 9VAC25-31-1020, all reports submitted in compliance with this section shall be submitted electronically by the owner, operator, or the duly authorized representative of the MS4 to the department in compliance with this section and 40 CFR Part 3 (including, in all cases, 40 CFR Part 3 Subpart D), 9VAC25-875-940, and Part XI (9VAC25-31-950 et seq.) of the Virginia Pollutant Discharge Elimination System (VPDES) Permit Regulation. Part XI of 9VAC25-31 is not intended to undo existing requirements for electronic reporting. Prior to this date, and independent of Part XI of 9VAC25-31, the owner, operator, or the duly authorized representative of the small MS4 may be required to report electronically if specified by a particular permit. The report shall include:
1. The status of implementing the components of the stormwater management program that are established as permit conditions;
2. Proposed changes to the stormwater management programs that are established as permit conditions. Such proposed changes shall be consistent with 9VAC25-875-950 C 2 d;
3. Revisions, if necessary, to the assessment of controls and the fiscal analysis reported in the permit application;
4. A summary of data, including monitoring data, that is accumulated throughout the reporting year;
5. Annual expenditures and budget for year following each annual report;
6. A summary describing the number and nature of enforcement actions, inspections, and public education programs; and
7. Identification of water quality improvements or degradation.
Statutory Authority
§ 62.1-44.15:28 of the Code of Virginia.
Historical Notes
Derived from Virginia Register Volume 40, Issue 8, eff. July 1, 2024.
9VAC25-875-1020. Establishing permit conditions.
A. In addition to conditions required in all permits, the department shall establish conditions, as required on a case-by-case basis, to provide for and ensure compliance with all applicable requirements of the Virginia Erosion and Stormwater Management Act, the State Water Control Law, the CWA, and attendant regulations. These shall include conditions under 9VAC25-875-1050 (duration of permits), 9VAC25-875-1060 (schedules of compliance), 9VAC25-875-1030 (monitoring), electronic reporting requirements of 40 CFR Part 3, and Part XI (9VAC25-31-950 et seq.) of the Virginia Pollutant Discharge Elimination System (VPDES) Permit Regulation.
B. 1. An applicable requirement is a state statutory or regulatory requirement that takes effect prior to final administrative disposition of a permit. An applicable requirement is also any requirement that takes effect prior to the modification or revocation and reissuance of a permit to the extent allowed in Article 6 (9VAC25-875-1210 et seq.) of this part.
2. New or reissued permits, and to the extent allowed under Article 6 of this part modified or revoked and reissued permits, shall incorporate each of the applicable requirements referenced in 9VAC25-875-1030 and 9VAC25-875-1040.
C. All permit conditions shall be incorporated either expressly or by reference. If incorporated by reference, a specific citation to the applicable regulations or requirements must be given in the permit.
Statutory Authority
§ 62.1-44.15:28 of the Code of Virginia.
Historical Notes
Derived from Virginia Register Volume 40, Issue 8, eff. July 1, 2024.
9VAC25-875-1030. Establishing limitations, standards, and other permit conditions.
A. In addition to the conditions established under 9VAC25-875-1020 A, each permit shall include conditions meeting the following requirements when applicable.
1. Technology-based effluent limitations and standards based on effluent limitations and standards promulgated under § 301 of the CWA, on new source performance standards promulgated under § 306 of CWA, on case-by-case effluent limitations determined under § 402(a)(1) of CWA, or a combination of the three. For new sources or new dischargers, these technology-based limitations and standards are subject to the provisions of 9VAC25-875-990 B (protection period).
2. The department may authorize a discharger subject to technology-based effluent limitations guidelines and standards in a permit to forgo sampling of a pollutant found at 40 CFR Subchapter N if the discharger has demonstrated through sampling and other technical factors that the pollutant is not present in the discharge or is present only at background levels from intake water and without any increase in the pollutant due to activities of the discharger. This waiver is good only for the term of the permit and is not available during the term of the first permit issued to a discharger. Any request for this waiver must be submitted when applying for a reissued permit or modification of a reissued permit. The request must demonstrate through sampling or other technical information, including information generated during an earlier permit term, that the pollutant is not present in the discharge or is present only at background levels from intake water and without any increase in the pollutant due to activities of the discharger. Any grant of the monitoring waiver must be included in the permit as an express permit condition, and the reasons supporting the grant must be documented in the permit's fact sheet or statement of basis. This provision does not supersede certification processes and requirements already established in existing effluent limitations guidelines and standards.
B. Other effluent limitations and standards under §§ 301, 302, 303, 307, 318, and 405 of the CWA. If any applicable toxic effluent standard or prohibition (including any schedule of compliance specified in such effluent standard or prohibition) is promulgated under § 307(a) of the CWA for a toxic pollutant and that standard or prohibition is more stringent than any limitation on the pollutant in the permit, the department shall institute proceedings under this chapter to modify or revoke and reissue the permit to conform to the toxic effluent standard or prohibition.
C. Water quality standards and state requirements. Any requirements in addition to or more stringent than promulgated effluent limitations guidelines or standards under §§ 301, 304, 306, 307, 318, and 405 of the CWA necessary to:
1. Achieve water quality standards established under the State Water Control Law and § 303 of the CWA, including state narrative criteria for water quality.
a. Limitations must control all pollutants or pollutant parameters (either conventional, nonconventional, or toxic pollutants) that the department determines are or may be discharged at a level that will cause, have the reasonable potential to cause, or contribute to an excursion above any Virginia water quality standard, including Virginia narrative criteria for water quality.
b. When determining whether a discharge causes, has the reasonable potential to cause, or contributes to an in-stream excursion above a narrative or numeric criteria within a Virginia water quality standard, the department shall use procedures that account for existing controls on point and nonpoint sources of pollution, the variability of the pollutant or pollutant parameter in the effluent, the sensitivity of the species to toxicity testing (when evaluating whole effluent toxicity), and where appropriate, the dilution of the effluent in the receiving water.
c. When the department determines, using the procedures in subdivision 1 b of this subsection, that a discharge causes, has the reasonable potential to cause, or contributes to an in-stream excursion above the allowable ambient concentration of a Virginia numeric criteria within a Virginia water quality standard for an individual pollutant, the permit must contain effluent limits for that pollutant.
d. Except as provided in this subdivision, when the department determines, using the procedures in subdivision 1 b of this subsection, toxicity testing data, or other information, that a discharge causes, has the reasonable potential to cause, or contributes to an in-stream excursion above a narrative criterion within an applicable Virginia water quality standard, the permit must contain effluent limits for whole effluent toxicity. Limits on whole effluent toxicity are not necessary where the department demonstrates in the fact sheet or statement of basis of the permit, using the procedures in subdivision 1 b of this subsection, that chemical-specific limits for the effluent are sufficient to attain and maintain applicable numeric and narrative Virginia water quality standards.
