Section 410. Permits-by-rule and other special permits

A. Permits by rule.

1. As an alternate to obtaining a full permit, an owner or operator of any of the following facilities may elect to operate under this section:

a. Compost facility;

b. Solid waste transfer station;

c. Materials recovery facility;

d. Waste to energy, thermal treatment, or incineration facility;

e. Waste pile; or

f. Centralized waste treatment facility.

2. Submission. The owner or operator of a facility described in subdivision 1 of this section shall be deemed to have a solid waste management facility permit notwithstanding any other provisions of Part V (9VAC20-81-400 et seq.) of this chapter, except 9VAC20-81-450 B 2 and 3, if the owner or operator provides to the department the information described in this subdivision, and the department acknowledges completeness of the submittal per subdivision 4 of this subsection:

a. A notice of intent to operate such a facility with documentation required under 9VAC20-81-450 B;

b. A certification that the facility meets the siting standards, as applicable, of 9VAC20-81-320;

c. A certification that the facility meets the statutory requirements for consistency with solid waste management plans as recorded in § 10.1-1408.1 of the Code of Virginia;

d. A certification that the standards, as applicable, of 9VAC20-81-340 are met in an operations manual to be maintained in the operating record in accordance with 9VAC20-81-485;

e. A certificate signed by a professional engineer that:

(1) The facility has been designed and constructed in accordance with the standards, as applicable, of 9VAC20-81-330; and

(2) The standards, as applicable, of 9VAC20-81-360 are met in a closure plan to be maintained in the operating record;

f. Demonstration of legal control over the site for the permit life;

g. A certification from the State Corporation Commission that the business entity pursuing the permit-by-rule status is a valid entity, authorized to transact its business in Virginia. This requirement does not apply to those facilities owned solely by governmental units;

h. Closure cost estimates and proof of financial responsibility as required by the Financial Assurance Regulations for Solid Waste Disposal, Transfer, and Treatment Facilities (9VAC20-70); proof of financial responsibility must be for the entity identified in subdivision 2 g of this subsection;

i. The results of the public participation effort conducted in accordance with the requirements contained in subdivision 3 of this subsection;

j. The following additional information for the specific facilities as noted:

(1) For compost facilities only, a description of the type of facility and the classification of materials that will be composted as classified under 9VAC20-81-310 A 3;

(2) For waste piles only, proof that the facility has a valid VPDES permit, if applicable; and

(3) For waste to energy, thermal treatment, or incineration facilities or materials recovery facilities engaged in reclamation of petroleum-contaminated materials only:

(a) Proof that the facility has a permit issued in accordance with the regulations promulgated by the State Air Pollution Control Board; and

(b) In the case of thermal treatment facilities or materials recovery facilities engaged in reclamation of petroleum-contaminated materials, a description of how the requirements of 9VAC20-81-660 will be met; and

k. The applicable permit fees under the provisions of 9VAC20-90.

3. Public participation.

a. Before the initiation of any construction at the facility under subdivision 1 of this subsection, the owner or operator shall publish a notice once a week for two consecutive weeks in a major local newspaper of general circulation of the intent to construct and operate a facility eligible for a permit-by-rule. The notice shall include:

(1) A brief description of the proposed facility and its location;

(2) A statement that the purpose of the public participation is to acquaint the public with the technical aspects of the facility and how the standards and the requirements of this chapter will be met, to identify issues of concern, to facilitate communication and to establish a dialogue between the permittee and persons who may be affected by the facility;

(3) Announcement of a 30-day comment period, in accordance with subdivision 3 d of this subsection, and the name, telephone number, and address of the owner's or operator's representative who can be contacted by the interested persons to answer questions or where comments shall be sent;

(4) Announcement of the date, time, and place for a public meeting held in accordance with subdivision 3 c of this subsection; and

(5) Location where copies of the documentation to be submitted to the department in support of the permit-by-rule notification can be viewed and copied.

b. The owner or operator shall place a copy of the documentation and support documents in a location accessible to the public in the vicinity of the proposed facility.

c. The owner or operator shall hold a public meeting not earlier than 14 days after the first publication of the notice required in subdivision 3 a of this subsection and no later than seven days before the close of the 30-day comment period. The meeting shall be held to the extent practicable in the vicinity of the proposed facility at a time convenient for the public.

d. The public shall be provided 30 days to comment on the technical and the regulatory aspects of the proposal. The comment period will begin on the date the owner or operator publishes the first notice in the local newspaper.

e. The requirements of this section do not apply to the owners or operators of a material recovery facility, waste to energy facility, incinerator, or a thermal treatment unit that has received a permit from the department based on the regulations promulgated by the State Air Pollution Control Board or State Water Control Board that required facility-specific public participation procedures.

4. Completeness review. Upon receiving the certifications and other required documents, including the results of the public meeting and the applicant's response to the comments received, the department shall conduct a completeness review and respond within 30 calendar days. If the applicant's submission is administratively complete, the applicant shall be deemed to operate under permit-by-rule status. If the applicant's submission is administratively incomplete, the applicant shall be deemed to not have a permit-by-rule. The department may require the operator to submit the full permit application and to obtain a regular solid waste management facility permit if it is determined the requested operation does not qualify for permit-by-rule status.

5. Change of ownership. A permit by rule may not be transferred by the permittee to a new owner or operator. However, when the property transfer takes place without proper closure, the new owner shall notify the department of the sale and fulfill all the requirements contained in subdivision 2 of this subsection. Upon presentation of the financial assurance proof required by 9VAC20-70 by the new owner, the department will release the former owner from his closure and financial responsibilities and acknowledge existence of the new permit by rule in the name of the new owner.

