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.