e. Where Virginia has not established a water quality criterion for a specific chemical pollutant that is present in an effluent at a concentration that causes, has the reasonable potential to cause, or contributes to an excursion above a narrative criterion within an applicable Virginia water quality standard, the department must establish effluent limits using one or more of the following options:
(1) Establish effluent limits using a calculated numeric water quality criterion for the pollutant that the department demonstrates will attain and maintain applicable narrative water quality criteria and will fully protect the designated use. Such a criterion may be derived using a proposed Virginia criterion, or an explicit policy or regulation interpreting Virginia's narrative water quality criterion, supplemented with other relevant information that may include EPA's Water Quality Standards Handbook, August 1994, risk assessment data, exposure data, information about the pollutant from the Food and Drug Administration, and current EPA criteria documents;
(2) Establish effluent limits on a case-by-case basis, using EPA's water quality criteria, published under § 307(a) of the CWA, supplemented where necessary by other relevant information; or
(3) Establish effluent limitations on an indicator parameter for the pollutant of concern, provided:
(a) The permit identifies which pollutants are intended to be controlled by the use of the effluent limitation;
(b) The fact sheet required by 9VAC25-875-1090 sets forth the basis for the limit, including a finding that compliance with the effluent limit on the indicator parameter will result in controls on the pollutant of concern that are sufficient to attain and maintain applicable water quality standards;
(c) The permit requires all effluent and ambient monitoring necessary to show that during the term of the permit the limit on the indicator parameter continues to attain and maintain applicable water quality standards; and
(d) The permit contains a reopener clause allowing the department to modify or revoke and reissue the permit if the limits on the indicator parameter no longer attain and maintain applicable water quality standards.
f. When developing water quality-based effluent limits under this subdivision 1 the department shall ensure that:
(1) The level of water quality to be achieved by limits on point sources established under this subsection is derived from and complies with all applicable water quality standards; and
(2) Effluent limits developed to protect a narrative water quality criterion, a numeric water quality criterion, or both are consistent with the assumptions and requirements of any available wasteload allocation for the discharge prepared by Virginia and approved by EPA pursuant to 40 CFR 130.7;
2. Attain or maintain a specified water quality through water quality related effluent limits established under the State Water Control Law and § 302 of the CWA;
3. Conform to the conditions of a Virginia Water Protection Permit (VWPP) issued under the State Water Control Law and § 401 of the CWA;
4. Conform to applicable water quality requirements under § 401(a)(2) of the CWA when the discharge affects a state other than Virginia;
5. Incorporate any more stringent limitations, treatment standards, or schedule of compliance requirements established under the State Water Control Law or regulations in accordance with § 301(b)(1)(C) of the CWA;
6. Ensure consistency with the requirements of a Water Quality Management Plan established by the State Water Control Board pursuant to 9VAC25-720 and approved by EPA under § 208(b) of the CWA;
7. Incorporate § 403(c) criteria under 40 CFR Part 125, Subpart M, for ocean discharges; or
8. Incorporate alternative effluent limitations or standards where warranted by fundamentally different factors, under 40 CFR Part 125, Subpart D.
D. Technology-based controls for toxic pollutants. Limitations established under subsection A, B, or C of this section, to control pollutants meeting the criteria listed in subdivision 1 of this subsection. Limitations will be established in accordance with subdivision 2 of this subsection. An explanation of the development of these limitations shall be included in the fact sheet.
1. Limitations must control all toxic pollutants that the department determines (based on information reported in a permit application or in a notification required by the permit or on other information) are or may be discharged at a level greater than the level that can be achieved by the technology-based treatment requirements appropriate to the permittee; or
2. The requirement that the limitations control the pollutants meeting the criteria of subdivision 1 of this subsection will be satisfied by:
a. Limitations on those pollutants; or
b. Limitations on other pollutants that, in the judgment of the department, will provide treatment of the pollutants under subdivision 1 of this subsection to the levels required by the Virginia Erosion and Stormwater Management Act, the State Water Control Law, and 40 CFR Part 125, Subpart A.
E. A notification level that exceeds the notification level of 9VAC25-31-200, upon a petition from the permittee or on the department's initiative. This new notification level may not exceed the level that can be achieved by the technology-based treatment requirements appropriate to the permittee.
F. Twenty-four-hour reporting. Pollutants for which the permittee must report violations of maximum daily discharge limitations under 9VAC25-875-1000 M 7 b (3) (24-hour reporting) shall be listed in the permit. This list shall include any toxic pollutant or hazardous substance, or any pollutant specifically identified as the method to control a toxic pollutant or hazardous substance.
G. Durations for permits, as set forth in 9VAC25-875-1050.
H. Monitoring requirements.
1. Requirements concerning the proper use, maintenance, and installation, when appropriate, of monitoring equipment or methods (including biological monitoring methods when appropriate);
2. Required monitoring including type, intervals, and frequency sufficient to yield data that are representative of the monitored activity, including, when appropriate, continuous monitoring;
3. Applicable reporting requirements based upon the impact of the regulated activity and as specified in 9VAC25-875-1000, subdivisions 5 through 8 of this subsection, and Part XI (9VAC25-31-950 et seq.) of the Virginia Pollutant Discharge Elimination System (VPDES) Permit Regulation. Reporting shall be no less frequent than specified in the regulations cited in this subdivision;
4. To ensure compliance with permit limitations, requirements to monitor:
a. The mass (or other measurement specified in the permit) for each pollutant limited in the permit;
b. The volume of effluent discharged from each outfall;
c. Other measurements as appropriate, including pollutants; frequency, rate of discharge, etc., for noncontinuous discharges; pollutants subject to notification requirements; or as determined to be necessary on a case-by-case basis pursuant to the Virginia Erosion and Stormwater Management Act, the State Water Control Law, and § 405(d)(4) of the CWA;
d. According to test procedures approved under 40 CFR Part 136 for the analyses of pollutants having approved methods under that part, or alternative EPA approved methods, and according to a test procedure specified in the permit for pollutants with no approved methods; and
e. With analyses performed according to test procedures approved under 40 CFR Part 136 being performed by an environmental laboratory certified under regulations adopted by the Department of General Services (1VAC30-45 or 1VAC30-46).
5. Except as provided in subdivisions 7 and 8 of this subsection, requirements to report monitoring results shall be established on a case-by-case basis with a frequency dependent on the nature and effect of the discharge, but in no case less that once a year. All results shall be electronically reported in compliance with 40 CFR Part 3 (including, in all cases, 40 CFR Part 3 Subpart D), 9VAC25-875-940, and Part XI (9VAC25-31-950 et seq.) of the Virginia Pollutant Discharge Elimination System (VPDES) Permit Regulation;
6. Requirements to report monitoring results for stormwater discharges associated with industrial activity that are subject to an effluent limitation guideline shall be established on a case-by-case basis with a frequency dependent on the nature and effect of the discharge, but in no case less than once a year;
7. Requirements to report monitoring results for stormwater discharges (other than those addressed in subdivision 6 of this subsection) shall be established on a case-by-case basis with a frequency dependent on the nature and effect of the discharge. At a minimum, a permit for such a discharge must require:
a. The discharger to conduct an annual inspection of the facility site to identify areas contributing to a stormwater discharge and evaluate whether measures to reduce pollutant loading identified in a stormwater pollution prevention plan are adequate and properly implemented in accordance with the terms of the permit or whether additional control measures are needed;
b. The discharger to maintain for a period of three years a record summarizing the results of the inspection and a certification that the facility is in compliance with the plan and the permit, and identifying any incidents of noncompliance;
c. Such report and certification be signed in accordance with 9VAC25-875-940; and
8. Permits that do not require the submittal of monitoring result reports at least annually shall require that the permittee report all instances of noncompliance not reported under 9VAC25-875-1000 M 1, 4, 5, 6, and 7 at least annually.
I. Best management practices to control or abate the discharge of pollutants when:
1. Authorized under § 402(p) of the CWA for the control of stormwater discharges;
2. Numeric effluent limitations are infeasible; or
3. The practices are reasonably necessary to achieve effluent limitations and standards or to carry out the purposes and intent of the Virginia Erosion and Stormwater Management Act, the State Water Control Law, and the CWA.
