9VAC25-230 Procedural Rule No. 1 - Public and Formal Hearing Procedures

REGULATIONS

Vol. 29 Iss. 24 - July 29, 2013

TITLE 9. ENVIRONMENT

STATE WATER CONTROL BOARD

Chapter 230

Final Regulation

REGISTRAR'S NOTICE: The State Water Control Board is claiming an exclusion from the Administrative Process Act in accordance with § 2.2-4006 A 4 a of the Code of Virginia, which excludes regulations that are necessary to conform to changes in Virginia statutory law where no agency discretion is involved. The State Water Control Board will receive, consider, and respond to petitions by any interested person at any time with respect to reconsideration or revision.

Titles of Regulations: 9VAC25-31. Virginia Pollutant Discharge Elimination System (VPDES) Permit Regulation (amending 9VAC25-31-290, 9VAC25-31-360, 9VAC25-31-830, 9VAC25-31-850).

9VAC25-32. Virginia Pollution Abatement (VPA) Permit Regulation (amending 9VAC25-32-140).

9VAC25-220. Surface Water Management Area Regulation (amending 9VAC25-220-50, 9VAC25-220-80, 9VAC25-220-190).

9VAC25-230. Procedural Rule No. 1 - Public and Formal Hearing Procedures (amending 9VAC25-230-50, 9VAC25-230-90, 9VAC25-230-130, 9VAC25-230-140, 9VAC25-230-170).

Statutory Authority:

§ 62.1-44.15 of the Code of Virginia; § 402 of the federal Clean Water Act; 40 CFR Parts 122, 123, 124, 403, and 503 (9VAC25-31-290, 9VAC25-31-360, 9VAC25-31-830, 9VAC25-31-850)

§ 62.1-44.15 of the Code of Virginia (9VAC25-32-140, 9VAC25-230-50, 9VAC25-230-90, 9VAC25-230-130, 9VAC25-230-140, 9VAC25-230-170)

§ 62.1-249 of the Code of Virginia (9VAC25-220-50, 9VAC25-220-80, 9VAC25-220-190)

Effective Date: September 1, 2013.

Agency Contact: Cindy M. Berndt, Department of Environmental Quality, 629 East Main Street, P.O. Box 1105, Richmond, VA 23218, telephone [phone], FAX [phone], or email [e-mail].

Summary:

This regulatory action conforms the applicable provisions of 9VAC25-31, 9VAC25-32, 9VAC25-220, and 9VAC25-230 to Chapter 348 of the 2013 Acts of Assembly to allow certain notifications to be delivered through postal or electronic means.

9VAC25-31-290. Public notice of permit actions and public comment period.

A. Scope.

1. The board shall give public notice that the following actions have occurred:

a. A draft permit has been prepared under 9VAC25-31-260 D;

b. A public hearing has been scheduled under 9VAC25-31-310; or

c. A VPDES new source determination has been made under 9VAC25-31-180.

2. No public notice is required when a request for permit modification, revocation and reissuance, or termination is denied under 9VAC25-31-370 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 permit or 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, 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 his or her rights to receive notice for any classes and categories of permits):

a. The applicant (except for VPDES general permits when there is no applicant);

b. Any other agency which the board knows has issued or is required to issue a VPDES, sludge management 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), 208(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. Any user identified in the permit application of a privately owned treatment works;

f. 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 board may update the mailing list from time to time by requesting written indication of continued interest from those listed. The board may delete from the list the name of any person who fails to respond to such a request.);

g. (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. Except for permits for concentrated animal feeding operations as defined in 9VAC25-31-10 or designated in accordance with 9VAC25-31-130 B, 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 VPDES draft general permits;

c. A brief description of the business conducted at the facility or activity described in the permit application or the draft permit, for VPDES general permits when there is no application;

d. Name, address and telephone number of a person from whom interested persons may obtain further information, including copies of the draft permit or draft general permit, as the case may be, 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 permit decision;

f. A general description of the location of each existing or proposed discharge point and the name of the receiving water and the sludge use and disposal practice or practices and the location of each sludge treatment works treating domestic sewage and use or disposal sites known at the time of permit application. For draft general permits, this requirement will be satisfied by a map or description of the permit area;

g. Requirements applicable to cooling water intake structures under § 316 of the CWA, in accordance with 9VAC25-31-165; and

h. 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 9VAC25-31-310 shall contain the following information:

a. Reference to the date of previous public notices relating to the 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.

