REGULATIONS
Vol. 25 Iss. 5 - November 10, 2008

TITLE 2. AGRICULTURE
PESTICIDE CONTROL BOARD
Final Regulation

REGISTRAR'S NOTICE: The following model public participation guidelines are exempt from Article 2 (§ 2.2-4006 et seq.) of Chapter 40 of Title 2.2 of the Code of Virginia pursuant to Chapter 321 of the 2008 Acts of Assembly.

Titles of Regulations: 2VAC20-10. Public Participation Guidelines (repealing 2VAC20-10-10 through 2VAC20-10-120).

2VAC20-11. Public Participation Guidelines (adding 2VAC20-11-10 through 2VAC20-11-110).

Statutory Authority: §§ 2.2-4007.02 and 3.2-3906 of the Code of Virginia.

Effective Date: December 10, 2008.

Agency Contact: Liza Fleeson, Program Manager, Department of Agriculture and Consumer Services, P.O. Box 1163, Richmond, VA 23218, telephone (804) 371-6559, FAX (804) 786-9149, TTY (800) 828-1120, or email liza.fleeson@vdacs.virginia.gov.

Summary:

The regulations comply with the legislative mandate (Chapter 321, 2008 Acts of Assembly) that agencies adopt model public participation guidelines issued by the Department of Planning and Budget by December 1, 2008. Public participation guidelines exist to promote public involvement in the development, amendment, or repeal of an agency's regulations.

This regulatory action repeals the current public participation guidelines and promulgates new public participation guidelines as required by Chapter 321 of the 2008 Acts of Assembly. Highlights of the public participation guidelines include (i) providing for the establishment and maintenance of notification lists of interested persons and specifying the information to be sent to such persons; (ii) providing for public comments on regulatory actions; (iii) establishing the time period during which public comments shall be accepted; (iv) providing that the plan to hold a public meeting shall be indicated in any notice of intended regulatory action; (v) providing for the appointment, when necessary, of regulatory advisory panels to provide professional specialization or technical assistance and negotiated rulemaking panels if a regulatory action is expected to be controversial; and (vi) providing for the periodic review of regulations.

CHAPTER 11
PUBLIC PARTICIPATION GUIDELINES

Part I
Purpose and Definitions

2VAC20-11-10. Purpose.

The purpose of this chapter is to promote public involvement in the development, amendment or repeal of the regulations of the Pesticide Control Board. This chapter does not apply to regulations, guidelines, or other documents exempted or excluded from the provisions of the Administrative Process Act (§ 2.2-4000 et seq. of the Code of Virginia).

2VAC20-11-20. Definitions.

The following words and terms when used in this chapter shall have the following meanings unless the context clearly indicates otherwise:

"Administrative Process Act" means Chapter 40 (§ 2.2-4000 et seq.) of Title 2.2 of the Code of Virginia.

"Agency" means the Pesticide Control Board, which is the unit of state government empowered by the agency's basic law to make regulations or decide cases. Actions specified in this chapter may be fulfilled by state employees as delegated by the agency.

"Basic law" means provisions in the Code of Virginia that delineate the basic authority and responsibilities of an agency.

"Commonwealth Calendar" means the electronic calendar for official government meetings open to the public as required by § 2.2-3707 C of the Freedom of Information Act.

''Negotiated rulemaking panel'' or ''NRP'' means an ad hoc advisory panel of interested parties established by an agency to consider issues that are controversial with the assistance of a facilitator or mediator, for the purpose of reaching a consensus in the development of a proposed regulatory action.

"Notification list" means a list used to notify persons pursuant to this chapter. Such a list may include an electronic list maintained through the Virginia Regulatory Town Hall or other list maintained by the agency.

"Open meeting" means any scheduled gathering of a unit of state government empowered by an agency's basic law to make regulations or decide cases, which is related to promulgating, amending or repealing a regulation.

"Person" means any individual, corporation, partnership, association, cooperative, limited liability company, trust, joint venture, government, political subdivision, or any other legal or commercial entity and any successor, representative, agent, agency, or instrumentality thereof.

"Public hearing" means a scheduled time at which members or staff of the agency will meet for the purpose of receiving public comment on a regulatory action.

"Regulation" means any statement of general application having the force of law, affecting the rights or conduct of any person, adopted by the agency in accordance with the authority conferred on it by applicable laws.

"Regulatory action" means the promulgation, amendment, or repeal of a regulation by the agency.

"Regulatory advisory panel" or "RAP" means a standing or ad hoc advisory panel of interested parties established by the agency for the purpose of assisting in regulatory actions.

"Town Hall" means the Virginia Regulatory Town Hall, the website operated by the Virginia Department of Planning and Budget at www.townhall.virginia.gov, which has online public comment forums and displays information about regulatory meetings and regulatory actions under consideration in Virginia and sends this information to registered public users.

"Virginia Register" means the Virginia Register of Regulations, the publication that provides official legal notice of new, amended and repealed regulations of state agencies, which is published under the provisions of Article 6 (§ 2.2-4031 et seq.) of the Administrative Process Act.

Part II
Notification of Interested Persons

2VAC20-11-30. Notification list.

A. The agency shall maintain a list of persons who have requested to be notified of regulatory actions being pursued by the agency.

B. Any person may request to be placed on a notification list by registering as a public user on the Town Hall or by making a request to the agency. Any person who requests to be placed on a notification list shall elect to be notified either by electronic means or through a postal carrier.

C. The agency may maintain additional lists for persons who have requested to be informed of specific regulatory issues, proposals, or actions.

D. When electronic mail is returned as undeliverable on multiple occasions at least 24 hours apart, that person may be deleted from the list. A single undeliverable message is insufficient cause to delete the person from the list.

E. When mail delivered by a postal carrier is returned as undeliverable on multiple occasions, that person may be deleted from the list.

F. The agency may periodically request those persons on the notification list to indicate their desire to either continue to be notified electronically, receive documents through a postal carrier, or be deleted from the list.

2VAC20-11-40. Information to be sent to persons on the notification list.

A. To persons electing to receive electronic notification or notification through a postal carrier as described in 2VAC20-11-30, the agency shall send the following information:

1. A notice of intended regulatory action (NOIRA).

2. A notice of the comment period on a proposed, a reproposed, or a fast-track regulation and hyperlinks to, or instructions on how to obtain, a copy of the regulation and any supporting documents.

3. A notice soliciting comment on a final regulation when the regulatory process has been extended pursuant to § 2.2-4007.06 or 2.2-4013 C of the Code of Virginia.

B. The failure of any person to receive any notice or copies of any documents shall not affect the validity of any regulation or regulatory action.

Part III
Public Participation Procedures

2VAC20-11-50. Public comment.

A. In considering any nonemergency, nonexempt regulatory action, the agency shall afford interested persons an opportunity to submit data, views, and arguments, either orally or in writing, to the agency. Such opportunity to comment shall include an online public comment forum on the Town Hall.

1. To any requesting person, the agency shall provide copies of the statement of basis, purpose, substance, and issues; the economic impact analysis of the proposed or fast-track regulatory action; and the agency's response to public comments received.

2. The agency may begin crafting a regulatory action prior to or during any opportunities it provides to the public to submit comments.

B. The agency shall accept public comments in writing after the publication of a regulatory action in the Virginia Register as follows:

1. For a minimum of 30 calendar days following the publication of the notice of intended regulatory action (NOIRA).

2. For a minimum of 60 calendar days following the publication of a proposed regulation.

3. For a minimum of 30 calendar days following the publication of a reproposed regulation.

4. For a minimum of 30 calendar days following the publication of a final adopted regulation.

5. For a minimum of 30 calendar days following the publication of a fast-track regulation.

6. For a minimum of 21 calendar days following the publication of a notice of periodic review.

7. Not later than 21 calendar days following the publication of a petition for rulemaking.

C. The agency may determine if any of the comment periods listed in subsection B of this section shall be extended.

D. If the Governor finds that one or more changes with substantial impact have been made to a proposed regulation, he may require the agency to provide an additional 30 calendar days to solicit additional public comment on the changes in accordance with § 2.2-4013 C of the Code of Virginia.

E. The agency shall send a draft of the agency's summary description of public comment to all public commenters on the proposed regulation at least five days before final adoption of the regulation pursuant to § 2.2-4012 E of the Code of Virginia.

2VAC20-11-60. Petition for rulemaking.

A. As provided in § 2.2-4007 of the Code of Virginia, any person may petition the agency to consider a regulatory action.

B. A petition shall include but is not limited to the following information:

1. The petitioner's name and contact information;

2. The substance and purpose of the rulemaking that is requested, including reference to any applicable Virginia Administrative Code sections; and

3. Reference to the legal authority of the agency to take the action requested.

C. The agency shall receive, consider and respond to a petition pursuant to § 2.2-4007 and shall have the sole authority to dispose of the petition.

D. The petition shall be posted on the Town Hall and published in the Virginia Register.

E. Nothing in this chapter shall prohibit the agency from receiving information or from proceeding on its own motion for rulemaking.

2VAC20-11-70. Appointment of regulatory advisory panel.

A. The agency may appoint a regulatory advisory panel (RAP) to provide professional specialization or technical assistance when the agency determines that such expertise is necessary to address a specific regulatory issue or action or when individuals indicate an interest in working with the agency on a specific regulatory issue or action.

B. Any person may request the appointment of a RAP and request to participate in its activities. The agency shall determine when a RAP shall be appointed and the composition of the RAP.

C. A RAP may be dissolved by the agency if:

1. The proposed text of the regulation is posted on the Town Hall, published in the Virginia Register, or such other time as the agency determines is appropriate; or

2. The agency determines that the regulatory action is either exempt or excluded from the requirements of the Administrative Process Act.

2VAC20-11-80. Appointment of negotiated rulemaking panel.

A. The agency may appoint a negotiated rulemaking panel (NRP) if a regulatory action is expected to be controversial.

B. An NRP that has been appointed by the agency may be dissolved by the agency when:

1. There is no longer controversy associated with the development of the regulation;

2. The agency determines that the regulatory action is either exempt or excluded from the requirements of the Administrative Process Act; or

3. The agency determines that resolution of a controversy is unlikely.

2VAC20-11-90. Meetings.

Notice of any open meeting, including meetings of a RAP or NRP, shall be posted on the Virginia Regulatory Town Hall and Commonwealth Calendar at least seven working days prior to the date of the meeting. The exception to this requirement is any meeting held in accordance with § 2.2-3707 D of the Code of Virginia allowing for contemporaneous notice to be provided to participants and the public.

2VAC20-11-100. Public hearings on regulations.

A. The agency shall indicate in its notice of intended regulatory action whether it plans to hold a public hearing following the publication of the proposed stage of the regulatory action.

B. The agency may conduct one or more public hearings during the comment period following the publication of a proposed regulatory action.

C. An agency is required to hold a public hearing following the publication of the proposed regulatory action when:

1. The agency's basic law requires the agency to hold a public hearing;

2. The Governor directs the agency to hold a public hearing; or

3. The agency receives requests for a public hearing from at least 25 persons during the public comment period following the publication of the notice of intended regulatory action.

D. Notice of any public hearing shall be posted on the Town Hall and Commonwealth Calendar at least seven working days prior to the date of the hearing. The agency shall also notify those persons who requested a hearing under subdivision C 3 of this section.

2VAC20-11-110. Periodic review of regulations.

A. The agency shall conduct a periodic review of its regulations consistent with:

1. An executive order issued by the Governor pursuant to § 2.2-4017 of the Administrative Process Act to receive comment on all existing regulations as to their effectiveness, efficiency, necessity, clarity, and cost of compliance; and

2. The requirements in § 2.2-4007.1 of the Administrative Process Act regarding regulatory flexibility for small businesses.

B. A periodic review may be conducted separately or in conjunction with other regulatory actions.

C. Notice of a periodic review shall be posted on the Town Hall and published in the Virginia Register.

VA.R. Doc. No. R09-1424; Filed October 20, 2008, 2:19 p.m.
TITLE 2. AGRICULTURE
PESTICIDE CONTROL BOARD
Final Regulation

REGISTRAR'S NOTICE: The following model public participation guidelines are exempt from Article 2 (§ 2.2-4006 et seq.) of Chapter 40 of Title 2.2 of the Code of Virginia pursuant to Chapter 321 of the 2008 Acts of Assembly.

Titles of Regulations: 2VAC20-10. Public Participation Guidelines (repealing 2VAC20-10-10 through 2VAC20-10-120).

2VAC20-11. Public Participation Guidelines (adding 2VAC20-11-10 through 2VAC20-11-110).

Statutory Authority: §§ 2.2-4007.02 and 3.2-3906 of the Code of Virginia.

Effective Date: December 10, 2008.

Agency Contact: Liza Fleeson, Program Manager, Department of Agriculture and Consumer Services, P.O. Box 1163, Richmond, VA 23218, telephone (804) 371-6559, FAX (804) 786-9149, TTY (800) 828-1120, or email liza.fleeson@vdacs.virginia.gov.

Summary:

The regulations comply with the legislative mandate (Chapter 321, 2008 Acts of Assembly) that agencies adopt model public participation guidelines issued by the Department of Planning and Budget by December 1, 2008. Public participation guidelines exist to promote public involvement in the development, amendment, or repeal of an agency's regulations.

This regulatory action repeals the current public participation guidelines and promulgates new public participation guidelines as required by Chapter 321 of the 2008 Acts of Assembly. Highlights of the public participation guidelines include (i) providing for the establishment and maintenance of notification lists of interested persons and specifying the information to be sent to such persons; (ii) providing for public comments on regulatory actions; (iii) establishing the time period during which public comments shall be accepted; (iv) providing that the plan to hold a public meeting shall be indicated in any notice of intended regulatory action; (v) providing for the appointment, when necessary, of regulatory advisory panels to provide professional specialization or technical assistance and negotiated rulemaking panels if a regulatory action is expected to be controversial; and (vi) providing for the periodic review of regulations.

CHAPTER 11
PUBLIC PARTICIPATION GUIDELINES

Part I
Purpose and Definitions

2VAC20-11-10. Purpose.

The purpose of this chapter is to promote public involvement in the development, amendment or repeal of the regulations of the Pesticide Control Board. This chapter does not apply to regulations, guidelines, or other documents exempted or excluded from the provisions of the Administrative Process Act (§ 2.2-4000 et seq. of the Code of Virginia).

2VAC20-11-20. Definitions.

The following words and terms when used in this chapter shall have the following meanings unless the context clearly indicates otherwise:

"Administrative Process Act" means Chapter 40 (§ 2.2-4000 et seq.) of Title 2.2 of the Code of Virginia.

"Agency" means the Pesticide Control Board, which is the unit of state government empowered by the agency's basic law to make regulations or decide cases. Actions specified in this chapter may be fulfilled by state employees as delegated by the agency.

"Basic law" means provisions in the Code of Virginia that delineate the basic authority and responsibilities of an agency.

"Commonwealth Calendar" means the electronic calendar for official government meetings open to the public as required by § 2.2-3707 C of the Freedom of Information Act.

''Negotiated rulemaking panel'' or ''NRP'' means an ad hoc advisory panel of interested parties established by an agency to consider issues that are controversial with the assistance of a facilitator or mediator, for the purpose of reaching a consensus in the development of a proposed regulatory action.

"Notification list" means a list used to notify persons pursuant to this chapter. Such a list may include an electronic list maintained through the Virginia Regulatory Town Hall or other list maintained by the agency.

"Open meeting" means any scheduled gathering of a unit of state government empowered by an agency's basic law to make regulations or decide cases, which is related to promulgating, amending or repealing a regulation.

"Person" means any individual, corporation, partnership, association, cooperative, limited liability company, trust, joint venture, government, political subdivision, or any other legal or commercial entity and any successor, representative, agent, agency, or instrumentality thereof.

"Public hearing" means a scheduled time at which members or staff of the agency will meet for the purpose of receiving public comment on a regulatory action.

"Regulation" means any statement of general application having the force of law, affecting the rights or conduct of any person, adopted by the agency in accordance with the authority conferred on it by applicable laws.

"Regulatory action" means the promulgation, amendment, or repeal of a regulation by the agency.

"Regulatory advisory panel" or "RAP" means a standing or ad hoc advisory panel of interested parties established by the agency for the purpose of assisting in regulatory actions.

"Town Hall" means the Virginia Regulatory Town Hall, the website operated by the Virginia Department of Planning and Budget at www.townhall.virginia.gov, which has online public comment forums and displays information about regulatory meetings and regulatory actions under consideration in Virginia and sends this information to registered public users.

"Virginia Register" means the Virginia Register of Regulations, the publication that provides official legal notice of new, amended and repealed regulations of state agencies, which is published under the provisions of Article 6 (§ 2.2-4031 et seq.) of the Administrative Process Act.

Part II
Notification of Interested Persons

2VAC20-11-30. Notification list.

A. The agency shall maintain a list of persons who have requested to be notified of regulatory actions being pursued by the agency.

B. Any person may request to be placed on a notification list by registering as a public user on the Town Hall or by making a request to the agency. Any person who requests to be placed on a notification list shall elect to be notified either by electronic means or through a postal carrier.

C. The agency may maintain additional lists for persons who have requested to be informed of specific regulatory issues, proposals, or actions.

D. When electronic mail is returned as undeliverable on multiple occasions at least 24 hours apart, that person may be deleted from the list. A single undeliverable message is insufficient cause to delete the person from the list.

E. When mail delivered by a postal carrier is returned as undeliverable on multiple occasions, that person may be deleted from the list.

F. The agency may periodically request those persons on the notification list to indicate their desire to either continue to be notified electronically, receive documents through a postal carrier, or be deleted from the list.

2VAC20-11-40. Information to be sent to persons on the notification list.

A. To persons electing to receive electronic notification or notification through a postal carrier as described in 2VAC20-11-30, the agency shall send the following information:

1. A notice of intended regulatory action (NOIRA).

2. A notice of the comment period on a proposed, a reproposed, or a fast-track regulation and hyperlinks to, or instructions on how to obtain, a copy of the regulation and any supporting documents.

3. A notice soliciting comment on a final regulation when the regulatory process has been extended pursuant to § 2.2-4007.06 or 2.2-4013 C of the Code of Virginia.

B. The failure of any person to receive any notice or copies of any documents shall not affect the validity of any regulation or regulatory action.

Part III
Public Participation Procedures

2VAC20-11-50. Public comment.

A. In considering any nonemergency, nonexempt regulatory action, the agency shall afford interested persons an opportunity to submit data, views, and arguments, either orally or in writing, to the agency. Such opportunity to comment shall include an online public comment forum on the Town Hall.

1. To any requesting person, the agency shall provide copies of the statement of basis, purpose, substance, and issues; the economic impact analysis of the proposed or fast-track regulatory action; and the agency's response to public comments received.

2. The agency may begin crafting a regulatory action prior to or during any opportunities it provides to the public to submit comments.

B. The agency shall accept public comments in writing after the publication of a regulatory action in the Virginia Register as follows:

1. For a minimum of 30 calendar days following the publication of the notice of intended regulatory action (NOIRA).

2. For a minimum of 60 calendar days following the publication of a proposed regulation.

3. For a minimum of 30 calendar days following the publication of a reproposed regulation.

4. For a minimum of 30 calendar days following the publication of a final adopted regulation.

5. For a minimum of 30 calendar days following the publication of a fast-track regulation.

6. For a minimum of 21 calendar days following the publication of a notice of periodic review.

7. Not later than 21 calendar days following the publication of a petition for rulemaking.

C. The agency may determine if any of the comment periods listed in subsection B of this section shall be extended.

D. If the Governor finds that one or more changes with substantial impact have been made to a proposed regulation, he may require the agency to provide an additional 30 calendar days to solicit additional public comment on the changes in accordance with § 2.2-4013 C of the Code of Virginia.

E. The agency shall send a draft of the agency's summary description of public comment to all public commenters on the proposed regulation at least five days before final adoption of the regulation pursuant to § 2.2-4012 E of the Code of Virginia.

2VAC20-11-60. Petition for rulemaking.

A. As provided in § 2.2-4007 of the Code of Virginia, any person may petition the agency to consider a regulatory action.

B. A petition shall include but is not limited to the following information:

1. The petitioner's name and contact information;

2. The substance and purpose of the rulemaking that is requested, including reference to any applicable Virginia Administrative Code sections; and

3. Reference to the legal authority of the agency to take the action requested.

C. The agency shall receive, consider and respond to a petition pursuant to § 2.2-4007 and shall have the sole authority to dispose of the petition.

D. The petition shall be posted on the Town Hall and published in the Virginia Register.

E. Nothing in this chapter shall prohibit the agency from receiving information or from proceeding on its own motion for rulemaking.

2VAC20-11-70. Appointment of regulatory advisory panel.

A. The agency may appoint a regulatory advisory panel (RAP) to provide professional specialization or technical assistance when the agency determines that such expertise is necessary to address a specific regulatory issue or action or when individuals indicate an interest in working with the agency on a specific regulatory issue or action.

B. Any person may request the appointment of a RAP and request to participate in its activities. The agency shall determine when a RAP shall be appointed and the composition of the RAP.

C. A RAP may be dissolved by the agency if:

1. The proposed text of the regulation is posted on the Town Hall, published in the Virginia Register, or such other time as the agency determines is appropriate; or

2. The agency determines that the regulatory action is either exempt or excluded from the requirements of the Administrative Process Act.

2VAC20-11-80. Appointment of negotiated rulemaking panel.

A. The agency may appoint a negotiated rulemaking panel (NRP) if a regulatory action is expected to be controversial.

B. An NRP that has been appointed by the agency may be dissolved by the agency when:

1. There is no longer controversy associated with the development of the regulation;

2. The agency determines that the regulatory action is either exempt or excluded from the requirements of the Administrative Process Act; or

3. The agency determines that resolution of a controversy is unlikely.

2VAC20-11-90. Meetings.

Notice of any open meeting, including meetings of a RAP or NRP, shall be posted on the Virginia Regulatory Town Hall and Commonwealth Calendar at least seven working days prior to the date of the meeting. The exception to this requirement is any meeting held in accordance with § 2.2-3707 D of the Code of Virginia allowing for contemporaneous notice to be provided to participants and the public.

2VAC20-11-100. Public hearings on regulations.

A. The agency shall indicate in its notice of intended regulatory action whether it plans to hold a public hearing following the publication of the proposed stage of the regulatory action.

B. The agency may conduct one or more public hearings during the comment period following the publication of a proposed regulatory action.

C. An agency is required to hold a public hearing following the publication of the proposed regulatory action when:

1. The agency's basic law requires the agency to hold a public hearing;

2. The Governor directs the agency to hold a public hearing; or

3. The agency receives requests for a public hearing from at least 25 persons during the public comment period following the publication of the notice of intended regulatory action.

D. Notice of any public hearing shall be posted on the Town Hall and Commonwealth Calendar at least seven working days prior to the date of the hearing. The agency shall also notify those persons who requested a hearing under subdivision C 3 of this section.

2VAC20-11-110. Periodic review of regulations.

A. The agency shall conduct a periodic review of its regulations consistent with:

1. An executive order issued by the Governor pursuant to § 2.2-4017 of the Administrative Process Act to receive comment on all existing regulations as to their effectiveness, efficiency, necessity, clarity, and cost of compliance; and

2. The requirements in § 2.2-4007.1 of the Administrative Process Act regarding regulatory flexibility for small businesses.

B. A periodic review may be conducted separately or in conjunction with other regulatory actions.

C. Notice of a periodic review shall be posted on the Town Hall and published in the Virginia Register.

VA.R. Doc. No. R09-1424; Filed October 20, 2008, 2:19 p.m.
TITLE 4. CONSERVATION AND NATURAL RESOURCES
DEPARTMENT OF MINES, MINERALS AND ENERGY
Fast-Track Regulation

Titles of Regulations: 4VAC25-10. Public Participation Guidelines (repealing 4VAC25-10-10 through 4VAC25-10-90).

4VAC25-11. Public Participation Guidelines (adding 4VAC25-11-10 through 4VAC25-11-120).

Statutory Authority: §§ 2.2-4007.02, 45.1-161.3, 45.1-161.28, and 45.1-161.292:19 and 45.1-361.15 of the Code of Virginia.

Public Hearing Information: No public hearings are scheduled.

Public Comments: Public comments may be submitted until December 10, 2008.

Effective Date: December 25, 2008.

Agency Contact: David Spears, Regulatory Coordinator, Department of Mines, Minerals and Energy, 202 N. Ninth Street, 8th Floor, Richmond, VA 23219-3402, telephone (804) 692-3212, FAX (804) 692-3237, TTY (800) 828-1120, or email david.spears@dmme.virginia.gov.

Basis: Section 2.2-4007.02 of the Code of Virginia requires agencies to develop and adopt public participation guidelines for soliciting the input of interested parties in the formation and development of its regulations.

Section 45.1-161.3 of the Code of Virginia authorizes the department, Chief of the Division of Mines, or department director, as appropriate, to promulgate regulations necessary or incidental to the performance of duties or execution of powers conferred under Title 45.1 and other relevant chapters.

Section 45.1-161.28 of the Code of Virginia authorizes the Board of Coal Mining Examiners to promulgate regulations necessary or incidental to the performance of duties or execution of powers conferred under Title 45.1.

Section 45.1-161.292:19 of the Code of Virginia authorizes the Board of Mineral Mining Examiners to promulgate regulations necessary or incidental to the performance of duties or execution of powers conferred under Title 45.1.

Section 45.1-361.15 of the Code of Virginia authorizes the Virginia Gas and Oil Board to promulgate regulations necessary or incidental to the performance of duties or execution of powers conferred under Title 45.1.

Purpose: This action is being taken pursuant to Chapter 321 of the 2008 Acts of Assembly, which requires every rulemaking body in the Commonwealth to adopt the model public participation guidelines. The agency has no discretion in this matter.

Rationale for using fast-track process: This action is expected to be noncontroversial because it is mandated by the Virginia General Assembly.

Substance: This action repeals the entire chapter, 4VAC25-10, Public Participation Guidelines, and replaces it with a new chapter, 4VAC25-11, Public Participation Guidelines, as required by Chapter 321 of the 2008 Acts of Assembly. The new chapter has substantially similar provisions to the original chapter, and is based on the model public participation guidelines developed by the Department of Planning and Budget, with one exception. DMME has added one section to the model guidelines, "Agency secretary for purpose of appeal," a section carried over from the agency’s existing guidelines. This section defines who in the agency shall act as "agency secretary" for appeals of regulatory or case decisions pursuant to Rule 2A:2 of the Supreme Court of Virginia.

Issues: The model public participation guidelines will provide advantages to the public in the form of more consistent public participation requirements for agencies in the rulemaking process. No disadvantages are anticipated for the public, the agency, or the Commonwealth.

Department of Planning and Budget's Economic Impact Analysis:

Summary of the Proposed Amendments to Regulation. The Department of Mines, Minerals and Energy (DMME) proposes to adopt the model public participation guidelines developed by the Department of Planning and Budget in consultation with the Office of the Attorney General (as required by Chapter 321 of the 2008 Acts of Assembly), with one amendment; DMME proposes to add a section defining "Agency secretary for purpose of appeal." This section is part of the agency’s current PPGs.

Result of Analysis. The benefits likely exceed the costs for all proposed changes.

Estimated Economic Impact. Pursuant to Chapter 321 of the 2008 Acts of Assembly, the Department of Planning and Budget, in consultation with the Office of the Attorney General, (i) developed model public participation guidelines (PPGs) and (ii) provided these model PPGs to each agency that has the authority to promulgate regulations. Chapter 321 requires that by December 1, 2008, each agency shall either (a) adopt the model public participation guidelines as an exempt action or (b) if significant additions or changes are proposed, promulgate the model public participation guidelines with the proposed changes as fast-track regulations pursuant to Code of Virginia § 2.2-4012.1.

The purpose of the model PPG legislation is threefold: first, to ensure that each agency or board has a current set of PPGs in place.1 Second, to ensure that each agency or board’s PPGs incorporate the use of technology such as the Virginia Regulatory Town Hall, email to the extent possible, and the use of electronic mailing lists. Last, but perhaps most importantly, to have uniform guidelines in place to facilitate citizen participation in rulemaking and to make those guidelines consistent, to the extent possible, among all executive branch boards and agencies.

DMME is proposing only one change to the model PPGs, to add a section defining "Agency secretary for purpose of appeal." Rule 2A:2 of the Supreme Court of Virginia specifies that "Any party appealing from a regulation or case decision shall file, within 30 days after adoption of the regulation or after service of the final order in the case decision, with the agency secretary a notice of appeal signed by him or his counsel." The proposed additional section specifies that: 1) the division head of the Division of Mines (Chief) shall perform the functions of agency secretary for appeals relating to Chapter 14.2, 14.3, 14.4 or 18 of Title 45.1 of the Code of Virginia, 2) the division head of the Division of Mineral Mining (Division Director) shall perform the functions of agency secretary for appeals relating to Chapter 14.4:1, 14.5, 14.6, 16, 18.1 or 21 of Title 45.1 of the Code of Virginia, 3) the division head of the Division of Gas and Oil (Division Director) shall perform the functions of agency secretary for appeals relating to Chapter 15.1 or 22.1 of Title 45.1 of the Code of Virginia, and 4) the division head of the Division of Mined Land Reclamation (Division Director) shall perform the functions of agency secretary for appeals relating to Chapters 17 and 19 of Title 45.1 of the Code of Virginia. Specifying which division head serves as agency secretary for specific regulations is beneficial in that it provides clarity for the public.

As described above, promulgating the otherwise model PPGs will be beneficial in that the DMME PPGs will: 1) reflect current information, 2) incorporate the use of technology such as the Virginia Regulatory Town Hall, email to the extent possible, and the use of electronic mailing lists, and 3) be largely consistent with other agency PPGs which will facilitate citizen participation in rulemaking.

Businesses and Entities Affected. All businesses, other entities, or individuals interested in participating in the regulatory process as it relates to DMME’s regulations are potentially affected by the agency’s public participation guidelines.

Localities Particularly Affected. Businesses, other entities, and individuals in all of Virginia’s localities are potentially affected by DMME’s regulations.

Projected Impact on Employment. The proposal amendments do not directly affect employment.

Effects on the Use and Value of Private Property. The proposal amendments do not directly affect the use and value of private property.

Small Businesses: Costs and Other Effects. The proposed amendments do not directly affect small businesses.

Small Businesses: Alternative Method that Minimizes Adverse Impact. The proposed amendments do not adversely affect small businesses.

Real Estate Development Costs. The proposed amendments do not directly affect real estate development costs.

Legal Mandate. The Department of Planning and Budget (DPB) has analyzed the economic impact of this proposed regulation in accordance with § 2.2-4007.04 of the Administrative Process Act and Executive Order Number 36 (06). Section 2.2-4007.04 requires that such economic impact analyses include, but need not be limited to, the projected number of businesses or other entities to whom the regulation would apply, the identity of any localities and types of businesses or other entities particularly affected, the projected number of persons and employment positions to be affected, the projected costs to affected businesses or entities to implement or comply with the regulation, and the impact on the use and value of private property. Further, if the proposed regulation has adverse effect on small businesses, § 2.2-4007.04 requires that such economic impact analyses include (i) an identification and estimate of the number of small businesses subject to the regulation; (ii) the projected reporting, recordkeeping, and other administrative costs required for small businesses to comply with the regulation, including the type of professional skills necessary for preparing required reports and other documents; (iii) a statement of the probable effect of the regulation on affected small businesses; and (iv) a description of any less intrusive or less costly alternative methods of achieving the purpose of the regulation. The analysis presented above represents DPB’s best estimate of these economic impacts.

__________________

1 Some agencies and boards have not updated their PPGs since the mid-late 1980’s.

Agency's Response to the Economic Impact Analysis: The Department of Mines, Minerals and Energy concurs with the economic impact analysis of the Department of Planning and Budget.

Summary:

This regulatory action repeals the current public participation guidelines and promulgates new public participation guidelines as required by Chapter 321 of the 2008 Acts of Assembly. Highlights of the public participation guidelines include (i) providing for the establishment and maintenance of notification lists of interested persons and specifying the information to be sent to such persons; (ii) providing for public comments on regulatory actions; (iii) establishing the time period during which public comments shall be accepted; (iv) providing that the plan to hold a public meeting shall be indicated in any notice of intended regulatory action; (v) providing for the appointment, when necessary, of regulatory advisory panels to provide professional specialization or technical assistance and negotiated rulemaking panels if a regulatory action is expected to be controversial; and (vi) providing for the periodic review of regulations.

The department has made one change to the model public participation guidelines by adding a section defining who in the agency shall act as agency secretary for appeals of regulatory or case decisions pursuant to Rule 2A:2 of the Supreme Court of Virginia. This section is part of the agency's current public participation guidelines.

CHAPTER 11
PUBLIC PARTICIPATION GUIDELINES

Part I
Purpose and Definitions

4VAC25-11-10. Purpose.

The purpose of this chapter is to promote public involvement in the development, amendment or repeal of the regulations of the Department of Mines, Minerals and Energy. This chapter does not apply to regulations, guidelines, or other documents exempted or excluded from the provisions of the Administrative Process Act (§ 2.2-4000 et seq. of the Code of Virginia).