J. Reissued permits.
1. In the case of effluent limitations established on the basis of § 402(a)(1)(B) of the CWA, a permit may not be renewed, reissued, or modified on the basis of effluent guidelines promulgated under § 304(b) of the CWA subsequent to the original issuance of such permit, to contain effluent limitations that are less stringent than the comparable effluent limitations in the previous permit. In the case of effluent limitations established on the basis of § 301(b)(1)(C) or § 303(d) or (e) of the CWA, a permit may not be renewed, reissued, or modified to contain effluent limitations that are less stringent than the comparable effluent limitations in the previous permit except in compliance with § 303(d)(4) of the CWA.
2. Exceptions. A permit with respect to which subdivision 1 of this subsection applies may be renewed, reissued, or modified to contain a less stringent effluent limitation applicable to a pollutant if:
a. Material and substantial alterations or additions to the permitted facility occurred after permit issuance that justify the application of a less stringent effluent limitation;
b. (1) Information is available that was not available at the time of permit issuance (other than revised regulations, guidance, or test methods) and that would have justified the application of a less stringent effluent limitation at the time of permit issuance; or
(2) The department determines that technical mistakes or mistaken interpretations of the State Water Control Law were made in issuing the permit under § 402(a)(1)(B) of the CWA;
c. A less stringent effluent limitation is necessary because of events over which the permittee has no control and for which there is no reasonably available remedy;
d. The permittee has received a permit modification under the Virginia Erosion and Stormwater Management Act, the State Water Control Law, and § 301(c), (g), (h), (i), (k), and (n), or 316(a) of the CWA; or
e. The permittee has installed the treatment facilities required to meet the effluent limitations in the previous permit and has properly operated and maintained the facilities but has nevertheless been unable to achieve the previous effluent limitations, in which case the limitations in the reviewed, reissued, or modified permit may reflect the level of pollutant control actually achieved (but shall not be less stringent than required by effluent guidelines in effect at the time of permit renewal, reissuance, or modification).
Subdivision 2 b of this subsection shall not apply to any revised wasteload allocations or any alternative grounds for translating water quality standards into effluent limitations, except where the cumulative effect of such revised allocations results in a decrease in the amount of pollutants discharged into the concerned waters, and such revised allocations are not the result of a discharger eliminating or substantially reducing its discharge of pollutants due to complying with the requirements of the State Water Control Law or the CWA or for reasons otherwise unrelated to water quality.
3. In no event may a permit with respect to which subdivision 2 of this subsection applies be renewed, reissued, or modified to contain an effluent limitation that is less stringent than required by effluent guidelines in effect at the time the permit is renewed, reissued, or modified. In no event may such a permit to discharge into waters be renewed, issued, or modified to contain a less stringent effluent limitation if the implementation of such limitation would result in a violation of a Virginia water quality standard applicable to such waters.
K. Navigation. Any conditions that the Secretary of the Army considers necessary to ensure that navigation and anchorage will not be substantially impaired in accordance with 9VAC25-875-1170.
L. Qualifying state, tribal, or local programs.
1. For stormwater discharges associated with small construction activity defined in 9VAC25-875-20, the department may include permit conditions that incorporate qualifying state, tribal, or local erosion and sediment control program requirements by reference. Where a qualifying state, tribal, or local program does not include one or more of the elements in this subdivision, then the department must include those elements as conditions in the permit. A qualifying state, tribal, or local erosion and sediment control program is one that includes:
a. Requirements for construction site operators to implement appropriate erosion and sediment control best management practices;
b. Requirements for construction site operators to control waste, such as discarded building materials, concrete truck washout, chemicals, litter, and sanitary waste, at the construction site that may cause adverse impacts to water quality;
c. Requirements for construction site operators to develop and implement a stormwater pollution prevention plan. A stormwater pollution prevention plan includes site descriptions; descriptions of appropriate control measures; copies of approved state, tribal, or local requirements; maintenance procedures; inspection procedures; and identification of nonstormwater discharges; and
d. Requirements to submit a site plan for review that incorporates consideration of potential water quality impacts.
2. For stormwater discharges from construction activity that does not meet the definition of a small construction activity, the department may include permit conditions that incorporate qualifying state, tribal, or local erosion and sediment control program requirements by reference. A qualifying state, tribal, or local erosion and sediment control program is one that includes the elements listed in subdivision 1 of this subsection and any additional requirements necessary to achieve the applicable technology-based standards of "best available technology" and "best conventional technology" based on the best professional judgment of the permit writer.
Statutory Authority
§ 62.1-44.15:28 of the Code of Virginia.
Historical Notes
Derived from Virginia Register Volume 40, Issue 8, eff. July 1, 2024.
9VAC25-875-1040. Calculating permit conditions.
A. Permit effluent limitations, monitoring requirements, standards and prohibitions shall be established for each outfall or discharge point of the permitted facility, except as otherwise provided under 9VAC25-875-1030.
B. All permit effluent limitations, standards, or prohibitions for a metal shall be expressed in terms of total recoverable metal as defined in 40 CFR Part 136 unless:
1. An applicable effluent standard or limitation has been promulgated under the CWA and specifies the limitation for the metal in the dissolved or valent or total form; or
2. In establishing permit limitations on a case-by-case basis under 40 CFR 125.3, it is necessary to express the limitation on the metal in the dissolved or valent or total form to carry out the provisions of the CWA, Virginia Erosion and Stormwater Management Act, and the State Water Control Law; or
3. All approved analytical methods for the metal inherently measure only its dissolved form (e.g., hexavalent chromium).
C. Discharges that are not continuous, as defined in 9VAC25-875-850, shall be particularly described and limited, considering the following factors, as appropriate:
1. Frequency;
2. Total mass;
3. Maximum rate of discharge of pollutants during the discharge; and
4. Prohibition or limitation of specified pollutants by mass, concentration, or other appropriate measure.
D. Mass limitations.
1. All pollutants limited in permits shall have limitations, standards, or prohibitions expressed in terms of mass except:
a. For pH, temperature, radiation, or other pollutants that cannot appropriately be expressed by mass;
b. When applicable standards and limitations are expressed in terms of other units of measurement; or
c. If in establishing technology-based permit limitations on a case-by-case basis, limitations expressed in terms of mass are infeasible because the mass of the pollutant discharged cannot be related to a measure of operation (for example, discharges of total suspended solids from certain mining operations), and permit conditions ensure that dilution will not be used as a substitute for treatment.
2. Pollutants limited in terms of mass additionally may be limited in terms of other units of measurement, and the permit shall require the permittee to comply with both limitations.
Statutory Authority
§ 62.1-44.15:28 of the Code of Virginia.
Historical Notes
Derived from Virginia Register Volume 40, Issue 8, eff. July 1, 2024.
9VAC25-875-1050. Duration of permits.
A. Permits shall be effective for a fixed term not to exceed five years.
B. Except as provided in 9VAC25-875-890, the term of a permit shall not be extended by modification beyond the maximum duration specified in this section.
C. The department may issue any permit for a duration that is less than the full allowable term under this section.
D. A permit may be issued to expire on or after the statutory deadline set forth in § 301(b)(2)(A), (C), and (E) of the CWA, if the permit includes effluent limitations to meet the requirements of § 301(b)(2)(A), (C), (D), (E), and (F) of the CWA, whether or not applicable effluent limitations guidelines have been promulgated or approved.
Statutory Authority
§ 62.1-44.15:28 of the Code of Virginia.