3. Public notice of a VPDES draft permit for a discharge where a request for alternate thermal effluent limitations has been filed shall include:

a. A statement that the thermal component of the discharge is subject to effluent limitations incorporated in 9VAC25-31-30 and a brief description, including a quantitative statement, of the thermal effluent limitations proposed under § 301 or § 306 of the CWA;

b. A statement that an alternate thermal effluent limitation request has been filed and that alternative less stringent effluent limitations may be imposed on the thermal component of the discharge under the law and § 316(a) of the CWA and a brief description, including a quantitative statement, of the alternative effluent limitations, if any, included in the request; and

c. If the applicant has filed an early screening request for a CWA § 316(a) variance, a statement that the applicant has submitted such a plan.

E. In addition to the general public notice described in subdivision D 1 of this section, all persons identified in subdivisions C 1 a, b, c, and d of this section shall be mailed, by electronic or postal delivery, a copy of the fact sheet or statement of basis, the permit application (if any) and the draft permit (if any).

F. Upon receipt of an application for the issuance of a new or modified permit other than those for agricultural production or aquacultural production activities, the board shall:

1. Notify, in writing, the locality wherein the discharge or, as applicable, the associated land application of sewage sludge, or land disposal of treated sewage, stabilized sewage sludge or stabilized septage does or is proposed to take place of, at a minimum:

a. The name of the applicant;

b. The nature of the application and proposed discharge;

c. The availability and timing of any comment period; and

d. Upon request, any other information known to, or in the possession of, the board or the department regarding the applicant not required to be held confidential by this chapter.

2. Establish a date for a public meeting to discuss technical issues relating to proposals for land application of sewage sludge, or land disposal of treated sewage, stabilized sewage sludge or stabilized septage. The department shall give notice of the date, time, and place of the public meeting and a description of the proposal by publication in a newspaper of general circulation in the city or county where the proposal is to take place. Public notice of the scheduled meeting shall occur no fewer than seven or more than 14 days prior to the meeting. The board shall not issue the permit until the public meeting has been held and comment has been received from the local governing body, or until 30 days have lapsed from the date of the public meeting.

3. Except for land application of sewage sludge or land disposal of treated sewage, stabilized sewage sludge or stabilized septage, make a good faith effort to provide this same notice and information to (i) each locality and riparian property owner to a distance one-quarter mile downstream and one-quarter mile upstream or to the fall line whichever is closer on tidal waters and (ii) each locality and riparian property owner to a distance one-half mile downstream on nontidal waters. Distances shall be measured from the point, or proposed point, of discharge. If the receiving river at the point or proposed point of discharge is two miles wide or greater, the riparian property owners on the opposite shore need not be notified. Notice to property owners shall be based on names and addresses taken from local tax rolls. Such names and addresses shall be provided by the commissioners of the revenue or the tax assessor's office of the affected jurisdictions upon request by the board.

4. For a site that is to be added to an existing permit authorizing land application of sewage sludge, notify persons residing on property bordering such site and receive written comments from those persons for a period not to exceed 30 days. Based upon the written comments, the department shall determine whether additional site-specific requirements should be included in the authorization for land application at the site.

G. Before issuing any permit, if the board finds that there are localities particularly affected by the permit, the board shall:

1. Publish, or require the applicant to publish, a notice in a local paper of general circulation in the localities affected at least 30 days prior to the close of any public comment period. Such notice shall contain a statement of the estimated local impact of the proposed permit, which at a minimum shall include information on the specific pollutants involved and the total quantity of each which may be discharged; and

2. Mail, by electronic or postal delivery, the notice to the chief elected official and chief administrative officer and planning district commission for those localities.

Written comments shall be accepted by the board for at least 15 days after any public hearing on the permit, unless the board votes to shorten the period. For the purposes of this section, the term "locality particularly affected" means any locality which bears any identified disproportionate material water quality impact which would not be experienced by other localities.

9VAC25-31-360. 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 him or her by mail, electronic or postal delivery, three days shall be added to the prescribed time.

9VAC25-31-830. Approval procedures for POTW pretreatment programs and POTW granting of removal credits.

