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 If the application is not withdrawn or modified to obtain the tentative approval to issue, the department shall provide public notice and opportunity for a public hearing prior to department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.