Historical Notes
Derived from Virginia Register Volume 40, Issue 8, eff. July 1, 2024.
9VAC25-875-1060. Schedules of compliance.
A. The permit may, when appropriate, specify a schedule of compliance leading to compliance with the Virginia Erosion and Stormwater Management Act, the CWA, and regulations.
1. Any schedules of compliance under this section shall require compliance as soon as possible but not later than the applicable statutory deadline under the CWA.
2. The first permit issued to a new source or a new discharger shall contain a schedule of compliance only when necessary to allow a reasonable opportunity to attain compliance with requirements issued or revised after commencement of construction but less than three years before commencement of the relevant discharge. For recommencing dischargers, a schedule of compliance shall be available only when necessary to allow a reasonable opportunity to attain compliance with requirements issued or revised less than three years before recommencement of discharge.
3. Schedules of compliance may be established in permits for existing sources that are reissued or modified to contain new or more restrictive water quality-based effluent limitations. The schedule may allow a reasonable period of time, not to exceed the term of the permit, for the discharger to attain compliance with the water quality-based limitations.
4. Except as provided in subdivision B 1 b of this section, if a permit establishes a schedule of compliance that exceeds one year from the date of permit issuance, the schedule shall set forth interim requirements and the dates for their achievement.
a. The time between interim dates shall not exceed one year.
b. If the time necessary for completion of any interim requirement is more than one year and is not readily divisible into stages for completion, the permit shall specify interim dates for the submission of reports of progress toward completion of the interim requirements and indicate a projected completion date.
5. The permit shall be written to require that no later than 14 days following each interim date and the final date of compliance, the permittee shall notify the department in writing of its compliance or noncompliance with the interim or final requirements or submit progress reports if subdivision 4 b of this subsection is applicable.
B. A permit applicant or permittee may cease conducting regulated activities (by termination of direct discharge for sources) rather than continuing to operate and meet permit requirements as follows:
1. If the permittee decides to cease conducting regulated activities at a given time within the term of a permit that has already been issued:
a. The permit may be modified to contain a new or additional schedule leading to timely cessation of activities; or
b. The permittee shall cease conducting permitted activities before noncompliance with any interim or final compliance schedule requirement already specified in the permit;
2. If the decision to cease conducting regulated activities is made before issuance of a permit whose term will include the termination date, the permit shall contain a schedule leading to termination that will ensure timely compliance with applicable requirements no later than the statutory deadline;
3. If the permittee is undecided whether to cease conducting regulated activities, the department may issue or modify a permit to contain two schedules as follows:
a. Both schedules shall contain an identical interim deadline requiring a final decision on whether to cease conducting regulated activities no later than a date that ensures sufficient time to comply with applicable requirements in a timely manner if the decision is to continue conducting regulated activities;
b. One schedule shall lead to timely compliance with applicable requirements no later than the statutory deadline;
c. The second schedule shall lead to cessation of regulated activities by a date that will ensure timely compliance with applicable requirements no later than the statutory deadline; and
d. Each permit containing two schedules shall include a requirement that after the permittee has made a final decision under subdivision 3 a of this subsection, the permittee shall follow the schedule leading to compliance if the decision is to continue conducting regulated activities and follow the schedule leading to termination if the decision is to cease conducting regulated activities; and
4. The permit applicant's or permittee's decision to cease conducting regulated activities shall be evidenced by a firm public commitment satisfactory to the department, such as a resolution of the board of directors of a corporation.
Statutory Authority
§ 62.1-44.15:28 of the Code of Virginia.
Historical Notes
Derived from Virginia Register Volume 40, Issue 8, eff. July 1, 2024.
Article 5
Public Involvement
9VAC25-875-1070. Draft permits.
A. Once an application for an individual permit is complete, the department shall tentatively decide whether to prepare a draft individual permit or to deny the application.
B. If the department tentatively decides to deny the individual permit application, the owner shall be advised of that decision and of the changes necessary to obtain approval. The owner may withdraw the application prior to department action. If the application is not withdrawn or modified to obtain the tentative approval to issue, the department shall provide public notice and opportunity for a public hearing prior to department action on the application.
C. If the department tentatively decides to issue a general permit, a draft general permit shall be prepared under subsection D of this section.
D. If the department decides to prepare a draft permit, the draft permit shall contain the following information:
1. All conditions under 9VAC25-875-1000 and 9VAC25-875-1020;
2. All compliance schedules under 9VAC25-875-1060;
3. All monitoring requirements under 9VAC25-875-1030; and
4. Effluent limitations, standards, prohibitions, and conditions under 9VAC25-875-1000, 9VAC25-875-1010, and 9VAC25-875-1030, and all variances that are to be included.
Statutory Authority
§ 62.1-44.15:28 of the Code of Virginia.
Historical Notes
Derived from Virginia Register Volume 40, Issue 8, eff. July 1, 2024.
9VAC25-875-1080. Statement of basis.
A statement of basis shall be prepared for every draft permit for which a fact sheet under 9VAC25-875-1090 is not prepared. The statement of basis shall briefly describe the derivation of the conditions of the draft permit and the reasons for them or, in the case of notices of intent to deny or terminate, reasons supporting the tentative decision. The statement of basis shall be sent to the permit applicant and, on request, to any other person.
Statutory Authority
§ 62.1-44.15:28 of the Code of Virginia.
Historical Notes
Derived from Virginia Register Volume 40, Issue 8, eff. July 1, 2024.
9VAC25-875-1090. Fact sheet.
A. A fact sheet shall be prepared for every draft individual permit for a major facility or activity for every general permit, for every draft permit that incorporates a variance or requires an explanation under subsection B 8 of this section, and for every draft permit that the department finds is the subject of widespread public interest or raises major issues. The fact sheet shall briefly set forth the principal facts and the significant factual, legal, methodological, and policy questions considered in preparing the draft permit. The department shall send this fact sheet to the permit applicant and, on request, to any other person.
B. The fact sheet shall include, when applicable:
1. A brief description of the type of facility or activity that is the subject of the draft permit;
2. The type and quantity of wastes, fluids, or pollutants that are proposed to be or are being treated, stored, disposed of, injected, emitted, or discharged;
3. A brief summary of the basis for the draft permit conditions, including references to applicable statutory or regulatory provisions;
4. Reasons why any requested variances or alternatives to required standards do or do not appear justified;
5. A description of the procedures for reaching a final decision on the draft permit, including:
a. The beginning and ending dates of the comment period for the draft permit and the address where comments will be received;
b. Procedures for requesting a public hearing and the nature of that hearing; and
c. Any other procedures by which the public may participate in the final decision;
6. Name, telephone number, and email address of a person to contact for additional information;
7. Any calculations or other necessary explanation of the derivation of specific effluent limitations and conditions or standards for sewage sludge use or disposal, including a citation to the applicable effluent limitation guideline, performance standard, or standard for sewage sludge use or disposal and reasons why they are applicable or an explanation of how the alternate effluent limitations were developed;
8. When the draft permit contains any of the following conditions, an explanation of the reasons why such conditions are applicable:
a. Limitations to control toxic pollutants;
b. Limitations on indicator pollutants;
c. Technology-based limitations set on a case-by-case basis;
d. Limitations to meet the criteria for permit issuance under 9VAC25-875-870; or
e. Waivers from monitoring requirements granted under 9VAC25-875-1030 A; and
9. When appropriate, a sketch or detailed description of the location of the discharge or regulated activity described in the application.
Statutory Authority
§ 62.1-44.15:28 of the Code of Virginia.