The following procedures shall be adopted in approving or denying requests for approval of POTW pretreatment programs and applications for removal credit authorization:

A. The director shall have 90 days from the date of public notice of any submission complying with the requirements of 9VAC25-31-810 B and, where removal credit authorization is sought with 9VAC25-31-790 E and 9VAC25-31-810 D, to review the submission. The director shall review the submission to determine compliance with the requirements of 9VAC25-31-800 B and F, and, where removal credit authorization is sought, with 9VAC25-31-790. The director may have up to an additional 90 days to complete the evaluation of the submission if the public comment period provided for in subdivision B 1 b of this section is extended beyond 30 days or if a public hearing is held as provided for in subdivision B 2 of this section. In no event, however, shall the time for evaluation of the submission exceed a total of 180 days from the date of public notice of a submission meeting the requirements of 9VAC25-31-810 B and, in the case of a removal credit application, 9VAC25-31-790 E and 9VAC25-31-810 B.

B. Upon receipt of a submission, the director shall commence its review. Within 20 work days after making a determination that a submission meets the requirements of 9VAC25-31-810 B and, where removal allowance approval is sought, 9VAC25-31-790 D and 9VAC25-31-810 D, the director shall:

1. Issue a public notice of request for approval of the submission.

a. This public notice shall be circulated in a manner designed to inform interested and potentially interested persons of the submission. Procedures for the circulation of public notice shall include:

(1) Mailing, by electronic or postal delivery, notices of the request for approval of the submission to designated CWA § 208 planning agencies, federal and state fish, shellfish, and wildlife resource agencies (unless such agencies have asked not to be sent the notices); and to any other person or group who has requested individual notice, including those on appropriate mailing lists; and

(2) Publication of a notice of request for approval of the submission in a newspaper(s) of general circulation within the jurisdiction(s) served by the POTW that provides meaningful public notice.

b. The public notice shall provide a period of not less than 30 days following the date of the public notice during which time interested persons may submit their written views on the submission.

c. All written comments submitted during the 30-day comment period shall be retained by the director and considered in the decision on whether or not to approve the submission. The period for comment may be extended at the discretion of the director.

2. Provide an opportunity for the applicant, any affected state, any interested state or federal agency, person or group of persons to request a public hearing with respect to the submission.

a. This request for public hearing shall be filed within the 30-day (or extended) comment period described in subdivision 1 b of this subsection and shall indicate the interest of the person filing such request and the reasons why a public hearing is warranted.

b. The director shall hold a public hearing if the POTW so requests. In addition, a public hearing will be held if there is a significant public interest in issues relating to whether or not the submission should be approved. Instances of doubt should be resolved in favor of holding the public hearing.

c. Public notice of a public hearing to consider a submission and sufficient to inform interested parties of the nature of the public hearing and the right to participate shall be published in the same newspaper(s) as the notice of the original request for approval of the submission under subdivision 1 a (2) of this subsection. In addition, notice of the public hearing shall be sent to those persons requesting individual notice.

C. At the end of the 30-day (or extended) comment period and within the 90-day (or extended) period provided for in subsection A of this section, the director shall approve or deny the submission based upon the evaluation in subsection A of this section and taking into consideration comments submitted during the comment period and the record of the public hearing, if held. Where the director makes a determination to deny the request, the director shall so notify the POTW and each person who has requested individual notice. This notification shall include suggested modifications and the director may allow the requestor additional time to bring the submission into compliance with applicable requirements.

D. No POTW pretreatment program or authorization to grant removal allowances shall be approved by the director if following the 30-day (or extended) evaluation period provided for in subdivision B 1 b of this section and any public hearing held pursuant to subdivision B 2 of this section, the regional administrator sets forth in writing objections to the approval of such submission and the reasons for such objections. A copy of the regional administrator's objections shall be provided to the applicant and each person who has requested individual notice. The regional administrator shall provide an opportunity for written comments and may convene a public hearing on his objections. Unless retracted, the regional administrator's objections shall constitute a final ruling to deny approval of a POTW pretreatment program or authorization to grant removal allowances 90 days after the date the objections are issued.

E. The director shall notify those persons who submitted comments and participated in the public hearing, if held, of the approval or disapproval of the submission. In addition, the director shall cause to be published a notice of approval or disapproval in the same newspapers as the original notice of request for approval of the submission was published. The director shall identify in any notice of POTW pretreatment program approval any authorization to modify categorical pretreatment standards which the POTW may make, in accordance with 9VAC25-31-790, for removal of pollutants subject to pretreatment standards.

F. The director shall ensure that the submission and any comments upon such submission are available to the public for inspection and copying.

9VAC25-31-850. Variances from categorical pretreatment standards for fundamentally different factors.

A. The term "requester" means an industrial user or a POTW or other interested person seeking a variance from the limits specified in a categorical pretreatment standard.