4VAC25-11-20. Definitions.

The following words and terms when used in this chapter shall have the following meanings unless the context clearly indicates otherwise:

"Administrative Process Act" means Chapter 40 (§ 2.2-4000 et seq.) of Title 2.2 of the Code of Virginia.

"Agency" means the Department of Mines, Minerals and Energy, which is the unit of state government empowered by the agency's basic law to make regulations or decide cases. Actions specified in this chapter may be fulfilled by state employees as delegated by the agency.

"Basic law" means provisions in the Code of Virginia that delineate the basic authority and responsibilities of an agency.

"Commonwealth Calendar" means the electronic calendar for official government meetings open to the public as required by § 2.2-3707 C of the Freedom of Information Act.

''Negotiated rulemaking panel'' or ''NRP'' means an ad hoc advisory panel of interested parties established by an agency to consider issues that are controversial with the assistance of a facilitator or mediator, for the purpose of reaching a consensus in the development of a proposed regulatory action.

"Notification list" means a list used to notify persons pursuant to this chapter. Such a list may include an electronic list maintained through the Virginia Regulatory Town Hall or other list maintained by the agency.

"Open meeting" means any scheduled gathering of a unit of state government empowered by an agency's basic law to make regulations or decide cases, which is related to promulgating, amending or repealing a regulation.

"Person" means any individual, corporation, partnership, association, cooperative, limited liability company, trust, joint venture, government, political subdivision, or any other legal or commercial entity and any successor, representative, agent, agency, or instrumentality thereof.

"Public hearing" means a scheduled time at which members or staff of the agency will meet for the purpose of receiving public comment on a regulatory action.

"Regulation" means any statement of general application having the force of law, affecting the rights or conduct of any person, adopted by the agency in accordance with the authority conferred on it by applicable laws.

"Regulatory action" means the promulgation, amendment, or repeal of a regulation by the agency.

"Regulatory advisory panel" or "RAP" means a standing or ad hoc advisory panel of interested parties established by the agency for the purpose of assisting in regulatory actions.

"Town Hall" means the Virginia Regulatory Town Hall, the website operated by the Virginia Department of Planning and Budget at www.townhall.virginia.gov, which has online public comment forums and displays information about regulatory meetings and regulatory actions under consideration in Virginia and sends this information to registered public users.

"Virginia Register" means the Virginia Register of Regulations, the publication that provides official legal notice of new, amended and repealed regulations of state agencies, which is published under the provisions of Article 6 (§ 2.2-4031 et seq.) of the Administrative Process Act.

Part II
Notification of Interested Persons

4VAC25-11-30. Notification list.

A. The agency shall maintain a list of persons who have requested to be notified of regulatory actions being pursued by the agency.

B. Any person may request to be placed on a notification list by registering as a public user on the Town Hall or by making a request to the agency. Any person who requests to be placed on a notification list shall elect to be notified either by electronic means or through a postal carrier.

C. The agency may maintain additional lists for persons who have requested to be informed of specific regulatory issues, proposals, or actions.

D. When electronic mail is returned as undeliverable on multiple occasions at least 24 hours apart, that person may be deleted from the list. A single undeliverable message is insufficient cause to delete the person from the list.

E. When mail delivered by a postal carrier is returned as undeliverable on multiple occasions, that person may be deleted from the list.

F. The agency may periodically request those persons on the notification list to indicate their desire to either continue to be notified electronically, receive documents through a postal carrier, or be deleted from the list.

4VAC25-11-40. Information to be sent to persons on the notification list.

A. To persons electing to receive electronic notification or notification through a postal carrier as described in 4VAC25-11-30, the agency shall send the following information:

1. A notice of intended regulatory action (NOIRA).

2. A notice of the comment period on a proposed, a reproposed, or a fast-track regulation and hyperlinks to, or instructions on how to obtain, a copy of the regulation and any supporting documents.

3. A notice soliciting comment on a final regulation when the regulatory process has been extended pursuant to § 2.2-4007.06 or 2.2-4013 C of the Code of Virginia.

B. The failure of any person to receive any notice or copies of any documents shall not affect the validity of any regulation or regulatory action.

Part III
Public Participation Procedures

4VAC25-11-50. Public comment.

A. In considering any nonemergency, nonexempt regulatory action, the agency shall afford interested persons an opportunity to submit data, views, and arguments, either orally or in writing, to the agency. Such opportunity to comment shall include an online public comment forum on the Town Hall.

1. To any requesting person, the agency shall provide copies of the statement of basis, purpose, substance, and issues; the economic impact analysis of the proposed or fast-track regulatory action; and the agency's response to public comments received.

2. The agency may begin crafting a regulatory action prior to or during any opportunities it provides to the public to submit comments.

B. The agency shall accept public comments in writing after the publication of a regulatory action in the Virginia Register as follows:

1. For a minimum of 30 calendar days following the publication of the notice of intended regulatory action (NOIRA).

2. For a minimum of 60 calendar days following the publication of a proposed regulation.

3. For a minimum of 30 calendar days following the publication of a reproposed regulation.

4. For a minimum of 30 calendar days following the publication of a final adopted regulation.

5. For a minimum of 30 calendar days following the publication of a fast-track regulation.

6. For a minimum of 21 calendar days following the publication of a notice of periodic review.

7. Not later than 21 calendar days following the publication of a petition for rulemaking.

C. The agency may determine if any of the comment periods listed in subsection B of this section shall be extended.

D. If the Governor finds that one or more changes with substantial impact have been made to a proposed regulation, he may require the agency to provide an additional 30 calendar days to solicit additional public comment on the changes in accordance with § 2.2-4013 C of the Code of Virginia.

E. The agency shall send a draft of the agency's summary description of public comment to all public commenters on the proposed regulation at least five days before final adoption of the regulation pursuant to § 2.2-4012 E of the Code of Virginia.

4VAC25-11-60. Petition for rulemaking.

A. As provided in § 2.2-4007 of the Code of Virginia, any person may petition the agency to consider a regulatory action.

B. A petition shall include but is not limited to the following information:

1. The petitioner's name and contact information;

2. The substance and purpose of the rulemaking that is requested, including reference to any applicable Virginia Administrative Code sections; and

3. Reference to the legal authority of the agency to take the action requested.

C. The agency shall receive, consider and respond to a petition pursuant to § 2.2-4007 and shall have the sole authority to dispose of the petition.

D. The petition shall be posted on the Town Hall and published in the Virginia Register.

E. Nothing in this chapter shall prohibit the agency from receiving information or from proceeding on its own motion for rulemaking.

4VAC25-11-70. Appointment of regulatory advisory panel.

A. The agency may appoint a regulatory advisory panel (RAP) to provide professional specialization or technical assistance when the agency determines that such expertise is necessary to address a specific regulatory issue or action or when individuals indicate an interest in working with the agency on a specific regulatory issue or action.

B. Any person may request the appointment of a RAP and request to participate in its activities. The agency shall determine when a RAP shall be appointed and the composition of the RAP.

C. A RAP may be dissolved by the agency if:

1. The proposed text of the regulation is posted on the Town Hall, published in the Virginia Register, or such other time as the agency determines is appropriate; or

2. The agency determines that the regulatory action is either exempt or excluded from the requirements of the Administrative Process Act.

4VAC25-11-80. Appointment of negotiated rulemaking panel.

A. The agency may appoint a negotiated rulemaking panel (NRP) if a regulatory action is expected to be controversial.

B. An NRP that has been appointed by the agency may be dissolved by the agency when:

1. There is no longer controversy associated with the development of the regulation;

2. The agency determines that the regulatory action is either exempt or excluded from the requirements of the Administrative Process Act; or

3. The agency determines that resolution of a controversy is unlikely.

4VAC25-11-90. Meetings.

Notice of any open meeting, including meetings of a RAP or NRP, shall be posted on the Virginia Regulatory Town Hall and Commonwealth Calendar at least seven working days prior to the date of the meeting. The exception to this requirement is any meeting held in accordance with § 2.2-3707 D of the Code of Virginia allowing for contemporaneous notice to be provided to participants and the public.

4VAC25-11-100. Public hearings on regulations.

A. The agency shall indicate in its notice of intended regulatory action whether it plans to hold a public hearing following the publication of the proposed stage of the regulatory action.

B. The agency may conduct one or more public hearings during the comment period following the publication of a proposed regulatory action.

C. An agency is required to hold a public hearing following the publication of the proposed regulatory action when:

1. The agency's basic law requires the agency to hold a public hearing;

2. The Governor directs the agency to hold a public hearing; or

3. The agency receives requests for a public hearing from at least 25 persons during the public comment period following the publication of the notice of intended regulatory action.

D. Notice of any public hearing shall be posted on the Town Hall and Commonwealth Calendar at least seven working days prior to the date of the hearing. The agency shall also notify those persons who requested a hearing under subdivision C 3 of this section.

4VAC25-11-110. Periodic review of regulations.

A. The agency shall conduct a periodic review of its regulations consistent with:

1. An executive order issued by the Governor pursuant to § 2.2-4017 of the Administrative Process Act to receive comment on all existing regulations as to their effectiveness, efficiency, necessity, clarity, and cost of compliance; and

2. The requirements in § 2.2-4007.1 of the Administrative Process Act regarding regulatory flexibility for small businesses.

B. A periodic review may be conducted separately or in conjunction with other regulatory actions.

C. Notice of a periodic review shall be posted on the Town Hall and published in the Virginia Register.

4VAC25-11-120. Agency secretary for purpose of appeal.

For appeals of regulatory or case decisions, pursuant to Rule 2A:2 of the Rules of the Supreme Court of Virginia, the agency herein names individuals to perform the function of agency secretary.

1. For appeals relating to Chapter 14.2 (§ 45.1-161.7 et seq.), 14.3 (§ 45.1-161.105 et seq.), 14.4 (§ 45.1-161.253 et seq.) or 18 (§ 45.1-221 et seq.) of Title 45.1 of the Code of Virginia, the division head of the Division of Mines (Chief) shall perform the functions of agency secretary.

2. For appeals relating to Chapter 14.4:1 (§ 45.1-161.292:1 et seq.), 14.5 (§ 45.1-161.293 et seq.), 14.6 (§ 45.1-161.304 et seq.), 16 (§ 45.1-180 et seq.), 18.1 (§ 45.1-225.1 et seq.) or 21 (§ 45.1-272 et seq.) of Title 45.1 of the Code of Virginia, the division head of the Division of Mineral Mining (Division Director) shall perform the functions of agency secretary.

3. For appeals relating to Chapter 15.1 (§ 45.1-179.1 et seq.) or 22.1 (§ 45.1-361.1 et seq.) of Title 45.1 of the Code of Virginia, the division head of the Division of Gas and Oil (Division Director) shall perform the functions of agency secretary.

4. For appeals relating to Chapters 17 (§ 45.1-198 et seq.) and 19 (§ 45.1-226 et seq.) of Title 45.1 of the Code of Virginia, the division head of the Division of Mined Land Reclamation (division director) shall perform the functions of agency secretary.

VA.R. Doc. No. R09-1431; Filed October 20, 2008, 2:51 p.m.
TITLE 4. CONSERVATION AND NATURAL RESOURCES
DEPARTMENT OF MINES, MINERALS AND ENERGY
Fast-Track Regulation

Titles of Regulations: 4VAC25-10. Public Participation Guidelines (repealing 4VAC25-10-10 through 4VAC25-10-90).

4VAC25-11. Public Participation Guidelines (adding 4VAC25-11-10 through 4VAC25-11-120).

Statutory Authority: §§ 2.2-4007.02, 45.1-161.3, 45.1-161.28, and 45.1-161.292:19 and 45.1-361.15 of the Code of Virginia.

Public Hearing Information: No public hearings are scheduled.

Public Comments: Public comments may be submitted until December 10, 2008.

Effective Date: December 25, 2008.

Agency Contact: David Spears, Regulatory Coordinator, Department of Mines, Minerals and Energy, 202 N. Ninth Street, 8th Floor, Richmond, VA 23219-3402, telephone (804) 692-3212, FAX (804) 692-3237, TTY (800) 828-1120, or email david.spears@dmme.virginia.gov.

Basis: Section 2.2-4007.02 of the Code of Virginia requires agencies to develop and adopt public participation guidelines for soliciting the input of interested parties in the formation and development of its regulations.

Section 45.1-161.3 of the Code of Virginia authorizes the department, Chief of the Division of Mines, or department director, as appropriate, to promulgate regulations necessary or incidental to the performance of duties or execution of powers conferred under Title 45.1 and other relevant chapters.

Section 45.1-161.28 of the Code of Virginia authorizes the Board of Coal Mining Examiners to promulgate regulations necessary or incidental to the performance of duties or execution of powers conferred under Title 45.1.

Section 45.1-161.292:19 of the Code of Virginia authorizes the Board of Mineral Mining Examiners to promulgate regulations necessary or incidental to the performance of duties or execution of powers conferred under Title 45.1.

Section 45.1-361.15 of the Code of Virginia authorizes the Virginia Gas and Oil Board to promulgate regulations necessary or incidental to the performance of duties or execution of powers conferred under Title 45.1.

Purpose: This action is being taken pursuant to Chapter 321 of the 2008 Acts of Assembly, which requires every rulemaking body in the Commonwealth to adopt the model public participation guidelines. The agency has no discretion in this matter.

Rationale for using fast-track process: This action is expected to be noncontroversial because it is mandated by the Virginia General Assembly.

Substance: This action repeals the entire chapter, 4VAC25-10, Public Participation Guidelines, and replaces it with a new chapter, 4VAC25-11, Public Participation Guidelines, as required by Chapter 321 of the 2008 Acts of Assembly. The new chapter has substantially similar provisions to the original chapter, and is based on the model public participation guidelines developed by the Department of Planning and Budget, with one exception. DMME has added one section to the model guidelines, "Agency secretary for purpose of appeal," a section carried over from the agency’s existing guidelines. This section defines who in the agency shall act as "agency secretary" for appeals of regulatory or case decisions pursuant to Rule 2A:2 of the Supreme Court of Virginia.

Issues: The model public participation guidelines will provide advantages to the public in the form of more consistent public participation requirements for agencies in the rulemaking process. No disadvantages are anticipated for the public, the agency, or the Commonwealth.

Department of Planning and Budget's Economic Impact Analysis:

Summary of the Proposed Amendments to Regulation. The Department of Mines, Minerals and Energy (DMME) proposes to adopt the model public participation guidelines developed by the Department of Planning and Budget in consultation with the Office of the Attorney General (as required by Chapter 321 of the 2008 Acts of Assembly), with one amendment; DMME proposes to add a section defining "Agency secretary for purpose of appeal." This section is part of the agency’s current PPGs.

Result of Analysis. The benefits likely exceed the costs for all proposed changes.

Estimated Economic Impact. Pursuant to Chapter 321 of the 2008 Acts of Assembly, the Department of Planning and Budget, in consultation with the Office of the Attorney General, (i) developed model public participation guidelines (PPGs) and (ii) provided these model PPGs to each agency that has the authority to promulgate regulations. Chapter 321 requires that by December 1, 2008, each agency shall either (a) adopt the model public participation guidelines as an exempt action or (b) if significant additions or changes are proposed, promulgate the model public participation guidelines with the proposed changes as fast-track regulations pursuant to Code of Virginia § 2.2-4012.1.

The purpose of the model PPG legislation is threefold: first, to ensure that each agency or board has a current set of PPGs in place.1 Second, to ensure that each agency or board’s PPGs incorporate the use of technology such as the Virginia Regulatory Town Hall, email to the extent possible, and the use of electronic mailing lists. Last, but perhaps most importantly, to have uniform guidelines in place to facilitate citizen participation in rulemaking and to make those guidelines consistent, to the extent possible, among all executive branch boards and agencies.

DMME is proposing only one change to the model PPGs, to add a section defining "Agency secretary for purpose of appeal." Rule 2A:2 of the Supreme Court of Virginia specifies that "Any party appealing from a regulation or case decision shall file, within 30 days after adoption of the regulation or after service of the final order in the case decision, with the agency secretary a notice of appeal signed by him or his counsel." The proposed additional section specifies that: 1) the division head of the Division of Mines (Chief) shall perform the functions of agency secretary for appeals relating to Chapter 14.2, 14.3, 14.4 or 18 of Title 45.1 of the Code of Virginia, 2) the division head of the Division of Mineral Mining (Division Director) shall perform the functions of agency secretary for appeals relating to Chapter 14.4:1, 14.5, 14.6, 16, 18.1 or 21 of Title 45.1 of the Code of Virginia, 3) the division head of the Division of Gas and Oil (Division Director) shall perform the functions of agency secretary for appeals relating to Chapter 15.1 or 22.1 of Title 45.1 of the Code of Virginia, and 4) the division head of the Division of Mined Land Reclamation (Division Director) shall perform the functions of agency secretary for appeals relating to Chapters 17 and 19 of Title 45.1 of the Code of Virginia. Specifying which division head serves as agency secretary for specific regulations is beneficial in that it provides clarity for the public.

As described above, promulgating the otherwise model PPGs will be beneficial in that the DMME PPGs will: 1) reflect current information, 2) incorporate the use of technology such as the Virginia Regulatory Town Hall, email to the extent possible, and the use of electronic mailing lists, and 3) be largely consistent with other agency PPGs which will facilitate citizen participation in rulemaking.

Businesses and Entities Affected. All businesses, other entities, or individuals interested in participating in the regulatory process as it relates to DMME’s regulations are potentially affected by the agency’s public participation guidelines.

Localities Particularly Affected. Businesses, other entities, and individuals in all of Virginia’s localities are potentially affected by DMME’s regulations.

Projected Impact on Employment. The proposal amendments do not directly affect employment.

Effects on the Use and Value of Private Property. The proposal amendments do not directly affect the use and value of private property.

Small Businesses: Costs and Other Effects. The proposed amendments do not directly affect small businesses.

Small Businesses: Alternative Method that Minimizes Adverse Impact. The proposed amendments do not adversely affect small businesses.

Real Estate Development Costs. The proposed amendments do not directly affect real estate development costs.

Legal Mandate. The Department of Planning and Budget (DPB) has analyzed the economic impact of this proposed regulation in accordance with § 2.2-4007.04 of the Administrative Process Act and Executive Order Number 36 (06). Section 2.2-4007.04 requires that such economic impact analyses include, but need not be limited to, the projected number of businesses or other entities to whom the regulation would apply, the identity of any localities and types of businesses or other entities particularly affected, the projected number of persons and employment positions to be affected, the projected costs to affected businesses or entities to implement or comply with the regulation, and the impact on the use and value of private property. Further, if the proposed regulation has adverse effect on small businesses, § 2.2-4007.04 requires that such economic impact analyses include (i) an identification and estimate of the number of small businesses subject to the regulation; (ii) the projected reporting, recordkeeping, and other administrative costs required for small businesses to comply with the regulation, including the type of professional skills necessary for preparing required reports and other documents; (iii) a statement of the probable effect of the regulation on affected small businesses; and (iv) a description of any less intrusive or less costly alternative methods of achieving the purpose of the regulation. The analysis presented above represents DPB’s best estimate of these economic impacts.

__________________

1 Some agencies and boards have not updated their PPGs since the mid-late 1980’s.

Agency's Response to the Economic Impact Analysis: The Department of Mines, Minerals and Energy concurs with the economic impact analysis of the Department of Planning and Budget.

Summary:

This regulatory action repeals the current public participation guidelines and promulgates new public participation guidelines as required by Chapter 321 of the 2008 Acts of Assembly. Highlights of the public participation guidelines include (i) providing for the establishment and maintenance of notification lists of interested persons and specifying the information to be sent to such persons; (ii) providing for public comments on regulatory actions; (iii) establishing the time period during which public comments shall be accepted; (iv) providing that the plan to hold a public meeting shall be indicated in any notice of intended regulatory action; (v) providing for the appointment, when necessary, of regulatory advisory panels to provide professional specialization or technical assistance and negotiated rulemaking panels if a regulatory action is expected to be controversial; and (vi) providing for the periodic review of regulations.

The department has made one change to the model public participation guidelines by adding a section defining who in the agency shall act as agency secretary for appeals of regulatory or case decisions pursuant to Rule 2A:2 of the Supreme Court of Virginia. This section is part of the agency's current public participation guidelines.

CHAPTER 11
PUBLIC PARTICIPATION GUIDELINES

Part I
Purpose and Definitions

4VAC25-11-10. Purpose.

The purpose of this chapter is to promote public involvement in the development, amendment or repeal of the regulations of the Department of Mines, Minerals and Energy. This chapter does not apply to regulations, guidelines, or other documents exempted or excluded from the provisions of the Administrative Process Act (§ 2.2-4000 et seq. of the Code of Virginia).

4VAC25-11-20. Definitions.

The following words and terms when used in this chapter shall have the following meanings unless the context clearly indicates otherwise:

"Administrative Process Act" means Chapter 40 (§ 2.2-4000 et seq.) of Title 2.2 of the Code of Virginia.

"Agency" means the Department of Mines, Minerals and Energy, which is the unit of state government empowered by the agency's basic law to make regulations or decide cases. Actions specified in this chapter may be fulfilled by state employees as delegated by the agency.

"Basic law" means provisions in the Code of Virginia that delineate the basic authority and responsibilities of an agency.

"Commonwealth Calendar" means the electronic calendar for official government meetings open to the public as required by § 2.2-3707 C of the Freedom of Information Act.

''Negotiated rulemaking panel'' or ''NRP'' means an ad hoc advisory panel of interested parties established by an agency to consider issues that are controversial with the assistance of a facilitator or mediator, for the purpose of reaching a consensus in the development of a proposed regulatory action.

"Notification list" means a list used to notify persons pursuant to this chapter. Such a list may include an electronic list maintained through the Virginia Regulatory Town Hall or other list maintained by the agency.

"Open meeting" means any scheduled gathering of a unit of state government empowered by an agency's basic law to make regulations or decide cases, which is related to promulgating, amending or repealing a regulation.

"Person" means any individual, corporation, partnership, association, cooperative, limited liability company, trust, joint venture, government, political subdivision, or any other legal or commercial entity and any successor, representative, agent, agency, or instrumentality thereof.

"Public hearing" means a scheduled time at which members or staff of the agency will meet for the purpose of receiving public comment on a regulatory action.

"Regulation" means any statement of general application having the force of law, affecting the rights or conduct of any person, adopted by the agency in accordance with the authority conferred on it by applicable laws.

"Regulatory action" means the promulgation, amendment, or repeal of a regulation by the agency.

"Regulatory advisory panel" or "RAP" means a standing or ad hoc advisory panel of interested parties established by the agency for the purpose of assisting in regulatory actions.

"Town Hall" means the Virginia Regulatory Town Hall, the website operated by the Virginia Department of Planning and Budget at www.townhall.virginia.gov, which has online public comment forums and displays information about regulatory meetings and regulatory actions under consideration in Virginia and sends this information to registered public users.

"Virginia Register" means the Virginia Register of Regulations, the publication that provides official legal notice of new, amended and repealed regulations of state agencies, which is published under the provisions of Article 6 (§ 2.2-4031 et seq.) of the Administrative Process Act.

Part II
Notification of Interested Persons

4VAC25-11-30. Notification list.

A. The agency shall maintain a list of persons who have requested to be notified of regulatory actions being pursued by the agency.

B. Any person may request to be placed on a notification list by registering as a public user on the Town Hall or by making a request to the agency. Any person who requests to be placed on a notification list shall elect to be notified either by electronic means or through a postal carrier.

C. The agency may maintain additional lists for persons who have requested to be informed of specific regulatory issues, proposals, or actions.

D. When electronic mail is returned as undeliverable on multiple occasions at least 24 hours apart, that person may be deleted from the list. A single undeliverable message is insufficient cause to delete the person from the list.

E. When mail delivered by a postal carrier is returned as undeliverable on multiple occasions, that person may be deleted from the list.

F. The agency may periodically request those persons on the notification list to indicate their desire to either continue to be notified electronically, receive documents through a postal carrier, or be deleted from the list.

4VAC25-11-40. Information to be sent to persons on the notification list.

A. To persons electing to receive electronic notification or notification through a postal carrier as described in 4VAC25-11-30, the agency shall send the following information:

1. A notice of intended regulatory action (NOIRA).

2. A notice of the comment period on a proposed, a reproposed, or a fast-track regulation and hyperlinks to, or instructions on how to obtain, a copy of the regulation and any supporting documents.

3. A notice soliciting comment on a final regulation when the regulatory process has been extended pursuant to § 2.2-4007.06 or 2.2-4013 C of the Code of Virginia.

B. The failure of any person to receive any notice or copies of any documents shall not affect the validity of any regulation or regulatory action.

Part III
Public Participation Procedures

4VAC25-11-50. Public comment.

A. In considering any nonemergency, nonexempt regulatory action, the agency shall afford interested persons an opportunity to submit data, views, and arguments, either orally or in writing, to the agency. Such opportunity to comment shall include an online public comment forum on the Town Hall.

1. To any requesting person, the agency shall provide copies of the statement of basis, purpose, substance, and issues; the economic impact analysis of the proposed or fast-track regulatory action; and the agency's response to public comments received.

2. The agency may begin crafting a regulatory action prior to or during any opportunities it provides to the public to submit comments.

B. The agency shall accept public comments in writing after the publication of a regulatory action in the Virginia Register as follows:

1. For a minimum of 30 calendar days following the publication of the notice of intended regulatory action (NOIRA).

2. For a minimum of 60 calendar days following the publication of a proposed regulation.

3. For a minimum of 30 calendar days following the publication of a reproposed regulation.

4. For a minimum of 30 calendar days following the publication of a final adopted regulation.

5. For a minimum of 30 calendar days following the publication of a fast-track regulation.

6. For a minimum of 21 calendar days following the publication of a notice of periodic review.

7. Not later than 21 calendar days following the publication of a petition for rulemaking.

C. The agency may determine if any of the comment periods listed in subsection B of this section shall be extended.

D. If the Governor finds that one or more changes with substantial impact have been made to a proposed regulation, he may require the agency to provide an additional 30 calendar days to solicit additional public comment on the changes in accordance with § 2.2-4013 C of the Code of Virginia.

E. The agency shall send a draft of the agency's summary description of public comment to all public commenters on the proposed regulation at least five days before final adoption of the regulation pursuant to § 2.2-4012 E of the Code of Virginia.

4VAC25-11-60. Petition for rulemaking.

A. As provided in § 2.2-4007 of the Code of Virginia, any person may petition the agency to consider a regulatory action.

B. A petition shall include but is not limited to the following information:

1. The petitioner's name and contact information;

2. The substance and purpose of the rulemaking that is requested, including reference to any applicable Virginia Administrative Code sections; and

3. Reference to the legal authority of the agency to take the action requested.

C. The agency shall receive, consider and respond to a petition pursuant to § 2.2-4007 and shall have the sole authority to dispose of the petition.

D. The petition shall be posted on the Town Hall and published in the Virginia Register.

E. Nothing in this chapter shall prohibit the agency from receiving information or from proceeding on its own motion for rulemaking.

4VAC25-11-70. Appointment of regulatory advisory panel.

A. The agency may appoint a regulatory advisory panel (RAP) to provide professional specialization or technical assistance when the agency determines that such expertise is necessary to address a specific regulatory issue or action or when individuals indicate an interest in working with the agency on a specific regulatory issue or action.

B. Any person may request the appointment of a RAP and request to participate in its activities. The agency shall determine when a RAP shall be appointed and the composition of the RAP.

C. A RAP may be dissolved by the agency if:

1. The proposed text of the regulation is posted on the Town Hall, published in the Virginia Register, or such other time as the agency determines is appropriate; or

2. The agency determines that the regulatory action is either exempt or excluded from the requirements of the Administrative Process Act.

4VAC25-11-80. Appointment of negotiated rulemaking panel.

A. The agency may appoint a negotiated rulemaking panel (NRP) if a regulatory action is expected to be controversial.

B. An NRP that has been appointed by the agency may be dissolved by the agency when:

1. There is no longer controversy associated with the development of the regulation;

2. The agency determines that the regulatory action is either exempt or excluded from the requirements of the Administrative Process Act; or

3. The agency determines that resolution of a controversy is unlikely.

4VAC25-11-90. Meetings.

Notice of any open meeting, including meetings of a RAP or NRP, shall be posted on the Virginia Regulatory Town Hall and Commonwealth Calendar at least seven working days prior to the date of the meeting. The exception to this requirement is any meeting held in accordance with § 2.2-3707 D of the Code of Virginia allowing for contemporaneous notice to be provided to participants and the public.

4VAC25-11-100. Public hearings on regulations.

A. The agency shall indicate in its notice of intended regulatory action whether it plans to hold a public hearing following the publication of the proposed stage of the regulatory action.

B. The agency may conduct one or more public hearings during the comment period following the publication of a proposed regulatory action.

C. An agency is required to hold a public hearing following the publication of the proposed regulatory action when:

1. The agency's basic law requires the agency to hold a public hearing;

2. The Governor directs the agency to hold a public hearing; or

3. The agency receives requests for a public hearing from at least 25 persons during the public comment period following the publication of the notice of intended regulatory action.

D. Notice of any public hearing shall be posted on the Town Hall and Commonwealth Calendar at least seven working days prior to the date of the hearing. The agency shall also notify those persons who requested a hearing under subdivision C 3 of this section.

4VAC25-11-110. Periodic review of regulations.

A. The agency shall conduct a periodic review of its regulations consistent with:

1. An executive order issued by the Governor pursuant to § 2.2-4017 of the Administrative Process Act to receive comment on all existing regulations as to their effectiveness, efficiency, necessity, clarity, and cost of compliance; and

2. The requirements in § 2.2-4007.1 of the Administrative Process Act regarding regulatory flexibility for small businesses.

B. A periodic review may be conducted separately or in conjunction with other regulatory actions.

C. Notice of a periodic review shall be posted on the Town Hall and published in the Virginia Register.

4VAC25-11-120. Agency secretary for purpose of appeal.

For appeals of regulatory or case decisions, pursuant to Rule 2A:2 of the Rules of the Supreme Court of Virginia, the agency herein names individuals to perform the function of agency secretary.

1. For appeals relating to Chapter 14.2 (§ 45.1-161.7 et seq.), 14.3 (§ 45.1-161.105 et seq.), 14.4 (§ 45.1-161.253 et seq.) or 18 (§ 45.1-221 et seq.) of Title 45.1 of the Code of Virginia, the division head of the Division of Mines (Chief) shall perform the functions of agency secretary.

2. For appeals relating to Chapter 14.4:1 (§ 45.1-161.292:1 et seq.), 14.5 (§ 45.1-161.293 et seq.), 14.6 (§ 45.1-161.304 et seq.), 16 (§ 45.1-180 et seq.), 18.1 (§ 45.1-225.1 et seq.) or 21 (§ 45.1-272 et seq.) of Title 45.1 of the Code of Virginia, the division head of the Division of Mineral Mining (Division Director) shall perform the functions of agency secretary.

3. For appeals relating to Chapter 15.1 (§ 45.1-179.1 et seq.) or 22.1 (§ 45.1-361.1 et seq.) of Title 45.1 of the Code of Virginia, the division head of the Division of Gas and Oil (Division Director) shall perform the functions of agency secretary.

4. For appeals relating to Chapters 17 (§ 45.1-198 et seq.) and 19 (§ 45.1-226 et seq.) of Title 45.1 of the Code of Virginia, the division head of the Division of Mined Land Reclamation (division director) shall perform the functions of agency secretary.

VA.R. Doc. No. R09-1431; Filed October 20, 2008, 2:51 p.m.
TITLE 8. EDUCATION
GEORGE MASON UNIVERSITY
Final Regulation

REGISTRAR'S NOTICE: George Mason University is exempt from the Administrative Process Act in accordance with § 2.2-4002 A 6 of the Code of Virginia, which exempts educational institutions operated by the Commonwealth.

Title of Regulation: 8VAC35-60. Policy Prohibiting Weapons (amending 8VAC35-60-20).

Statutory Authority: § 23-91.29 of the Code of Virginia.

Effective Date: November 10, 2008.

Agency Contact: Kenneth W. Hubble, Agency Regulatory Coordinator, George Mason University, 4400 University Drive, Fairfax, VA 22030, telephone (703) 993-3091 or email khubble@gmu.edu.

Summary:

The amendment adds dining facilities to the list of university properties where weapons are prohibited.

8VAC35-60-20. Possession of weapons prohibited.

Possession or carrying of any weapon by any person, except a police officer, is prohibited on university property in academic buildings, administrative office buildings, student residence buildings, and dining facilities, or while attending sporting, entertainment or educational events. Entry upon the aforementioned university property in violation of this prohibition is expressly forbidden.

VA.R. Doc. No. R08-1368; Filed October 22, 2008, 2:44 p.m.
TITLE 9. ENVIRONMENT
STATE AIR POLLUTION CONTROL BOARD
Final Regulation

REGISTRAR'S NOTICE: The following model public participation guidelines are exempt from Article 2 (§ 2.2-4006 et seq.) of Chapter 40 of Title 2.2 of the Code of Virginia pursuant to Chapter 321 of the 2008 Acts of Assembly.