Historical Notes
Derived from Virginia Register Volume 40, Issue 8, eff. July 1, 2024.
9VAC25-875-1100. Public notice of draft permit actions and public comment period.
A. Scope.
1. The department shall give public notice that the following actions have occurred:
a. A draft permit has been prepared under 9VAC25-875-1070 D;
b. A public hearing has been scheduled under 9VAC25-875-1120; or
c. A new source determination has been made under 9VAC25-875-990.
2. No public notice is required when a request for an individual permit modification, revocation and reissuance, or termination is denied under 9VAC25-875-1210 B. Written notice of that denial shall be given to the requester and to the permittee. Public notice shall not be required for submission or approval of plans and specifications or conceptual engineering reports not required to be submitted as part of the application.
3. Public notices may describe more than one draft permit or draft permit actions.
B. Timing.
1. Public notice of the preparation of a draft permit required under subsection A of this section shall allow at least 30 days for public comment.
2. Public notice of a public hearing shall be given at least 30 days before the hearing. Public notice of the hearing may be given at the same time as public notice of the draft permit and the two notices may be combined.
C. Methods. Public notice of activities described in subdivision A 1 of this section shall be given by the following methods:
1. By mailing, either by electronic or postal delivery, a copy of a notice to the following persons (any person otherwise entitled to receive notice under this subdivision may waive the right to receive notice for any classes and categories of permits):
a. The permit applicant (except for general permits when there is no permit applicant);
b. Any other agency that the department knows has issued or is required to issue a VPDES permit;
c. Federal and state agencies with jurisdiction over fish, shellfish, and wildlife resources and over coastal zone management plans, the Advisory Council on Historic Preservation, State Historic Preservation Officers, including any affected states (Indian Tribes);
d. Any state agency responsible for plan development under § 208(b)(2) or (b)(4) or 303(e) of the CWA and the U.S. Army Corps of Engineers, the U.S. Fish and Wildlife Service, and the National Marine Fisheries Service;
e. Persons on a mailing list developed by:
(1) Including those who request in writing to be on the list;
(2) Soliciting persons for area lists from participants in past permit proceedings in that area; and
(3) Notifying the public of the opportunity to be put on the mailing list through periodic publication in the public press, and in such publications as EPA regional and state funded newsletters, environmental bulletins, or state law journals. The department may update the mailing list from time to time by requesting written indication of continued interest from those listed. The department may delete from the list the name of any person who fails to respond to such a request; and
f. (1) Any unit of local government having jurisdiction over the area where the facility is proposed to be located; and
(2) Each state agency having any authority under state law with respect to the construction or operation of such facility;
2. By publication once a week for two successive weeks in a newspaper of general circulation in the area affected by the discharge. The cost of public notice shall be paid by the owner; and
3. Any other method reasonably calculated to give actual notice of the action in question to the persons potentially affected by it, including press releases or any other forum or medium to elicit public participation.
D. Contents.
1. All public notices issued under this part shall contain the following minimum information:
a. Name and address of the office processing the permit action for which notice is being given;
b. Name and address of the permittee or permit applicant and, if different, of the facility or activity regulated by the permit, except in the case of draft general permits;
c. A brief description of the business conducted at the facility or activity described in the individual permit application or the draft permit, for general permits when there is no application;
d. Name, address, telephone number, and email address of a person from whom interested persons may obtain further information, including copies of the draft permit, statement of basis or fact sheet, and the application;
e. A brief description of the procedures for submitting comments and the time and place of any public hearing that will be held, including a statement of procedures to request a public hearing (unless a hearing has already been scheduled) and other procedures by which the public may participate in the final individual or general permit decision;
f. For an individual permit, a general description of the location of each existing or proposed discharge point and the name of the receiving water; and
g. Any additional information considered necessary or proper.
2. In addition to the general public notice described in subdivision 1 of this subsection, the public notice of a public hearing under 9VAC25-875-1120 shall contain the following information:
a. Reference to the date of previous public notices relating to the draft permit;
b. Date, time, and place of the public hearing;
c. A brief description of the nature and purpose of the public hearing, including the applicable rules and procedures; and
d. A concise statement of the issues raised by the persons requesting the public hearing.
E. In addition to the general public notice described in subdivision D 1 of this section, all persons identified in subdivisions C 1 a through 1 d of this section shall be mailed, either by electronic or postal delivery, a copy of the fact sheet or statement of basis, the individual permit application (if any), and the draft permit (if any).
Statutory Authority
§ 62.1-44.15:28 of the Code of Virginia.
Historical Notes
Derived from Virginia Register Volume 40, Issue 8, eff. July 1, 2024.
9VAC25-875-1110. Public comments and requests for public hearings.
During the public comment period provided under 9VAC25-875-1100, any interested person may submit written comments on the draft permit and may request a public hearing, if no public hearing has already been scheduled. A request for a public hearing shall be in writing and shall meet the requirements of 9VAC25-875-1120 and 9VAC25-875-1130. All comments shall be considered in making the final decision and shall be answered as provided in 9VAC25-875-1160.
Statutory Authority
§ 62.1-44.15:28 of the Code of Virginia.
Historical Notes
Derived from Virginia Register Volume 40, Issue 8, eff. July 1, 2024.
9VAC25-875-1120. Public hearings.
A. 1. Procedures for public hearings and permits before the department are those set forth in 9VAC25-875-1130.
2. Public notice of the public hearing shall be given as specified in 9VAC25-875-1100.
3. Any public hearing convened pursuant to this section shall be held in the geographical area of the proposed discharge, or in another appropriate area. Related groups of individual permit applications may be considered at any such public hearing.
B. Any person may submit oral or written statements and data concerning the draft individual permit. Reasonable limits may be set upon the time allowed for oral statements, and the submission of statements in writing may be required.
C. A recording or written transcript of the hearing shall be made available to the public.
Statutory Authority
§ 62.1-44.15:28 of the Code of Virginia.
Historical Notes
Derived from Virginia Register Volume 40, Issue 8, eff. July 1, 2024.
9VAC25-875-1130. Criteria for requesting and granting a public hearing in a permit action.
A. During the public comment period on a permit action in those instances where a public hearing is not mandatory under state or federal law or regulation, interested persons may request a public hearing to contest the action or terms and conditions of the permit.
B. Requests for a public hearing shall contain the following information:
1. The name and postal mailing or email address of the requester;
2. The names and addresses of all persons for whom the requester is acting as a representative;
3. The reason for the request for a public hearing;
4. A brief, informal statement setting forth the factual nature and extent of the interest of the requester or of the persons for whom the requester is acting as representative in the application or tentative determination, including an explanation of how and to what extent such interest would be directly and adversely affected by the issuance, denial, modification, or revocation of the permit in question; and
5. Where possible, specific references to the terms and the conditions of the permit in question, together with suggested revisions and alterations to those terms and conditions that the requester considers are needed to conform the permit to the intent and provisions of the basic laws of the State Water Control Board.
C. Upon completion of the public comment period on a permit action, the director shall review all timely requests for public hearing filed during the comment period on the permit action and, within 30 calendar days following the expiration of the time period for the submission of requests, shall grant a public hearing, unless the permittee or applicant agrees to a later date, if the director finds the following:
1. That there is a significant public interest in the issuance, denial, modification, or revocation of the permit in question as evidenced by receipt of a minimum of 25 individual requests for a public hearing;
2. That the requesters raise substantial disputed issues relevant to the issuance, denial, modification, or revocation of the permit in question; and
3. That the action requested by the interested party is not on its face inconsistent with or in violation of the basic laws of the State Water Control Board for a water permit action, federal law, or any regulation promulgated thereunder.