B. Any interested person believing that factors relating to an industrial user are fundamentally different from the factors considered during development of a categorical pretreatment standard applicable to that user and further, that the existence of those factors justifies a different discharge limit than specified in the applicable categorical pretreatment standard, may request a fundamentally different factors variance under this section.

C. Criteria.

1. General criteria. A request for a variance based upon fundamentally different factors shall be approved only if:

a. There is an applicable categorical pretreatment standard which specifically controls the pollutant for which alternative limits have been requested;

b. Factors relating to the discharge controlled by the categorical pretreatment standard are fundamentally different from the factors considered by EPA in establishing the standards; and

c. The request for a variance is made in accordance with the procedural requirements in subsections G and H of this section.

2. Criteria applicable to less stringent limits. A variance request for the establishment of limits less stringent than required by the standard shall be approved only if:

a. The alternative limit requested is no less stringent than justified by the fundamental difference;

b. The alternative limit will not result in a violation of prohibitive discharge standards prescribed by or established under 9VAC25-31-770;

c. The alternative limit will not result in a nonwater quality environmental impact (including energy requirements) fundamentally more adverse than the impact considered during development of the pretreatment standards; and

d. Compliance with the standards (either by using the technologies upon which the standards are based or by using other control alternatives) would result in either:

(1) A removal cost (adjusted for inflation) wholly out of proportion to the removal cost considered during development of the standards; or

(2) A nonwater quality environmental impact (including energy requirements) fundamentally more adverse than the impact considered during development of the standards.

3. Criteria applicable to more stringent limits. A variance request for the establishment of limits more stringent than required by the standards shall be approved only if:

a. The alternative limit request is no more stringent than justified by the fundamental difference; and

b. Compliance with the alternative limit would not result in either:

(1) A removal cost (adjusted for inflation) wholly out of proportion to the removal cost considered during development of the standards; or

(2) A nonwater quality environmental impact (including energy requirements) fundamentally more adverse than the impact considered during development of the standards.

D. Factors considered fundamentally different. Factors which may be considered fundamentally different are:

1. The nature or quality of pollutants contained in the raw waste load of the user's process wastewater;

2. The volume of the user's process wastewater and effluent discharged;

3. Nonwater quality environmental impact of control and treatment of the user's raw waste load;

4. Energy requirements of the application of control and treatment technology;

5. Age, size, land availability, and configuration as they relate to the user's equipment or facilities; processes employed; process changes; and engineering aspects of the application of control technology; and

6. Cost of compliance with required control technology.

E. Factors which will not be considered fundamentally different. A variance request or portion of such a request under this section may not be granted on any of the following grounds:

1. The feasibility of installing the required waste treatment equipment within the time the CWA allows;

2. The assertion that the standards cannot be achieved with the appropriate waste treatment facilities installed, if such assertion is not based on factors listed in subsection D of this section;

3. The user's ability to pay for the required waste treatment; or

4. The impact of a discharge on the quality of the POTW's receiving waters.

F. Local law. Nothing in this section shall be construed to impair the right of any locality under the Code of Virginia or § 510 of the CWA to impose more stringent limitations than required by federal law.

G. Application deadline.

1. Requests for a variance and supporting information must be submitted in writing to the department or to the administrator, as appropriate.

2. In order to be considered, a request for a variance must be submitted no later than 180 days after the date on which a categorical pretreatment standard is published in the Federal Register.

3. Where the user has requested a categorical determination pursuant to 9VAC25-31-780 A, the user may elect to await the results of the category determination before submitting a variance request under this section. Where the user so elects, he must submit the variance request within 30 days after a final decision has been made on the categorical determination pursuant to 9VAC25-31-780 A 4.

H. Contents submission. Written submissions for variance requests, whether made to the administrator or the department, must include:

1. The name and address of the person making the request;

2. Identification of the interest of the requester which is affected by the categorical pretreatment standard for which the variance is requested;

3. Identification of the POTW currently receiving the waste from the industrial user for which alternative discharge limits are requested;

4. Identification of the categorical pretreatment standards which are applicable to the industrial user;

5. A list of each pollutant or pollutant parameter for which an alternative discharge limit is sought;

6. The alternative discharge limits proposed by the requester for each pollutant or pollutant parameter identified in subdivision 5 of this subsection;

7. A description of the industrial user "s existing water pollution control facilities;

8. A schematic flow representation of the industrial user's water system including water supply, process wastewater systems, and points of discharge; and

9. A statement of facts clearly establishing why the variance request should be approved, including detailed support data, documentation, and evidence necessary to fully evaluate the merits of the request, e.g., technical and economic data collected by the EPA and used in developing each pollutant discharge limit in the pretreatment standard.