Titles of Regulations: 9VAC5-5. Public Participation Guidelines (adding 9VAC5-5-10 through 9VAC5-5-110).

9VAC5-170. Regulation for General Administration (amending 9VAC5-170-20, 9VAC5-170-40, 9VAC5-170-80; repealing 9VAC5-170-90, 9VAC5-170-100, 9VAC5-170-110).

Statutory Authority: §§ 2.2-4007.02 and 10.1-1308 of the Code of Virginia.

Effective Date: January 1, 2009.

Agency Contact: Cindy Berndt, Regulatory Coordinator, Department of Environmental Quality, P.O.Box 1105, Richmond, VA 23218, telephone (804) 698-4378, FAX (804) 698-4346, or email cmberndt@deq.virginia.gov.

Summary: Summary:

The regulations comply with the legislative mandate (Chapter 321, 2008 Acts of Assembly) that agencies adopt model public participation guidelines issued by the Department of Planning and Budget by December 1, 2008. Public participation guidelines exist to promote public involvement in the development, amendment, or repeal of an agency's regulations.

This regulatory action repeals the current public participation guidelines and promulgates new public participation guidelines as required by Chapter 321 of the 2008 Acts of Assembly. Highlights of the public participation guidelines include (i) providing for the establishment and maintenance of notification lists of interested persons and specifying the information to be sent to such persons; (ii) providing for public comments on regulatory actions; (iii) establishing the time period during which public comments shall be accepted; (iv) providing that the plan to hold a public meeting shall be indicated in any notice of intended regulatory action; (v) providing for the appointment, when necessary, of regulatory advisory panels to provide professional specialization or technical assistance and negotiated rulemaking panels if a regulatory action is expected to be controversial; and (vi) providing for the periodic review of regulations.

CHAPTER 5
PUBLIC PARTICIPATION GUIDELINES

Part I
Purpose and Definitions

9VAC5-5-10. Purpose.

The purpose of this chapter is to promote public involvement in the development, amendment or repeal of the regulations of the State Air Pollution Control Board. This chapter does not apply to regulations, guidelines, or other documents exempted or excluded from the provisions of the Administrative Process Act (§ 2.2-4000 et seq. of the Code of Virginia).

9VAC5-5-20. Definitions.

The following words and terms when used in this chapter shall have the following meanings unless the context clearly indicates otherwise:

"Administrative Process Act" means Chapter 40 (§ 2.2-4000 et seq.) of Title 2.2 of the Code of Virginia.

"Agency" means the State Air Pollution Control Board, which is the unit of state government empowered by the agency's basic law to make regulations or decide cases. Actions specified in this chapter may be fulfilled by state employees as delegated by the agency.

"Basic law" means provisions in the Code of Virginia that delineate the basic authority and responsibilities of an agency.

"Commonwealth Calendar" means the electronic calendar for official government meetings open to the public as required by § 2.2-3707 C of the Freedom of Information Act.

''Negotiated rulemaking panel'' or ''NRP'' means an ad hoc advisory panel of interested parties established by an agency to consider issues that are controversial with the assistance of a facilitator or mediator, for the purpose of reaching a consensus in the development of a proposed regulatory action.

"Notification list" means a list used to notify persons pursuant to this chapter. Such a list may include an electronic list maintained through the Virginia Regulatory Town Hall or other list maintained by the agency.

"Open meeting" means any scheduled gathering of a unit of state government empowered by an agency's basic law to make regulations or decide cases, which is related to promulgating, amending or repealing a regulation.

"Person" means any individual, corporation, partnership, association, cooperative, limited liability company, trust, joint venture, government, political subdivision, or any other legal or commercial entity and any successor, representative, agent, agency, or instrumentality thereof.

"Public hearing" means a scheduled time at which members or staff of the agency will meet for the purpose of receiving public comment on a regulatory action.

"Regulation" means any statement of general application having the force of law, affecting the rights or conduct of any person, adopted by the agency in accordance with the authority conferred on it by applicable laws.

"Regulatory action" means the promulgation, amendment, or repeal of a regulation by the agency.

"Regulatory advisory panel" or "RAP" means a standing or ad hoc advisory panel of interested parties established by the agency for the purpose of assisting in regulatory actions.

"Town Hall" means the Virginia Regulatory Town Hall, the website operated by the Virginia Department of Planning and Budget at www.townhall.virginia.gov, which has online public comment forums and displays information about regulatory meetings and regulatory actions under consideration in Virginia and sends this information to registered public users.

"Virginia Register" means the Virginia Register of Regulations, the publication that provides official legal notice of new, amended and repealed regulations of state agencies, which is published under the provisions of Article 6 (§ 2.2-4031 et seq.) of the Administrative Process Act.

Part II
Notification of Interested Persons

9VAC5-5-30. Notification list.

A. The agency shall maintain a list of persons who have requested to be notified of regulatory actions being pursued by the agency.

B. Any person may request to be placed on a notification list by registering as a public user on the Town Hall or by making a request to the agency. Any person who requests to be placed on a notification list shall elect to be notified either by electronic means or through a postal carrier.

C. The agency may maintain additional lists for persons who have requested to be informed of specific regulatory issues, proposals, or actions.

D. When electronic mail is returned as undeliverable on multiple occasions at least 24 hours apart, that person may be deleted from the list. A single undeliverable message is insufficient cause to delete the person from the list.

E. When mail delivered by a postal carrier is returned as undeliverable on multiple occasions, that person may be deleted from the list.

F. The agency may periodically request those persons on the notification list to indicate their desire to either continue to be notified electronically, receive documents through a postal carrier, or be deleted from the list.

9VAC5-5-40. Information to be sent to persons on the notification list.

A. To persons electing to receive electronic notification or notification through a postal carrier as described in 9VAC5-5-30, the agency shall send the following information:

1. A notice of intended regulatory action (NOIRA).

2. A notice of the comment period on a proposed, a reproposed, or a fast-track regulation and hyperlinks to, or instructions on how to obtain, a copy of the regulation and any supporting documents.

3. A notice soliciting comment on a final regulation when the regulatory process has been extended pursuant to § 2.2-4007.06 or 2.2-4013 C of the Code of Virginia.

B. The failure of any person to receive any notice or copies of any documents shall not affect the validity of any regulation or regulatory action.

Part III
Public Participation Procedures

9VAC5-5-50. Public comment.

A. In considering any nonemergency, nonexempt regulatory action, the agency shall afford interested persons an opportunity to submit data, views, and arguments, either orally or in writing, to the agency. Such opportunity to comment shall include an online public comment forum on the Town Hall.

1. To any requesting person, the agency shall provide copies of the statement of basis, purpose, substance, and issues; the economic impact analysis of the proposed or fast-track regulatory action; and the agency's response to public comments received.

2. The agency may begin crafting a regulatory action prior to or during any opportunities it provides to the public to submit comments.

B. The agency shall accept public comments in writing after the publication of a regulatory action in the Virginia Register as follows:

1. For a minimum of 30 calendar days following the publication of the notice of intended regulatory action (NOIRA).

2. For a minimum of 60 calendar days following the publication of a proposed regulation.

3. For a minimum of 30 calendar days following the publication of a reproposed regulation.

4. For a minimum of 30 calendar days following the publication of a final adopted regulation.

5. For a minimum of 30 calendar days following the publication of a fast-track regulation.

6. For a minimum of 21 calendar days following the publication of a notice of periodic review.

7. Not later than 21 calendar days following the publication of a petition for rulemaking.

C. The agency may determine if any of the comment periods listed in subsection B of this section shall be extended.

D. If the Governor finds that one or more changes with substantial impact have been made to a proposed regulation, he may require the agency to provide an additional 30 calendar days to solicit additional public comment on the changes in accordance with § 2.2-4013 C of the Code of Virginia.

E. The agency shall send a draft of the agency's summary description of public comment to all public commenters on the proposed regulation at least five days before final adoption of the regulation pursuant to § 2.2-4012 E of the Code of Virginia.

9VAC5-5-60. Petition for rulemaking.

A. As provided in § 2.2-4007 of the Code of Virginia, any person may petition the agency to consider a regulatory action.

B. A petition shall include but is not limited to the following information:

1. The petitioner's name and contact information;

2. The substance and purpose of the rulemaking that is requested, including reference to any applicable Virginia Administrative Code sections; and

3. Reference to the legal authority of the agency to take the action requested.

C. The agency shall receive, consider and respond to a petition pursuant to § 2.2-4007 and shall have the sole authority to dispose of the petition.

D. The petition shall be posted on the Town Hall and published in the Virginia Register.

E. Nothing in this chapter shall prohibit the agency from receiving information or from proceeding on its own motion for rulemaking.

9VAC5-5-70. Appointment of regulatory advisory panel.

A. The agency may appoint a regulatory advisory panel (RAP) to provide professional specialization or technical assistance when the agency determines that such expertise is necessary to address a specific regulatory issue or action or when individuals indicate an interest in working with the agency on a specific regulatory issue or action.

B. Any person may request the appointment of a RAP and request to participate in its activities. The agency shall determine when a RAP shall be appointed and the composition of the RAP.

C. A RAP may be dissolved by the agency if:

1. The proposed text of the regulation is posted on the Town Hall, published in the Virginia Register, or such other time as the agency determines is appropriate; or

2. The agency determines that the regulatory action is either exempt or excluded from the requirements of the Administrative Process Act.

9VAC5-5-80. Appointment of negotiated rulemaking panel.

A. The agency may appoint a negotiated rulemaking panel (NRP) if a regulatory action is expected to be controversial.

B. An NRP that has been appointed by the agency may be dissolved by the agency when:

1. There is no longer controversy associated with the development of the regulation;

2. The agency determines that the regulatory action is either exempt or excluded from the requirements of the Administrative Process Act; or

3. The agency determines that resolution of a controversy is unlikely.

9VAC5-5-90. Meetings.

Notice of any open meeting, including meetings of a RAP or NRP, shall be posted on the Virginia Regulatory Town Hall and Commonwealth Calendar at least seven working days prior to the date of the meeting. The exception to this requirement is any meeting held in accordance with § 2.2-3707 D of the Code of Virginia allowing for contemporaneous notice to be provided to participants and the public.

9VAC5-5-100. Public hearings on regulations.

A. The agency shall indicate in its notice of intended regulatory action whether it plans to hold a public hearing following the publication of the proposed stage of the regulatory action.

B. The agency may conduct one or more public hearings during the comment period following the publication of a proposed regulatory action.

C. An agency is required to hold a public hearing following the publication of the proposed regulatory action when:

1. The agency's basic law requires the agency to hold a public hearing;

2. The Governor directs the agency to hold a public hearing; or

3. The agency receives requests for a public hearing from at least 25 persons during the public comment period following the publication of the notice of intended regulatory action.

D. Notice of any public hearing shall be posted on the Town Hall and Commonwealth Calendar at least seven working days prior to the date of the hearing. The agency shall also notify those persons who requested a hearing under subdivision C 3 of this section.

9VAC5-5-110. Periodic review of regulations.

A. The agency shall conduct a periodic review of its regulations consistent with:

1. An executive order issued by the Governor pursuant to § 2.2-4017 of the Administrative Process Act to receive comment on all existing regulations as to their effectiveness, efficiency, necessity, clarity, and cost of compliance; and

2. The requirements in § 2.2-4007.1 of the Administrative Process Act regarding regulatory flexibility for small businesses.

B. A periodic review may be conducted separately or in conjunction with other regulatory actions.

C. Notice of a periodic review shall be posted on the Town Hall and published in the Virginia Register.

9VAC5-170-20. Terms defined.

"Administrative proceeding" means an informal fact finding or formal hearing.

"Administrative Process Act" means Chapter 1.1:1 (§ 9-6.14:1 et seq.) of Title 9 Chapter 40 (§ 2.2-4000 et seq.) of Title 2.2 of the Code of Virginia.

"Air pollution" means the presence in the outdoor atmosphere of one or more substances which are or may be harmful or injurious to human health, welfare or safety; to animal or plant life; or to property; or which unreasonably interfere with the enjoyment by the people of life or property.

"Board" means the State Air Pollution Control Board or its designated representative.

"Case decision" means any determination that a named party as a matter of past or present fact, or as a matter of threatened or contemplated private action, either is or is not, or may or may not be (i) in violation of any law or regulations, or (ii) in compliance with any existing requirement for obtaining or retaining a permit or other right or benefit. Case decisions include, but are not limited to, consent orders, consent agreements, orders, special orders, emergency special orders, permits, waivers, and licenses. Case decisions do not include notices of violations, variances, regulations, or inspection reports.

"Confidential information" means secret formulae, secret processes, secret methods or other trade secrets which are proprietary information certified by the signature of the responsible person for the owner to meet the following criteria: (i) information for which the owner has been taking and will continue to take measures to protect confidentiality; (ii) information that has not been and is not presently reasonably obtainable without the owner's consent by private citizens or other firms through legitimate means other than discovery based on a showing of special need in a judicial or quasi-judicial proceeding; (iii) information which is not publicly available from sources other than the owner; and (iv) information the disclosure of which would cause substantial harm to the owner.

"Consent agreement" means an agreement that the owner or another person will perform specific actions for the purpose of diminishing or abating the causes of air pollution or for the purpose of coming into compliance with the regulations of the board, by mutual agreement of the owner or another person and the board.

"Consent order" means a consent agreement issued as an order. Consent orders may be issued without a formal hearing.

"Department" means an employee or other representative of the Virginia Department of Environmental Quality as designated by the director.

"Director" means the director of the Virginia Department of Environmental Quality or a designated representative.

"Emergency" means a situation that immediately and unreasonably affects, or has the potential to immediately and unreasonably affect, public health, safety or welfare; the health of animal or plant life; or property, whether used for recreational, commercial, industrial, agricultural, or other reasonable use.

"Emergency special order" means an order of the board issued under the provisions of § 10.1-1309 B of the Code of Virginia, after declaring a state of emergency and without a formal hearing, to owners who are permitting or causing air pollution to cease the pollution. These orders shall become invalid if a formal hearing is not held within 10 days after the effective date.

"Enabling law" or "enabling laws" means provisions of the Constitution and statutes of the Commonwealth of Virginia authorizing the board to make regulations or decide cases or containing procedural requirements therefor, including, but not limited to, the (i) Virginia Air Pollution Control Law and (ii) the Virginia Motor Vehicle Emissions Control Law.

"Evidentiary hearing" means a formal proceeding which provides opportunity for interested persons to submit factual proofs in formal proceedings as provided in § 9-6.14:8 § 2.2-4009 of the Administrative Process Act in connection with the making of regulations. Evidentiary hearings do not include the informational inquiries of an informal nature provided in § 9-6.14:7.1 § 2.2-4007.01 B of the Administrative Process Act.

"Federal Clean Air Act" means 42 USC 7401 et seq., 91 Stat 685.

"Formal hearing" means a formal proceeding which provides for the right of private parties to submit factual proofs as provided in § 9-6.14:12 § 2.2-4020 of the Administrative Process Act in connection with case decisions. Formal hearings do not include the factual inquiries of an informal nature provided in § 9-6.14:11 § 2.2-4019 of the Administrative Process Act.

"Informal fact finding" means an informal conference or consultation proceeding used to ascertain the fact basis for case decisions as provided in § 9-6.14:11 § 2.2-4019 of the Administrative Process Act.

"Locality" means a city, town, county or other public body created by or pursuant to state law.

"Locality particularly affected" means a locality which bears an identified disproportionate material impact which would not be experienced by other localities.

"Order" means a decision or directive of the board, including special orders, emergency special orders, and other orders of all types, rendered for the purpose of diminishing or abating the causes of air pollution or enforcement of the regulations of the board. Unless specified otherwise in the Virginia Air Pollution Control Law or in the regulations of the board, orders shall be issued only after the appropriate administrative proceeding.

"Owner" means a person, including bodies politic and corporate, associations, partnerships, personal representatives, trustees and committees, as well as individuals, who owns, leases, operates, controls or supervises a source.

"Participatory approach" means a method for the use of (i) standing advisory committees, (ii) ad hoc advisory groups or panels, (iii) consultation with groups or individuals registering interest in working with the department, or (iv) a combination of these in the formation and development of regulations for department consideration. When an ad hoc advisory group is formed, the group shall include representatives of the regulated community and the general public. The decisions as to the membership of the group shall be at the discretion of the director.

"Party" means, for the purposes of Part VIII (9VAC5-170-190 et seq.) of this chapter, a person named in the record who actively participates in the administrative proceeding or offers comments through the public participation process. The term "party" also means the department.

"Person" means an individual, corporation, partnership, association, a governmental body, a municipal corporation, or another legal entity.

"Pollutant" means a substance the presence of which in the outdoor atmosphere is or may be harmful or injurious to human health, welfare or safety, to animal or plant life, or to property, or which unreasonably interferes with the enjoyment by the people of life or property.

"Public hearing" means, unless indicated otherwise, an informal proceeding, similar to that provided for in § 9-6.14:7.1 § 2.2-4007.01 B of the Administrative Process Act, held to afford people an opportunity to submit views and data relative to a matter on which a decision of the board is pending.

"Public meeting" means an informal proceeding conducted by the department in conjunction with the notice of intended regulatory action to afford people an opportunity to submit comments relative to intended regulatory actions.

"Public participation process" means any element of a board or department decision making process that involves the use of a public meeting, public hearing or evidentiary hearing.

"Regulations of the board" means regulations adopted by the State Air Pollution Control Board under a provision of the Code of Virginia.

"Source" means one or combination of the following: buildings, structures, facilities, installations, articles, machines, equipment, landcraft, watercraft, aircraft or other contrivances which contribute, or may contribute, either directly or indirectly to air pollution. An activity by a person that contributes, or may contribute, either directly or indirectly to air pollution, including, but not limited to, open burning, generation of fugitive dust or emissions, and cleaning with abrasives or chemicals.

"Special order" means an order of the board issued:

1. Under the provisions of § 10.1-1309 of the Code of Virginia:

a. To owners who are permitting or causing air pollution to cease and desist from the pollution;

b. To owners who have failed to construct facilities in accordance with or have failed to comply with plans for the control of air pollution submitted by them to, and approved by the board, to construct facilities in accordance with or otherwise comply with the approved plan;

c. To owners who have violated or failed to comply with the terms and provisions of an order or directive issued by the board to comply with the terms and provisions;

d. To owners who have contravened duly adopted and promulgated air quality standards and policies to cease and desist from the contravention and to comply with the air quality standards and policies; and

e. To require an owner to comply with the provisions of the Virginia Air Pollution Control Law and a decision of the board; or

2. Under the provisions of § 10.1-1309.1 of the Code of Virginia, which require that an owner file with the board a plan to abate, control, prevent, remove, or contain a substantial and imminent threat to public health or the environment that is reasonably likely to occur if the source ceases operations.

"Variance" means the temporary exemption of an owner or other person from the regulations of the board, or a temporary change in the regulations of the board as they apply to an owner or other person.

"Virginia Air Pollution Control Law" means Chapter 13 (§ 10.1-1300 et seq.) of Title 10.1 of the Code of Virginia.

"Virginia Motor Vehicle Emissions Control Law" means Article 22 (§ 46.2-1176 et seq.) of Chapter 10 of Title 46.2 of the Code of Virginia.

"Virginia Register Act" means Chapter 1.2 (§ 9-6.15 et seq.) of Title 9 Chapter 41 (§ 2.2-4100 et seq.) of Title 2.2 of the Code of Virginia.

9VAC5-170-40. Hearings and proceedings.

A. Four types of proceedings are used in the administration of the board's regulatory program.

1. A public hearing is held in each of two situations, as explained below.

a. A public hearing is required before considering regulations in accordance with § 10.1-1308 of the Virginia Air Pollution Control Law. The procedure for a public hearing shall conform to § 9-6.14:7.1 § 2.2-4007.01 B of the Administrative Process Act, except as modified by §§ 10.1-1307 F and 10.1-1308 of the Virginia Air Pollution Control Law, and to Part IV (9VAC5-170-90 et seq.) of this chapter 9VAC5-5 (Public Participation Guidelines).

b. A public hearing is required before considering variances and amendments to and revocation of variances in accordance with § 10.1-1307 C of the Virginia Air Pollution Control Law. The procedure for a public hearing shall conform to § 10.1-1307 C of the Virginia Air Pollution Control Law and to the provisions of 9VAC5-170-140.

2. An informal fact finding is used to negotiate and to make case decisions. The procedure for an informal fact finding shall conform to § 9-6.14:11 § 2.2-4019 of the Administrative Process Act.

3. A formal hearing is held in each of two situations.

a. A formal hearing is held for the enforcement or review of orders and permits and for the enforcement of regulations in accordance with § 10.1-1307 D and § 10.1-1322 A of the Virginia Air Pollution Control Law. The procedures for this type of hearing shall conform to § 9-6.14:12 § 2.2-4020 of the Administrative Process Act, except as modified by § 10.1-1307 D and F of the Virginia Air Pollution Control Law.

b. A formal hearing is held for special orders or emergency special orders for the enforcement or review of orders and permits and for the enforcement of regulations in accordance with § 10.1-1309 of the Virginia Pollution Control Law. The procedures for this type of hearing shall conform to § 9-6.14:12 § 2.2-4020 of the Administrative Process Act, except as modified by §§ 10.1-1307 F and 10.1-1309 of the Virginia Air Pollution Control Law.

4. An evidentiary hearing may be held for the making of regulations. The procedure for this type of hearing shall conform to § 9-6.14:8 § 2.2-4009 of the Administrative Process Act.

B. The board may adopt policies and procedures to supplement the statutory procedural requirements for the various hearings and proceedings cited in subsection A of this section.

C. Records of hearings and proceedings may be kept in one of the following forms:

1. Oral statements or testimony at a public hearing will be stenographically or electronically recorded, and may be transcribed to written form.

2. Oral statements or testimony at an informal fact finding will be stenographically or electronically recorded, and may be transcribed to written form.

3. Formal hearings and evidentiary hearings will be recorded by a court reporter or electronically recorded for transcription to written form.

D. Availability of records of hearings and proceedings shall be as follows:

1. A copy of the electronic recording or the transcript of a public hearing, if transcribed, will be provided within a reasonable time to anyone upon receipt of a written request and payment of the cost; if not transcribed, the additional cost of preparation will be paid by the person making the request.

2. A copy of the electronic recording or the transcript of an informal fact finding, if transcribed, will be provided within a reasonable time to anyone upon receipt of a written request and payment of cost; if not transcribed, the additional cost of preparation will be paid by the person making the request.

3. Anyone desiring a copy of the transcript of a formal hearing or evidentiary hearing recorded by a court reporter may purchase the copy directly from the court reporter; if not transcribed, the additional cost of preparation will be paid by the person making the request.

Part III
Regulations and Orders

9VAC5-170-80. Establishment of regulations and orders.

A. Regulations of the board shall be adopted, amended or repealed in accordance with the provisions of the enabling laws, Articles 1 (§ 9-6.14:4.1 et seq.) 2.2-4000 et seq.) and 2 (§ 9-6.14:7.1 et seq.) 2.2-4006 et seq.) of the Administrative Process Act, and Part IV (9VAC5-170-90 et seq.) of this chapter 9VAC5-5 (Public Participation Guidelines).

B. Regulations, amendments, and repeals shall become effective as provided in § 9-6.14:9.3 § 2.2-4015 of the Administrative Process Act.

C. If necessary in an emergency situation, the board may adopt, amend or stay a regulation as an exclusion under § 9-6.14:4.1 § 2.2-4011 of the Administrative Process Act, but the regulation shall remain effective no longer than one year unless readopted following the requirements of subsection A of this section. The provisions of this subsection are not applicable to emergency special orders of the board; these orders are subject to the provisions of subsection E of this section.

D. The Administrative Process Act and Virginia Register Act provide that state regulations may incorporate documents by reference. Throughout the regulations of the board, documents of the types specified below have been incorporated by reference.

1. United States Code.

2. Code of Virginia.

3. Code of Federal Regulations.

4. Federal Register.

5. Technical and scientific reference documents.

Additional information on specific documents which have been incorporated by reference and on the availability of these documents may be found in the specific regulations of the board which incorporate the documents.

E. Orders, special orders, and emergency special orders may be issued pursuant to § 10.1-1307 D, § 10.1-1309, or § 10.1-1309.1 of the Virginia Air Pollution Control Law.

Part IV
Public Participation in Regulation Development (Repealed.)

9VAC5-170-90. General provisions. (Repealed.)

A. The procedures in 9VAC5-170-100 shall be used for soliciting the input of interested people in the formation and development, amendment or repeal of regulations in accordance with the Administrative Process Act. This part does not apply to regulations exempted from the provisions of the Administrative Process Act (§ 9-6.14:4.1 A and B) or excluded from the operation of Article 2 of the Administrative Process Act (§ 9-6.14:4.1 C).

B. The failure of a person to receive a notice or copies of a document provided under these procedures shall not affect the validity of a regulation.

C. Anyone may petition the board for the adoption, amendment or repeal of a regulation. The petition, at a minimum, shall contain the following information:

1. Name of petitioner.

2. Petitioner's mailing address and telephone number.

3. Petitioner's interest in the proposed action.

4. Recommended regulation or addition, deletion or amendment to a specific regulation or regulations.

5. Statement of need and justification for the proposed action.

6. Statement of impact on the petitioner and other affected people.

7. Supporting documents, as applicable.

The board shall provide a written response to a petition within 180 days from the date the petition was received.

9VAC5-170-100. Public participation procedures. (Repealed.)

A. The department shall establish and maintain a list consisting of people expressing an interest in the adoption, amendment or repeal of regulations. Anyone wishing to be placed on the list may do so by writing the department. In addition, the department, at its discretion, may add to the list any person, organization, or publication it believes will be interested in participating in the promulgation of regulations. Individuals and organizations may be periodically requested to indicate their desire to continue to receive documents or be deleted from a list. Individuals and organizations may be deleted from the list at the request of the individual and organization, or at the discretion of the department when mail is returned as undeliverable.

B. Whenever the board so directs or upon its own initiative, the department may commence the regulation adoption process and proceed to draft a proposal according to these procedures.

C. The department shall use the participatory approach to assist in the development of the proposal or use one of the following alternatives:

1. Proceed without using the participatory approach if the board specifically authorizes the department to proceed without using the participatory approach.

2. Include in the notice of intended regulatory action a statement inviting comment on whether the department should use the participatory approach to assist the department in the development of the proposal. If the department receives written responses from at least five people during the associated comment period indicating that the department should use the participatory approach, the department will use the participatory approach requested. Should different approaches be requested, the director shall determine the specific approach to be used.

D. The department shall issue a notice of intended regulatory action whenever it considers the adoption, amendment or repeal of a regulation.

1. The notice of intended regulatory action shall include at least the following:

a. A description of the subject matter of the planned regulation.

b. A description of the intent of the planned regulation.

c. A brief statement as to the need for regulatory action.

d. A brief description of alternatives available, if any, to meet the need.

e. A request for comments on the intended regulatory action, to include ideas to assist the department in the development of a proposal.

f. A request for comments on the costs and benefits of the stated alternatives or other alternatives.

g. A statement of the department's intent to hold at least one public hearing on the proposed regulation after it is published in the Virginia Register of Regulations.

h. A statement inviting comment on whether the department should use the participatory approach to assist the department in the development of a proposal. Including this statement shall be required only when the department makes a decision to pursue the alternative provided in subdivision C 2 of this section.

2. The department shall hold at least one public meeting whenever it considers the adoption, amendment or repeal of a regulation unless the board specifically authorizes the department to proceed without holding a public meeting. In those cases where a public meeting will be held, the notice of intended regulatory action shall also include the date, not to be less than 30 days after publication in the Virginia Register of Regulations, time, and place of the public meeting.

3. The public comment period for notices of intended regulatory action under this section shall be no less than 30 days after publication of the notice of intended regulatory action in the Virginia Register of Regulations.

E. The department shall disseminate the notice of intended regulatory action to the public via the following:

1. Distribution to the Registrar of Regulations for publication in the Virginia Register of Regulations.

2. Distribution by mail to people on the list established under subsection A of this section.

F. After consideration of public input, the department may complete the draft proposed regulation and the supporting documentation required for review. If the participatory approach is being used, the draft proposed regulation shall be developed in consultation with the participants. A summary or copies of the comments received in response to the notice of intended regulatory action shall be distributed to the participants during the development of the draft proposed regulation. This summary or copies of the comments received in response to the notice of intended regulatory action shall also be distributed to the board.

G. Upon approval of the draft proposed regulation by the board, the department shall publish a notice of public comment and the proposal for public comment.

H. The notice of public comment shall include at least the following:

1. The notice of the opportunity to comment on the proposed regulation, the location where copies of the proposal may be obtained, and the name, address, and telephone number of the individual to contact for further information about the proposed regulation.

2. A request for comments on the costs and benefits of the proposal.

3. The identity of a locality particularly affected by the proposed regulation.

4. A statement that an analysis of the following has been conducted by the department and is available to the public upon request:

a. A statement of purpose: the rationale or justification for the new provisions of the regulation, from the standpoint of the public's health, safety or welfare.

b. A statement of estimated impact:

(1) Projected number and types of regulated entities or people affected.

(2) Projected cost, expressed as a dollar figure or range, to regulated entities (and to the public, if applicable) for implementation and compliance. In those instances where the department is unable to quantify projected costs, it shall offer qualitative data, if possible, to help define the impact of the proposed regulation. Qualitative data shall include, if possible, an example or examples of the impact of the proposed regulation on a typical member or members of the regulated community.

(3) Projected cost to the department for implementation and enforcement.

(4) Beneficial impact the regulation is designed to produce.

c. An explanation of need for the proposed regulation and potential consequences that may result in the absence of the regulation.

d. An estimate of the impact of the proposed regulation upon small businesses, as defined in § 9-199 of the Code of Virginia, or organizations in Virginia.

e. A description of provisions of the proposed regulation which are more restrictive than applicable federal requirements together with the reason why the more restrictive provisions are needed.

f. A discussion of alternative approaches that were considered to meet the need the proposed regulation addresses, and a statement as to whether the department believes that the proposed regulation is the least burdensome alternative to the regulated entities that fully meets the stated purpose of the proposed regulation.

g. A schedule setting forth when, after the effective date of the regulation, the department will evaluate it for effectiveness and continued need.

5. The date, time, and place of at least one public hearing held in accordance with § 9-6.14:7.1 of the Administrative Process Act to receive comments on the proposed regulation. The public hearing may be held at any time during the public comment period and, whenever practicable, no less than 15 days prior to the close of the public comment period. The public hearing may be held in the location which the department determines will best facilitate input from interested people. (In those cases in which the department elects to conduct an evidentiary hearing, the notice shall indicate that the hearing will be held in accordance with § 9-6.14:8 of the Administrative Process Act.)

I. The public comment period shall close no less than 60 days after publication of the notice of public comment in the Virginia Register of Regulations.

J. The department shall disseminate the notice of public comment to the public via the following:

1. Distribution to the Registrar of Regulations for publication in the Virginia Register of Regulations.

2. Distribution by mail to people on the list established under subsection A of this section.

K. The department may publish a notice of the hearing and comment period in any newspaper as it deems appropriate.

L. The department shall prepare a summary of comments received in response to the notice of public comment and the department's response to the comments received. The department shall send a draft of the summary of comments to public commenters on the proposed regulation at least five days before final adoption of the regulation. The department shall submit the summary and the department response and, if requested, submit the full comments to the board. The summary, the department response, and the comments shall become a part of the department file and after final action on the regulation by the board, made available, upon request, to interested people.

M. If the department determines that the process to adopt, amend or repeal a regulation should be terminated after approval of the draft proposed regulation by the board, the department shall present to the board for its consideration a recommendation and rationale for the withdrawal of the proposed regulation.

N. Completion of the remaining steps in the adoption process shall be carried out in accordance with the Administrative Process Act.

9VAC5-170-110. Transition. (Repealed.)

A. Regulatory actions for which a notice of intended regulatory action has been published in the Virginia Register of Regulations prior to May 16, 1994, shall be processed in accordance with Appendix E of VR 120-01 as revised by the emergency amendments in effect from June 29, 1993, to June 28, 1994, unless sooner modified or vacated or superseded by permanent regulations.

B. This part when effective shall supersede and repeal Appendix E of VR 120-01 as revised by the emergency amendments which became effective on June 29, 1993. Regulatory actions for which a notice of intended regulatory action has not been published in the Virginia Register of Regulations prior to May 16, 1994, shall be processed in accordance with this part.

VA.R. Doc. No. R09-1639; Filed October 22, 2008, 10:49 a.m.
TITLE 9. ENVIRONMENT
STATE AIR POLLUTION CONTROL BOARD
Final Regulation

REGISTRAR'S NOTICE: The following model public participation guidelines are exempt from Article 2 (§ 2.2-4006 et seq.) of Chapter 40 of Title 2.2 of the Code of Virginia pursuant to Chapter 321 of the 2008 Acts of Assembly.