D. The director shall notify by email or mail at his last known address (i) each requester and (ii) the applicant or permittee of the decision to grant or deny a public hearing.
E. If the request for a public hearing is granted, the director shall:
1. Schedule the hearing at a time between 45 and 75 days after emailing or mailing of the notice of the decision to grant the public hearing; and
2. Cause or require the applicant to publish notice of a public hearing to be published once in a newspaper of general circulation in the city or county where the facility or operation that is the subject of the permit or permit application is located at least 30 days before the hearing date.
F. The public comment period shall remain open for 15 days after the close of the public hearing if required by § 62.1-44.15:01 of the Code of Virginia.
G. The director may at the director's discretion convene a public hearing in a permit action.
Statutory Authority
§ 62.1-44.15:28 of the Code of Virginia.
Historical Notes
Derived from Virginia Register Volume 40, Issue 8, eff. July 1, 2024.
9VAC25-875-1140. Controversial permits.
Before rendering a final decision on a controversial permit, the department shall publish a summary of public comments received during the applicable public comment period and public hearing. After such publication, the department shall publish responses to the public comment summary and hold a public hearing to provide an opportunity for individuals who previously commented, either at a public hearing or in writing during the applicable public comment period, to respond to the department's public comment summary and response. No new information will be accepted at that time. In making its decision, the department shall consider (i) the verbal and written comments received during the comment period and the public hearing made part of the record, (ii) any commentary of the board, and (iii) the agency files.
Statutory Authority
§ 62.1-44.15:28 of the Code of Virginia.
Historical Notes
Derived from Virginia Register Volume 40, Issue 8, eff. July 1, 2024.
9VAC25-875-1150. Controversial permits reporting.
At each regular meeting of the board, the department shall provide an overview and update regarding any controversial permits pending before the department that are relevant. Immediately after such presentation by the department, the board shall have an opportunity to respond to the department's presentation and provide commentary regarding such pending permits.
Statutory Authority
§ 62.1-44.15:28 of the Code of Virginia.
Historical Notes
Derived from Virginia Register Volume 40, Issue 8, eff. July 1, 2024.
9VAC25-875-1160. Response to comments.
A. At the time that a final individual or general permit is issued, the department shall issue a response to comments. This response shall:
1. Specify which provisions, if any, of the draft individual or general permit have been changed in the final individual or general permit decision, and the reasons for the change; and
2. Briefly describe and respond to all significant comments on the draft permit raised during the public comment period, or during any public hearing.
B. The response to comments shall be available to the public.
Statutory Authority
§ 62.1-44.15:28 of the Code of Virginia.
Historical Notes
Derived from Virginia Register Volume 40, Issue 8, eff. July 1, 2024.
9VAC25-875-1170. Conditions requested by the Corps of Engineers and other government agencies.
A. If during the comment period for a draft permit, the district engineer advises the department in writing that anchorage and navigation of any of the waters of the United States would be substantially impaired by the granting of an individual or general permit, the individual or general permit shall be denied and the individual permit applicant so notified. If the district engineer advises the department that imposing specified conditions upon the individual or general permit is necessary to avoid any substantial impairment of anchorage or navigation, then the department shall include the specified conditions in the individual or general permit. Review or appeal of denial of an individual or general permit or of conditions specified by the district engineer shall be made through the applicable procedures of the U.S Army Corps of Engineers and may not be made through the procedures provided in this part. If the conditions are stayed by a court of competent jurisdiction or by applicable procedures of the U.S Army Corps of Engineers, those conditions shall be considered stayed in the individual or general permit for the duration of that stay.
B. If during the comment period the U.S. Fish and Wildlife Service, the National Marine Fisheries Service, or any other state or federal agency with jurisdiction over fish, wildlife, or public health advises the department in writing that the imposition of specified conditions upon the individual or general permit is necessary to avoid substantial impairment of fish, shellfish, or wildlife resources, the department may include the specified conditions in the individual or general permit to the extent they are determined necessary to carry out the provisions of this regulation, the State Water Control Law, and the CWA.
C. In appropriate cases the department may consult with one or more of the agencies referred to in this section before issuing a draft permit and may reflect their views in the statement of basis, the fact sheet, or the draft permit.
Statutory Authority
§ 62.1-44.15:28 of the Code of Virginia.
Historical Notes
Derived from Virginia Register Volume 40, Issue 8, eff. July 1, 2024.
9VAC25-875-1180. Decisions on variances.
A. The department may grant or deny requests for variances requested pursuant to 9VAC25-875-920 G 4, subject to EPA objection. Decisions on these variances shall be made according to the criteria of 40 CFR Part 125, Subpart H.
B. The department may deny, or forward to the regional administrator with a written concurrence, or submit to EPA without recommendation a completed request for:
1. A variance based on the economic capability of the individual permit applicant submitted pursuant to 9VAC25-875-920 G 2; or
2. A variance based on water quality related effluent limitations submitted pursuant to 9VAC25-875-920 G 3.
C. If EPA approves the variance, the department may prepare a draft individual permit incorporating the variance. Any public notice of a draft individual permit for which a variance or modification has been approved or denied shall identify the applicable procedures for appealing that decision.
D. The department may deny or forward to the administrator with a written concurrence a completed request for:
1. A variance based on the presence of fundamentally different factors from those on which an effluent limitations guideline was based, made according to the criteria and standards of 40 CFR Part 125, Subpart D; or
2. A variance based upon certain water quality factors submitted pursuant to 9VAC25-875-920 G 2.
E. If the administrator approves the variance, the department may prepare a draft individual permit incorporating the variance. Any public notice of a draft individual permit for which a variance or modification has been approved or denied shall identify the applicable procedures for appealing that decision.
Statutory Authority
§ 62.1-44.15:28 of the Code of Virginia.
Historical Notes
Derived from Virginia Register Volume 40, Issue 8, eff. July 1, 2024.
9VAC25-875-1190. Appeals of variances.
When the department issues an individual permit on which EPA has made a variance decision, separate appeals of the individual permit and of the EPA variance decision are possible.
Statutory Authority
§ 62.1-44.15:28 of the Code of Virginia.
Historical Notes
Derived from Virginia Register Volume 40, Issue 8, eff. July 1, 2024.
9VAC25-875-1200. Computation of time.
A. Any time period scheduled to begin on the occurrence of an act or event shall begin on the day after the act or event.
B. Any time period scheduled to begin before the occurrence of an act or event shall be computed so that the period ends on the day before the act or event.
C. If the final day of any time period falls on a weekend or legal holiday, the time period shall be extended to the next working day.
D. Whenever a party or interested person has the right or is required to act within a prescribed period after the service of notice or other paper upon the party or interested person by mail or by electronic or postal delivery, three days shall be added to the prescribed time.
Statutory Authority
§ 62.1-44.15:28 of the Code of Virginia.
Historical Notes
Derived from Virginia Register Volume 40, Issue 8, eff. July 1, 2024.
Article 6
Transfer, Modification, Revocation and Reissuance, and Termination of Permits
9VAC25-875-1210. Modification, revocation and reissuance, or termination of permits.