I. Deficient requests. The administrator or the director will only act on written requests for variances that contain all of the information required. Persons who have made incomplete submissions will be notified by the administrator or the director that their requests are deficient and unless the time period is extended, will be given up to 30 days to remedy the deficiency. If the deficiency is not corrected within the time period allowed by the administrator or the director, the request for a variance shall be denied.

J. Public notice. Upon receipt of a complete request, the administrator or the director will provide notice of receipt, opportunity to review the submission, and opportunity to comment.

1. The public notice shall be circulated in a manner designed to inform interested and potentially interested persons of the request. Procedures for the circulation of public notice shall include mailing, by electronic or postal delivery, notices to:

a. The POTW into which the industrial user requesting the variance discharges;

b. Adjoining states whose waters may be affected; and

c. Designated 208 planning agencies, federal and state fish, shellfish and wildlife resource agencies; and to any other person or group who has requested individual notice, including those on appropriate mailing lists.

2. The public notice shall provide for a period not less than 30 days following the date of the public notice during which time interested persons may review the request and submit their written views on the request.

3. Following the comment period, the administrator or the director will make a determination on the request taking into consideration any comments received. Notice of this final decision shall be provided to the requester (and the industrial user for which the variance is requested if different), the POTW into which the industrial user discharges and all persons who submitted comments on the request.

K. Review of requests.

1. Where the director finds that fundamentally different factors do not exist, he may deny the request and notify the requester (and industrial user where they are not the same) and the POTW of the denial.

2. Where the director finds that fundamentally different factors do exist, he shall forward the request, with a recommendation that the request be approved, to the administrator.

Part III
Public Involvement

9VAC25-32-140. Public notice of VPA permit action and public comment period.

A. Every draft VPA permit shall be given public notice, paid for by the owner, by publication once a week for two successive weeks in a newspaper of general circulation in the area affected by the pollutant management activity.

B. Interested persons shall have a period of at least 30 days following the date of the initial newspaper public notice to submit written comments on the tentative decision and to request a public hearing.

C. The contents of the public notice of an application for a VPA permit shall include:

1. The name and address of the applicant. If the location of the pollutant management activity differs from the address of the applicant the notice shall also state the location of the pollutant management activity including storage and land application sites;

2. A brief description of the business or activity conducted at the facility;

3. A statement of the tentative determination to issue or deny a VPA permit;

4. A brief description of the final determination procedure;

5. The address and phone number of a specific person at the state office from whom further information may be obtained; and

6. A brief description of how to submit comments and request a hearing.

D. 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.

E. Upon receipt of an application for a permit or for a modification of a permit, the board shall:

1. Cause to be notified, in writing, the locality wherein the pollutant management activity does or is proposed to take place. This notification shall, at a minimum, include:

a. The name of the applicant;

b. The nature of the application and proposed pollutant management activity; and

c. Upon request, any other information known to, or in the possession of, the board or the department regarding the application except as restricted by 9VAC25-32-150.

2. Establish a date for a public meeting to discuss technical issues relating to proposals for land application of biosolids or land disposal of treated sewage, stabilized sewage sludge or stabilized septage. The department shall give notice of the date, time, and place of the public meeting and a description of the proposal by publication in a newspaper of general circulation in the city or county where the proposal is to take place. Public notice of the scheduled meeting shall occur no fewer than seven or more than 14 days prior to the meeting. The board shall not issue the permit until the public meeting has been held and comment has been received from the local governing body or until 30 days have lapsed from the date of the public meeting.

F. Before issuing any permit, if the board finds that there are localities particularly affected by the permit, the board shall:

1. Publish, or require the applicant to publish, a notice in a local paper of general circulation in the localities affected at least 30 days prior to the close of any public comment period. Such notice shall contain a statement of the estimated local impact of the proposed permit, which at a minimum shall include information on the specific pollutants involved and the total quantity of each which may be discharged; and

2. Mail, by electronic or postal delivery, the notice to the chief elected official and chief administrative officer and planning district commission for those localities.

Written comments shall be accepted by the board for at least 15 days after any public hearing on the permit, unless the board votes to shorten the period. For the purposes of this section, the term "locality particularly affected" means any locality which bears any identified disproportionate material water quality impact which would not be experienced by other localities.

