Code of Virginia

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Code of Virginia
Title 10.1. Conservation
Chapter 11.1. Department of Environmental Quality
12/2/2022

§ 10.1-1184.1. Additional duties of Department; controversial permits.

A. For purposes of this section, "controversial permit" means an air or water permitting action for which a public hearing has been granted pursuant to the provisions of subsection C. "Controversial permit" also means an air permitting action where a public hearing is required for (i) the construction of a new major source or for a major modification to an existing source, (ii) a new fossil fuel-fired generating facility with a capacity of 500 megawatts or more, (iii) a major modification to an existing source that is a fossil fuel-fired generating facility with a capacity of 500 megawatts or more, (iv) a new fossil fuel-fired compressor station facility used to transport natural gas, or (v) a major modification to an existing source that is a fossil fuel-fired compressor station facility used to transport natural gas.

B. At each regular meeting of the Air Pollution Control Board or the State Water Control Board, the Department shall provide an overview and update regarding any controversial permits pending before the Department that are relevant to each board. 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. 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 shall be accepted at that time.

C. Any changes to regulations necessary to implement the provisions of this section shall include the following criteria for requesting and granting a public hearing on a permit action during a public comment period in those instances where a public hearing is not mandatory under state or federal law or regulation.

1. During the public comment period on permit action, interested persons may request a public hearing to contest such action or the terms and conditions thereof. Requests for a public hearing shall contain the following information: (i) the name and postal mailing or email address of the requester; (ii) the names and addresses of all persons for whom the requester is acting as a representative (for the purposes of this requirement, "person" includes an unincorporated association); (iii) the reason for the request for a public hearing; (iv) a brief, informal statement setting forth the factual nature and the 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 (v) where possible, specific references to the terms and conditions of the permit in question, together with suggested revisions and alterations of 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 Air Pollution Control Board or the State Water Control Board, as applicable.

2. Upon completion of the public comment period on a permit action, the Director shall review all timely requests for public hearing filed during the public 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: (a) 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; (b) that the requesters raise substantial, disputed issues relevant to the issuance, denial, modification, or revocation of the permit in question; and (c) 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 Air Pollution Control Board if the permit action is an air permit action, or the basic laws of the State Water Control Board if the permit action is a water permit action, federal law, or any regulation promulgated thereunder.

3. The Director shall, forthwith, notify by email or mail at his last known address (1) each requester and (2) the applicant or permittee of the decision to grant or deny a public hearing. If the request for a public hearing is granted, the Director shall 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. The Director shall 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. In making its decision, the Department shall consider (A) the verbal and written comments received during the public comment period and public hearing made part of the record, (B) any commentary of the Board, and (C) the agency files. The public comment period shall remain open for 15 days after the close of the public hearing if required by § 10.1-1307.01 or § 62.1-44.15:01.

4. In addition, the Director may, in his discretion, convene a public hearing on a permit action.

2022, c. 356.

The chapters of the acts of assembly referenced in the historical citation at the end of this section may not constitute a comprehensive list of such chapters and may exclude chapters whose provisions have expired.