6. Facility modifications. The owner or operator of a facility operating under a permit by rule may modify its design and operation by furnishing the department a new certificate and applicable permit fees under the provisions of 9VAC20-90. For modifications of design, the new certificate shall be prepared by a professional engineer and shall include new documentation required under subdivision 2, as applicable, and subdivision 3 of this subsection. For modifications to the operations, the owner or operator shall submit to the department a new certificate and documentation required under subdivision 2 of this subsection, as applicable. Whenever modifications in the design or operation of the facility affect the provisions of the closure plan, the owner or operator shall revise the closure plan and submit to the department a new certificate and documentation required under subdivision 2 of this subsection, as applicable. Should there be an increase in the closure costs, the owner or operator shall submit a new proof of financial responsibility as required by the Financial Assurance Regulations for Solid Waste Disposal, Transfer, and Treatment Facilities (9VAC20-70).

7. Loss of permit by rule status. In the event that a facility operating under a permit by rule violates any applicable siting, design and construction, or closure provisions of 9VAC20-81-320, 9VAC20-81-330 or 9VAC20-81-360, respectively, the owner or operator of the facility will be considered to be operating an unpermitted facility as provided for in 9VAC20-81-45 and shall be required to either obtain a new permit as required by Part V (9VAC20-81-400 et seq.) or close under Part III (9VAC20-81-100 et seq.) or IV (9VAC20-81-300 et seq.) of this chapter, as applicable.

8. Termination. The director shall terminate a permit by rule and shall require closure of the facility whenever he finds that:

a. As a result of changes in key personnel, the requirements necessary for a permit by rule are no longer satisfied;

b. The applicant has knowingly or willfully misrepresented or failed to disclose a material fact in his disclosure statement, or any other report or certification required under this chapter, or has knowingly or willfully failed to notify the director of any material change to the information in the disclosure statement;

c. Any key personnel have been convicted of any of the crimes listed in § 10.1-1409 of the Code of Virginia, punishable as felonies under the laws of the Commonwealth, or the equivalent of them under the laws of any other jurisdiction; or has been adjudged by an administrative agency or a court of competent jurisdiction to have violated the environmental protection laws of the United States, the Commonwealth, or any other state and the director determines that such conviction or adjudication is sufficiently probative of the permittee's inability or unwillingness to operate the facility in a lawful manner; or

d. The operation of the facility is inconsistent with the facility's operations manual and/or the operational requirements of the regulations.

B. Emergency permits. Notwithstanding any other provision of this chapter, in the event the director finds an imminent and substantial endangerment to human health or the environment, the director may issue a temporary emergency permit to a facility to allow treatment, storage, or disposal of solid waste for a nonpermitted facility or solid waste not covered by the permit for a facility with an effective permit. Such permits:

1. May be oral or written. If oral, it shall be followed within five days by a written emergency permit;

2. Shall not exceed 90 days in duration;

3. Shall clearly specify the solid wastes to be received, and the manner and location of their treatment, storage, or disposal;

4. Shall be accompanied by a public notice including:

a. Name and address of the office granting the emergency authorization;

b. Name and location of the facility so permitted;

c. A brief description of the wastes involved;

d. A brief description of the action authorized and reasons for authorizing it; and

e. Duration of the emergency permit; and

5. Shall incorporate, to the extent possible and not inconsistent with the emergency situation, all applicable requirements of this chapter, and shall include the applicable permit fees under the provisions of 9VAC20-90.

Any permit issued under this subsection may be renewed not more than two times, if necessary. Each such renewal shall be for a period of not more than 90 days.

In the event that the Governor declares a state of emergency, open burning of debris waste from the clean-up operations is conditionally exempt from this chapter provided that no open dump, hazard, or public nuisance is created.

C. Experimental facility permits.

1. The director may issue an experimental facility permit for any solid waste treatment facility that proposes to utilize an innovative and experimental solid waste treatment technology or process for which permit standards for such experimental activity have not been promulgated under Part IV (9VAC20-81-300 et seq.) of this chapter. Any such permit shall include such terms and conditions as will assure protection of human health and the environment. Such permits shall:

a. Provide for the construction of such facilities based on the standards shown in 9VAC20-81-395, as necessary;

b. Provide for operation of the facility for no longer than one calendar year unless renewed as provided in subdivision 3 of this subsection;

c. Provide for the receipt and treatment by the facility of only those types and quantities of solid waste that the director deems necessary for purposes of determining the efficiency and performance capabilities of the technology or process and the effects of such technology or process on human health and the environment; and

d. Shall include such requirements as the director deems necessary to protect human health and the environment (including, but not limited to, requirements regarding monitoring, operation, closure, and remedial action), and such requirements as the director deems necessary regarding testing and providing of information to the director with respect to the operation of the facility.

2. For the purpose of expediting review and issuance of permits under this subsection, the director may, consistent with the protection of human health and the environment, modify or waive permit application and permit issuance requirements in Part V (9VAC20-81-400 et seq.) of this chapter, except that there may be no modification or waiver of regulations regarding local certification, disclosure statement requirements, financial responsibility (including insurance), or procedures regarding public participation.

3. The applicant for an experimental permit shall include the applicable permit fees under the provisions of 9VAC20-90. Any experimental permit issued under this subsection may be renewed not more than three times. Each such renewal shall be for a period of not more than one calendar year.

Historical Notes

Derived from Volume 27, Issue 12, eff. March 16, 2011.

Statutory Authority

§ 10.1-1402 of the Code of Virginia; 42 USC § 6941 et seq.; 40 CFR Part 258.