G. When a site is to be added to an existing permit authorizing land application of biosolids, the department shall notify persons residing on property bordering such site, and shall receive written comments from those persons for a period not to exceed 30 days. Based upon the written comments, the department shall determine whether additional site-specific requirements should be included in the authorization for land application at the site.

9VAC25-220-50. Notice of surface water management area.

A. The board shall cause notice of the declaration of a surface water management area to be published in a newspaper of general circulation throughout the area covered by the declaration.

B. The board shall mail, by electronic or postal delivery, a copy of its decision on the proposed declaration of a surface water management area to the mayor or chairman of the governing body of each county, city or town within which any part of the area lies, or which is known by the board to make offstream use of water from the area, and to the chief administrative officer of any federal facility known by the board to be using water from within the area.

9VAC25-220-80. Conditions applicable to all permits.

A. Duty to comply. The permittee shall comply with all conditions of the permit. Nothing in this chapter shall be construed to relieve the surface water withdrawal permit holder of the duty to comply with all applicable federal and state statutes, regulations, standards and prohibitions. Any permit noncompliance is a violation of the law, and is grounds for enforcement action, permit suspension, cancellation, revocation, modification or denial of a permit renewal application.

B. Duty to mitigate. The permittee shall take all reasonable steps to (i) avoid all adverse environmental impact which could result from the activity, (ii) where avoidance is impractical, minimize the adverse environmental impact, and (iii) where impacts cannot be avoided, provide mitigation of the adverse impact on an in-kind basis.

C. Permit action.

1. A permit may be modified, revoked, suspended, cancelled, reissued, or terminated as set forth in this chapter.

2. If a permittee files a request for permit modification, suspension or cancellation, or files a notification of planned changes, or anticipated noncompliance, the permit terms and conditions shall remain effective until the request is acted upon by the board. This provision shall not be used to extend the expiration date of the effective permit.

3. Permits may be modified, revoked and reissued or terminated upon the request of the permittee, or upon board initiative to reflect the requirements of any changes in the statutes or regulations.

D. Inspection and entry. Upon presentation of credentials, any duly authorized agent of the board may, at reasonable times and under reasonable circumstances:

1. Enter upon any permittee's property, public or private, and have access to, inspect and copy any records that must be kept as part of the permit conditions;

2. Inspect any facilities, operations or practices including monitoring and control equipment regulated or required under the permit.

E. Duty to provide information. The permittee shall furnish to the board, within a reasonable time, any information which the board may request to determine whether cause exists for modifying, reissuing, suspending and cancelling the permit, or to determine compliance with the permit. The permittee shall also furnish to the board, upon request, copies of records required to be kept by the permittee. This information shall be furnished to the board pursuant to § 62.1-244 of the Code of Virginia.

F. Monitoring and records requirements.

1. Monitoring shall be conducted according to approved methods as specified in the permit or as approved by the board;

2. Measurements taken for the purpose of monitoring shall be representative of the monitored activity;

3. The permittee shall retain records of all monitoring information, including all calibration and maintenance records and all original strip chart or electronic 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 expiration of a granted permit. This period may be extended by request of the board at any time.

4. Records of monitoring information shall include:

a. The date, exact place and time of measurements;

b. The name of the individuals who performed the measurements;

c. The date the measurements were compiled;

d. The name of the individuals who compiled the measurements;

e. The techniques or methods supporting the information such as observations, readings, calculations and bench data used; and

f. The results of such techniques or methods.

G. Permit conditions become applicable.

1. Permit conditions become applicable in a surface water management area upon notice by the board to each permittee by mail, by electronic or postal delivery, or cause notice of that to be published in a newspaper of general circulation throughout the area.

2. The board shall notify each permittee by mail or cause notice of that to be published in a newspaper of general circulation throughout the surface water management area when the declaration of water shortage is rescinded.

9VAC25-220-190. Public notice that permit conditions are in force.

A. When permit conditions become applicable in a surface water management area, the board shall notify each permittee by mail, electronic or postal delivery, or cause notice of it to be published in a newspaper of general circulation throughout the area.

B. The board shall notify each permittee by mail, electronic or postal delivery, or cause notice of it to be published in a newspaper of general circulation throughout the surface water management area when the declaration of water shortage is rescinded.

9VAC25-230-50. Disposition of requests for public hearing.