Titles of Regulations: 9VAC5-5. Public Participation Guidelines (adding 9VAC5-5-10 through 9VAC5-5-110).

9VAC5-170. Regulation for General Administration (amending 9VAC5-170-20, 9VAC5-170-40, 9VAC5-170-80; repealing 9VAC5-170-90, 9VAC5-170-100, 9VAC5-170-110).

Statutory Authority: §§ 2.2-4007.02 and 10.1-1308 of the Code of Virginia.

Effective Date: January 1, 2009.

Agency Contact: Cindy Berndt, Regulatory Coordinator, Department of Environmental Quality, P.O.Box 1105, Richmond, VA 23218, telephone (804) 698-4378, FAX (804) 698-4346, or email cmberndt@deq.virginia.gov.

Summary: Summary:

The regulations comply with the legislative mandate (Chapter 321, 2008 Acts of Assembly) that agencies adopt model public participation guidelines issued by the Department of Planning and Budget by December 1, 2008. Public participation guidelines exist to promote public involvement in the development, amendment, or repeal of an agency's regulations.

This regulatory action repeals the current public participation guidelines and promulgates new public participation guidelines as required by Chapter 321 of the 2008 Acts of Assembly. Highlights of the public participation guidelines include (i) providing for the establishment and maintenance of notification lists of interested persons and specifying the information to be sent to such persons; (ii) providing for public comments on regulatory actions; (iii) establishing the time period during which public comments shall be accepted; (iv) providing that the plan to hold a public meeting shall be indicated in any notice of intended regulatory action; (v) providing for the appointment, when necessary, of regulatory advisory panels to provide professional specialization or technical assistance and negotiated rulemaking panels if a regulatory action is expected to be controversial; and (vi) providing for the periodic review of regulations.

CHAPTER 5
PUBLIC PARTICIPATION GUIDELINES

Part I
Purpose and Definitions

9VAC5-5-10. Purpose.

The purpose of this chapter is to promote public involvement in the development, amendment or repeal of the regulations of the State Air Pollution Control Board. This chapter does not apply to regulations, guidelines, or other documents exempted or excluded from the provisions of the Administrative Process Act (§ 2.2-4000 et seq. of the Code of Virginia).

9VAC5-5-20. Definitions.

The following words and terms when used in this chapter shall have the following meanings unless the context clearly indicates otherwise:

"Administrative Process Act" means Chapter 40 (§ 2.2-4000 et seq.) of Title 2.2 of the Code of Virginia.

"Agency" means the State Air Pollution Control Board, which is the unit of state government empowered by the agency's basic law to make regulations or decide cases. Actions specified in this chapter may be fulfilled by state employees as delegated by the agency.

"Basic law" means provisions in the Code of Virginia that delineate the basic authority and responsibilities of an agency.

"Commonwealth Calendar" means the electronic calendar for official government meetings open to the public as required by § 2.2-3707 C of the Freedom of Information Act.

''Negotiated rulemaking panel'' or ''NRP'' means an ad hoc advisory panel of interested parties established by an agency to consider issues that are controversial with the assistance of a facilitator or mediator, for the purpose of reaching a consensus in the development of a proposed regulatory action.

"Notification list" means a list used to notify persons pursuant to this chapter. Such a list may include an electronic list maintained through the Virginia Regulatory Town Hall or other list maintained by the agency.

"Open meeting" means any scheduled gathering of a unit of state government empowered by an agency's basic law to make regulations or decide cases, which is related to promulgating, amending or repealing a regulation.

"Person" means any individual, corporation, partnership, association, cooperative, limited liability company, trust, joint venture, government, political subdivision, or any other legal or commercial entity and any successor, representative, agent, agency, or instrumentality thereof.

"Public hearing" means a scheduled time at which members or staff of the agency will meet for the purpose of receiving public comment on a regulatory action.

"Regulation" means any statement of general application having the force of law, affecting the rights or conduct of any person, adopted by the agency in accordance with the authority conferred on it by applicable laws.

"Regulatory action" means the promulgation, amendment, or repeal of a regulation by the agency.

"Regulatory advisory panel" or "RAP" means a standing or ad hoc advisory panel of interested parties established by the agency for the purpose of assisting in regulatory actions.

"Town Hall" means the Virginia Regulatory Town Hall, the website operated by the Virginia Department of Planning and Budget at www.townhall.virginia.gov, which has online public comment forums and displays information about regulatory meetings and regulatory actions under consideration in Virginia and sends this information to registered public users.

"Virginia Register" means the Virginia Register of Regulations, the publication that provides official legal notice of new, amended and repealed regulations of state agencies, which is published under the provisions of Article 6 (§ 2.2-4031 et seq.) of the Administrative Process Act.

Part II
Notification of Interested Persons

9VAC5-5-30. Notification list.

A. The agency shall maintain a list of persons who have requested to be notified of regulatory actions being pursued by the agency.

B. Any person may request to be placed on a notification list by registering as a public user on the Town Hall or by making a request to the agency. Any person who requests to be placed on a notification list shall elect to be notified either by electronic means or through a postal carrier.

C. The agency may maintain additional lists for persons who have requested to be informed of specific regulatory issues, proposals, or actions.

D. When electronic mail is returned as undeliverable on multiple occasions at least 24 hours apart, that person may be deleted from the list. A single undeliverable message is insufficient cause to delete the person from the list.

E. When mail delivered by a postal carrier is returned as undeliverable on multiple occasions, that person may be deleted from the list.

F. The agency may periodically request those persons on the notification list to indicate their desire to either continue to be notified electronically, receive documents through a postal carrier, or be deleted from the list.

9VAC5-5-40. Information to be sent to persons on the notification list.

A. To persons electing to receive electronic notification or notification through a postal carrier as described in 9VAC5-5-30, the agency shall send the following information:

1. A notice of intended regulatory action (NOIRA).

2. A notice of the comment period on a proposed, a reproposed, or a fast-track regulation and hyperlinks to, or instructions on how to obtain, a copy of the regulation and any supporting documents.

3. A notice soliciting comment on a final regulation when the regulatory process has been extended pursuant to § 2.2-4007.06 or 2.2-4013 C of the Code of Virginia.

B. The failure of any person to receive any notice or copies of any documents shall not affect the validity of any regulation or regulatory action.

Part III
Public Participation Procedures

9VAC5-5-50. Public comment.

A. In considering any nonemergency, nonexempt regulatory action, the agency shall afford interested persons an opportunity to submit data, views, and arguments, either orally or in writing, to the agency. Such opportunity to comment shall include an online public comment forum on the Town Hall.

1. To any requesting person, the agency shall provide copies of the statement of basis, purpose, substance, and issues; the economic impact analysis of the proposed or fast-track regulatory action; and the agency's response to public comments received.

2. The agency may begin crafting a regulatory action prior to or during any opportunities it provides to the public to submit comments.

B. The agency shall accept public comments in writing after the publication of a regulatory action in the Virginia Register as follows:

1. For a minimum of 30 calendar days following the publication of the notice of intended regulatory action (NOIRA).

2. For a minimum of 60 calendar days following the publication of a proposed regulation.

3. For a minimum of 30 calendar days following the publication of a reproposed regulation.

4. For a minimum of 30 calendar days following the publication of a final adopted regulation.

5. For a minimum of 30 calendar days following the publication of a fast-track regulation.

6. For a minimum of 21 calendar days following the publication of a notice of periodic review.

7. Not later than 21 calendar days following the publication of a petition for rulemaking.

C. The agency may determine if any of the comment periods listed in subsection B of this section shall be extended.

D. If the Governor finds that one or more changes with substantial impact have been made to a proposed regulation, he may require the agency to provide an additional 30 calendar days to solicit additional public comment on the changes in accordance with § 2.2-4013 C of the Code of Virginia.

E. The agency shall send a draft of the agency's summary description of public comment to all public commenters on the proposed regulation at least five days before final adoption of the regulation pursuant to § 2.2-4012 E of the Code of Virginia.

9VAC5-5-60. Petition for rulemaking.

A. As provided in § 2.2-4007 of the Code of Virginia, any person may petition the agency to consider a regulatory action.

B. A petition shall include but is not limited to the following information:

1. The petitioner's name and contact information;

2. The substance and purpose of the rulemaking that is requested, including reference to any applicable Virginia Administrative Code sections; and

3. Reference to the legal authority of the agency to take the action requested.

C. The agency shall receive, consider and respond to a petition pursuant to § 2.2-4007 and shall have the sole authority to dispose of the petition.

D. The petition shall be posted on the Town Hall and published in the Virginia Register.

E. Nothing in this chapter shall prohibit the agency from receiving information or from proceeding on its own motion for rulemaking.

9VAC5-5-70. Appointment of regulatory advisory panel.

A. The agency may appoint a regulatory advisory panel (RAP) to provide professional specialization or technical assistance when the agency determines that such expertise is necessary to address a specific regulatory issue or action or when individuals indicate an interest in working with the agency on a specific regulatory issue or action.

B. Any person may request the appointment of a RAP and request to participate in its activities. The agency shall determine when a RAP shall be appointed and the composition of the RAP.

C. A RAP may be dissolved by the agency if:

1. The proposed text of the regulation is posted on the Town Hall, published in the Virginia Register, or such other time as the agency determines is appropriate; or

2. The agency determines that the regulatory action is either exempt or excluded from the requirements of the Administrative Process Act.

9VAC5-5-80. Appointment of negotiated rulemaking panel.

A. The agency may appoint a negotiated rulemaking panel (NRP) if a regulatory action is expected to be controversial.

B. An NRP that has been appointed by the agency may be dissolved by the agency when:

1. There is no longer controversy associated with the development of the regulation;

2. The agency determines that the regulatory action is either exempt or excluded from the requirements of the Administrative Process Act; or

3. The agency determines that resolution of a controversy is unlikely.

9VAC5-5-90. Meetings.

Notice of any open meeting, including meetings of a RAP or NRP, shall be posted on the Virginia Regulatory Town Hall and Commonwealth Calendar at least seven working days prior to the date of the meeting. The exception to this requirement is any meeting held in accordance with § 2.2-3707 D of the Code of Virginia allowing for contemporaneous notice to be provided to participants and the public.

9VAC5-5-100. Public hearings on regulations.

A. The agency shall indicate in its notice of intended regulatory action whether it plans to hold a public hearing following the publication of the proposed stage of the regulatory action.

B. The agency may conduct one or more public hearings during the comment period following the publication of a proposed regulatory action.

C. An agency is required to hold a public hearing following the publication of the proposed regulatory action when:

1. The agency's basic law requires the agency to hold a public hearing;

2. The Governor directs the agency to hold a public hearing; or

3. The agency receives requests for a public hearing from at least 25 persons during the public comment period following the publication of the notice of intended regulatory action.

D. Notice of any public hearing shall be posted on the Town Hall and Commonwealth Calendar at least seven working days prior to the date of the hearing. The agency shall also notify those persons who requested a hearing under subdivision C 3 of this section.

9VAC5-5-110. Periodic review of regulations.

A. The agency shall conduct a periodic review of its regulations consistent with:

1. An executive order issued by the Governor pursuant to § 2.2-4017 of the Administrative Process Act to receive comment on all existing regulations as to their effectiveness, efficiency, necessity, clarity, and cost of compliance; and

2. The requirements in § 2.2-4007.1 of the Administrative Process Act regarding regulatory flexibility for small businesses.

B. A periodic review may be conducted separately or in conjunction with other regulatory actions.

C. Notice of a periodic review shall be posted on the Town Hall and published in the Virginia Register.

9VAC5-170-20. Terms defined.

"Administrative proceeding" means an informal fact finding or formal hearing.

"Administrative Process Act" means Chapter 1.1:1 (§ 9-6.14:1 et seq.) of Title 9 Chapter 40 (§ 2.2-4000 et seq.) of Title 2.2 of the Code of Virginia.

"Air pollution" means the presence in the outdoor atmosphere of one or more substances which are or may be harmful or injurious to human health, welfare or safety; to animal or plant life; or to property; or which unreasonably interfere with the enjoyment by the people of life or property.

"Board" means the State Air Pollution Control Board or its designated representative.

"Case decision" means any determination that a named party as a matter of past or present fact, or as a matter of threatened or contemplated private action, either is or is not, or may or may not be (i) in violation of any law or regulations, or (ii) in compliance with any existing requirement for obtaining or retaining a permit or other right or benefit. Case decisions include, but are not limited to, consent orders, consent agreements, orders, special orders, emergency special orders, permits, waivers, and licenses. Case decisions do not include notices of violations, variances, regulations, or inspection reports.

"Confidential information" means secret formulae, secret processes, secret methods or other trade secrets which are proprietary information certified by the signature of the responsible person for the owner to meet the following criteria: (i) information for which the owner has been taking and will continue to take measures to protect confidentiality; (ii) information that has not been and is not presently reasonably obtainable without the owner's consent by private citizens or other firms through legitimate means other than discovery based on a showing of special need in a judicial or quasi-judicial proceeding; (iii) information which is not publicly available from sources other than the owner; and (iv) information the disclosure of which would cause substantial harm to the owner.

"Consent agreement" means an agreement that the owner or another person will perform specific actions for the purpose of diminishing or abating the causes of air pollution or for the purpose of coming into compliance with the regulations of the board, by mutual agreement of the owner or another person and the board.

"Consent order" means a consent agreement issued as an order. Consent orders may be issued without a formal hearing.

"Department" means an employee or other representative of the Virginia Department of Environmental Quality as designated by the director.

"Director" means the director of the Virginia Department of Environmental Quality or a designated representative.

"Emergency" means a situation that immediately and unreasonably affects, or has the potential to immediately and unreasonably affect, public health, safety or welfare; the health of animal or plant life; or property, whether used for recreational, commercial, industrial, agricultural, or other reasonable use.

"Emergency special order" means an order of the board issued under the provisions of § 10.1-1309 B of the Code of Virginia, after declaring a state of emergency and without a formal hearing, to owners who are permitting or causing air pollution to cease the pollution. These orders shall become invalid if a formal hearing is not held within 10 days after the effective date.

"Enabling law" or "enabling laws" means provisions of the Constitution and statutes of the Commonwealth of Virginia authorizing the board to make regulations or decide cases or containing procedural requirements therefor, including, but not limited to, the (i) Virginia Air Pollution Control Law and (ii) the Virginia Motor Vehicle Emissions Control Law.

"Evidentiary hearing" means a formal proceeding which provides opportunity for interested persons to submit factual proofs in formal proceedings as provided in § 9-6.14:8 § 2.2-4009 of the Administrative Process Act in connection with the making of regulations. Evidentiary hearings do not include the informational inquiries of an informal nature provided in § 9-6.14:7.1 § 2.2-4007.01 B of the Administrative Process Act.

"Federal Clean Air Act" means 42 USC 7401 et seq., 91 Stat 685.

"Formal hearing" means a formal proceeding which provides for the right of private parties to submit factual proofs as provided in § 9-6.14:12 § 2.2-4020 of the Administrative Process Act in connection with case decisions. Formal hearings do not include the factual inquiries of an informal nature provided in § 9-6.14:11 § 2.2-4019 of the Administrative Process Act.

"Informal fact finding" means an informal conference or consultation proceeding used to ascertain the fact basis for case decisions as provided in § 9-6.14:11 § 2.2-4019 of the Administrative Process Act.

"Locality" means a city, town, county or other public body created by or pursuant to state law.

"Locality particularly affected" means a locality which bears an identified disproportionate material impact which would not be experienced by other localities.

"Order" means a decision or directive of the board, including special orders, emergency special orders, and other orders of all types, rendered for the purpose of diminishing or abating the causes of air pollution or enforcement of the regulations of the board. Unless specified otherwise in the Virginia Air Pollution Control Law or in the regulations of the board, orders shall be issued only after the appropriate administrative proceeding.

"Owner" means a person, including bodies politic and corporate, associations, partnerships, personal representatives, trustees and committees, as well as individuals, who owns, leases, operates, controls or supervises a source.

"Participatory approach" means a method for the use of (i) standing advisory committees, (ii) ad hoc advisory groups or panels, (iii) consultation with groups or individuals registering interest in working with the department, or (iv) a combination of these in the formation and development of regulations for department consideration. When an ad hoc advisory group is formed, the group shall include representatives of the regulated community and the general public. The decisions as to the membership of the group shall be at the discretion of the director.

"Party" means, for the purposes of Part VIII (9VAC5-170-190 et seq.) of this chapter, a person named in the record who actively participates in the administrative proceeding or offers comments through the public participation process. The term "party" also means the department.

"Person" means an individual, corporation, partnership, association, a governmental body, a municipal corporation, or another legal entity.

"Pollutant" means a substance the presence of which in the outdoor atmosphere is or may be harmful or injurious to human health, welfare or safety, to animal or plant life, or to property, or which unreasonably interferes with the enjoyment by the people of life or property.

"Public hearing" means, unless indicated otherwise, an informal proceeding, similar to that provided for in § 9-6.14:7.1 § 2.2-4007.01 B of the Administrative Process Act, held to afford people an opportunity to submit views and data relative to a matter on which a decision of the board is pending.

"Public meeting" means an informal proceeding conducted by the department in conjunction with the notice of intended regulatory action to afford people an opportunity to submit comments relative to intended regulatory actions.

"Public participation process" means any element of a board or department decision making process that involves the use of a public meeting, public hearing or evidentiary hearing.

"Regulations of the board" means regulations adopted by the State Air Pollution Control Board under a provision of the Code of Virginia.

"Source" means one or combination of the following: buildings, structures, facilities, installations, articles, machines, equipment, landcraft, watercraft, aircraft or other contrivances which contribute, or may contribute, either directly or indirectly to air pollution. An activity by a person that contributes, or may contribute, either directly or indirectly to air pollution, including, but not limited to, open burning, generation of fugitive dust or emissions, and cleaning with abrasives or chemicals.

"Special order" means an order of the board issued:

1. Under the provisions of § 10.1-1309 of the Code of Virginia:

a. To owners who are permitting or causing air pollution to cease and desist from the pollution;

b. To owners who have failed to construct facilities in accordance with or have failed to comply with plans for the control of air pollution submitted by them to, and approved by the board, to construct facilities in accordance with or otherwise comply with the approved plan;

c. To owners who have violated or failed to comply with the terms and provisions of an order or directive issued by the board to comply with the terms and provisions;

d. To owners who have contravened duly adopted and promulgated air quality standards and policies to cease and desist from the contravention and to comply with the air quality standards and policies; and

e. To require an owner to comply with the provisions of the Virginia Air Pollution Control Law and a decision of the board; or

2. Under the provisions of § 10.1-1309.1 of the Code of Virginia, which require that an owner file with the board a plan to abate, control, prevent, remove, or contain a substantial and imminent threat to public health or the environment that is reasonably likely to occur if the source ceases operations.

"Variance" means the temporary exemption of an owner or other person from the regulations of the board, or a temporary change in the regulations of the board as they apply to an owner or other person.

"Virginia Air Pollution Control Law" means Chapter 13 (§ 10.1-1300 et seq.) of Title 10.1 of the Code of Virginia.

"Virginia Motor Vehicle Emissions Control Law" means Article 22 (§ 46.2-1176 et seq.) of Chapter 10 of Title 46.2 of the Code of Virginia.

"Virginia Register Act" means Chapter 1.2 (§ 9-6.15 et seq.) of Title 9 Chapter 41 (§ 2.2-4100 et seq.) of Title 2.2 of the Code of Virginia.

9VAC5-170-40. Hearings and proceedings.

A. Four types of proceedings are used in the administration of the board's regulatory program.

1. A public hearing is held in each of two situations, as explained below.

a. A public hearing is required before considering regulations in accordance with § 10.1-1308 of the Virginia Air Pollution Control Law. The procedure for a public hearing shall conform to § 9-6.14:7.1 § 2.2-4007.01 B of the Administrative Process Act, except as modified by §§ 10.1-1307 F and 10.1-1308 of the Virginia Air Pollution Control Law, and to Part IV (9VAC5-170-90 et seq.) of this chapter 9VAC5-5 (Public Participation Guidelines).

b. A public hearing is required before considering variances and amendments to and revocation of variances in accordance with § 10.1-1307 C of the Virginia Air Pollution Control Law. The procedure for a public hearing shall conform to § 10.1-1307 C of the Virginia Air Pollution Control Law and to the provisions of 9VAC5-170-140.

2. An informal fact finding is used to negotiate and to make case decisions. The procedure for an informal fact finding shall conform to § 9-6.14:11 § 2.2-4019 of the Administrative Process Act.

3. A formal hearing is held in each of two situations.

a. A formal hearing is held for the enforcement or review of orders and permits and for the enforcement of regulations in accordance with § 10.1-1307 D and § 10.1-1322 A of the Virginia Air Pollution Control Law. The procedures for this type of hearing shall conform to § 9-6.14:12 § 2.2-4020 of the Administrative Process Act, except as modified by § 10.1-1307 D and F of the Virginia Air Pollution Control Law.

b. A formal hearing is held for special orders or emergency special orders for the enforcement or review of orders and permits and for the enforcement of regulations in accordance with § 10.1-1309 of the Virginia Pollution Control Law. The procedures for this type of hearing shall conform to § 9-6.14:12 § 2.2-4020 of the Administrative Process Act, except as modified by §§ 10.1-1307 F and 10.1-1309 of the Virginia Air Pollution Control Law.

4. An evidentiary hearing may be held for the making of regulations. The procedure for this type of hearing shall conform to § 9-6.14:8 § 2.2-4009 of the Administrative Process Act.

B. The board may adopt policies and procedures to supplement the statutory procedural requirements for the various hearings and proceedings cited in subsection A of this section.

C. Records of hearings and proceedings may be kept in one of the following forms:

1. Oral statements or testimony at a public hearing will be stenographically or electronically recorded, and may be transcribed to written form.

2. Oral statements or testimony at an informal fact finding will be stenographically or electronically recorded, and may be transcribed to written form.

3. Formal hearings and evidentiary hearings will be recorded by a court reporter or electronically recorded for transcription to written form.

D. Availability of records of hearings and proceedings shall be as follows:

1. A copy of the electronic recording or the transcript of a public hearing, if transcribed, will be provided within a reasonable time to anyone upon receipt of a written request and payment of the cost; if not transcribed, the additional cost of preparation will be paid by the person making the request.

2. A copy of the electronic recording or the transcript of an informal fact finding, if transcribed, will be provided within a reasonable time to anyone upon receipt of a written request and payment of cost; if not transcribed, the additional cost of preparation will be paid by the person making the request.

3. Anyone desiring a copy of the transcript of a formal hearing or evidentiary hearing recorded by a court reporter may purchase the copy directly from the court reporter; if not transcribed, the additional cost of preparation will be paid by the person making the request.

Part III
Regulations and Orders

9VAC5-170-80. Establishment of regulations and orders.

A. Regulations of the board shall be adopted, amended or repealed in accordance with the provisions of the enabling laws, Articles 1 (§ 9-6.14:4.1 et seq.) 2.2-4000 et seq.) and 2 (§ 9-6.14:7.1 et seq.) 2.2-4006 et seq.) of the Administrative Process Act, and Part IV (9VAC5-170-90 et seq.) of this chapter 9VAC5-5 (Public Participation Guidelines).

B. Regulations, amendments, and repeals shall become effective as provided in § 9-6.14:9.3 § 2.2-4015 of the Administrative Process Act.

C. If necessary in an emergency situation, the board may adopt, amend or stay a regulation as an exclusion under § 9-6.14:4.1 § 2.2-4011 of the Administrative Process Act, but the regulation shall remain effective no longer than one year unless readopted following the requirements of subsection A of this section. The provisions of this subsection are not applicable to emergency special orders of the board; these orders are subject to the provisions of subsection E of this section.

D. The Administrative Process Act and Virginia Register Act provide that state regulations may incorporate documents by reference. Throughout the regulations of the board, documents of the types specified below have been incorporated by reference.

1. United States Code.

2. Code of Virginia.

3. Code of Federal Regulations.

4. Federal Register.

5. Technical and scientific reference documents.

Additional information on specific documents which have been incorporated by reference and on the availability of these documents may be found in the specific regulations of the board which incorporate the documents.

E. Orders, special orders, and emergency special orders may be issued pursuant to § 10.1-1307 D, § 10.1-1309, or § 10.1-1309.1 of the Virginia Air Pollution Control Law.

Part IV
Public Participation in Regulation Development (Repealed.)

9VAC5-170-90. General provisions. (Repealed.)

A. The procedures in 9VAC5-170-100 shall be used for soliciting the input of interested people in the formation and development, amendment or repeal of regulations in accordance with the Administrative Process Act. This part does not apply to regulations exempted from the provisions of the Administrative Process Act (§ 9-6.14:4.1 A and B) or excluded from the operation of Article 2 of the Administrative Process Act (§ 9-6.14:4.1 C).

B. The failure of a person to receive a notice or copies of a document provided under these procedures shall not affect the validity of a regulation.

C. Anyone may petition the board for the adoption, amendment or repeal of a regulation. The petition, at a minimum, shall contain the following information:

1. Name of petitioner.

2. Petitioner's mailing address and telephone number.

3. Petitioner's interest in the proposed action.

4. Recommended regulation or addition, deletion or amendment to a specific regulation or regulations.

5. Statement of need and justification for the proposed action.

6. Statement of impact on the petitioner and other affected people.

7. Supporting documents, as applicable.

The board shall provide a written response to a petition within 180 days from the date the petition was received.

9VAC5-170-100. Public participation procedures. (Repealed.)

A. The department shall establish and maintain a list consisting of people expressing an interest in the adoption, amendment or repeal of regulations. Anyone wishing to be placed on the list may do so by writing the department. In addition, the department, at its discretion, may add to the list any person, organization, or publication it believes will be interested in participating in the promulgation of regulations. Individuals and organizations may be periodically requested to indicate their desire to continue to receive documents or be deleted from a list. Individuals and organizations may be deleted from the list at the request of the individual and organization, or at the discretion of the department when mail is returned as undeliverable.

B. Whenever the board so directs or upon its own initiative, the department may commence the regulation adoption process and proceed to draft a proposal according to these procedures.

C. The department shall use the participatory approach to assist in the development of the proposal or use one of the following alternatives:

1. Proceed without using the participatory approach if the board specifically authorizes the department to proceed without using the participatory approach.

2. Include in the notice of intended regulatory action a statement inviting comment on whether the department should use the participatory approach to assist the department in the development of the proposal. If the department receives written responses from at least five people during the associated comment period indicating that the department should use the participatory approach, the department will use the participatory approach requested. Should different approaches be requested, the director shall determine the specific approach to be used.

D. The department shall issue a notice of intended regulatory action whenever it considers the adoption, amendment or repeal of a regulation.

1. The notice of intended regulatory action shall include at least the following:

a. A description of the subject matter of the planned regulation.

b. A description of the intent of the planned regulation.

c. A brief statement as to the need for regulatory action.

d. A brief description of alternatives available, if any, to meet the need.

e. A request for comments on the intended regulatory action, to include ideas to assist the department in the development of a proposal.

f. A request for comments on the costs and benefits of the stated alternatives or other alternatives.

g. A statement of the department's intent to hold at least one public hearing on the proposed regulation after it is published in the Virginia Register of Regulations.

h. A statement inviting comment on whether the department should use the participatory approach to assist the department in the development of a proposal. Including this statement shall be required only when the department makes a decision to pursue the alternative provided in subdivision C 2 of this section.

2. The department shall hold at least one public meeting whenever it considers the adoption, amendment or repeal of a regulation unless the board specifically authorizes the department to proceed without holding a public meeting. In those cases where a public meeting will be held, the notice of intended regulatory action shall also include the date, not to be less than 30 days after publication in the Virginia Register of Regulations, time, and place of the public meeting.

3. The public comment period for notices of intended regulatory action under this section shall be no less than 30 days after publication of the notice of intended regulatory action in the Virginia Register of Regulations.

E. The department shall disseminate the notice of intended regulatory action to the public via the following:

1. Distribution to the Registrar of Regulations for publication in the Virginia Register of Regulations.

2. Distribution by mail to people on the list established under subsection A of this section.

F. After consideration of public input, the department may complete the draft proposed regulation and the supporting documentation required for review. If the participatory approach is being used, the draft proposed regulation shall be developed in consultation with the participants. A summary or copies of the comments received in response to the notice of intended regulatory action shall be distributed to the participants during the development of the draft proposed regulation. This summary or copies of the comments received in response to the notice of intended regulatory action shall also be distributed to the board.

G. Upon approval of the draft proposed regulation by the board, the department shall publish a notice of public comment and the proposal for public comment.

H. The notice of public comment shall include at least the following:

1. The notice of the opportunity to comment on the proposed regulation, the location where copies of the proposal may be obtained, and the name, address, and telephone number of the individual to contact for further information about the proposed regulation.

2. A request for comments on the costs and benefits of the proposal.

3. The identity of a locality particularly affected by the proposed regulation.

4. A statement that an analysis of the following has been conducted by the department and is available to the public upon request:

a. A statement of purpose: the rationale or justification for the new provisions of the regulation, from the standpoint of the public's health, safety or welfare.

b. A statement of estimated impact:

(1) Projected number and types of regulated entities or people affected.

(2) Projected cost, expressed as a dollar figure or range, to regulated entities (and to the public, if applicable) for implementation and compliance. In those instances where the department is unable to quantify projected costs, it shall offer qualitative data, if possible, to help define the impact of the proposed regulation. Qualitative data shall include, if possible, an example or examples of the impact of the proposed regulation on a typical member or members of the regulated community.

(3) Projected cost to the department for implementation and enforcement.

(4) Beneficial impact the regulation is designed to produce.

c. An explanation of need for the proposed regulation and potential consequences that may result in the absence of the regulation.

d. An estimate of the impact of the proposed regulation upon small businesses, as defined in § 9-199 of the Code of Virginia, or organizations in Virginia.

e. A description of provisions of the proposed regulation which are more restrictive than applicable federal requirements together with the reason why the more restrictive provisions are needed.

f. A discussion of alternative approaches that were considered to meet the need the proposed regulation addresses, and a statement as to whether the department believes that the proposed regulation is the least burdensome alternative to the regulated entities that fully meets the stated purpose of the proposed regulation.

g. A schedule setting forth when, after the effective date of the regulation, the department will evaluate it for effectiveness and continued need.

5. The date, time, and place of at least one public hearing held in accordance with § 9-6.14:7.1 of the Administrative Process Act to receive comments on the proposed regulation. The public hearing may be held at any time during the public comment period and, whenever practicable, no less than 15 days prior to the close of the public comment period. The public hearing may be held in the location which the department determines will best facilitate input from interested people. (In those cases in which the department elects to conduct an evidentiary hearing, the notice shall indicate that the hearing will be held in accordance with § 9-6.14:8 of the Administrative Process Act.)

I. The public comment period shall close no less than 60 days after publication of the notice of public comment in the Virginia Register of Regulations.

J. The department shall disseminate the notice of public comment to the public via the following:

1. Distribution to the Registrar of Regulations for publication in the Virginia Register of Regulations.

2. Distribution by mail to people on the list established under subsection A of this section.

K. The department may publish a notice of the hearing and comment period in any newspaper as it deems appropriate.

L. The department shall prepare a summary of comments received in response to the notice of public comment and the department's response to the comments received. The department shall send a draft of the summary of comments to public commenters on the proposed regulation at least five days before final adoption of the regulation. The department shall submit the summary and the department response and, if requested, submit the full comments to the board. The summary, the department response, and the comments shall become a part of the department file and after final action on the regulation by the board, made available, upon request, to interested people.

M. If the department determines that the process to adopt, amend or repeal a regulation should be terminated after approval of the draft proposed regulation by the board, the department shall present to the board for its consideration a recommendation and rationale for the withdrawal of the proposed regulation.

N. Completion of the remaining steps in the adoption process shall be carried out in accordance with the Administrative Process Act.

9VAC5-170-110. Transition. (Repealed.)

A. Regulatory actions for which a notice of intended regulatory action has been published in the Virginia Register of Regulations prior to May 16, 1994, shall be processed in accordance with Appendix E of VR 120-01 as revised by the emergency amendments in effect from June 29, 1993, to June 28, 1994, unless sooner modified or vacated or superseded by permanent regulations.

B. This part when effective shall supersede and repeal Appendix E of VR 120-01 as revised by the emergency amendments which became effective on June 29, 1993. Regulatory actions for which a notice of intended regulatory action has not been published in the Virginia Register of Regulations prior to May 16, 1994, shall be processed in accordance with this part.

VA.R. Doc. No. R09-1639; Filed October 22, 2008, 10:49 a.m.
TITLE 9. ENVIRONMENT
DEPARTMENT OF ENVIRONMENTAL QUALITY
Final Regulation

REGISTRAR'S NOTICE: The following model public participation guidelines are exempt from Article 2 (§ 2.2-4006 et seq.) of Chapter 40 of Title 2.2 of the Code of Virginia pursuant to Chapter 321 of the 2008 Acts of Assembly.

