Title of Regulation: 9VAC25-31. Virginia Pollutant Discharge Elimination System (VPDES) Permit Regulation (amending 9VAC25-31-940).

Statutory Authority: § 62.1-44.15 of the Code of Virginia; § 402 of the Clean Water Act; 40 CFR Parts 122, 123, 124, 403, and 503.

Effective Date: September 28, 2011.

Agency Contact: Melissa Porterfield, Department of Environmental Quality, 629 East Main Street, P.O. Box 1105, Richmond, VA 23218, telephone (804) 698-4238, FAX (804) 698-4346, or email melissa.porterfield@deq.virginia.gov.

Summary:

In conformance with Chapter 252 of the 2011 Acts of Assembly, the amendments remove references to the delegation of authority from the State Water Control Board to the Director to the Department of Mines, Minerals and Energy to issue Virginia Pollutant Discharge Elimination System (VPDES) permits related to coal surface mining. The statute was recently revised to clarify that the Director of the Department of Mines, Minerals and Energy has the authority to issue VPDES permits for coal surface mining operations. This regulatory change does not impact the current process that is used to issue VPDES permits to coal surface mining operations.

Part X
Delegation of Permitting and Enforcement Authority

9VAC25-31-940. Delegation of authority to Authority of the Department of Mines, Minerals and Energy for coal surface mining operations.

For the purpose of Part X of this chapter, NPDES and VPDES permits are synonymous.

A. The board pursuant to § 45.1-254 of the Code of Virginia hereby delegates to the The Director of the Department of Mines, Minerals and Energy (DMME), Division of Mined Land Reclamation (DMLR) or its authorized agents its has the authority to issue, revoke and reissue, modify, or terminate NPDES permits for the discharge of industrial wastes or other wastes other than sewage from coal surface mining operations as defined in § 45.1-229 of the Code of Virginia. Any NPDES permit issued, modified, or revoked and reissued, under this delegation by the Director of DMME that meets the conditions set forth in this chapter shall be as valid and enforceable as if issued by the board.

B. The delegation of authority contained in subsection A of this section is conditioned upon compliance with the following provisions Prior to issuing permits, the Director of DMME shall adhere to the following requirements:

1. That every permit issued, revoked and reissued, or modified shall conform to the requirements of this chapter, the CWA, and all pertinent regulations adopted by the board under law and those adopted under the CWA;

2. That the DMLR Director of DMME shall transmit to the department a copy of each application for a NPDES permit received by it, a copy of every draft NPDES permit prepared by it, and written notice of every action taken or contemplated to be taken by the DMLR Director of DMME with respect to such a permit; and

3. That no NPDES permit shall be issued, revoked and reissued, or modified if, within 30 days of the date of the transmittal to the department of the complete application and the draft NPDES permit to it, the board objects in writing to the issuance, revocation and reissuance, or modification of such permit. Where required, the board shall stipulate more stringent permit conditions as necessary to maintain applicable water quality standards and provisions of the law. Each such stipulation shall be accompanied by a justifying documentation to the DMLR Director of DMME. Such stipulations shall be binding upon the DMLR Director of DMME. However, nothing herein shall affect or impair any rights that the applicant may have to a public hearing before the board pursuant to the law or to judicial review of such decision pursuant to the law.

C. The board hereby delegates to the DMLR its authority to Director of DMME shall enforce NPDES permits issued to coal surface mining operations for the discharge of industrial wastes and other wastes; provided, however, that the board reserves the right to assert its enforcement authority as provided in § 45.1-254 E F of the Code of Virginia and provided further that the board reserves the right to take emergency enforcement action where the DMLR Director of DMME has not taken or cannot take effective emergency enforcement action.