A. The executive secretary shall review all timely requests for public hearing filed in accordance with the provisions of 9VAC25-230-40, and within 30 calendar days following the expiration of the time period for the submission of requests shall grant a public hearing if he finds the following:

1. That there is a significant public interest in the issuance, denial, modification or revocation of the permit in question; and

2. That there are substantial, disputed issues relevant to the issuance, denial, modification or revocation of the permit in questions; and

3. That the action requested is not on its face inconsistent with, or in violation of, the Water Control Law, federal law or any regulation promulgated thereunder; or

4. That a public hearing is required by statute.

B. The executive secretary shall, forthwith, notify by mail, by electronic or postal delivery, at his last known address (i) each requester and (ii) the applicant or permittee of his decision to convene or deny a public hearing.

C. If the executive secretary determines to hold a public hearing, he shall schedule the hearing at a time between 30 and 60 days after mailing of the notice required by 9VAC25-230-50 B.

D. The executive secretary shall cause notice of a public hearing under Regulation 6 to be published as required by § 6.37. The executive secretary shall cause notice of any public hearing under Rule No. 2 or Rule No. 3, (9VAC25-240-10 et seq.) to be published as follows:

1. A notice of the hearing shall 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.

2. The notices mailed under 9VAC25-230-50B and published under 9VAC25-230-50D 1 shall contain the information specified in § 2.06 or 9VAC25-240-50, as appropriate, except that in the description of procedures for final determinations, the procedures for requesting a public hearing shall be replaced by a brief statement of the public hearing procedures and the issues upon which comment will be received.

E. In matters not related to the issuance, denial, modification, or revocation of a permit, the executive secretary may schedule public hearing upon his own motion in any location and upon any notice permitted by law.

9VAC25-230-90. Decision of the board following public hearing.

After the close of the informal hearing, the board shall make a final decision to issue, deny, modify or revoke the permit in question or take or not take any other action proposed. In making its decision the board shall consider the entire record of the proceeding, and any staff report. The decision of the board rendered after a public hearing must be reduced to writing and contain a statement of the basis upon which the decision was reached. Copies of the decision, certified by the executive secretary, shall be mailed by certified mail, in accordance with § 10.1-1183 of the Code of Virginia, to all parties to the hearing.

9VAC25-230-130. Petition for formal hearing.

A. The applicant or permittee or any person aggrieved by any action or inaction of the board or executive secretary with respect to a permit or arising out of the public hearing procedures outlined above may petition the executive secretary for the convening of a formal hearing as described in 9VAC25-230-100 and following. If filed by an aggrieved owner under § 62.1-44.25 of the Code of Virginia, the petition must be filed within 30 days of the mailing of notice of the action appealed from to that owner by certified mail in accordance with § 10.1-1183 of the Code of Virginia; otherwise the petition must be filed within 30 calendar days of the action appealed from. The executive secretary shall acknowledge in writing the receipt of all petitions for formal hearing.

B. The petition shall contain the following:

1. The names and addresses of the petitioner, the petitioner's counsel (if any) and all persons for whom the petitioner is acting as a representative (for the purposes of this requirement, an unincorporated association is a person);

2. A statement of the action appealed from;

3. A statement setting forth the interest of the petitioner and explaining how and to what extent the action appealed from will directly and adversely affect such interest;

4. A statement setting forth the errors alleged in the Board's action and the reasons why such action is deemed contrary to law;

5. A statement by the petitioner that, should its petition be granted and a hearing held pursuant thereto, the petitioner and all persons represented by the petitioner in connection with the appeal will be available, without cost to any other party, to appear at such hearing; and

6. A statement setting forth the specific relief requested.

C. The executive secretary shall consider all petitions filed in accordance with 9VAC25-230-130, and shall authorize the convening of a formal hearing if he finds that:

1. A petition meeting the requirements of 9VAC25-230-130 B has been filed by the applicant or permittee or any owner having the right to demand a hearing under § 62.1-44.25 of the Code of Virginia; or

2. A petition meeting the requirements of 9VAC25-230-130 B has been filed by a person other than the applicant or permittee, and the petition raises genuine and substantial issues of law or fact which, if resolved adversely to the petitioner, would result in an injury to an interest of the petitioner. The executive secretary also may authorize a formal hearing on his own motion.