Titles of Regulations: 9VAC15-10. Public Participation Guidelines (repealing 9VAC15-10-10 through 9VAC15-10-40).

9VAC15-11. Public Participation Guidelines (adding 9VAC15-11-10 through 9VAC15-11-110).

Statutory Authority: §§ 2.2-4007.02, 58.1-3661, and 62.1-195.1 of the Code of Virginia.

Effective Date: January 1, 2009.

Agency Contact: Cindy Berndt, Regulatory Coordinator, Department of Environmental Quality, P.O. Box 1105, Richmond, VA 23218, telephone (804) 698-4378, FAX (804) 698-4346, or email cmberndt@deq.virginia.gov.

Summary:

The regulations comply with the legislative mandate (Chapter 321, 2008 Acts of Assembly) that agencies adopt model public participation guidelines issued by the Department of Planning and Budget by December 1, 2008. Public participation guidelines exist to promote public involvement in the development, amendment, or repeal of an agency's regulations.

This regulatory action repeals the current public participation guidelines and promulgates new public participation guidelines as required by Chapter 321 of the 2008 Acts of Assembly. Highlights of the public participation guidelines include (i) providing for the establishment and maintenance of notification lists of interested persons and specifying the information to be sent to such persons; (ii) providing for public comments on regulatory actions; (iii) establishing the time period during which public comments shall be accepted; (iv) providing that the plan to hold a public meeting shall be indicated in any notice of intended regulatory action; (v) providing for the appointment, when necessary, of regulatory advisory panels to provide professional specialization or technical assistance and negotiated rulemaking panels if a regulatory action is expected to be controversial; and (vi) providing for the periodic review of regulations.

CHAPTER 11
PUBLIC PARTICIPATION GUIDELINES

Part I
Purpose and Definitions

9VAC15-11-10. Purpose.

The purpose of this chapter is to promote public involvement in the development, amendment or repeal of the regulations of the Department of Environmental Quality. This chapter does not apply to regulations, guidelines, or other documents exempted or excluded from the provisions of the Administrative Process Act (§ 2.2-4000 et seq. of the Code of Virginia).

9VAC15-11-20. Definitions.

The following words and terms when used in this chapter shall have the following meanings unless the context clearly indicates otherwise:

"Administrative Process Act" means Chapter 40 (§ 2.2-4000 et seq.) of Title 2.2 of the Code of Virginia.

"Agency" means the Department of Environmental Quality, which is the unit of state government empowered by the agency's basic law to make regulations or decide cases. Actions specified in this chapter may be fulfilled by state employees as delegated by the agency.

"Basic law" means provisions in the Code of Virginia that delineate the basic authority and responsibilities of an agency.

"Commonwealth Calendar" means the electronic calendar for official government meetings open to the public as required by § 2.2-3707 C of the Freedom of Information Act.

''Negotiated rulemaking panel'' or ''NRP'' means an ad hoc advisory panel of interested parties established by an agency to consider issues that are controversial with the assistance of a facilitator or mediator, for the purpose of reaching a consensus in the development of a proposed regulatory action.

"Notification list" means a list used to notify persons pursuant to this chapter. Such a list may include an electronic list maintained through the Virginia Regulatory Town Hall or other list maintained by the agency.

"Open meeting" means any scheduled gathering of a unit of state government empowered by an agency's basic law to make regulations or decide cases, which is related to promulgating, amending or repealing a regulation.

"Person" means any individual, corporation, partnership, association, cooperative, limited liability company, trust, joint venture, government, political subdivision, or any other legal or commercial entity and any successor, representative, agent, agency, or instrumentality thereof.

"Public hearing" means a scheduled time at which members or staff of the agency will meet for the purpose of receiving public comment on a regulatory action.

"Regulation" means any statement of general application having the force of law, affecting the rights or conduct of any person, adopted by the agency in accordance with the authority conferred on it by applicable laws.

"Regulatory action" means the promulgation, amendment, or repeal of a regulation by the agency.

"Regulatory advisory panel" or "RAP" means a standing or ad hoc advisory panel of interested parties established by the agency for the purpose of assisting in regulatory actions.

"Town Hall" means the Virginia Regulatory Town Hall, the website operated by the Virginia Department of Planning and Budget at www.townhall.virginia.gov, which has online public comment forums and displays information about regulatory meetings and regulatory actions under consideration in Virginia and sends this information to registered public users.

"Virginia Register" means the Virginia Register of Regulations, the publication that provides official legal notice of new, amended and repealed regulations of state agencies, which is published under the provisions of Article 6 (§ 2.2-4031 et seq.) of the Administrative Process Act.

Part II
Notification of Interested Persons

9VAC15-11-30. Notification list.

A. The agency shall maintain a list of persons who have requested to be notified of regulatory actions being pursued by the agency.

B. Any person may request to be placed on a notification list by registering as a public user on the Town Hall or by making a request to the agency. Any person who requests to be placed on a notification list shall elect to be notified either by electronic means or through a postal carrier.

C. The agency may maintain additional lists for persons who have requested to be informed of specific regulatory issues, proposals, or actions.

D. When electronic mail is returned as undeliverable on multiple occasions at least 24 hours apart, that person may be deleted from the list. A single undeliverable message is insufficient cause to delete the person from the list.

E. When mail delivered by a postal carrier is returned as undeliverable on multiple occasions, that person may be deleted from the list.

F. The agency may periodically request those persons on the notification list to indicate their desire to either continue to be notified electronically, receive documents through a postal carrier, or be deleted from the list.

9VAC15-11-40. Information to be sent to persons on the notification list.

A. To persons electing to receive electronic notification or notification through a postal carrier as described in 9VAC15-11-30, the agency shall send the following information:

1. A notice of intended regulatory action (NOIRA).

2. A notice of the comment period on a proposed, a reproposed, or a fast-track regulation and hyperlinks to, or instructions on how to obtain, a copy of the regulation and any supporting documents.

3. A notice soliciting comment on a final regulation when the regulatory process has been extended pursuant to § 2.2-4007.06 or 2.2-4013 C of the Code of Virginia.

B. The failure of any person to receive any notice or copies of any documents shall not affect the validity of any regulation or regulatory action.

Part III
Public Participation Procedures

9VAC15-11-50. Public comment.

A. In considering any nonemergency, nonexempt regulatory action, the agency shall afford interested persons an opportunity to submit data, views, and arguments, either orally or in writing, to the agency. Such opportunity to comment shall include an online public comment forum on the Town Hall.

1. To any requesting person, the agency shall provide copies of the statement of basis, purpose, substance, and issues; the economic impact analysis of the proposed or fast-track regulatory action; and the agency's response to public comments received.

2. The agency may begin crafting a regulatory action prior to or during any opportunities it provides to the public to submit comments.

B. The agency shall accept public comments in writing after the publication of a regulatory action in the Virginia Register as follows:

1. For a minimum of 30 calendar days following the publication of the notice of intended regulatory action (NOIRA).

2. For a minimum of 60 calendar days following the publication of a proposed regulation.

3. For a minimum of 30 calendar days following the publication of a reproposed regulation.

4. For a minimum of 30 calendar days following the publication of a final adopted regulation.

5. For a minimum of 30 calendar days following the publication of a fast-track regulation.

6. For a minimum of 21 calendar days following the publication of a notice of periodic review.

7. Not later than 21 calendar days following the publication of a petition for rulemaking.

C. The agency may determine if any of the comment periods listed in subsection B of this section shall be extended.

D. If the Governor finds that one or more changes with substantial impact have been made to a proposed regulation, he may require the agency to provide an additional 30 calendar days to solicit additional public comment on the changes in accordance with § 2.2-4013 C of the Code of Virginia.

E. The agency shall send a draft of the agency's summary description of public comment to all public commenters on the proposed regulation at least five days before final adoption of the regulation pursuant to § 2.2-4012 E of the Code of Virginia.

9VAC15-11-60. Petition for rulemaking.

A. As provided in § 2.2-4007 of the Code of Virginia, any person may petition the agency to consider a regulatory action.

B. A petition shall include but is not limited to the following information:

1. The petitioner's name and contact information;

2. The substance and purpose of the rulemaking that is requested, including reference to any applicable Virginia Administrative Code sections; and

3. Reference to the legal authority of the agency to take the action requested.

C. The agency shall receive, consider and respond to a petition pursuant to § 2.2-4007 and shall have the sole authority to dispose of the petition.

D. The petition shall be posted on the Town Hall and published in the Virginia Register.

E. Nothing in this chapter shall prohibit the agency from receiving information or from proceeding on its own motion for rulemaking.

9VAC15-11-70. Appointment of regulatory advisory panel.

A. The agency may appoint a regulatory advisory panel (RAP) to provide professional specialization or technical assistance when the agency determines that such expertise is necessary to address a specific regulatory issue or action or when individuals indicate an interest in working with the agency on a specific regulatory issue or action.

B. Any person may request the appointment of a RAP and request to participate in its activities. The agency shall determine when a RAP shall be appointed and the composition of the RAP.

C. A RAP may be dissolved by the agency if:

1. The proposed text of the regulation is posted on the Town Hall, published in the Virginia Register, or such other time as the agency determines is appropriate; or

2. The agency determines that the regulatory action is either exempt or excluded from the requirements of the Administrative Process Act.

9VAC15-11-80. Appointment of negotiated rulemaking panel.

A. The agency may appoint a negotiated rulemaking panel (NRP) if a regulatory action is expected to be controversial.

B. An NRP that has been appointed by the agency may be dissolved by the agency when:

1. There is no longer controversy associated with the development of the regulation;

2. The agency determines that the regulatory action is either exempt or excluded from the requirements of the Administrative Process Act; or

3. The agency determines that resolution of a controversy is unlikely.

9VAC15-11-90. Meetings.

Notice of any open meeting, including meetings of a RAP or NRP, shall be posted on the Virginia Regulatory Town Hall and Commonwealth Calendar at least seven working days prior to the date of the meeting. The exception to this requirement is any meeting held in accordance with § 2.2-3707 D of the Code of Virginia allowing for contemporaneous notice to be provided to participants and the public.

9VAC15-11-100. Public hearings on regulations.

A. The agency shall indicate in its notice of intended regulatory action whether it plans to hold a public hearing following the publication of the proposed stage of the regulatory action.

B. The agency may conduct one or more public hearings during the comment period following the publication of a proposed regulatory action.

C. An agency is required to hold a public hearing following the publication of the proposed regulatory action when:

1. The agency's basic law requires the agency to hold a public hearing;

2. The Governor directs the agency to hold a public hearing; or

3. The agency receives requests for a public hearing from at least 25 persons during the public comment period following the publication of the notice of intended regulatory action.

D. Notice of any public hearing shall be posted on the Town Hall and Commonwealth Calendar at least seven working days prior to the date of the hearing. The agency shall also notify those persons who requested a hearing under subdivision C 3 of this section.

9VAC15-11-110. Periodic review of regulations.

A. The agency shall conduct a periodic review of its regulations consistent with:

1. An executive order issued by the Governor pursuant to § 2.2-4017 of the Administrative Process Act to receive comment on all existing regulations as to their effectiveness, efficiency, necessity, clarity, and cost of compliance; and

2. The requirements in § 2.2-4007.1 of the Administrative Process Act regarding regulatory flexibility for small businesses.

B. A periodic review may be conducted separately or in conjunction with other regulatory actions.

C. Notice of a periodic review shall be posted on the Town Hall and published in the Virginia Register.

VA.R. Doc. No. R09-1444; Filed October 22, 2008, 10:47 a.m.
TITLE 9. ENVIRONMENT
DEPARTMENT OF ENVIRONMENTAL QUALITY
Final Regulation

REGISTRAR'S NOTICE: The following model public participation guidelines are exempt from Article 2 (§ 2.2-4006 et seq.) of Chapter 40 of Title 2.2 of the Code of Virginia pursuant to Chapter 321 of the 2008 Acts of Assembly.

Titles of Regulations: 9VAC15-10. Public Participation Guidelines (repealing 9VAC15-10-10 through 9VAC15-10-40).

9VAC15-11. Public Participation Guidelines (adding 9VAC15-11-10 through 9VAC15-11-110).

Statutory Authority: §§ 2.2-4007.02, 58.1-3661, and 62.1-195.1 of the Code of Virginia.

Effective Date: January 1, 2009.

Agency Contact: Cindy Berndt, Regulatory Coordinator, Department of Environmental Quality, P.O. Box 1105, Richmond, VA 23218, telephone (804) 698-4378, FAX (804) 698-4346, or email cmberndt@deq.virginia.gov.

Summary:

The regulations comply with the legislative mandate (Chapter 321, 2008 Acts of Assembly) that agencies adopt model public participation guidelines issued by the Department of Planning and Budget by December 1, 2008. Public participation guidelines exist to promote public involvement in the development, amendment, or repeal of an agency's regulations.

This regulatory action repeals the current public participation guidelines and promulgates new public participation guidelines as required by Chapter 321 of the 2008 Acts of Assembly. Highlights of the public participation guidelines include (i) providing for the establishment and maintenance of notification lists of interested persons and specifying the information to be sent to such persons; (ii) providing for public comments on regulatory actions; (iii) establishing the time period during which public comments shall be accepted; (iv) providing that the plan to hold a public meeting shall be indicated in any notice of intended regulatory action; (v) providing for the appointment, when necessary, of regulatory advisory panels to provide professional specialization or technical assistance and negotiated rulemaking panels if a regulatory action is expected to be controversial; and (vi) providing for the periodic review of regulations.

CHAPTER 11
PUBLIC PARTICIPATION GUIDELINES

Part I
Purpose and Definitions

9VAC15-11-10. Purpose.

The purpose of this chapter is to promote public involvement in the development, amendment or repeal of the regulations of the Department of Environmental Quality. This chapter does not apply to regulations, guidelines, or other documents exempted or excluded from the provisions of the Administrative Process Act (§ 2.2-4000 et seq. of the Code of Virginia).

9VAC15-11-20. Definitions.

The following words and terms when used in this chapter shall have the following meanings unless the context clearly indicates otherwise:

"Administrative Process Act" means Chapter 40 (§ 2.2-4000 et seq.) of Title 2.2 of the Code of Virginia.

"Agency" means the Department of Environmental Quality, which is the unit of state government empowered by the agency's basic law to make regulations or decide cases. Actions specified in this chapter may be fulfilled by state employees as delegated by the agency.

"Basic law" means provisions in the Code of Virginia that delineate the basic authority and responsibilities of an agency.

"Commonwealth Calendar" means the electronic calendar for official government meetings open to the public as required by § 2.2-3707 C of the Freedom of Information Act.

''Negotiated rulemaking panel'' or ''NRP'' means an ad hoc advisory panel of interested parties established by an agency to consider issues that are controversial with the assistance of a facilitator or mediator, for the purpose of reaching a consensus in the development of a proposed regulatory action.

"Notification list" means a list used to notify persons pursuant to this chapter. Such a list may include an electronic list maintained through the Virginia Regulatory Town Hall or other list maintained by the agency.

"Open meeting" means any scheduled gathering of a unit of state government empowered by an agency's basic law to make regulations or decide cases, which is related to promulgating, amending or repealing a regulation.

"Person" means any individual, corporation, partnership, association, cooperative, limited liability company, trust, joint venture, government, political subdivision, or any other legal or commercial entity and any successor, representative, agent, agency, or instrumentality thereof.

"Public hearing" means a scheduled time at which members or staff of the agency will meet for the purpose of receiving public comment on a regulatory action.

"Regulation" means any statement of general application having the force of law, affecting the rights or conduct of any person, adopted by the agency in accordance with the authority conferred on it by applicable laws.

"Regulatory action" means the promulgation, amendment, or repeal of a regulation by the agency.

"Regulatory advisory panel" or "RAP" means a standing or ad hoc advisory panel of interested parties established by the agency for the purpose of assisting in regulatory actions.

"Town Hall" means the Virginia Regulatory Town Hall, the website operated by the Virginia Department of Planning and Budget at www.townhall.virginia.gov, which has online public comment forums and displays information about regulatory meetings and regulatory actions under consideration in Virginia and sends this information to registered public users.

"Virginia Register" means the Virginia Register of Regulations, the publication that provides official legal notice of new, amended and repealed regulations of state agencies, which is published under the provisions of Article 6 (§ 2.2-4031 et seq.) of the Administrative Process Act.

Part II
Notification of Interested Persons

9VAC15-11-30. Notification list.

A. The agency shall maintain a list of persons who have requested to be notified of regulatory actions being pursued by the agency.

B. Any person may request to be placed on a notification list by registering as a public user on the Town Hall or by making a request to the agency. Any person who requests to be placed on a notification list shall elect to be notified either by electronic means or through a postal carrier.

C. The agency may maintain additional lists for persons who have requested to be informed of specific regulatory issues, proposals, or actions.

D. When electronic mail is returned as undeliverable on multiple occasions at least 24 hours apart, that person may be deleted from the list. A single undeliverable message is insufficient cause to delete the person from the list.

E. When mail delivered by a postal carrier is returned as undeliverable on multiple occasions, that person may be deleted from the list.

F. The agency may periodically request those persons on the notification list to indicate their desire to either continue to be notified electronically, receive documents through a postal carrier, or be deleted from the list.

9VAC15-11-40. Information to be sent to persons on the notification list.

A. To persons electing to receive electronic notification or notification through a postal carrier as described in 9VAC15-11-30, the agency shall send the following information:

1. A notice of intended regulatory action (NOIRA).

2. A notice of the comment period on a proposed, a reproposed, or a fast-track regulation and hyperlinks to, or instructions on how to obtain, a copy of the regulation and any supporting documents.

3. A notice soliciting comment on a final regulation when the regulatory process has been extended pursuant to § 2.2-4007.06 or 2.2-4013 C of the Code of Virginia.

B. The failure of any person to receive any notice or copies of any documents shall not affect the validity of any regulation or regulatory action.

Part III
Public Participation Procedures

9VAC15-11-50. Public comment.

A. In considering any nonemergency, nonexempt regulatory action, the agency shall afford interested persons an opportunity to submit data, views, and arguments, either orally or in writing, to the agency. Such opportunity to comment shall include an online public comment forum on the Town Hall.

1. To any requesting person, the agency shall provide copies of the statement of basis, purpose, substance, and issues; the economic impact analysis of the proposed or fast-track regulatory action; and the agency's response to public comments received.

2. The agency may begin crafting a regulatory action prior to or during any opportunities it provides to the public to submit comments.

B. The agency shall accept public comments in writing after the publication of a regulatory action in the Virginia Register as follows:

1. For a minimum of 30 calendar days following the publication of the notice of intended regulatory action (NOIRA).

2. For a minimum of 60 calendar days following the publication of a proposed regulation.

3. For a minimum of 30 calendar days following the publication of a reproposed regulation.

4. For a minimum of 30 calendar days following the publication of a final adopted regulation.

5. For a minimum of 30 calendar days following the publication of a fast-track regulation.

6. For a minimum of 21 calendar days following the publication of a notice of periodic review.

7. Not later than 21 calendar days following the publication of a petition for rulemaking.

C. The agency may determine if any of the comment periods listed in subsection B of this section shall be extended.

D. If the Governor finds that one or more changes with substantial impact have been made to a proposed regulation, he may require the agency to provide an additional 30 calendar days to solicit additional public comment on the changes in accordance with § 2.2-4013 C of the Code of Virginia.

E. The agency shall send a draft of the agency's summary description of public comment to all public commenters on the proposed regulation at least five days before final adoption of the regulation pursuant to § 2.2-4012 E of the Code of Virginia.

9VAC15-11-60. Petition for rulemaking.

A. As provided in § 2.2-4007 of the Code of Virginia, any person may petition the agency to consider a regulatory action.

B. A petition shall include but is not limited to the following information:

1. The petitioner's name and contact information;

2. The substance and purpose of the rulemaking that is requested, including reference to any applicable Virginia Administrative Code sections; and

3. Reference to the legal authority of the agency to take the action requested.

C. The agency shall receive, consider and respond to a petition pursuant to § 2.2-4007 and shall have the sole authority to dispose of the petition.

D. The petition shall be posted on the Town Hall and published in the Virginia Register.

E. Nothing in this chapter shall prohibit the agency from receiving information or from proceeding on its own motion for rulemaking.

9VAC15-11-70. Appointment of regulatory advisory panel.

A. The agency may appoint a regulatory advisory panel (RAP) to provide professional specialization or technical assistance when the agency determines that such expertise is necessary to address a specific regulatory issue or action or when individuals indicate an interest in working with the agency on a specific regulatory issue or action.

B. Any person may request the appointment of a RAP and request to participate in its activities. The agency shall determine when a RAP shall be appointed and the composition of the RAP.

C. A RAP may be dissolved by the agency if:

1. The proposed text of the regulation is posted on the Town Hall, published in the Virginia Register, or such other time as the agency determines is appropriate; or

2. The agency determines that the regulatory action is either exempt or excluded from the requirements of the Administrative Process Act.

9VAC15-11-80. Appointment of negotiated rulemaking panel.

A. The agency may appoint a negotiated rulemaking panel (NRP) if a regulatory action is expected to be controversial.

B. An NRP that has been appointed by the agency may be dissolved by the agency when:

1. There is no longer controversy associated with the development of the regulation;

2. The agency determines that the regulatory action is either exempt or excluded from the requirements of the Administrative Process Act; or

3. The agency determines that resolution of a controversy is unlikely.

9VAC15-11-90. Meetings.

Notice of any open meeting, including meetings of a RAP or NRP, shall be posted on the Virginia Regulatory Town Hall and Commonwealth Calendar at least seven working days prior to the date of the meeting. The exception to this requirement is any meeting held in accordance with § 2.2-3707 D of the Code of Virginia allowing for contemporaneous notice to be provided to participants and the public.

9VAC15-11-100. Public hearings on regulations.

A. The agency shall indicate in its notice of intended regulatory action whether it plans to hold a public hearing following the publication of the proposed stage of the regulatory action.

B. The agency may conduct one or more public hearings during the comment period following the publication of a proposed regulatory action.

C. An agency is required to hold a public hearing following the publication of the proposed regulatory action when:

1. The agency's basic law requires the agency to hold a public hearing;

2. The Governor directs the agency to hold a public hearing; or

3. The agency receives requests for a public hearing from at least 25 persons during the public comment period following the publication of the notice of intended regulatory action.

D. Notice of any public hearing shall be posted on the Town Hall and Commonwealth Calendar at least seven working days prior to the date of the hearing. The agency shall also notify those persons who requested a hearing under subdivision C 3 of this section.

9VAC15-11-110. Periodic review of regulations.

A. The agency shall conduct a periodic review of its regulations consistent with:

1. An executive order issued by the Governor pursuant to § 2.2-4017 of the Administrative Process Act to receive comment on all existing regulations as to their effectiveness, efficiency, necessity, clarity, and cost of compliance; and

2. The requirements in § 2.2-4007.1 of the Administrative Process Act regarding regulatory flexibility for small businesses.

B. A periodic review may be conducted separately or in conjunction with other regulatory actions.

C. Notice of a periodic review shall be posted on the Town Hall and published in the Virginia Register.

VA.R. Doc. No. R09-1444; Filed October 22, 2008, 10:47 a.m.
TITLE 9. ENVIRONMENT
DEPARTMENT OF ENVIRONMENTAL QUALITY
Final Regulation

REGISTRAR'S NOTICE: The following model public participation guidelines are exempt from Article 2 (§ 2.2-4006 et seq.) of Chapter 40 of Title 2.2 of the Code of Virginia pursuant to Chapter 321 of the 2008 Acts of Assembly.

Titles of Regulations: 9VAC25-10. Public Participation Guidelines (repealing 9VAC25-10-10 through 9VAC25-10-40).

9VAC25-11. Public Participation Guidelines (adding 9VAC25-11-10 through 9VAC25-11-110).

Statutory Authority: §§ 2.2-4007.02 and 62.1-44.15 of the Code of Virginia.

Effective Date: January 1, 2009.

Agency Contact: Cindy Berndt, Regulatory Coordinator, Department of Environmental Quality, P.O. Box 1105, Richmond, VA 23218, telephone (804) 698-4378, FAX (804) 698-4346, or email cmberndt@deq.virginia.gov.

Summary:

The regulations comply with the legislative mandate (Chapter 321, 2008 Acts of Assembly) that agencies adopt model public participation guidelines issued by the Department of Planning and Budget by December 1, 2008. Public participation guidelines exist to promote public involvement in the development, amendment, or repeal of an agency's regulations.

This regulatory action repeals the current public participation guidelines and promulgates new public participation guidelines as required by Chapter 321 of the 2008 Acts of Assembly. Highlights of the public participation guidelines include (i) providing for the establishment and maintenance of notification lists of interested persons and specifying the information to be sent to such persons; (ii) providing for public comments on regulatory actions; (iii) establishing the time period during which public comments shall be accepted; (iv) providing that the plan to hold a public meeting shall be indicated in any notice of intended regulatory action; (v) providing for the appointment, when necessary, of regulatory advisory panels to provide professional specialization or technical assistance and negotiated rulemaking panels if a regulatory action is expected to be controversial; and (vi) providing for the periodic review of regulations.

CHAPTER 11
PUBLIC PARTICIPATION GUIDELINES

Part I
Purpose and Definitions

9VAC25-11-10. Purpose.

The purpose of this chapter is to promote public involvement in the development, amendment or repeal of the regulations of the State Water Control Board. This chapter does not apply to regulations, guidelines, or other documents exempted or excluded from the provisions of the Administrative Process Act (§ 2.2-4000 et seq. of the Code of Virginia).

9VAC25-11-20. Definitions.

The following words and terms when used in this chapter shall have the following meanings unless the context clearly indicates otherwise:

"Administrative Process Act" means Chapter 40 (§ 2.2-4000 et seq.) of Title 2.2 of the Code of Virginia.

"Agency" means the State Water Control Board, which is the unit of state government empowered by the agency's basic law to make regulations or decide cases. Actions specified in this chapter may be fulfilled by state employees as delegated by the agency.

"Basic law" means provisions in the Code of Virginia that delineate the basic authority and responsibilities of an agency.

"Commonwealth Calendar" means the electronic calendar for official government meetings open to the public as required by § 2.2-3707 C of the Freedom of Information Act.

''Negotiated rulemaking panel'' or ''NRP'' means an ad hoc advisory panel of interested parties established by an agency to consider issues that are controversial with the assistance of a facilitator or mediator, for the purpose of reaching a consensus in the development of a proposed regulatory action.

"Notification list" means a list used to notify persons pursuant to this chapter. Such a list may include an electronic list maintained through the Virginia Regulatory Town Hall or other list maintained by the agency.

"Open meeting" means any scheduled gathering of a unit of state government empowered by an agency's basic law to make regulations or decide cases, which is related to promulgating, amending or repealing a regulation.

"Person" means any individual, corporation, partnership, association, cooperative, limited liability company, trust, joint venture, government, political subdivision, or any other legal or commercial entity and any successor, representative, agent, agency, or instrumentality thereof.

"Public hearing" means a scheduled time at which members or staff of the agency will meet for the purpose of receiving public comment on a regulatory action.

"Regulation" means any statement of general application having the force of law, affecting the rights or conduct of any person, adopted by the agency in accordance with the authority conferred on it by applicable laws.

"Regulatory action" means the promulgation, amendment, or repeal of a regulation by the agency.

"Regulatory advisory panel" or "RAP" means a standing or ad hoc advisory panel of interested parties established by the agency for the purpose of assisting in regulatory actions.

"Town Hall" means the Virginia Regulatory Town Hall, the website operated by the Virginia Department of Planning and Budget at www.townhall.virginia.gov, which has online public comment forums and displays information about regulatory meetings and regulatory actions under consideration in Virginia and sends this information to registered public users.

"Virginia Register" means the Virginia Register of Regulations, the publication that provides official legal notice of new, amended and repealed regulations of state agencies, which is published under the provisions of Article 6 (§ 2.2-4031 et seq.) of the Administrative Process Act.

Part II
Notification of Interested Persons

9VAC25-11-30. Notification list.

A. The agency shall maintain a list of persons who have requested to be notified of regulatory actions being pursued by the agency.

B. Any person may request to be placed on a notification list by registering as a public user on the Town Hall or by making a request to the agency. Any person who requests to be placed on a notification list shall elect to be notified either by electronic means or through a postal carrier.

C. The agency may maintain additional lists for persons who have requested to be informed of specific regulatory issues, proposals, or actions.

D. When electronic mail is returned as undeliverable on multiple occasions at least 24 hours apart, that person may be deleted from the list. A single undeliverable message is insufficient cause to delete the person from the list.

E. When mail delivered by a postal carrier is returned as undeliverable on multiple occasions, that person may be deleted from the list.

F. The agency may periodically request those persons on the notification list to indicate their desire to either continue to be notified electronically, receive documents through a postal carrier, or be deleted from the list.

9VAC25-11-40. Information to be sent to persons on the notification list.

A. To persons electing to receive electronic notification or notification through a postal carrier as described in 9VAC25-11-30, the agency shall send the following information:

1. A notice of intended regulatory action (NOIRA).

2. A notice of the comment period on a proposed, a reproposed, or a fast-track regulation and hyperlinks to, or instructions on how to obtain, a copy of the regulation and any supporting documents.

3. A notice soliciting comment on a final regulation when the regulatory process has been extended pursuant to § 2.2-4007.06 or 2.2-4013 C of the Code of Virginia.

B. The failure of any person to receive any notice or copies of any documents shall not affect the validity of any regulation or regulatory action.

Part III
Public Participation Procedures

9VAC25-11-50. Public comment.

A. In considering any nonemergency, nonexempt regulatory action, the agency shall afford interested persons an opportunity to submit data, views, and arguments, either orally or in writing, to the agency. Such opportunity to comment shall include an online public comment forum on the Town Hall.

1. To any requesting person, the agency shall provide copies of the statement of basis, purpose, substance, and issues; the economic impact analysis of the proposed or fast-track regulatory action; and the agency's response to public comments received.

2. The agency may begin crafting a regulatory action prior to or during any opportunities it provides to the public to submit comments.

B. The agency shall accept public comments in writing after the publication of a regulatory action in the Virginia Register as follows:

1. For a minimum of 30 calendar days following the publication of the notice of intended regulatory action (NOIRA).

2. For a minimum of 60 calendar days following the publication of a proposed regulation.

3. For a minimum of 30 calendar days following the publication of a reproposed regulation.

4. For a minimum of 30 calendar days following the publication of a final adopted regulation.

5. For a minimum of 30 calendar days following the publication of a fast-track regulation.

6. For a minimum of 21 calendar days following the publication of a notice of periodic review.

7. Not later than 21 calendar days following the publication of a petition for rulemaking.

C. The agency may determine if any of the comment periods listed in subsection B of this section shall be extended.

D. If the Governor finds that one or more changes with substantial impact have been made to a proposed regulation, he may require the agency to provide an additional 30 calendar days to solicit additional public comment on the changes in accordance with § 2.2-4013 C of the Code of Virginia.

E. The agency shall send a draft of the agency's summary description of public comment to all public commenters on the proposed regulation at least five days before final adoption of the regulation pursuant to § 2.2-4012 E of the Code of Virginia.

9VAC25-11-60. Petition for rulemaking.

A. As provided in § 2.2-4007 of the Code of Virginia, any person may petition the agency to consider a regulatory action.

B. A petition shall include but is not limited to the following information:

1. The petitioner's name and contact information;

2. The substance and purpose of the rulemaking that is requested, including reference to any applicable Virginia Administrative Code sections; and

3. Reference to the legal authority of the agency to take the action requested.

C. The agency shall receive, consider and respond to a petition pursuant to § 2.2-4007 and shall have the sole authority to dispose of the petition.

D. The petition shall be posted on the Town Hall and published in the Virginia Register.

E. Nothing in this chapter shall prohibit the agency from receiving information or from proceeding on its own motion for rulemaking.

9VAC25-11-70. Appointment of regulatory advisory panel.

A. The agency may appoint a regulatory advisory panel (RAP) to provide professional specialization or technical assistance when the agency determines that such expertise is necessary to address a specific regulatory issue or action or when individuals indicate an interest in working with the agency on a specific regulatory issue or action.

B. Any person may request the appointment of a RAP and request to participate in its activities. The agency shall determine when a RAP shall be appointed and the composition of the RAP.

C. A RAP may be dissolved by the agency if:

1. The proposed text of the regulation is posted on the Town Hall, published in the Virginia Register, or such other time as the agency determines is appropriate; or

2. The agency determines that the regulatory action is either exempt or excluded from the requirements of the Administrative Process Act.

9VAC25-11-80. Appointment of negotiated rulemaking panel.

A. The agency may appoint a negotiated rulemaking panel (NRP) if a regulatory action is expected to be controversial.

B. An NRP that has been appointed by the agency may be dissolved by the agency when:

1. There is no longer controversy associated with the development of the regulation;

2. The agency determines that the regulatory action is either exempt or excluded from the requirements of the Administrative Process Act; or

3. The agency determines that resolution of a controversy is unlikely.

9VAC25-11-90. Meetings.