A. Permits may be modified, revoked and reissued, or terminated either at the request of any interested person (including the permittee) or upon the department's initiative. When the department receives any information (e.g., inspects the facility, receives information submitted by the permittee as required in the permit, receives a request for modification or revocation and reissuance, or conducts a review of the permit file) it may determine whether one or more of the causes listed in this section for modification or revocation and reissuance, or both exist. However, permits may only be modified, revoked and reissued, or terminated for the reasons specified in 9VAC25-875-1230 or 9VAC25-875-1250. All requests shall be in writing and shall contain facts or reasons supporting the request. If cause does not exist under these sections, the department shall not modify, revoke and reissue, or terminate the permit. If a permit modification satisfies the criteria for minor modifications, the permit may be modified without a draft permit or public review. Otherwise, a draft permit must be prepared and other procedures in Article 5 (9VAC25-875-1070 et seq.) of this part followed.
B. If the department decides the request is not justified, the department shall send the requester a brief written response giving a reason for the decision. Denials of requests for modification, revocation and reissuance, or termination are not subject to public notice, comment, or public hearings.
C. 1. If the department tentatively decides to modify or revoke and reissue a permit, the department shall prepare a draft permit incorporating the proposed changes. The department may request additional information and, in the case of a modified permit, may require the submission of an updated application. In the case of revoked and reissued permits, the department shall require the submission of a new application.
2. In a permit modification under this section, only those conditions to be modified shall be reopened when a new draft permit is prepared. All other aspects of the existing permit shall remain in effect for the duration of the unmodified permit. When a permit is revoked and reissued under this section, the entire permit is reopened just as if the permit had expired and was being reissued and the permit is reissued for a new term. During any revocation and reissuance proceeding the permittee shall comply with all conditions of the existing permit until a new final permit is reissued.
3. Minor modifications as defined in 9VAC25-875-1240 are not subject to the requirements of this section.
D. If the department tentatively decides to terminate a permit under 9VAC25-875-1250, where the permittee objects, the department shall do so in accordance with the Administrative Process Act (§ 2.2-4000 et seq. of the Code of Virginia).
Statutory Authority
§ 62.1-44.15:28 of the Code of Virginia.
Historical Notes
Derived from Virginia Register Volume 40, Issue 8, eff. July 1, 2024.
9VAC25-875-1220. Transfer of permits.
A. Except as provided in subsection B of this section, a permit may be transferred by the permittee to a new owner or operator only if the permit has been modified or revoked and reissued, or a minor modification made, to identify the new permittee and incorporate such other requirements as may be necessary under the Virginia Erosion and Stormwater Management Act and the CWA.
B. Automatic transfers. As an alternative to transfers under subsection A of this section, any permit may be automatically transferred to a new permittee if:
1. The current permittee notifies the department at least 30 days in advance of the proposed transfer date in subdivision 2 of this subsection;
2. The notice includes a written agreement between the existing and new permittees containing a specific date for transfer of permit responsibility, coverage, and liability between them; and
3. The department does not notify the existing permittee and the proposed new permittee of its intent to modify or revoke and reissue the permit. A modification under this subdivision may also be a minor modification. If this notice is not received, the transfer is effective on the date specified in the agreement mentioned in subdivision 2 of this subsection.
Statutory Authority
§ 62.1-44.15:28 of the Code of Virginia.
Historical Notes
Derived from Virginia Register Volume 40, Issue 8, eff. July 1, 2024.
9VAC25-875-1230. Modification or revocation and reissuance of permits.
A. Causes for modification. The following are causes for modification but not revocation and reissuance of permits except when the permittee requests or agrees.
1. There are material and substantial alterations or additions to the permitted facility or activity that occurred after permit issuance that justify the application of permit conditions that are different or absent in the existing permit.
2. The department has received new information. Permits may be modified during their terms for this cause only if the information was not available at the time of permit issuance (other than revised regulations, guidance, or test methods) and would have justified the application of different permit conditions at the time of issuance. For general permits this cause includes any information indicating that cumulative effects on the environment are unacceptable. For new source or new discharger permits this cause shall include any significant information derived from effluent testing required on the permit application after issuance of the permit.
3. The standards or regulations on which the permit was based have been changed by promulgation of amended standards or regulations or by judicial decision after the permit was issued. Permits may be modified during their terms for this cause only as follows:
a. For promulgation of amended standards or regulations, when:
(1) The permit condition requested to be modified was based on a promulgated effluent limitation guideline, EPA approved, or promulgated water quality standards;
(2) EPA has revised, withdrawn, or modified that portion of the regulation or effluent limitation guideline on which the permit condition was based or has approved a state action with regard to a water quality standard on which the permit condition was based; and
(3) A permittee requests modification in accordance with this chapter within 90 days after Federal Register notice of the action on which the request is based;
b. For judicial decisions, a court of competent jurisdiction has remanded and stayed EPA promulgated regulations or effluent limitation guidelines, if the remand and stay concern that portion of the regulations or guidelines on which the permit condition was based and a request is filed by the permittee in accordance with this chapter within 90 days of judicial remand; or
c. For changes based upon modified state certifications of permits.
4. The department determines good cause exists for modification of a compliance schedule, such as an act of God, strike, flood, or materials shortage, or other events over which the permittee has little or no control and for which there is no reasonably available remedy. However, in no case may a compliance schedule be modified to extend beyond an applicable CWA statutory deadline.
5. When the permittee has filed a request for a variance pursuant to 9VAC25-875-920 G within the time specified in this chapter.
6. When required to incorporate an applicable § 307(a) of the CWA toxic effluent standard or prohibition.
7. When required by the reopener conditions in a permit that are established under 9VAC25-875-1030 B.
8. Upon failure to notify another state whose waters may be affected by a discharge.
9. When the level of discharge of any pollutant that is not limited in the permit exceeds the level that can be achieved by the technology-based treatment requirements appropriate to the permittee.
10. To establish a notification level as provided in 9VAC25-875-1030 E.
11. To correct technical mistakes, such as errors in calculation, or mistaken interpretations of law made in determining permit conditions.
12. When the discharger has installed the treatment technology considered by the permit writer in setting effluent limitations imposed under the State Water Control Law and § 402(a)(1) of the CWA and has properly operated and maintained the facilities but nevertheless has been unable to achieve those effluent limitations. In this case, the limitations in the modified permit may reflect the level of pollutant control actually achieved but shall not be less stringent than required by a subsequently promulgated effluent limitations guideline.
13. For a small MS4, to include an effluent limitation requiring implementation of a minimum control measure or measures as specified in 9VAC25-875-970 D 2 when:
a. The permit does not include such measures based upon the determination that another entity was responsible for implementation of the requirements; and
b. The other entity fails to implement measures that satisfy the requirements.
B. Causes for modification or revocation and reissuance. The following are causes to modify or, alternatively, revoke and reissue a permit:
1. Cause exists for termination under 9VAC25-875-1250, and the department determines that modification or revocation and reissuance is appropriate; or
2. The department has received notification of a proposed transfer of the permit. A permit also may be modified to reflect a transfer after the effective date of an automatic transfer but will not be revoked and reissued after the effective date of the transfer except upon the request of the new permittee.
Statutory Authority
§ 62.1-44.15:28 of the Code of Virginia.
Historical Notes
Derived from Virginia Register Volume 40, Issue 8, eff. July 1, 2024.
9VAC25-875-1240. Minor modifications of individual permits.