D. The executive secretary shall notify the applicant or permittee, all other petitioners, and all persons who presented testimony or views at the public hearing by mail, electronic or postal delivery, of his decision to authorize or deny a hearing. Should a hearing be authorized, he shall at the same time notify the applicant or permittee and all petitioners for a formal hearing of the date and place of the hearing and advise them of the assertions of fact and law made by the petitioners. The hearing shall be scheduled to be held not less than 30, nor more than 60 days from the date of such notice. When the executive secretary authorizes a hearing on his own motion, he shall give at least 30 days' notice by certified mail to the affected applicant, permittee or proposed recipient of a special order. Except for special order hearings, the executive secretary shall further give notice by newspaper publication.

E. The executive secretary may at the request of the applicant, permittee, or any party reschedule the date for the formal hearing. The executive secretary will promptly notify all parties of any rescheduled hearing date.

9VAC25-230-140. Petition to become a party to a formal hearing.

A. Any person may, at any time after a petition for formal hearing has been filed or the executive secretary has authorized a formal hearing on his own motion, but not more than 15 days after mailing, by electronic or postal delivery, or publication of notice, whichever is later, of the executive secretary's decision to authorize a formal hearing, petition the executive secretary to become a party to the formal hearing. The executive secretary shall acknowledge in writing the receipt of all petitions to become a party. A petition for a hearing filed in accordance with 9VAC25-230-130 shall also be deemed a petition to be a party to any hearing that may be authorized in accordance with such petition.

1. The petition to become a party shall contain the following:

a. The names and addresses of the petitioner, the petitioner's counsel (if any) and all persons for whom the petitioner is acting as a representative;

b. A statement setting forth the interest of the petitioner in the matter;

c. A statement by the petitioner that, should its petition be granted, the petitioner and all persons represented by the petitioner in connection with the hearing will be available, without cost to any other party, to appear at the hearing;

d. A statement setting forth the position of the petitioner with respect to any errors alleged in the petition for hearing; and

e. A statement setting forth any cross- errors alleged in the board's action.

2. The executive secretary shall consider all petitions filed in accordance herewith, and shall grant those petitions that both:

a. Meet the requirements of subsection 1 above; and

b. Raise one or more genuine and substantial issues in the petition for hearing, or cite one or more issues in the hearing notice, which, if resolved adversely to the petitioner, would result in an injury to an interest of the petitioner.

3. The executive secretary shall notify the applicant or permittee, and all other parties by mail, electronic or postal delivery, of his decision to grant or deny a petition to become a party.

9VAC25-230-170. Record of proceedings, proposed findings and conclusions from formal hearing.

A. A verbatim record of the hearing shall be made by a court reporter. The executive secretary or his designee shall act as custodian of the record, which shall include the transcript along with all written testimony, arguments, exhibits, reports, studies, and documents or written material of any kind submitted by the staff or the parties and admitted under 9VAC25-230-150 and 9VAC25-230-160, and offers of proof placed in the record under 9VAC25-230-160 C. A copy of the record shall be maintained for public inspection at the board's headquarters in Richmond. Where a subordinate hearing officer presides over the hearing, he shall promptly certify the original record as the true and official transcript of the proceedings, including a statement that the evidence contained in it and the exhibits to it appended represent all of the testimony offered and received into evidence at the hearing.

B. When the hearing is before the board, parties to the hearing may submit proposed findings of fact, conclusions of law and a statement of reasons therefore to the board. Such proposed findings shall be in writing, shall cite relevant authority, and shall be submitted prior to or at the hearing unless the board specifically allows submission after the hearing.

C. When the hearing is not before the full board, parties to the hearing may present oral arguments to the hearing officer and may submit proposed findings of fact, conclusions of law and a statement of reasons therefore to the executive secretary. Such proposed findings, conclusions and statement shall be in writing, shall cite relevant authority, and shall be submitted at a time prescribed by the hearing officer, which shall not be later than ten days after the hearing unless otherwise authorized by the hearing officer. The hearing officer shall consider the proposed findings, conclusions and statements timely submitted by the parties. He shall prepare his own recommended findings and decision and, promptly after the close of the hearing, transmit them to the board along with the hearing record. At the time of transmittal of the record, the hearing officer shall mail, by electronic or postal delivery, copies of his recommended findings and decision to the parties. The board will receive and act upon exceptions to those recommended findings and conclusions for 21 days after their mailing, by electronic or postal delivery, to the parties. The proposed findings and conclusions submitted by any party are advisory only, and shall not be binding on the hearing officer or the board. But they shall be included in the hearing record and the board and the hearing officer shall be required to consider them in making any decision under this.

VA.R. Doc. No. R13-3715; Filed June 26, 2013, 3:57 p.m.