Notice of any open meeting, including meetings of a RAP or NRP, shall be posted on the Virginia Regulatory Town Hall and Commonwealth Calendar at least seven working days prior to the date of the meeting. The exception to this requirement is any meeting held in accordance with § 2.2-3707 D of the Code of Virginia allowing for contemporaneous notice to be provided to participants and the public.

9VAC25-11-100. Public hearings on regulations.

A. The agency shall indicate in its notice of intended regulatory action whether it plans to hold a public hearing following the publication of the proposed stage of the regulatory action.

B. The agency may conduct one or more public hearings during the comment period following the publication of a proposed regulatory action.

C. An agency is required to hold a public hearing following the publication of the proposed regulatory action when:

1. The agency's basic law requires the agency to hold a public hearing;

2. The Governor directs the agency to hold a public hearing; or

3. The agency receives requests for a public hearing from at least 25 persons during the public comment period following the publication of the notice of intended regulatory action.

D. Notice of any public hearing shall be posted on the Town Hall and Commonwealth Calendar at least seven working days prior to the date of the hearing. The agency shall also notify those persons who requested a hearing under subdivision C 3 of this section.

9VAC25-11-110. Periodic review of regulations.

A. The agency shall conduct a periodic review of its regulations consistent with:

1. An executive order issued by the Governor pursuant to § 2.2-4017 of the Administrative Process Act to receive comment on all existing regulations as to their effectiveness, efficiency, necessity, clarity, and cost of compliance; and

2. The requirements in § 2.2-4007.1 of the Administrative Process Act regarding regulatory flexibility for small businesses.

B. A periodic review may be conducted separately or in conjunction with other regulatory actions.

C. Notice of a periodic review shall be posted on the Town Hall and published in the Virginia Register.

VA.R. Doc. No. R09-1446; Filed October 22, 2008, 10:47 a.m.
TITLE 9. ENVIRONMENT
DEPARTMENT OF ENVIRONMENTAL QUALITY
Final Regulation

REGISTRAR'S NOTICE: The following model public participation guidelines are exempt from Article 2 (§ 2.2-4006 et seq.) of Chapter 40 of Title 2.2 of the Code of Virginia pursuant to Chapter 321 of the 2008 Acts of Assembly.

Titles of Regulations: 9VAC25-10. Public Participation Guidelines (repealing 9VAC25-10-10 through 9VAC25-10-40).

9VAC25-11. Public Participation Guidelines (adding 9VAC25-11-10 through 9VAC25-11-110).

Statutory Authority: §§ 2.2-4007.02 and 62.1-44.15 of the Code of Virginia.

Effective Date: January 1, 2009.

Agency Contact: Cindy Berndt, Regulatory Coordinator, Department of Environmental Quality, P.O. Box 1105, Richmond, VA 23218, telephone (804) 698-4378, FAX (804) 698-4346, or email cmberndt@deq.virginia.gov.

Summary:

The regulations comply with the legislative mandate (Chapter 321, 2008 Acts of Assembly) that agencies adopt model public participation guidelines issued by the Department of Planning and Budget by December 1, 2008. Public participation guidelines exist to promote public involvement in the development, amendment, or repeal of an agency's regulations.

This regulatory action repeals the current public participation guidelines and promulgates new public participation guidelines as required by Chapter 321 of the 2008 Acts of Assembly. Highlights of the public participation guidelines include (i) providing for the establishment and maintenance of notification lists of interested persons and specifying the information to be sent to such persons; (ii) providing for public comments on regulatory actions; (iii) establishing the time period during which public comments shall be accepted; (iv) providing that the plan to hold a public meeting shall be indicated in any notice of intended regulatory action; (v) providing for the appointment, when necessary, of regulatory advisory panels to provide professional specialization or technical assistance and negotiated rulemaking panels if a regulatory action is expected to be controversial; and (vi) providing for the periodic review of regulations.

CHAPTER 11
PUBLIC PARTICIPATION GUIDELINES

Part I
Purpose and Definitions

9VAC25-11-10. Purpose.

The purpose of this chapter is to promote public involvement in the development, amendment or repeal of the regulations of the State Water Control Board. This chapter does not apply to regulations, guidelines, or other documents exempted or excluded from the provisions of the Administrative Process Act (§ 2.2-4000 et seq. of the Code of Virginia).

9VAC25-11-20. Definitions.

The following words and terms when used in this chapter shall have the following meanings unless the context clearly indicates otherwise:

"Administrative Process Act" means Chapter 40 (§ 2.2-4000 et seq.) of Title 2.2 of the Code of Virginia.

"Agency" means the State Water Control Board, which is the unit of state government empowered by the agency's basic law to make regulations or decide cases. Actions specified in this chapter may be fulfilled by state employees as delegated by the agency.

"Basic law" means provisions in the Code of Virginia that delineate the basic authority and responsibilities of an agency.

"Commonwealth Calendar" means the electronic calendar for official government meetings open to the public as required by § 2.2-3707 C of the Freedom of Information Act.

''Negotiated rulemaking panel'' or ''NRP'' means an ad hoc advisory panel of interested parties established by an agency to consider issues that are controversial with the assistance of a facilitator or mediator, for the purpose of reaching a consensus in the development of a proposed regulatory action.

"Notification list" means a list used to notify persons pursuant to this chapter. Such a list may include an electronic list maintained through the Virginia Regulatory Town Hall or other list maintained by the agency.

"Open meeting" means any scheduled gathering of a unit of state government empowered by an agency's basic law to make regulations or decide cases, which is related to promulgating, amending or repealing a regulation.

"Person" means any individual, corporation, partnership, association, cooperative, limited liability company, trust, joint venture, government, political subdivision, or any other legal or commercial entity and any successor, representative, agent, agency, or instrumentality thereof.

"Public hearing" means a scheduled time at which members or staff of the agency will meet for the purpose of receiving public comment on a regulatory action.

"Regulation" means any statement of general application having the force of law, affecting the rights or conduct of any person, adopted by the agency in accordance with the authority conferred on it by applicable laws.

"Regulatory action" means the promulgation, amendment, or repeal of a regulation by the agency.

"Regulatory advisory panel" or "RAP" means a standing or ad hoc advisory panel of interested parties established by the agency for the purpose of assisting in regulatory actions.

"Town Hall" means the Virginia Regulatory Town Hall, the website operated by the Virginia Department of Planning and Budget at www.townhall.virginia.gov, which has online public comment forums and displays information about regulatory meetings and regulatory actions under consideration in Virginia and sends this information to registered public users.

"Virginia Register" means the Virginia Register of Regulations, the publication that provides official legal notice of new, amended and repealed regulations of state agencies, which is published under the provisions of Article 6 (§ 2.2-4031 et seq.) of the Administrative Process Act.

Part II
Notification of Interested Persons

9VAC25-11-30. Notification list.

A. The agency shall maintain a list of persons who have requested to be notified of regulatory actions being pursued by the agency.

B. Any person may request to be placed on a notification list by registering as a public user on the Town Hall or by making a request to the agency. Any person who requests to be placed on a notification list shall elect to be notified either by electronic means or through a postal carrier.

C. The agency may maintain additional lists for persons who have requested to be informed of specific regulatory issues, proposals, or actions.

D. When electronic mail is returned as undeliverable on multiple occasions at least 24 hours apart, that person may be deleted from the list. A single undeliverable message is insufficient cause to delete the person from the list.

E. When mail delivered by a postal carrier is returned as undeliverable on multiple occasions, that person may be deleted from the list.

F. The agency may periodically request those persons on the notification list to indicate their desire to either continue to be notified electronically, receive documents through a postal carrier, or be deleted from the list.

9VAC25-11-40. Information to be sent to persons on the notification list.

A. To persons electing to receive electronic notification or notification through a postal carrier as described in 9VAC25-11-30, the agency shall send the following information:

1. A notice of intended regulatory action (NOIRA).

2. A notice of the comment period on a proposed, a reproposed, or a fast-track regulation and hyperlinks to, or instructions on how to obtain, a copy of the regulation and any supporting documents.

3. A notice soliciting comment on a final regulation when the regulatory process has been extended pursuant to § 2.2-4007.06 or 2.2-4013 C of the Code of Virginia.

B. The failure of any person to receive any notice or copies of any documents shall not affect the validity of any regulation or regulatory action.

Part III
Public Participation Procedures

9VAC25-11-50. Public comment.

A. In considering any nonemergency, nonexempt regulatory action, the agency shall afford interested persons an opportunity to submit data, views, and arguments, either orally or in writing, to the agency. Such opportunity to comment shall include an online public comment forum on the Town Hall.

1. To any requesting person, the agency shall provide copies of the statement of basis, purpose, substance, and issues; the economic impact analysis of the proposed or fast-track regulatory action; and the agency's response to public comments received.

2. The agency may begin crafting a regulatory action prior to or during any opportunities it provides to the public to submit comments.

B. The agency shall accept public comments in writing after the publication of a regulatory action in the Virginia Register as follows:

1. For a minimum of 30 calendar days following the publication of the notice of intended regulatory action (NOIRA).

2. For a minimum of 60 calendar days following the publication of a proposed regulation.

3. For a minimum of 30 calendar days following the publication of a reproposed regulation.

4. For a minimum of 30 calendar days following the publication of a final adopted regulation.

5. For a minimum of 30 calendar days following the publication of a fast-track regulation.

6. For a minimum of 21 calendar days following the publication of a notice of periodic review.

7. Not later than 21 calendar days following the publication of a petition for rulemaking.

C. The agency may determine if any of the comment periods listed in subsection B of this section shall be extended.

D. If the Governor finds that one or more changes with substantial impact have been made to a proposed regulation, he may require the agency to provide an additional 30 calendar days to solicit additional public comment on the changes in accordance with § 2.2-4013 C of the Code of Virginia.

E. The agency shall send a draft of the agency's summary description of public comment to all public commenters on the proposed regulation at least five days before final adoption of the regulation pursuant to § 2.2-4012 E of the Code of Virginia.

9VAC25-11-60. Petition for rulemaking.

A. As provided in § 2.2-4007 of the Code of Virginia, any person may petition the agency to consider a regulatory action.

B. A petition shall include but is not limited to the following information:

1. The petitioner's name and contact information;

2. The substance and purpose of the rulemaking that is requested, including reference to any applicable Virginia Administrative Code sections; and

3. Reference to the legal authority of the agency to take the action requested.

C. The agency shall receive, consider and respond to a petition pursuant to § 2.2-4007 and shall have the sole authority to dispose of the petition.

D. The petition shall be posted on the Town Hall and published in the Virginia Register.

E. Nothing in this chapter shall prohibit the agency from receiving information or from proceeding on its own motion for rulemaking.

9VAC25-11-70. Appointment of regulatory advisory panel.

A. The agency may appoint a regulatory advisory panel (RAP) to provide professional specialization or technical assistance when the agency determines that such expertise is necessary to address a specific regulatory issue or action or when individuals indicate an interest in working with the agency on a specific regulatory issue or action.

B. Any person may request the appointment of a RAP and request to participate in its activities. The agency shall determine when a RAP shall be appointed and the composition of the RAP.

C. A RAP may be dissolved by the agency if:

1. The proposed text of the regulation is posted on the Town Hall, published in the Virginia Register, or such other time as the agency determines is appropriate; or

2. The agency determines that the regulatory action is either exempt or excluded from the requirements of the Administrative Process Act.

9VAC25-11-80. Appointment of negotiated rulemaking panel.

A. The agency may appoint a negotiated rulemaking panel (NRP) if a regulatory action is expected to be controversial.

B. An NRP that has been appointed by the agency may be dissolved by the agency when:

1. There is no longer controversy associated with the development of the regulation;

2. The agency determines that the regulatory action is either exempt or excluded from the requirements of the Administrative Process Act; or

3. The agency determines that resolution of a controversy is unlikely.

9VAC25-11-90. Meetings.

Notice of any open meeting, including meetings of a RAP or NRP, shall be posted on the Virginia Regulatory Town Hall and Commonwealth Calendar at least seven working days prior to the date of the meeting. The exception to this requirement is any meeting held in accordance with § 2.2-3707 D of the Code of Virginia allowing for contemporaneous notice to be provided to participants and the public.

9VAC25-11-100. Public hearings on regulations.

A. The agency shall indicate in its notice of intended regulatory action whether it plans to hold a public hearing following the publication of the proposed stage of the regulatory action.

B. The agency may conduct one or more public hearings during the comment period following the publication of a proposed regulatory action.

C. An agency is required to hold a public hearing following the publication of the proposed regulatory action when:

1. The agency's basic law requires the agency to hold a public hearing;

2. The Governor directs the agency to hold a public hearing; or

3. The agency receives requests for a public hearing from at least 25 persons during the public comment period following the publication of the notice of intended regulatory action.

D. Notice of any public hearing shall be posted on the Town Hall and Commonwealth Calendar at least seven working days prior to the date of the hearing. The agency shall also notify those persons who requested a hearing under subdivision C 3 of this section.

9VAC25-11-110. Periodic review of regulations.

A. The agency shall conduct a periodic review of its regulations consistent with:

1. An executive order issued by the Governor pursuant to § 2.2-4017 of the Administrative Process Act to receive comment on all existing regulations as to their effectiveness, efficiency, necessity, clarity, and cost of compliance; and

2. The requirements in § 2.2-4007.1 of the Administrative Process Act regarding regulatory flexibility for small businesses.

B. A periodic review may be conducted separately or in conjunction with other regulatory actions.

C. Notice of a periodic review shall be posted on the Town Hall and published in the Virginia Register.

VA.R. Doc. No. R09-1446; Filed October 22, 2008, 10:47 a.m.
TITLE 9. ENVIRONMENT
DEPARTMENT OF ENVIRONMENTAL QUALITY
Proposed Regulation

REGISTRAR'S NOTICE: The following regulation filed by the State Water Control Board is exempt from the Administrative Process Act in accordance with § 2.2-4006 A 9 of the Code of Virginia, which exempts general permits issued by the State Water Control Board pursuant to the State Water Control Law (§ 62.1-44.2 et seq.), Chapter 24 (§ 62.1-242 et seq.) of Title 62.1 and Chapter 25 (§ 62.1-254 et seq.) of Title 62.1, if the board (i) provides a Notice of Intended Regulatory Action in conformance with the provisions of § 2.2-4007.01, (ii) following the passage of 30 days from the publication of the Notice of Intended Regulatory Action forms a technical advisory committee composed of relevant stakeholders, including potentially affected citizens groups, to assist in the development of the general permit, (iii) provides notice and receives oral and written comment as provided in § 2.2-4007.03, and (iv) conducts at least one public hearing on the proposed general permit.

Titles of Regulations: 9VAC25-151. General Virginia Pollutant Discharge Elimination System (VPDES) Permit for Discharges of Storm Water Associated with Industrial Activity (amending 9VAC25-151-10, 9VAC25-151-40 through 9VAC25-151-290, 9VAC25-151-310 through 9VAC25-151-370).

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

Public Hearing Information:

December 16, 2008 - 2 p.m. - Department of Environmental Quality, Piedmont Regional Office, 4949-A Cox Road, Glen Allen, VA

Public Comments: Public comments may be submitted until 5 p.m. on January 9, 2009.

Agency Contact: Burton R. Tuxford, Department of Environmental Quality, 629 East Main Street, P.O. Box 1105, Richmond, VA 23510, telephone (804) 698-4086, FAX (804) 698-4032, or email brtuxford@deq.virginia.gov.

Summary:

This regulation will reissue the existing general permit for industrial activity storm water discharges that will expire on June 30, 2009. This draft is generally modeled after EPA's proposed 2006 Multi-Sector General Permit. The significant revisions to the regulation are as follows:

1. Registration Statement and SWPPP. Clarified that the SWPPP must be prepared and implemented prior to the submittal of the registration statement, and that existing permittees who intend to continue coverage under this GP must review and update the SWPPP to meet any new permit requirements prior to submitting their registration statement.

2. General permit, Part I A - Effluent Limitations, Monitoring Requirements and Special Conditions.

a. Monitoring. Set the monitoring periods for benchmark monitoring, and effluent limitation monitoring (including coal pile runoff monitoring) to (1) July 1, 2009, to December 31, 2009; and (2) January 1 to December 31 for each of the remaining years of the permit term. Required DMRs to be submitted by January 30 for both benchmark monitoring and effluent limitation monitoring.

b. Added monitoring requirements for facilities subject to TMDL waste load allocations. Facilities will be given written notification from DEQ that they are subject to TMDL monitoring. Required the monitoring to be conducted at least semi-annually. Required TMDL WLA monitoring to be submitted by each July 30th and January 30th.

c. Monitoring waivers. Deleted the alternative certification of "not present" or "no exposure" to be consistent with EPA's proposed 2006 MSGP.

d. Corrective Actions. Added a section that describes actions that the permittee must take if (a) benchmark monitoring results exceed benchmark monitoring concentrations; (b) routine facility inspections, comprehensive site compliance evaluations, facility inspections, or other observations result in discovery of a deficiency; or (c) there is an exceedance of an effluent limitation, TMDL wasteload allocation or a water quality standard. For exceedances of an effluent limitation, TMDL wasteload allocation or a water quality standard, the permittee must conduct follow-up monitoring and reporting on the schedule set in the permit until the results indicate that the limitation/allocation/standard is no longer being exceeded. Required follow-up monitoring to be submitted on a DMR no later than 30 days after the results are received.

e. Special Conditions

(1) Salt storage piles. Added a requirement for all salt storage piles to be located on an impervious surface, and a requirement that all runoff from the pile, and/or runoff that comes in contact with salt, including under drain systems, be collected and contained within a basin lined with concrete or other impermeable materials, and that the lined basin be bermed and sized to contain runoff resulting from a 24-hour 25-year storm event. Salt contaminated stormwater is not allowed to be discharged directly to the ground or to state waters.

(2) Discharges to Waters Subject to TMDL WLA's. Added a special condition requiring facilities that are an identified source of the pollutant of concern to TMDL waters (board established and EPA-approved prior to the term of the permit) to incorporate measures and controls into their SWPPP to address the TMDL requirements, and any waste load allocations that impact the facility. DEQ will notify the permittee that they are subject to the TMDL requirements. If the TMDL establishes a specific WLA that applies to the facility's discharges, the permittee must address that allocation in the SWPPP, perform TMDL monitoring, and implement measures to meet the allocation.

3. General permit, Part III - Storm Water Pollution Prevention Plan.

a. Changed the deadline to update and implement any revisions to the SWPPP to "prior to submitting the registration statement."

b. Maintenance. Added a requirement that storm water BMPs be observed during active operation to ensure they are operating properly.

c. Nonstorm Water Discharges. Added a statement that all nonstorm water discharges are subject to all the provisions of this permit, including numeric effluent limitations, benchmarks and monitoring requirements.

d. Comprehensive Site Compliance Evaluation. Added the following things for facility personnel to evaluate: (i) evidence of pollutants discharging to surface waters at all facility outfalls, and the condition of and around the outfall, including flow dissipation measures to prevent scouring; (ii) review of training performed, inspections completed, maintenance performed, quarterly visual examinations, and effective operation of BMPs; and (iii) certification of outfall evaluation for unauthorized discharges (this had been in the Part III C nonstorm water discharges section). Changed this to an annual certification. Removed the provision allowing the permittee to skip the certification if they previously did a certification and believed nothing had changed at the facility. If the permittee fails to do the certification, they must notify DEQ of the reason within 14 days after completion of the annual site compliance evaluation.

e. SWPPP Modifications. Deleted the provision that allowed the permittee to use the annual site compliance evaluation to satisfy a routine facility inspection where the schedules overlapped.

4. General permit, Part IV - Sector Specific Permit Requirements.

a. Added benchmark monitoring for TSS to all sectors that had benchmark monitoring in the previous permit if they didn't already have TSS monitoring.

b. Sector A - Timber Products. Added benchmark monitoring for Phenols to "Wood Preserving Facilities" (SIC 2491).

c. Sector C - Chemical and Allied Products. Added benchmark monitoring for Zinc to "Industrial Inorganic Chemicals Facilities" (SIC 2812-2819)

d. Sector F - Primary Metals. Changed the routine facility inspection frequency from quarterly to monthly.

e. Sector G - Metal Mining. Added the following to the description of covered discharges: (1) storm water discharges from exploration and development of metal mining and/or ore dressing facilities; and (2) storm water discharges from facilities at mining sites undergoing reclamation. Added a section on "Clearing, Grading and Excavation Activities". Added a section for "Termination of permit coverage."

f. Sector I - Oil and Gas Extraction and Refining. Changed the routine facility inspection frequencies to monthly. Added benchmark monitoring for Lead, Nickel, Zinc, TKN, Total Nitrogen, and TSS to "Oil Refining Facilities" (SIC 2911).

g. Sector M - Automobile Salvage Yards. Added mercury switches to the list of things to inspect for leaks, and to train personnel on the proper handling of.

h. Sector N - Scrap Recycling and Waste Recycling Facilities. Added requirements for mercury switch removal, inspection and spill clean-up. For scrap recycling and waste recycling facilities (both types), changed the inspection frequency from quarterly to monthly. For facilities engaged in "Ship Dismantling, Marine Salvaging and Marine Wrecking" (SIC 4499), added benchmark monitoring for Aluminum, Cadmium, Chromium, Iron, Lead and Zinc, and TSS.

i. Sector P - Land Transportation and Warehousing. Added benchmark monitoring for TPH and TSS.

j. Sector R - Ship and Boat Building or Repair Yards. Added benchmark monitoring for TSS.

k. Sector S - Air Transportation. Added benchmark monitoring for COD.

l. Sector U - Food and Kindred Products. Changed the routine facility inspection frequency to monthly. Added benchmark monitoring for BOD5 and TSS to "Dairy Products Facilities" (SIC 2021-2026).

m. Sector Y - Rubber Product Manufacturing Facilities. Added benchmark monitoring for Lead.

n. Sector AC - Electronic, Electrical Equipment and Components, Photographic and Optical Goods. Added benchmark monitoring for Copper, Lead and TSS to "Electronic and Electrical Equipment and Component Facilities" (Except Computers) (SIC 3612-3699).

o. Sector AD - Nonclassified Facilities/Storm Water Discharges Designated by the Board. Added benchmark monitoring for TSS.

9VAC25-151-10. Definitions.

The words and terms used in this chapter shall have the meanings defined in the State Water Control Law (§ 62.1-44.2 et seq. of the Code of Virginia) and the VPDES Permit Regulation (9VAC25-31) unless the context clearly indicates otherwise, except that for the purposes of this chapter:

"Best management practices" or "BMPs" means schedules of activities, prohibitions of practices, maintenance procedures, and other management practices to prevent or reduce the discharge of pollutants to surface waters. BMPs also include treatment requirements, operating procedures, and practices to control plant site runoff, spillage or leaks, sludge or waste disposal, or drainage from raw material storage.

"Coal pile runoff" means the rainfall runoff from or through any coal storage pile.

"Colocated industrial activity" means when a facility has industrial activities being conducted on-site that are described under more than one of the industrial sectors of 9VAC25-151-90 through 9VAC25-151-380.

"Commercial treatment and disposal facilities" means facilities that receive, on a commercial basis, any produced hazardous waste (not their own) and treat or dispose of those wastes as a service to the generators. Such facilities treating or disposing exclusively residential hazardous wastes are not included in this definition.

"Control measure" means any best management practice or other method (including effluent limitations) used to prevent or reduce the discharge of pollutants to surface waters.

"Inactive landfill" means a landfill that, on a permanent basis, will no longer receive waste and has completed closure in accordance with any applicable federal, state, or local requirements.

"Industrial activity" - the following categories of facilities are considered to be engaging in "industrial activity":

(1) Facilities subject to storm water effluent limitations guidelines, new source performance standards, or toxic pollutant effluent standards under 40 CFR Subchapter N (2002) (2007) (except facilities with toxic pollutant effluent standards which are exempted under category (10) of this definition);

(2) Facilities classified as Standard Industrial Classification (SIC) 24 (except 2434), 26 (except 265 and 267), 28 (except 283 and 285), 29, 311, 32 (except 323), 33, 3441, and 373 (Office of Management and Budget (OMB) SIC Manual, 1987);

(3) Facilities classified as SIC 10 through 14 (mineral industry) (OMB SIC Manual, 1987) including active or inactive mining operations (except for areas of coal mining operations no longer meeting the definition of a reclamation area under 40 CFR 434.11(l) (2002) (2007) because the performance bond issued to the facility by the appropriate Surface Mining Control and Reclamation Act of 1977 (SMCRA) (30 USC § 1201 et seq.) authority has been released, or except for areas of noncoal mining operations which have been released from applicable state or federal reclamation requirements after December 17, 1990) and oil and gas exploration, production, processing, or treatment operations, or transmission facilities that discharge storm water contaminated by contact with or that has come into contact with, any overburden, raw material, intermediate products, finished products, byproducts or waste products located on the site of such operations; (inactive mining operations are mining sites that are not being actively mined, but which have an identifiable owner/operator; inactive mining sites do not include sites where mining claims are being maintained prior to disturbances associated with the extraction, benefication, or processing of mined materials, nor sites where minimal activities are undertaken for the sole purpose of maintaining a mining claim);

(4) Hazardous waste treatment, storage, or disposal facilities, including those that are operating under interim status or a permit under Subtitle C of the Resource Conservation and Recovery Act (RCRA) (42 USC § 6901 et seq.);

(5) Landfills, land application sites, and open dumps that receive or have received any industrial wastes (waste that is received from any of the facilities described under this definition) definition, and debris/wastes from Department of Conservation and Recreation Virginia Stormwater Management Program (VSMP) regulated construction activities/sites) including those that are subject to regulation under Subtitle D of RCRA;

(6) Facilities involved in the recycling of materials, including metal scrapyards, battery reclaimers, salvage yards, and automobile junkyards, including but limited to those classified as Standard Industrial Classification Codes 5015 and 5093 (OMB SIC Manual, 1987);

(7) Steam electric power generating facilities, including coal handling sites;

(8) Transportation facilities classified as SIC Codes 40, 41, 42 (except 4221-4225), 43, 44, 45, and 5171 (OMB SIC Manual, 1987) which have vehicle maintenance shops, equipment cleaning operations, or airport deicing operations. Only those portions of the facility that are either involved in vehicle maintenance (including vehicle rehabilitation, mechanical repairs, painting, fueling, and lubrication), equipment cleaning operation, airport deicing operation, or which are otherwise identified under categories 1 through 7 or 9 and 10 of this definition are associated with industrial activity;

(9) Treatment works treating domestic sewage or any other sewage sludge or wastewater treatment device or system used in the storage treatment, recycling, and reclamation of municipal or domestic sewage, including land dedicated to the disposal of sewage sludge that is located within the confines of the facility, with a design flow of 1.0 MGD or more, or required to have an approved POTW pretreatment program under 9VAC25-31. Not included are farm lands, domestic gardens or lands used for sludge management where sludge is beneficially reused and which are not physically located in the confines of the facility, or areas that are in compliance with 9VAC25-31-420 through 9VAC25-31- 720;

(10) Facilities under SIC Codes 20, 21, 22, 23, 2434, 25, 265, 267, 27, 283, 285, 30, 31 (except 311), 323, 34 (except 3441), 35, 36, 37 (except 373), 38, 39, 4221-4225 (OMB SIC Manual, 1987).

"Industrial storm water" means storm water runoff associated with the definition of "storm water discharge associated with industrial activity."

"Land application unit" means an area where wastes are applied onto or incorporated into the soil surface (excluding manure spreading operations) for treatment or disposal.

"Landfill" means an area of land or an excavation in which wastes are placed for permanent disposal, and that is not a land application unit, surface impoundment, injection well, or waste pile.

"Large and medium municipal separate storm sewer system" means all municipal separate storm sewers that are located in the following municipalities: the City of Norfolk; the City of Virginia Beach; Fairfax County; the City of Chesapeake; the City of Hampton; Prince William County; Arlington County; Chesterfield County; Henrico County; the City of Newport News; and the City of Portsmouth.

"Municipal separate storm sewer" means a conveyance or system of conveyances (including roads with drainage systems, municipal streets, catch basins, curbs, gutters, ditches, man-made channels, or storm drains): (i) owned or operated by a state, city, town, borough, county, parish, district, association, or other public body (created by or pursuant to state law) having jurisdiction over disposal of sewage, industrial wastes, storm water, or other wastes, including special districts under state law such as a sewer district, flood control district or drainage district, or similar entity, or an Indian tribe or an authorized Indian tribal organization, or a designated and approved management agency under § 208 of the CWA that discharges to surface waters of the state; (ii) designed or used for collecting or conveying storm water; (iii) which is not a combined sewer; and (iv) which is not part of a Publicly Owned Treatment Works (POTW).

"No exposure" means all industrial materials or activities are protected by a storm-resistant shelter to prevent exposure to rain, snow, snowmelt, and/or runoff.

"Runoff coefficient" means the fraction of total rainfall that will appear at the conveyance as runoff.

"Section 313 water priority chemicals" means a chemical or chemical categories which: (i) are listed at 40 CFR 372.65 (2002) (2007) pursuant to § 313 of the Emergency Planning and Community Right-to-Know Act (EPCRA) (also known as Title III of the Superfund Amendments and Reauthorization Act (SARA) of 1986) (42 USC § 11001 et seq.); (ii) are present at or above threshold levels at a facility subject to EPCRA § 313 reporting requirements; and (iii) that meet at least one of the following criteria: (a) are listed in Appendix D of 40 CFR Part 122 (2002) (2007) on either Table II (Organic priority pollutants), Table III (Certain metals, cyanides and phenols) or Table V (Certain toxic pollutants and hazardous substances); (b) are listed as a hazardous substance pursuant to § 311(b)(2)(A) of the Clean Water Act at 40 CFR 116.4 (2002) (2007); or (c) are pollutants for which EPA has published acute or chronic water quality criteria.

"Significant materials" includes, but is not limited to: raw materials; fuels; materials such as solvents, detergents, and plastic pellets; finished materials such as metallic products; raw materials used in food processing or production; hazardous substances designated under § 101(14) of the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) (42 USC § 9601 et seq.); any chemical the facility is required to report pursuant to EPCRA § 313; fertilizers; pesticides; and waste products such as ashes, slag and sludge that have the potential to be released with storm water discharges.

"Significant spills" includes, but is not limited to: releases of oil or hazardous substances in excess of reportable quantities under § 311 of the Clean Water Act (see 40 CFR 110.10 (2002) (2007) and 40 CFR 117.21 (2002)) (2007)) or § 102 of CERCLA (see 40 CFR 302.4 (2002)) (2007)).

"Small municipal separate storm sewer system" or "Small MS4" means all separate storm sewers that are: (i) owned or operated by the United States, a state, city, town, borough, county, parish, district, association, or other public body (created by or pursuant to state law) having jurisdiction over disposal of sewage, industrial wastes, storm water, or other wastes, including special districts under state law such as a sewer district, flood control district or drainage district, or similar entity, or an Indian tribe or an authorized Indian tribal organization, or a designated and approved management agency under subsection 208 of the CWA that discharges to surface waters and (ii) not defined as "large" or "medium" municipal separate storm sewer systems, or designated under 9VAC25-31-120 A 1. This term includes systems similar to separate storm sewer systems in municipalities, such as systems at military bases, large hospital or prison complexes, and highways and other thoroughfares. The term does not include separate storm sewers in very discrete areas, such as individual buildings.

"Storm water" means storm water runoff, snow melt runoff, and surface runoff and drainage.

"Storm water discharge associated with industrial activity" means the discharge from any conveyance which is used for collecting and conveying storm water and that is directly related to manufacturing, processing or raw materials storage areas at an industrial plant. The term does not include discharges from facilities or activities excluded from the VPDES program under 9VAC25-31. For the categories of industries identified in the "industrial activity" definition, the term includes, but is not limited to, storm water discharges from industrial plant yards; immediate access roads and rail lines used or traveled by carriers of raw materials, manufactured products, waste material, or by-products used or created by the facility; material handling sites; refuse sites; sites used for the application or disposal of process wastewaters; sites used for the storage and maintenance of material handling equipment; sites used for residual treatment, storage, or disposal; shipping and receiving areas; manufacturing buildings; storage areas (including tank farms) for raw materials, and intermediate and final products; and areas where industrial activity has taken place in the past and significant materials remain and are exposed to storm water. For the purposes of this definition, material handling activities include the storage, loading and unloading, transportation, or conveyance of any raw material, intermediate product, final product, by-product or waste product. The term excludes areas located on plant lands separate from the plant's industrial activities, such as office buildings and accompanying parking lots, as long as the drainage from the excluded areas is not mixed with storm water drained from the above described areas.

"Waste pile" means any noncontainerized accumulation of solid, nonflowing waste that is used for treatment or storage.

9VAC25-151-40. Effective date of the permit.

This general permit will become effective on July 1, 2004 2009. This general permit will expire on June 30, 2009 2014.

9VAC25-151-50. Authorization to discharge.