Upon the consent of the permittee, the department may modify an individual permit to make the corrections or allowances for changes in the permitted activity listed in this section, without following the procedures of Article 5 (9VAC25-875-1070 et seq.) of this part. Any individual permit modification not processed as a minor modification under this section must be made for cause and with draft permit and public notice. Minor modifications may only:
1. Correct typographical errors;
2. Require more frequent monitoring or reporting by the permittee;
3. Change an interim compliance date in a schedule of compliance, provided the new date is not more than 120 days after the date specified in the existing individual permit and does not interfere with attainment of the final compliance date requirement;
4. Allow for a change in ownership or operational control of a facility where the department determines that no other change in the individual permit is necessary, provided that a written agreement containing a specific date for transfer of individual permit responsibility, coverage, and liability between the current and new individual permittees has been submitted to the department;
5. a. Change the construction schedule for a discharger that is a new source. No such change shall affect a discharger's obligation to have all pollution control equipment installed and in operation prior to discharge; or
b. Delete a point source outfall when the discharge from that outfall is terminated and does not result in discharge of pollutants from other outfalls except in accordance with permit limits; or
6. Require electronic reporting requirements (to replace paper reporting requirements) including those specified in 40 CFR Part 3 and Part XI (9VAC25-31-950 et seq.) of the Virginia Pollutant Discharge Elimination System (VPDES) Permit Regulation.
Statutory Authority
§ 62.1-44.15:28 of the Code of Virginia.
Historical Notes
Derived from Virginia Register Volume 40, Issue 8, eff. July 1, 2024.
9VAC25-875-1250. Termination of permits.
A. The following are causes for terminating a permit during the permit's term or for denying an individual permit or coverage under a general permit renewal application after notice and opportunity for a hearing by the department.
1. The permittee has violated any regulation of the board or order of the department, any order of the VESMP authority, any provision of the State Water Control Law or this chapter, or any order of a court, where such violation results in the unreasonable degradation of properties, water quality, stream channels, and other natural resources, or the violation is representative of a pattern of serious or repeated violations that in the opinion of the department, demonstrates the permittee's disregard for or inability to comply with applicable laws, regulations, permit conditions, orders, rules, or requirements;
2. Noncompliance by the permittee with any condition of the permit;
3. The permittee's failure to disclose fully all relevant material facts, or the permittee's misrepresentation of any relevant material facts in applying for a permit or in any other report or document required under the State Water Control Law or this chapter;
4. A determination that the permitted activity endangers human health or the environment and can only be regulated to acceptable levels by permit modification or termination;
5. A change in any condition that requires either a temporary or permanent reduction or elimination of any discharge controlled by the permit;
6. The activity for which the permit was issued causes unreasonable degradation of properties, water quality, stream channels, and other natural resources; or
7. There exists a material change in the basis on which the permit was issued that requires either a temporary or a permanent reduction or elimination of any discharge or land-disturbing activity controlled by the permit necessary to prevent unreasonable degradation of properties, water quality, stream channels, and other natural resources.
B. The department shall follow the applicable procedures in this chapter in terminating any permit under this section, except that if the entire discharge is permanently terminated by elimination of the flow or by connection to a POTW or a PVOTW (but not by land application or disposal into a well), the department may terminate the permit by notice to the permittee. Termination by notice shall be effective 30 days after notice is sent, unless the permittee objects within that time. If the permittee objects during that period, the department shall follow the applicable procedures for termination under 9VAC25-875-1210 D. Expedited permit termination procedures are not available to permittees that are subject to pending state or federal enforcement actions, including citizen suits brought under state or federal law. If requesting expedited permit termination procedures, a permittee must certify that it is not subject to any pending state or federal enforcement actions, including citizen suits brought under state or federal law.
C. Permittees that wish to terminate their permit must submit a notice of termination (NOT) to the department. If requesting expedited permit termination procedures, a permittee must certify in the NOT that it is not subject to any pending state or federal enforcement actions, including citizen suits brought under state or federal law. As of the start date in Table 1 of 9VAC25-31-1020, all NOTs submitted in compliance with this subsection shall be submitted electronically by the permittee to the department in compliance with this subsection and 40 CFR Part 3 (including, in all cases, 40 CFR Part 3 Subpart D), 9VAC25-875-940, and Part XI (9VAC25-31-950 et seq.) of the Virginia Pollutant Discharge Elimination System (VPDES) Permit Regulation. Part XI of 9VAC25-31 is not intended to undo existing requirements for electronic reporting. Prior to this date, and independent of Part XI of 9VAC25-31, the permittee may be required to report electronically if specified by a particular permit.
Statutory Authority
§ 62.1-44.15:28 of the Code of Virginia.
Historical Notes
Derived from Virginia Register Volume 40, Issue 8, eff. July 1, 2024.
Article 7
Enforcement of Permits
9VAC25-875-1260. Enforcement.
A. The department may enforce the provisions of this chapter by:
1. Issuing directives in accordance with the State Water Control Law;
2. Issuing special orders in accordance with the State Water Control Law;
3. Issuing emergency special orders in accordance with the State Water Control Law;
4. Seeking injunction, mandamus, or other appropriate remedy as authorized by the State Water Control Law;
5. Seeking civil penalties under the State Water Control Law; or
6. Seeking remedies under the State Water Control Law or the CWA or under other laws, including the common law.
B. The department encourages citizen participation in all its activities, including enforcement. In particular:
1. The department will investigate citizen complaints and provide written response to all signed, written complaints from citizens concerning matters within the department's purview;
2. The department will not oppose intervention in any civil enforcement action when such intervention is authorized by statute or Supreme Court rule; and
3. At least 30 days prior to the final settlement of any civil enforcement action or the issuance of any consent special order, the department will publish public notice of such settlement or order in a newspaper of general circulation in the county, city, or town in which the discharge is located, and in the Virginia Register of Regulations. This notice will identify the owner, specify the enforcement action to be taken, and specify where a copy of the settlement or order can be obtained. A consent special order is a special order issued without a public hearing and with the written consent of the affected owner. For the purpose of this chapter, an emergency special order is not a consent special order. The department shall consider all comments received during the comment period before taking final action.
C. When a permit is amended solely to reflect a new owner, and the previous owner had been issued a consent special order that, at the time of permit amendment was still in full force and effect, a consent special order issued to the new owner does not have to go to public notice provided that:
1. The permit amendment does not have to go to public notice; and
2. The terms of the new consent order are the same as issued to the previous owner.
D. Notwithstanding subdivision B 3 of this subsection, a special order may be issued by agreement without further notice when a hearing has been scheduled to issue a special order to the affected owner, whether or not the hearing is actually held.
Statutory Authority
§ 62.1-44.15:28 of the Code of Virginia.
Historical Notes
Derived from Virginia Register Volume 40, Issue 8, eff. July 1, 2024.
Article 8
Miscellaneous
9VAC25-875-1270. Transition.
Upon the effective date of this chapter the following will occur:
1. All applications received after the effective date of this chapter will be processed in accordance with these procedures.
2. Permits issued by the Soil and Water Conservation Board allowing the discharge of stormwater into surface waters from municipal separate storm sewer systems or land-disturbing activities that have not expired or been revoked or terminated before or on the program transfer date to the department shall continue to remain in effect until their specified expiration dates.
Statutory Authority
§ 62.1-44.15:28 of the Code of Virginia.
Historical Notes
Derived from Virginia Register Volume 40, Issue 8, eff. July 1, 2024.
9VAC25-875-1280. Operators shall comply with the electronic reporting requirements set forth in Part XI of 9VAC25-31.
Operators shall comply with the electronic reporting requirements set forth in Part XI of 9VAC25-31.
Statutory Authority
§ 62.1-44.15:28 of the Code of Virginia.
Historical Notes
Derived from Virginia Register Volume 40, Issue 8, eff. July 1, 2024.