A. Any owner governed by this general permit is hereby authorized to discharge storm water associated with industrial activity (as defined in this regulation) to surface waters of the Commonwealth of Virginia provided that the owner files the registration statement of 9VAC25-151-60, pays any fees required by 9VAC25-20, receives a copy of the general permit, and complies with the requirements of 9VAC25-151-70 et seq. and provided that:

1. Facilities with colocated industrial activities on-site shall comply with all applicable effluent limitations, monitoring and pollution prevention plan requirements of each section of 9VAC25-151-70 et seq. in which a colocated industrial activity is described;

2. Storm water discharges associated with industrial activity that are mixed with other discharges (both storm water and nonstorm water) requiring a VPDES permit are authorized by this permit, provided that the owner obtains coverage under this VPDES general permit for the industrial activity discharges, and a VPDES general or individual permit for the other discharges. The owner shall comply with the terms and requirements of each permit obtained that authorizes any component of the discharge;

3. The storm water discharges authorized by this permit may be combined with other sources of storm water which are not required to be covered under a VPDES permit, so long as the combined discharge is in compliance with this permit; and

4. Authorized nonstorm water discharges. The following nonstorm "nonstorm water" discharges are authorized by this permit, provided the nonstorm water component of the facility's discharge is in compliance with 9VAC25-151-70, Part III D 2:

a. Discharges from fire fighting activities;

b. Fire hydrant flushings;

c. Potable water including water line flushings;

d. Uncontaminated air conditioning or compressor condensate (excluding air compressors);

e. Irrigation drainage;

f. Landscape watering provided all pesticides, herbicides, and fertilizer have been applied in accordance with manufacturer's instructions;

g. Pavement wash waters where no detergents are used and no spills or leaks of toxic or hazardous materials have occurred (unless all spilled material has been removed);

h. Routine external building wash down that does not use detergents;

i. Uncontaminated ground water or spring water;

j. Foundation or footing drains where flows are not contaminated with process materials such as solvents; and

k. Incidental windblown mist from cooling towers that collects on rooftops or adjacent portions of the facility, but not intentional discharges from the cooling tower (e.g., "piped" cooling tower blowdown or drains).

B. Limitations on coverage.

1. The owner shall not be authorized to discharge under this general permit if the owner has been required to obtain an individual permit pursuant to 9VAC25-31-170 B;

2. The owner shall not be authorized by this general permit to discharge to state waters specifically named in other board regulations or policies which prohibit such discharges;

3. The following storm water discharges associated with industrial activity are not authorized by this permit:

a. Discharges that are located at a facility where a VPDES permit has been terminated (other than at the request of the permittee) or denied;

b. Discharges that the director determines cause, or may reasonably be expected to cause, or be contributing to a violation of a water quality standard;

c. b. Discharges subject to storm water effluent limitation guidelines, not described under 9VAC25-151-90 et seq. 9VAC25-151-70, Table 70-2; and

d. Discharges to waters for which a "total maximum daily load" (TMDL) allocation has been established by the board and approved by EPA unless the storm water pollution prevention plan (SWPPP) developed by the owner incorporates measures and controls that are consistent with the assumptions and requirements of such TMDL. The SWPPP must incorporate any conditions applicable to discharges from the facility that are necessary for consistency with the assumptions and requirements of the TMDL. If a specific numeric wasteload allocation has been established that would apply to discharges from the facility, the owner must incorporate that allocation into the SWPPP and implement necessary steps to meet that allocation; and

e. c. Discharges that do not comply with Virginia's antidegradation policy for water quality standards under 9VAC25-260-5 et seq. are not authorized by this permit 9VAC25-260-30.

4. Facilities covered. Permit eligibility is limited to discharges from facilities in the "sectors" of industrial activity based on Standard Industrial Classification (SIC) codes and Industrial Activity codes summarized in Table 50‑1. References to "sectors" in this permit refer to these sectors.

5. Storm water discharges associated with construction activity that are regulated under the Department of Conservation and Recreation VSMP permit program are not authorized by this permit.

TABLE 50‑1.
SECTORS OF INDUSTRIAL ACTIVITY COVERED BY THIS PERMIT.

SIC Code or Activity Code

Activity Represented

Sector A: Timber Products

2411

Log Storage and Handling (Wet deck storage areas are only authorized if no chemical additives are used in the spray water or applied to the logs).

2421

General Sawmills and Planning Mills.

2426

Hardwood Dimension and Flooring Mills.

2429

Special Product Sawmills, Not Elsewhere Classified.

2431-2439 (except 2434 - see Sector W)

Millwork, Veneer, Plywood, and Structural Wood.

2441, 2448, 2449

Wood Containers.

2451, 2452

Wood Buildings and Mobile Homes.

2491

Wood Preserving.

2493

Reconstituted Wood Products.

2499

Wood Products, Not Elsewhere Classified.

Sector B: Paper and Allied Products

2611

Pulp Mills.

2621

Paper Mills.

2631

Paperboard Mills.

2652-2657

Paperboard Containers and Boxes.

2671-2679

Converted Paper and Paperboard Products, Except Containers and Boxes.

Sector C: Chemical and Allied Products

2812-2819

Industrial Inorganic Chemicals.

2821-2824

Plastics Materials and Synthetic Resins, Synthetic Rubber, Cellulosic and Other Manmade Fibers Except Glass.

2833-2836

Medicinal Chemicals and Botanical Products; Pharmaceutical Preparations; In Vitro and In Vivo Diagnostic Substances; Biological Products, Except Diagnostic Substances.

2841-2844

Soaps, Detergents, and Cleaning Preparations; Perfumes, Cosmetics, and Other Toilet Preparations.

2851

Paints, Varnishes, Lacquers, Enamels, and Allied Products.

2861-2869

Industrial Organic Chemicals.

2873-2879

Agricultural Chemicals.

2891-2899

Miscellaneous Chemical Products.

3952 (limited to list)

Inks and Paints, Including China Painting Enamels, India Ink, Drawing Ink, Platinum Paints for Burnt Wood or Leather Work, Paints for China Painting, Artist's Paints and Artist's Watercolors.

Sector D: Asphalt Paving and Roofing Materials and Lubricants

2951, 2952

Asphalt Paving and Roofing Materials.

2992, 2999

Miscellaneous Products of Petroleum and Coal.

Sector E: Glass Clay, Cement, Concrete, and Gypsum Products

3211

Flat Glass.

3221, 3229

Glass and Glassware, Pressed or Blown.

3231

Glass Products Made of Purchased Glass.

3241

Hydraulic Cement.

3251-3259

Structural Clay Products.

3261-3269

Pottery and Related Products.

3271-3275 (except 3273) 3274, 3275

Concrete, Gypsum and Plaster Products, Except: Concrete Block and Brick; Concrete Products, Except Block and Brick; and Ready-mixed Concrete Facilities (SIC 3271-3273).

3281

Cut Stone and Stone Products

3291-3299

Abrasive, Asbestos, and Miscellaneous Non-metallic Mineral Products.

Sector F: Primary Metals

3312-3317

Steel Works, Blast Furnaces, and Rolling and Finishing Mills.

3321-3325

Iron and Steel Foundries.

3331-3339

Primary Smelting and Refining of Nonferrous Metals.

3341

Secondary Smelting and Refining of Nonferrous Metals.

3351-3357

Rolling, Drawing, and Extruding of Nonferrous Metals.

3363-3369

Nonferrous Foundries (Castings).

3398, 3399

Miscellaneous Primary Metal Products.

Sector G: Metal Mining (Ore Mining and Dressing)

1011

Iron Ores.

1021

Copper Ores.

1031

Lead and Zinc Ores.

1041, 1044

Gold and Silver Ores.

1061

Ferroalloy Ores, Except Vanadium.

1081

Metal Mining Services.

1094, 1099

Miscellaneous Metal Ores.

Sector H: Coal Mines and Coal Mining Related Facilities

1221-1241

Coal Mines and Coal Mining-Related Facilities.

Sector I: Oil and Gas Extraction and Refining

1311

Crude Petroleum and Natural Gas.

1321

Natural Gas Liquids.

1381-1389

Oil and Gas Field Services.

2911

Petroleum Refineries.

Sector J: Mineral Mining and Dressing Facilities (SIC 1411-1499) are not authorized under this permit.

Sector K: Hazardous Waste Treatment, Storage, or Disposal Facilities

HZ

Hazardous Waste Treatment Storage or Disposal.

Sector L: Landfills and Land Application Sites

LF

Landfills, Land Application Sites, and Open Dumps.

Sector M: Automobile Salvage Yards

5015

Automobile Salvage Yards.

Sector N: Scrap Recycling Facilities

5093

Scrap Recycling Facilities.

4499 (limited to list)

Dismantling Ships, Marine Salvaging, and Marine Wrecking - Ships For Scrap

Sector O: Steam Electric Generating Facilities

SE

Steam Electric Generating Facilities.

Sector P: Land Transportation and Warehousing

4011, 4013

Railroad Transportation.

4111-4173

Local and Highway Passenger Transportation.

4212-4231

Motor Freight Transportation and Warehousing.

4311

United States Postal Service.

5171

Petroleum Bulk Stations and Terminals.

Sector Q: Water Transportation

4412-4499 (except 4499 facilities as specified in Sector N)

Water Transportation.

Sector R: Ship and Boat Building or Repairing Yards

3731, 3732

Ship and Boat Building or Repairing Yards.

Sector S: Air Transportation

4512-4581

Air Transportation Facilities.

Sector T: Treatment Works

TW

Treatment Works.

Sector U: Food and Kindred Products

2011-2015

Meat Products.

2021-2026

Dairy Products.

2032-2038

Canned, Frozen and Preserved Fruits, Vegetables and Food Specialties.

2041-2048

Grain Mill Products.

2051-2053

Bakery Products.

2061-2068

Sugar and Confectionery Products.

2074-2079

Fats and Oils.

2082-2087

Beverages.

2091-2099

Miscellaneous Food Preparations and Kindred Products.

2111-2141

Tobacco Products.

Sector V: Textile Mills, Apparel, and Other Fabric Product Manufacturing, Leather and Leather Products

2211-2299

Textile Mill Products.

2311-2399

Apparel and Other Finished Products Made From Fabrics and Similar Materials.

3131-3199 (except 3111 - see Sector Z)

Leather and Leather Products, except Leather Tanning and Finishing.

Sector W: Furniture and Fixtures

2434

Wood Kitchen Cabinets.

2511-2599

Furniture and Fixtures.

Sector X: Printing and Publishing

2711-2796

Printing, Publishing, and Allied Industries.

Sector Y: Rubber, Miscellaneous Plastic Products, and Miscellaneous Manufacturing Industries.

3011

Tires and Inner Tubes.

3021

Rubber and Plastics Footwear.

3052, 3053

Gaskets, Packing, and Sealing Devices and Rubber and Plastics Hose and Belting.

3061, 3069

Fabricated Rubber Products, Not Elsewhere Classified.

3081-3089

Miscellaneous Plastics Products.

3931

Musical Instruments.

3942-3949

Dolls, Toys, Games and Sporting and Athletic Goods.

3951-3955 (except 3952 facilities as specified in Sector C)

Pens, Pencils, and Other Artists' Materials.

3961, 3965

Costume Jewelry, Costume Novelties, Buttons, and Miscellaneous Notions, Except Precious Metal.

3991-3999

Miscellaneous Manufacturing Industries.

Sector Z: Leather Tanning and Finishing

3111

Leather Tanning, Currying and Finishing.

Sector AA: Fabricated Metal Products

3411–3499

Fabricated Metal Products, Except Machinery and Transportation Equipment.

3911–3915

Jewelry, Silverware, and Plated Ware

Sector AB: Transportation Equipment, Industrial or Commercial Machinery

3511-3599 (except 3571-3579 - see Sector AC)

Industrial and Commercial Machinery (Except Computer and Office Equipment).

3711-3799 (except 3731, 3732 - see Sector R)

Transportation Equipment (Except Ship and Boat Building and Repairing).

Sector AC: Electronic, Electrical, Photographic, and Optical Goods

3571-3579

Computer and Office Equipment.

3612-3699

Electronic, Electrical Equipment and Components, Except Computer Equipment.

3812-3873

Measuring, Analyzing and Controlling Instrument; Photographic and Optical Goods.

Sector AD: Nonclassified Facilities/Storm Water Discharges Designated By the Board As Requiring Permits

N/A

Other Storm Water Discharges Designated By the Board As Needing a Permit (see 9 VAC 25-31-120 A 1 e) or Any Facility Discharging Storm Water Associated With Industrial Activity Not Described By Any of Sectors A-AC.

Note: Facilities may not elect to be covered under Sector AD. Only the Director may assign a facility to Sector AD.

C. Conditional exclusion for no exposure. If an owner is covered by this permit, but later is able to file a no exposure certification to be excluded from permitting under 9VAC25-31-120 F, the owner is no longer authorized by nor required to comply with this permit. If the owner is no longer required to have permit coverage due to a no exposure exclusion, the owner is not required to submit a notice of termination.

D. Receipt of this general permit does not relieve any owner of the responsibility to comply with any other applicable federal, state or local statute, ordinance or regulation.

9VAC25-151-60. Registration statement and Storm Water Pollution Prevention Plan (SWPPP).

A. Deadlines for submitting registration statement. The owner of a facility with storm water discharges associated with industrial activity who is proposing to be covered by this general permit shall file submit a complete and accurate VPDES general permit registration statement in accordance with this chapter. The owner shall prepare and implement a written SWPPP for the facility in accordance with the general permit (9VAC25-151-70 et seq.) prior to submitting the registration statement. Owners of facilities that were covered under the 2004 Industrial Storm Water General Permit who intend to continue coverage under this general permit shall review and update the SWPPP to meet all provisions of the general permit (9VAC25-151-70 et seq.) prior to submitting the registration statement.

B. Deadlines for submitting registration statement.

1. Existing facilities.

a. Owners of facilities that were covered under the 1999 2004 Industrial Storm Water General Permit who intend to continue coverage under this general permit shall submit a complete registration statement during the 90-day period prior to July 1, 2004 2009.

b. Owners of facilities previously covered by an expiring individual permit for storm water discharges associated with industrial activity may elect to be covered under this general permit by notifying the department at least 180 days prior to the expiration date of the individual permit, and submitting a complete registration statement during the 90-day period at least 30 days prior to the expiration date of the individual permit, but not before April 2, 2004 2009.

c. Owners of existing facilities, not currently covered by a VPDES permit, who intend to obtain coverage under this general permit for storm water discharges associated with industrial activity shall submit a complete registration statement by July 1, 2004 2009.

2. New facilities. Owners of new facilities who wish to obtain coverage under this general permit shall submit a complete registration statement at least two 30 days prior to the commencement of the industrial activity at the facility.

3. New owners of existing facilities. Where the owner of an existing facility that is covered by this permit changes, the new owner of the facility must shall submit a complete registration statement or a "Change of Ownership" form within 30 days of the ownership change.

4. Late notifications. An owner of a storm water discharge associated with industrial activity is not precluded from submitting a registration statement after the applicable dates provided in 9VAC25-151-60 A subdivisions 1 through 3 of this subsection. If a late registration statement is submitted, the owner is only authorized for discharges that occur after permit coverage is granted. The department reserves the right to take appropriate enforcement actions for any unpermitted discharges.

5. Additional notification for discharges to municipal separate storm sewer systems. Where the discharge of storm water associated with industrial activity is through a municipal separate storm sewer system (MS4), the owner shall notify the operator of the municipal system receiving the discharge and submit a copy of their registration statement to the municipal system operator.

B. C. Registration statement contents. The registration statement shall contain the following information:

1. Name, mailing address, email address (where available), and telephone number of the owner applying for permit coverage;:

a. Property owner of the site;

b. Operator applying for permit coverage (if different than subdivision 1 a of this subsection);

c. Responsible party requesting permit coverage, and who will be legally responsible for compliance with this permit;

2. Name (or other identifier), address, county, contact name, email address (where available), and phone number for the facility for which the registration statement is submitted;

3. Facility ownership status: federal, state, public or private;

4. Name Name(s) of the receiving water(s) that storm water is discharged into;

5. A statement indicating if storm water runoff is discharged to a municipal separate storm sewer system (MS4). Provide the name of the MS4 operator if applicable;

6. VPDES permit numbers for all permits assigned to the facility (including coverage under the 1999 2004 Industrial Storm Water General Permit);

7. An indication as to whether this facility discharges storm water runoff from coal storage piles;

8. An indication as to whether a storm water pollution prevention plan has been prepared in accordance with the requirements of 9VAC25-151-80 et seq.;

9. A topographic map or other map that indicates the location of the facility, the location of all storm water discharges, the water body receiving discharge(s) and other surface water bodies within a 1/2-mile radius of the facility 8. A copy of the SWPPP general location map and the SWPPP site map prepared in accordance with 9VAC25-151-80 B 2 b and c (general permit Part III B 2 b and c) and any applicable sector-specific site map requirements. Owners covered under the 2004 Industrial Storm Water General Permit shall update their site map to meet all requirements listed in 9VAC25-151-80 B 2 c (general permit Part III B 2 c) and any applicable sector-specific site map requirements;

10. 9. Identification of up to four 4-digit Standard Industrial Classification (SIC) Codes or 2-letter Industrial Activity Codes that best represent the principal products or services rendered by the facility and major colocated activities (2-letter Industrial Activity Codes are: HZ – hazardous waste treatment, storage, or disposal facilities; LF – landfills/disposal facilities that receive or have received any industrial wastes; SE – steam electric power generating facilities; or, TW – treatment works treating domestic sewage);

11. 10. Identification of all applicable sectors in this permit (as designated in Table 50‑1) that cover the discharges associated with industrial activity from the facility and major colocated activities to be covered under this permit, and the storm water outfalls associated with each industrial sector; and .

a. If the facility is a landfill (sector L), indicate the type of landfill (MSWLF (municipal solid waste landfill), CDD (construction debris/demolition), or other), and which outfalls (if any) receive contaminated storm water runoff.

b. If the facility is a timber products operation (sector A), indicate which outfalls receive discharges from wet decking areas;

12. 11. The following certification: "I certify under penalty of law that this document and all attachments were prepared under my direction or supervision in accordance with a system designed to assure that qualified personnel properly gather and evaluate the information submitted. Based on my inquiry of the person or persons who manage the system, or those persons directly responsible for gathering the information, the information submitted is, to the best of my knowledge and belief, true, accurate, and complete. I am aware that there are significant penalties for submitting false information, including the possibility of fine and imprisonment for knowing violations."

C. The registration statement shall be signed in accordance with 9VAC25-151-70, Part II K.

D. Where to submit. The registration statement shall be submitted to the DEQ regional office serving the area where the industrial facility is located.

9VAC25-151-65. Termination of permit coverage.

A. The owner may terminate coverage under this general permit by filing a complete notice of termination. The notice of termination shall may be filed within 30 days after one or more of the following conditions have been met:

1. Operations have ceased at the facility and there are no longer discharges of storm water associated with industrial activity from the facility.

2. A new owner has assumed responsibility for the facility (NOTE: A notice of termination does not have to be submitted if a VPDES Change of Ownership Agreement form has been submitted); or

3. All storm water discharges associated with industrial activity have been covered by an individual VPDES permit.

B. The notice of termination shall contain the following information:

1. Owner's name, mailing address and telephone number;

2. Facility name and location;

3. VPDES Industrial storm water general permit number;

4. The basis for submitting the notice of termination, including:

a. A statement indicating that a new owner has assumed responsibility for the facility;

b. A statement indicating that operations have ceased at the facility and there are no longer discharges of storm water associated with industrial activity from the facility;

c. A statement indicating that all storm water discharges associated with industrial activity have been covered by an individual VPDES permit; or

d. A statement indicating that termination of coverage is being requested for another reason (state the reason).

5. The following certification: "I certify under penalty of law that all storm water discharges associated with industrial activity from the identified facility that are authorized by this VPDES general permit have been eliminated, or covered under a VPDES individual permit, or that I am no longer the owner of the industrial activity, or permit coverage should be terminated for another reason listed above. I understand that by submitting this notice of termination, that I am no longer authorized to discharge storm water associated with industrial activity in accordance with the general permit, and that discharging pollutants in storm water associated with industrial activity to surface waters is unlawful where the discharge is not authorized by a VPDES permit. I also understand that the submittal of this notice of termination does not release an owner from liability for any violations of this permit or the Clean Water Act."

C. The notice of termination shall be signed in accordance with 9VAC25-151-70, Part II K.

D. Where to submit. The notice of termination shall be submitted to the DEQ regional office serving the area where the industrial facility is located.

9VAC25-151-70. General permit.

Any owner whose registration statement is accepted by the director will receive the following general permit and shall comply with the requirements therein and be subject to the VPDES Permit Regulation, 9VAC25-31. Facilities with colocated industrial activities shall comply with all applicable monitoring and pollution prevention plan requirements of each industrial activity sector of this chapter in which a colocated industrial activity is described. All pages of 9VAC25-151-70 and 9VAC25-151-80 apply to all storm water discharges associated with industrial activity covered under this general permit. Not all pages of 9VAC25-151-90 et seq. will apply to every permittee. The determination of which pages apply will be based on an evaluation of the regulated activities located at the facility.

General Permit No.: VAR05
Effective Date: July 1, 2004 2009
Expiration Date: June 30, 2009 2014

GENERAL PERMIT FOR STORM WATER DISCHARGES ASSOCIATED WITH INDUSTRIAL ACTIVITY

AUTHORIZATION TO DISCHARGE UNDER THE VIRGINIA POLLUTANT DISCHARGE ELIMINATION SYSTEM AND THE VIRGINIA STATE WATER CONTROL LAW

In compliance with the provisions of the Clean Water Act, as amended, and pursuant to the State Water Control Law and regulations adopted pursuant thereto, owners of facilities with storm water discharges associated with industrial activity are authorized to discharge to surface waters within the boundaries of the Commonwealth of Virginia, except those waters specifically named in board regulation or policies which prohibit such discharges.

The authorized discharge shall be in accordance with this cover page, Part I-Effluent Limitations, Monitoring Requirements and Special Conditions, Part II-Conditions Applicable to All VPDES Permits, Part III-Storm Water Pollution Prevention Plan, and Part IV-Sector-Specific Permit Requirements, as set forth herein.

Part I
Effluent Limitations, Monitoring Requirements and Special Conditions

A. Effluent limitations and monitoring requirements.

There are four three individual and separate categories of monitoring requirements and numeric effluent limitations that a facility may be subject to under this permit: (i) quarterly visual monitoring; (ii) benchmark monitoring of discharges associated with specific industrial activities; and (iii) compliance monitoring for discharges subject to numerical effluent limitations. The monitoring requirements and numeric effluent limitations applicable to a facility depend on the types of industrial activities generating storm water runoff from the facility, and for TMDL monitoring, the location of the facility. Part IV of the permit (9VAC25-151-90 et seq.) identifies monitoring requirements applicable to specific sectors of industrial activity. The permittee must shall review Part I A 1 and Part IV of the permit to determine which monitoring requirements and numeric limitations apply to his facility. Unless otherwise specified, limitations and monitoring requirements under Part I A 1 and Part IV are additive.

Sector-specific monitoring requirements and limitations are applied discharge by discharge at facilities with colocated activities. Where storm water from the colocated activities are commingled, the monitoring requirements and limitations are additive. Where more than one numeric limitation for a specific parameter applies to a discharge, compliance with the more restrictive limitation is required. Where monitoring requirements for a monitoring period overlap (e.g., need to monitor TSS one/year for a limit and also one/year for benchmark monitoring), the permittee may use a single sample to satisfy both monitoring requirements.

1. Types of monitoring requirements and limitations.

a. Quarterly visual monitoring. The requirements and procedures for quarterly visual monitoring are applicable to all facilities covered under this permit, regardless of the facility's sector of industrial activity.

(1) The permittee must shall perform and document a quarterly visual examination of a storm water discharge associated with industrial activity from each outfall, except discharges exempted below (Part I A 1 a (2) and (4), and Part I A 3). Unless another schedule is established in applicable sectors of Part IV (sections of 9VAC25-151-90 et seq.), the examination(s) must The examination(s) shall be made at least once in each of the following three-month periods: January through March, April through June, July through September, and October through December. The visual examination must shall be made during daylight hours (e.g., normal working hours). If no storm event resulted in runoff from the facility during a monitoring quarter, the permittee is excused from visual monitoring for that quarter provided that documentation is included with the monitoring records indicating that no runoff occurred. The documentation must shall be signed and certified in accordance with Part II K of this permit.

(2) Visual examinations must shall be made of samples collected within the first 30 minutes (or as soon thereafter as practical, but not to exceed one hour) of when the runoff or snowmelt begins discharging from the facility. The examination must shall document observations of color, odor, clarity, floating solids, settled solids, suspended solids, foam, oil sheen, and other obvious indicators of storm water pollution. The examination must shall be conducted in a well-lit area. No analytical tests are required to be performed on the samples. All samples (except snowmelt samples) must shall be collected from the discharge resulting from a storm event that is greater than 0.1 inches in magnitude and that occurs at least 72 hours from the previously measurable (greater than 0.1 inch rainfall) storm event. The 72-hour storm interval is waived when the preceding measurable storm did not yield a measurable discharge, or if the permittee is able to document that less than a 72-hour interval is representative for local storm events during the sampling period. Where practicable, the same individual should shall carry out the collection and examination of discharges for the entire permit term. If no qualifying storm event resulted in runoff during daylight hours from the facility during a monitoring quarter, the permittee is excused from visual monitoring for that quarter provided that documentation is included with the monitoring records indicating that no qualifying storm event occurred during daylight hours that resulted in storm water runoff during that quarter. The documentation must shall be signed and certified in accordance with Part II K.

(3) The visual examination reports must shall be maintained on-site with the Storm Water Pollution Prevention Plan (SWPPP). The report must shall include the outfall location, the examination date and time, examination personnel, the nature of the discharge (i.e., runoff or snow melt), visual quality of the storm water discharge (including observations of color, odor, clarity, floating solids, settled solids, suspended solids, foam, oil sheen, and other obvious indicators of storm water pollution), and probable sources of any observed storm water contamination.

(4) Inactive and unstaffed sites: When the permittee is unable to conduct visual storm water examinations at an inactive and unstaffed site, a waiver of the monitoring requirement may be exercised as long as the facility remains inactive and unstaffed, and there are no industrial materials or activities exposed to storm water. If this waiver is exercised, the permittee must shall maintain a certification with the SWPPP stating that the site is inactive and unstaffed, there are no industrial materials or activities exposed to storm water, and that performing visual examinations during a qualifying event is not feasible. The waiver must shall be signed and certified in accordance with Part II K.

(5) Representative outfalls - essentially identical discharges. If the facility has two or more outfalls that discharge substantially identical effluents, based on similarities of the industrial activities, significant materials, size of drainage areas, and storm water management practices occurring within the drainage areas of the outfalls, the permittee may conduct visual monitoring on the effluent of just one of the outfalls and report that the quantitative data also applies to the substantially identical outfall(s). The permittee shall include the following information in the SWPPP:

(a) The locations of the outfalls;

(b) Why the outfalls are expected to discharge substantially identical effluents, including evaluation of monitoring data, where available;

(c) Estimates of the size of the drainage area (in square feet) for each of the outfalls; and

(d) An estimate of the runoff coefficient of the drainage areas (low: under 40%; medium: 40% to 65%; high: above 65%).

(6) If a facility's permit coverage is effective less than one month from the end of a quarterly monitoring period, the first quarterly period starts with the next respective quarterly monitoring period (e.g., if permit coverage begins March 5, the permittee will not need to start quarterly visual monitoring until the April-June quarter).

b. Benchmark monitoring of discharges associated with specific industrial activities.

Table 70-1 identifies the specific industrial sectors subject to the benchmark monitoring requirements of this permit and the industry-specific pollutants of concern. The permittee must shall refer to the tables found in the individual sectors in Part IV (9VAC25-151-90 et seq.) for benchmark monitoring cut-off concentrations concentration values. Colocated industrial activities at the facility that are described in more than one sector in Part IV must shall comply with all applicable benchmark monitoring requirements from each sector.

The results of benchmark monitoring are primarily for the permittee to use to determine the overall effectiveness of the SWPPP in controlling the discharge of pollutants to receiving waters. Benchmark concentration values, included in Part IV of this permit, are not viewed as effluent limitations. An exceedance Exceedance of a benchmark value concentration does not, in and of itself, constitute a violation of this permit. While exceedance of a benchmark value and does not automatically indicate that violation of a water quality standard has occurred; however, it does signal that modifications to the SWPPP may be are necessary, unless justification is provided in the comprehensive site compliance evaluation (Part III E). In addition, exceedance of benchmark values concentrations may identify facilities that would be more appropriately covered under an individual, or alternative general permit where more specific pollution prevention controls could be required.

TABLE 70-1.
INDUSTRIAL SECTORS SUBJECT TO BENCHMARK MONITORING.

Industry Sector1

Industry Sub-sector

Benchmark Monitoring Parameters

A

General Sawmills and Planing Mills

TSS, Zinc.

Wood Preserving Facilities

Arsenic, Chromium, Copper, Phenols, TSS.

Log Storage and Handling

TSS.

Hardwood Dimension and Flooring Mills

TSS.

B

Paperboard Mills

BOD, TSS.

C

Industrial Inorganic Chemicals

Aluminum, Iron, Zinc, TSS, Total N.

Plastics, Synthetic Resins, etc.

Zinc, TSS.

Soaps, Detergents, Cosmetics, Perfumes

Total N, Zinc, TSS.

Agricultural Chemicals

Total N, Iron, Zinc, Phosphorus, TSS.

D

Asphalt Paving and Roofing Materials

TSS.

E

Clay Products

Aluminum, TSS.

Concrete Lime and Gypsum Products

TSS, pH, Iron.

F

Steel Works, Blast Furnaces, and Rolling and Finishing Mills

Aluminum, Zinc, TSS.

Iron and Steel Foundries

Aluminum, TSS, Copper, Iron, Zinc.

Nonferrous Rolling and Drawing

Copper, Zinc, TSS.

Nonferrous Foundries (Castings)

Copper, Zinc, TSS.

G2

Copper Ore Mining and Dressing

TSS

H

Coal Mines and Coal-Mining Related Facilities

TSS, Aluminum, Iron

I

Oil Refining

Lead, Nickel, Zinc, TKN, Total N, TSS

K

Hazardous Waste Treatment, Storage or Disposal

TKN, TSS, TOC, Arsenic, Cadmium, Cyanide, Lead, Mercury, Selenium, Silver.

L

Landfills, Land Application Sites, and Open Dumps

Iron, TSS.

M

Automobile Salvage Yards

TSS, Aluminum, Iron, Lead.

N

Scrap Recycling and Waste Recycling Facilities

Copper, Aluminum, Iron, Lead, Zinc, TSS, Cadmium, Chromium.

Ship Dismantling, Marine Salvaging and Marine Wrecking

Aluminum, Cadmium, Chromium, Copper, Iron, Lead, Zinc, TSS.

O

Steam Electric Generating Facilities

Iron, TSS.

P

Land Transportation and Warehousing

TPH, TSS.

Q

Water Transportation Facilities

Aluminum, Iron, Zinc, TSS.

R

Ship and Boat Building or Repairing Yards

TSS.

S

Airports with deicing activities3

BOD, TKN, pH, COD, TSS.

U

Dairy Products.

BOD, TSS.

Grain Mill Products

TSS, TKN.

Fats and Oils

BOD, Total N, TSS.

Y

Rubber Products

Zinc, Lead, TSS.

Z

Leather Tanning and Finishing

TKN, TSS

AA

Fabricated Metal Products Except Coating

Iron, Aluminum, Zinc, TSS.

Fabricated Metal Coating and Engraving

Zinc, TSS.

AC

Electronic and Electrical Equipment and Components, except Computers

Copper, Lead, TSS.

AD

Nonclassified Facilities/Storm Water Discharges Designated By the Board As Requiring Permits

TSS.

1Table does not include parameters for compliance monitoring under effluent limitations guidelines.

2See Sector G (Part IV G) for additional monitoring discharges from waste rock and overburden piles from active ore mining or dressing facilities, inactive ore mining or dressing facilities, and sites undergoing reclamation.

3Monitoring requirement is for airports with deicing activities that utilize more than 100 tons of urea or more than 100,000 gallons of glycol per year.

(1) (a) If a facility falls within a sector(s) required to conduct benchmark monitoring, monitoring shall be performed at least once during each of the first two, and potentially all, monitoring periods after the facility is granted coverage under the permit. Depending on the results of two consecutive monitoring periods, benchmark monitoring may not be required to be conducted in subsequent monitoring periods (see subsection (2) below).

(b) Monitoring periods for benchmark monitoring. Unless otherwise specified in Part IV, the The benchmark monitoring period is July 1 to June 30 each year of the permit. If a facility falls within a sector(s) required to conduct benchmark monitoring, monitoring must be performed annually (once per year) during at least the first two, and potentially all, monitoring periods, unless otherwise specified in the sector-specific requirements of Part IV. Depending on the results of two consecutive monitoring years, benchmark monitoring may not be required to be conducted in subsequent monitoring years (see subsection (2) below) periods are as follows: (i) July 1, 2009, to December 31, 2009; (ii) January 1, 2010, to December 31, 2010; (iii) January 1, 2011, to December 31, 2011; (iv) January 1, 2012, to December 31, 2012; and, (v) January 1, 2013, to December 31, 2013.

(c) If a facility's permit coverage is effective less than one month from the end of a monitoring period, the facility's first monitoring period starts with the next respective monitoring period (e.g., if permit coverage begins December 5, the permittee will not need to start sampling until the next January-December monitoring period).

(2) Benchmark monitoring waivers for facilities testing below benchmark concentration values. All of the provisions of this subpart are available to permittees except as noted in Part IV. Waivers from benchmark monitoring are available to facilities whose discharges are below benchmark concentration values, thus there is an incentive for facilities to improve the effectiveness of their SWPPPs in eliminating discharges of pollutants and avoid the cost of monitoring. On both a parameter by parameter and on an outfall by outfall basis, sector-specific. Sector-specific benchmark monitoring is not required to be conducted in subsequent monitoring years periods during the term of this permit provided:

(a) Samples were collected in two consecutive monitoring years periods, and all the parameter concentrations were below the applicable benchmark value concentration values in Part IV; and

(b) The facility is not subject to a numeric limitation for that parameter established in Part I A 1 c (Coal Pile Runoff) (Storm Water Effluent Limitations, Coal Pile Runoff, and TMDL Wasteload Allocations) or Part IV (Sector Specific Permit Requirements); and

(c) A waiver request is submitted to and approved by the department. The waiver request should shall be sent to the appropriate regional office, along with the supporting monitoring data for two consecutive years monitoring periods, and a certification that, based on current potential pollutant sources and BMPs used, discharges from the facility are reasonably expected to be essentially the same (or cleaner) compared to when the benchmark monitoring for the two consecutive monitoring years periods was done.

Waiver requests will be evaluated by the department based upon: (i) benchmark monitoring results below the benchmark concentration values; (ii) a favorable compliance history (including inspection results); and (iii) no outstanding enforcement actions.

The monitoring waiver may be revoked by the department for just cause. The permittee will be notified in writing that the monitoring waiver is revoked, and that the benchmark monitoring requirements are again in force and will remain in effect until the permit's expiration date.

(3) Samples must shall be collected and analyzed in accordance with Part I A 2 b. For each outfall, one signed Discharge Monitoring Report (DMR) form must shall be maintained on-site with the SWPPP submitted to the department for each storm event sampled. Monitoring results must shall be retained in accordance with Part II B.

(4) Inactive and unstaffed sites. If the permittee is unable to conduct benchmark monitoring at an inactive and unstaffed site, a waiver of the monitoring requirement may be exercised as long as the facility remains inactive and unstaffed, and there are no industrial materials or activities exposed to storm water. If the permittee exercises this waiver, a certification must shall be submitted to the department and maintained with the SWPPP stating that the site is inactive and unstaffed, there are no industrial materials or activities exposed to storm water, and that performing benchmark monitoring during a qualifying storm event is not feasible. The waiver must shall be signed and certified in accordance with Part II K.

(5) Representative outfalls - essentially identical discharges. If the facility has two or more outfalls that discharge substantially identical effluents, based on similarities of the industrial activities, significant materials, size of drainage areas, and storm water management practices occurring within the drainage areas of the outfalls, the permittee may perform benchmark monitoring on the effluent of just one of the outfalls and report that the quantitative data also applies to the substantially identical outfall(s). The permittee shall include the following information in the SWPPP, and in any DMRs that are required to be submitted to the department:

(a) The locations of the outfalls;

(b) Why the outfalls are expected to discharge substantially identical effluents, including evaluation of monitoring data, where available;

(c) Estimates of the size of the drainage area (in square feet) for each of the outfalls; and

(d) An estimate of the runoff coefficient of the drainage areas (low: under 40%; medium: 40% to 65%; high: above 65%).

c. Coal pile runoff.

(1) Facilities with discharges of storm water from coal storage piles must comply with the limitations and monitoring requirements of Table 70-2 for all discharges containing the coal pile runoff, regardless of the facility's sector of industrial activity. Permittees shall monitor such storm water discharges at least annually (once per year).

(2) The coal pile runoff must not be diluted with storm water or other flows in order to meet this limitation.

(3) If a facility is designed, constructed and operated to treat the volume of coal pile runoff that is associated with a 10-year, 24-hour rainfall event, any untreated overflow of coal pile runoff from the treatment unit is not subject to the 50 mg/L limitation for total suspended solids.

(4) Samples must be collected and analyzed in accordance with Part I A 2 b. Monitoring results must be reported in accordance with Part I A 4 and Part II C, and retained in accordance with Part II B.

TABLE 70-2.
NUMERIC LIMITATIONS FOR COAL PILE RUNOFF.

Parameter

Limit

Monitoring Frequency

Sample Type

Total Suspended Solids (TSS)

50 mg/l, max

1/year

Grab

pH

6.0 - 9.0 min. and max

1/year

Grab

d. c. Compliance monitoring for discharges subject to numerical effluent limitation guidelines limitations.

(1) Facilities subject to storm water effluent limitation guidelines.

(a) Facilities subject to storm water effluent limitation guidelines (see Table 70-2) are required to monitor such discharges to evaluate compliance with numerical effluent limitations. Industry-specific numerical limitations and compliance monitoring requirements are described in Part IV of the permit (9VAC25-151-90 et seq.). Colocated industrial activities at the facility that are described in more than one sector in Part IV must shall comply on a discharge-by-discharge basis with all applicable effluent limitations from each sector.

(b) Permittees shall monitor the discharges for the presence of the pollutant subject to the effluent limitation at least annually (once per year) once during each of the monitoring periods after the facility is granted coverage under the permit. If a facility's permit coverage is effective less than one month from the end of a monitoring period, the facility's first monitoring period starts with the next respective monitoring period (e.g., if permit coverage begins December 5, the permittee will not need to start the effluent limitation monitoring until the next January-December monitoring period).

(c) The monitoring periods for effluent limitation monitoring are as follows: (i) July 1, 2009, to December 31, 2009; (ii) January 1, 2010, to December 31, 2010; (iii) January 1, 2011, to December 31, 2011; (iv) January 1, 2012, to December 31, 2012; and (v) January 1, 2013, to December 31, 2013.

(2) (d) Samples must shall be collected and analyzed in accordance with Part I A 2 b. The representative outfalls provision of Part I A 2 d, the alternative certification provision of Part I A 3 b, and the low concentration waiver of Part I A 1 b(2) are not applicable to storm water discharge monitoring for compliance with effluent limitations. Results of all compliance monitoring must Monitoring results shall be reported in accordance with Part I A 4 and Part II C, and retained in accordance with Part II B.

TABLE 70-3 70-2.
STORM WATER-SPECIFIC EFFLUENT LIMITATION GUIDELINES APPLICABLE TO DISCHARGES THAT MAY BE ELIGIBLE FOR PERMIT COVERAGE.

Effluent Limitation Guideline

Sectors with Affected Facilities

Runoff from material storage piles at cement manufacturing facilities (40 CFR Part 411 Subpart C (2002) (2006) (established February 23, 1977))

E

Contaminated runoff from phosphate fertilizer manufacturing facilities (40 CFR Part 418 Subpart A (2002) (2006) (established April 8, 1974))

C

Coal pile runoff at steam electric generating facilities (40 CFR Part 423 (2002) (2006) (established November 19, 1982))

O

Discharges resulting from spray down or intentional wetting of logs at wet deck storage areas (40 CFR Part 429, Subpart I (2002) (2007) (established January 26, 1981))

A

Runoff from asphalt emulsion facilities (40 CFR Part 443 Subpart A (2002) (2007) (established July 24, 1975))

D

Runoff from landfills, (40 CFR Part 445, Subpart A and B (2002) (2007) (established February 2, 2000))

K & L

(2) Facilities subject to coal pile runoff monitoring.

(a) Facilities with discharges of storm water from coal storage piles shall comply with the limitations and monitoring requirements of Table 70-3 for all discharges containing the coal pile runoff, regardless of the facility's sector of industrial activity.

(b) Permittees shall monitor such storm water discharges at least once during each of the monitoring periods after the facility is granted coverage under the permit. If a facility's permit coverage is effective less than one month from the end of a monitoring period, the facility's first monitoring period starts with the next respective monitoring period (e.g., if permit coverage begins December 5, the permittee will not need to start the coal pile runoff monitoring until the next January-December monitoring period).

(c) Coal pile runoff monitoring periods are as follows: (i) July 1, 2009, to December 31, 2009; (ii) January 1, 2010, to December 31, 2010; (iii) January 1, 2011, to December 31, 2011; (iv) January 1, 2012, to December 31, 2012; and (v) January 1, 2013, to December 31, 2013.

(d) The coal pile runoff shall not be diluted with other storm water or other flows in order to meet this limitation.

(e) If a facility is designed, constructed and operated to treat the volume of coal pile runoff that is associated with a 10-year, 24-hour rainfall event, any untreated overflow of coal pile runoff from the treatment unit is not subject to the 50 mg/L limitation for total suspended solids.

(f) Samples shall be collected and analyzed in accordance with Part I A 2. Monitoring results shall be reported in accordance with Part I A 4 and Part II C, and retained in accordance with Part II B.

TABLE 70-3.
NUMERIC LIMITATIONS FOR COAL PILE RUNOFF.

Parameter

Limit

Monitoring Frequency

Sample Type

Total Suspended Solids (TSS)

50 mg/l, max.

1/year

Grab

pH

6.0 min. - 9.0 max.

1/year

Grab

(3) Facilities subject to Total Maximum Daily Load (TMDL) wasteload allocations.

(a) Upon written notification from the department, facilities subject to TMDL wasteload allocations will be required to monitor such discharges to evaluate compliance with the TMDL requirements.

(b) Permittees shall monitor the discharges for the pollutant subject to the TMDL wasteload allocation at least semiannually (twice per year). The TMDL semiannual monitoring periods are from July 1 to December 31, and January 1 to June 30. If a facility's notification that they are subject to the TMDL monitoring requirements is effective less than one month from the end of a semiannual monitoring period, the facility's first monitoring period starts with the next respective monitoring period (e.g., if notification is given on December 5, the permittee will not need to start semiannual monitoring until the next January 1 to June 30 monitoring period).

(c) Samples shall be collected and analyzed in accordance with Part I A 2. Monitoring results shall be reported in accordance with Part I A 4 and Part II C, and retained in accordance with Part II B.

2. Monitoring instructions.

a. Monitoring periods. Permittees that are required to conduct monitoring on an annual or quarterly basis must collect samples within the following time periods (unless otherwise specified in Part IV):

(1) The monitoring year is from July 1 to June 30.

(2) If a facility's permit coverage was effective less than one month from the end of a quarterly or yearly monitoring period, the first monitoring period starts with the next respective monitoring period (e.g., if permit coverage begins March 5, the permittee would not need to start quarterly sampling until the April-June quarter, but the permittee would only have from March 5 to June 30 to complete that year's annual monitoring).

b. a. Collection and analysis of samples. Sampling requirements must shall be assessed on an outfall by outfall basis. Samples must shall be collected and analyzed in accordance with the requirements of Part II A.

b. When and How to Sample. A minimum of one grab sample must shall be taken from the discharge associated with industrial activity resulting from a storm event with at least that is greater than 0.1 inch of precipitation in magnitude (defined as a "measurable" event), providing the interval from the preceding measurable storm is at least 72 hours. The 72-hour storm interval is waived when the preceding measurable storm did not yield a measurable discharge, or if the permittee is able to document that less than a 72-hour interval is representative for local storm events during the sampling period.

The grab sample must shall be taken during the first 30 minutes of the discharge. If it is not practicable to take the sample during the first 30 minutes, the sample may be taken during the first hour of discharge provided that the permittee explains why a grab sample during the first 30 minutes was impracticable. This information must shall be submitted on or with the Discharge Monitoring Report (DMR), or maintained with the SWPPP if reports are not required to be submitted. If the sampled discharge commingles with process or nonprocess water, the permittee must shall attempt to sample the storm water discharge before it mixes with the nonstorm water.

c. Storm event data. Along with the monitoring results, the permittee must shall provide the date and duration (in hours) of the storm event(s) sampled; rainfall measurements or estimates (in inches) of the storm event that generated the sampled runoff; the duration between the storm event sampled and the end of the previous measurable (greater than 0.1 inch rainfall) storm event; and an estimate of the total volume (in gallons) of the discharge sampled.

d. Representative outfalls—essentially identical discharges. If a facility has two or more outfalls that discharge substantially identical effluents, based on similarities of the industrial activities, significant materials or storm water management practices occurring within the drainage areas of the outfalls, the permittee may test the effluent of just one of the outfalls and report that the quantitative data also applies to the substantially identical outfall(s). This outfall monitoring waiver for substantially identical discharges applies to quarterly visual monitoring as well, but does not apply to compliance monitoring for discharges subject to numerical effluent limitation guidelines (see Part I A 1 d (2)). The permittee must include the following information in the SWPPP, and in any DMRs that are required to be submitted to the department:

(1) The locations of the outfalls;

(2) Why the outfalls are expected to discharge substantially identical effluents;

(3) Estimates of the size of the drainage area (in square feet) for each of the outfalls; and

(4) An estimate of the runoff coefficient of the drainage areas (low: under 40%; medium: 40% to 65%; high: above 65%).

d. Documentation explaining a facility's inability to obtain a sample (including dates/times the outfalls were viewed and/or sampling was attempted), of no rain event, or of no "measurable" storm event shall be maintained with the SWPPP. Acceptable documentation includes, but is not limited to, NCDC weather station data, local weather station data, facility rainfall logs, and other appropriate supporting data.

3. Monitoring waivers. Unless specifically stated otherwise, the following waivers may be applied to any monitoring required under this permit.

a. 3. Adverse climatic conditions waiver. When adverse weather conditions prevent the collection of samples, a substitute sample may be taken during a qualifying storm event in the next monitoring period. Adverse weather conditions are those that are dangerous or create inaccessibility for personnel, and may include such things as local flooding, high winds, electrical storms, or situations that otherwise make sampling impracticable, such as drought or extended frozen conditions. Unless specifically stated otherwise, this waiver may be applied to any monitoring required under this permit.

b. Alternative certification of "Not Present" or "No Exposure."

The permittee is not subject to the benchmark monitoring requirements of Part I A 1 b provided:

(1) A certification is made for a given outfall, or on a pollutant-by-pollutant basis in lieu of monitoring required under Part I A 1 b, that material handling equipment or activities, raw materials, intermediate products, final products, waste materials, by-products, industrial machinery or operations, or significant materials from past industrial activity that are located in areas of the facility within the drainage area of the outfall are not presently exposed to storm water and are not expected to be exposed to storm water for the certification period; and

(2) The certification is signed in accordance with Part II K, submitted to the department, and a copy retained with the SWPPP; and

(3) If certification cannot be made for an entire period, the permittee must document the date exposure was eliminated and must perform any monitoring required up until that date; and

(4) No numeric limitation for that parameter is established in Part IV.

4. Reporting monitoring results.

a. Reporting to the department. Depending on the types of monitoring required at a permitted facility, monitoring results may have to be submitted to the department, or they may only have to be kept with the SWPPP. The permittee must shall follow the reporting requirements and deadlines below for the types of monitoring that apply to the facility:

TABLE 70-4.
MONITORING REPORTING REQUIREMENTS.

Monitoring for Numeric Limitation Effluent Limitations (other than TMDL Wasteload Allocations)

Submit results on a DMR by the 10th day of the month after monitoring takes place January 30.

Semiannual Monitoring for TMDL Wasteload Allocations

Submit results on a DMR by January 30 and by July 30.

Benchmark Monitoring

Retain results with SWPPP - do not submit unless requested to do so by the department. Submit results on a DMR by January 30.

Biannual Annual Monitoring for Metal Mining Facilities (see Part IV, Sector G)

Retain results with SWPPP - do not submit unless requested to do so by the department.

Quarterly Visual Monitoring

Retain results with SWPPP - do not submit unless requested to do so by the department.

Follow-up Monitoring (see subsection A 5 c below).

Submit results on a DMR no later than 30 days after the results are received.

Permittees that are required to submit monitoring shall submit results for each outfall associated with industrial activity according to the requirements of Part II C. For each outfall, one signed discharge monitoring report (DMR) form must shall be submitted to the department per storm event sampled.

b. Additional reporting. In addition to filing copies of discharge monitoring reports in accordance with Part II C, permittees with at least one storm water discharge associated with industrial activity through a municipal separate storm sewer system (MS4), or a municipal system designated by the director, must submit signed copies of DMRs to the MS4 operator at the same time. Permittees not required to report monitoring data and permittees that are not otherwise required to monitor their discharges need not comply with this provision. Significant digits. The permittee shall report at least the same number of significant digits as a numeric effluent limitation or TMDL wasteload allocation for a given parameter; otherwise, at least two significant digits shall be reported for a given parameter. Regardless of the rounding convention used by the permittee (i.e., five always rounding up or to the nearest even number), the permittee shall use the convention consistently and shall ensure that consulting laboratories employed by the permittee use the same convention.

5. Corrective actions.

a. Data exceeding benchmarks concentration values. If the benchmark monitoring result exceeds the benchmark concentration value for that parameter, the permittee must review the SWPPP and modify it as necessary to address any deficiencies that caused the exceedance. Revisions to the SWPPP must be completed within 30 days after an exceedance is discovered. When BMPs need to be modified or added (distinct from regular preventive maintenance of existing BMPs described in Part III C), implementation must be completed before the next anticipated storm event if possible, but no later than 60 days after the exceedance is discovered, or as otherwise provided or approved by the department. Any BMP modifications must be documented and dated, and retained with the SWPPP, along with the amount of time taken to modify the applicable BMPs or implement additional BMPs.

b. Corrective actions. The permittee must take corrective action whenever:

(1) Routine facility inspections, comprehensive site compliance evaluations, inspections by local, state or federal officials, or any other process, observation or event result in discovery of any deficiency; or

(2) There is any exceedance of an effluent limitation (including coal pile runoff), TMDL wasteload allocation, or water quality standard.

The permittee must review the SWPPP and modify it as necessary to address any deficiencies. Revisions to the SWPPP must be completed within 30 days following the discovery of the deficiency. When BMPs need to be modified or added (distinct from regular preventive maintenance of existing BMPs described in Part III C), implementation must be completed before the next anticipated storm event if possible, but no later than 60 days after the deficiency is discovered, or as otherwise provided or approved by the department. The amount of time taken to modify a BMP or implement additional BMPs must be documented in the SWPPP.

Any corrective actions taken must be documented and retained with the SWPPP. Reports of corrective actions must be signed in accordance with Part II K.

c. Follow-up monitoring and reporting. If at any time monitoring results indicate that discharges from the facility exceed an effluent limitation or a TMDL wasteload allocation, or that discharges from the facility are causing or contributing to an exceedance of a water quality standard, immediate steps must be taken to eliminate the exceedances in accordance with the above Part I A 5 b (Corrective actions). Within 30 calendar days of implementing the relevant corrective action(s) (or during the next qualifying runoff event, should none occur within 30 calendar days) follow-up monitoring must be undertaken to verify that the BMPs that were modified are effectively protecting water quality. Follow-up monitoring need only be conducted for pollutant(s) with prior exceedances unless there are reasons to believe that facility modifications may have reduced pollutant prevention or removal capacity for other pollutants of concern.

The follow-up monitoring data must be submitted to the department no later than 30 days after the results are received. If the follow-up monitoring value does not exceed the effluent limitation or other relevant standard, no additional follow-up monitoring is required for this monitoring event.

Should the follow-up monitoring indicate that the effluent limitation, TMDL wasteload allocation, water quality standard or other relevant standard is still being exceeded, an exceedance report must be submitted to the department no later than 30 days after the follow-up monitoring results are received. The following information must be included in the report: permit number; facility name, address and location; receiving water; monitoring data from this and the preceding monitoring event(s); an explanation of the situation; description of what has been done and the intended actions (should the corrective actions not yet be complete) to further reduce pollutants in the discharge; and an appropriate contact name and phone number. Additional follow-up monitoring must be continued at an appropriate frequency, but no less often than quarterly, until the discharge no longer exceeds the standard.

B. Special conditions.

1. Allowable nonstorm water discharges. Except as provided in this section or in Part IV (9VAC25-151-90 et seq.), all discharges covered by this permit shall be composed entirely of storm water. The following nonstorm water discharges are authorized by this permit provided the nonstorm water component of the discharge is in compliance with Part III D 2 (Nonstorm water discharges) of this general permit:

a. Discharges from fire fighting activities;

b. Fire hydrant flushings;

c. Potable water including water line flushings;

d. Uncontaminated air conditioning or compressor condensate (excluding air compressors);

e. Irrigation drainage;

f. Landscape watering provided all pesticides, herbicides, and fertilizer have been applied in accordance with manufacturer's instructions;

g. Routine external building wash down that does not use detergents;

h. Pavement wash waters where no detergents are used and no spills or leaks of toxic or hazardous materials have occurred (unless all spilled material has been removed);

i. Uncontaminated ground water or spring water;

j. Foundation or footing drains where flows are not contaminated with process materials such as solvents; and

k. Incidental windblown mist from cooling towers that collects on rooftops or adjacent portions of the facility, but not intentional discharges from the cooling tower (e.g., "piped" cooling tower blowdown or drains).

All other nonstorm water discharges must shall be in compliance with a VPDES permit (other than this permit) issued for the discharge.

The following nonstorm water discharges are specifically not authorized by this permit:

Sector A - Timber products. Discharges of storm water from areas where there may be contact with chemical formulations sprayed to provide surface protection.

Sector C - Chemical and allied products manufacturing. Inks, paints, or substances (hazardous, nonhazardous, etc.) resulting from an on-site spill, including materials collected in drip pans; washwaters from material handling and processing areas; or washwaters from drum, tank, or container rinsing and cleaning.

Sector G - Metal mining (ore mining and dressing). Adit drainage or contaminated springs or seeps; and contaminated seeps and springs discharging from waste rock dumps that do not directly result from precipitation events.

Sector H - Coal mines and coal mining-related facilities. Discharges from pollutant seeps or underground drainage from inactive coal mines and refuse disposal areas that do not result from precipitation events; and discharges from floor drains in maintenance buildings and other similar drains in mining and preparation plant areas.

Sector I - Oil and gas extraction and refining. Discharges of vehicle and equipment washwater, including tank cleaning operations.

Sector K - Hazardous waste treatment, storage, or disposal facilities. Leachate, gas collection condensate, drained free liquids, contaminated ground water, laboratory-derived wastewater and contact washwater from washing truck and railcar exteriors and surface areas that have come in direct contact with solid waste at the landfill facility.

Sector L - Landfills, land application sites and open dumps. Leachate, gas collection condensate, drained free liquids, contaminated ground water, laboratory wastewater, and contact washwater from washing truck and railcar exteriors and surface areas that have come in direct contact with solid waste at the landfill facility.

Sector N - Scrap recycling and waste recycling facilities. Discharges from turnings containment areas in the absence of a storm event.

Sector O - Steam electric generating facilities. Nonstorm water discharges subject to effluent limitation guidelines.

Sector P - Land transportation and warehousing. Vehicle/equipment/surface washwater, including tank cleaning operations.

Sector Q - Water transportation. Bilge and ballast water, sanitary wastes, pressure wash water, and cooling water originating from vessels.

Sector R - Ship and boat building or repair yards. Bilge and ballast water, pressure wash water, sanitary wastes, and cooling water originating from vessels.

Sector S - Air transportation. Aircraft, ground vehicle, runway and equipment washwaters; and dry weather discharges of deicing/anti-icing chemicals.

Sector T - Treatment works. Sanitary and industrial wastewater; and equipment/vehicle washwaters.

Sector U - Food and kindred products. Boiler blowdown, cooling tower overflow and blowdown, ammonia refrigeration purging, and vehicle washing/clean-out operations.

Sector V - Textile mills, apparel, and other fabric products. Discharges of wastewater (e.g., wastewater as a result of wet processing or from any processes relating to the production process); reused/recycled water; and waters used in cooling towers.

2. Releases of hazardous substances or oil in excess of reportable quantities. The discharge of hazardous substances or oil in the storm water discharge(s) from the facility shall be prevented or minimized in accordance with the storm water pollution prevention plan for the facility. This permit does not authorize the discharge of hazardous substances or oil resulting from an on-site spill. This permit does not relieve the permittee of the reporting requirements of 40 CFR Part 110 (2002) (2007), 40 CFR Part 117 (2002) (2007) and 40 CFR Part 302 (2002) (2007) or § 62.1-44.34:19 of the Code of Virginia.

Where a release containing a hazardous substance or oil in an amount equal to or in excess of a reportable quantity established under either 40 CFR Part 110 (2002) (2007), 40 CFR Part 117 (2002) (2007) or 40 CFR Part 302 (2002) (2007) occurs during a 24-hour period:

a. The permittee is required to notify the department in accordance with the requirements of Part II G as soon as he has knowledge of the discharge;

b. Where a release enters a municipal separate storm sewer system (MS4), the permittee shall also notify the owner of the MS4; and

c. The storm water pollution prevention plan required under Part III must shall be reviewed to identify measures to prevent the reoccurrence of such releases and to respond to such releases, and the plan must shall be modified where appropriate.

3. Colocated industrial activity. If the facility has industrial activities occurring on-site which are described by any of the activities in Part IV of the permit (9VAC25-151-90 et seq.), those industrial activities are considered to be colocated industrial activities. Storm water discharges from colocated industrial activities are authorized by this permit, provided that the permittee complies with any and all additional pollution prevention plan and monitoring requirements from Part IV applicable to that particular colocated industrial activity. The permittee shall determine which additional pollution prevention plan and monitoring requirements are applicable to the colocated industrial activity by examining the narrative descriptions of each coverage section (Discharges covered under this section).

4. The storm water discharges authorized by this permit may be combined with other sources of storm water which are not required to be covered under a VPDES permit, so long as the combined discharge is in compliance with this permit.

5. There shall be no discharge of floating solids or visible foam in other than trace amounts.

6. Additional requirements for salt Salt storage piles or piles containing salt. Storage piles of salt or piles containing salt used for deicing or other commercial or industrial purposes must shall be enclosed or covered to prevent exposure to precipitation (except for exposure resulting from adding or removing materials from the pile). Piles do not need to be enclosed or covered where storm water from the pile is not discharged to state waters or the discharges from the piles are authorized under another permit. The permittee shall implement appropriate measures (e.g., good housekeeping, diversions, containment) to minimize exposure resulting from adding to or removing materials from the pile. All salt storage piles shall be located on an impervious surface. All runoff from the pile, and/or runoff that comes in contact with salt, including under drain systems, shall be collected and contained within a basin lined with concrete or other impermeable materials. This lined basin shall be bermed and shall be sized to contain runoff resulting from a 24-hour 25-year storm event. In no case shall salt contaminated stormwater be allowed to discharge directly to the ground or to state waters.

7. Discharges to waters subject to TMDL wasteload allocations. Facilities that are an identified source of the specified pollutant of concern to waters for which a "total maximum daily load" (TMDL) wasteload allocation has been established by the board and approved by EPA prior to the term of this permit shall incorporate measures and controls into the SWPPP required by Part III that are consistent with the assumptions and requirements of the TMDL. The department will provide written notification to the owner that a facility is subject to the TMDL requirements. The facility's SWPPP shall specifically address any conditions or requirements included in the TMDL that are applicable to discharges from the facility. If the TMDL establishes a specific numeric wasteload allocation that applies to discharges from the facility, the owner shall incorporate that allocation into the facility's SWPPP, perform any required monitoring in accordance with Part I A 1 c (3), and implement measures necessary to meet that allocation.

7. 8. Water quality protection. The permittee must shall select, install, implement and maintain best management practices (BMPs) at the facility that minimize pollutants in the storm water discharges as necessary to meet applicable water quality standards. If there is evidence indicating that the storm water discharges authorized by this permit are causing, have the reasonable potential to cause, or are contributing to an excursion above an applicable water quality standard, an excursion above a TMDL wasteload allocation, or are causing downstream pollution (as defined in § 62.1-44.3 of the Code of Virginia), the board may take appropriate enforcement action, may require the permittee to include and implement appropriate controls in the SWPPP to correct the problem, and/or may require the permittee to obtain an individual permit in accordance with 9VAC25-31-170 B 3.

9. Adding/deleting storm water outfalls. The permittee may add new and/or delete existing storm water outfalls at the facility as necessary/appropriate. The permittee shall update the SWPPP and notify the department of all outfall changes within 30 days of the change. The permittee shall submit a copy of the updated SWPPP site map with their notification.

Part II
Conditions Applicable to All VPDES Permits

A. Monitoring.

1. Samples and measurements taken as required by this permit shall be representative of the monitored activity.

2. Monitoring shall be conducted according to procedures approved under 40 CFR Part 136 (2002) (2007) or alternative methods approved by the U.S. Environmental Protection Agency, unless other procedures have been specified in this permit.

3. The permittee shall periodically calibrate and perform maintenance procedures on all monitoring and analytical instrumentation at intervals that will insure accuracy of measurements.

B. Records.

1. Records of monitoring information shall include:

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

b. The individual(s) who performed the sampling or measurements;

c. The date(s) and time(s) analyses were performed;

d. The individual(s) who performed the analyses;

e. The analytical techniques or methods used; and

f. The results of such analyses.

2. Except for records of monitoring information required by this permit related to the permittee's sewage sludge use and disposal activities, which shall be retained for a period of at least five years, the permittee shall retain records of all monitoring information, including all calibration and maintenance records and all original strip chart recordings for continuous monitoring instrumentation, copies of all reports required by this permit, and records of all data used to complete the registration statement for this permit, for a period of at least three years from the date of the sample, measurement, report or request for coverage. This period of retention shall be extended automatically during the course of any unresolved litigation regarding the regulated activity or regarding control standards applicable to the permittee, or as requested by the board.

C. Reporting monitoring results.

1. The permittee shall submit the results of the monitoring required by this permit not later than the 10th day of the month after monitoring takes place, unless another reporting schedule is specified elsewhere in this permit. Monitoring results shall be submitted to the department's regional office.

2. Monitoring results shall be reported on a discharge monitoring report (DMR) or on forms provided, approved or specified by the department.

3. If the permittee monitors any pollutant specifically addressed by this permit more frequently than required by this permit using test procedures approved under 40 CFR Part 136 (2002) (2007) or using other test procedures approved by the U.S. Environmental Protection Agency or using procedures specified in this permit, the results of this monitoring shall be included in the calculation and reporting of the data submitted on the DMR or reporting form specified by the department.

4. Calculations for all limitations which require averaging of measurements shall utilize an arithmetic mean unless otherwise specified in this permit.

D. Duty to provide information. The permittee shall furnish to the department, within a reasonable time, any information which the board may request to determine whether cause exists for modifying, revoking and reissuing, or terminating this permit or to determine compliance with this permit. The board may require the permittee to furnish, upon request, such plans, specifications, and other pertinent information as may be necessary to determine the effect of the wastes from his discharge on the quality of state waters, or such other information as may be necessary to accomplish the purposes of the State Water Control Law. The permittee shall also furnish to the department upon request, copies of records required to be kept by this permit.

E. Compliance schedule reports. Reports of compliance or noncompliance with, or any progress reports on, interim and final requirements contained in any compliance schedule of this permit shall be submitted no later than 14 days following each schedule date.

F. Unauthorized discharges. Except in compliance with this permit, or another permit issued by the board, it shall be unlawful for any person to:

1. Discharge into state waters sewage, industrial wastes, other wastes, or any noxious or deleterious substances; or

2. Otherwise alter the physical, chemical or biological properties of such state waters and make them detrimental to the public health, or to animal or aquatic life, or to the use of such waters for domestic or industrial consumption, or for recreation, or for other uses.

G. Reports of unauthorized discharges. Any permittee who discharges or causes or allows a discharge of sewage, industrial waste, other wastes or any noxious or deleterious substance into or upon state waters in violation of Part II F; or who discharges or causes or allows a discharge that may reasonably be expected to enter state waters in violation of Part II F, shall notify the department of the discharge immediately upon discovery of the discharge, but in no case later than 24 hours after said discovery. A written report of the unauthorized discharge shall be submitted to the department within five days of discovery of the discharge. The written report shall contain:

1. A description of the nature and location of the discharge;

2. The cause of the discharge;

3. The date on which the discharge occurred;

4. The length of time that the discharge continued;

5. The volume of the discharge;

6. If the discharge is continuing, how long it is expected to continue;

7. If the discharge is continuing, what the expected total volume of the discharge will be; and

8. Any steps planned or taken to reduce, eliminate and prevent a recurrence of the present discharge or any future discharges not authorized by this permit.

Discharges reportable to the department under the immediate reporting requirements of other regulations are exempted from this requirement.

H. Reports of unusual or extraordinary discharges. If any unusual or extraordinary discharge including a bypass or upset should occur from a treatment works and the discharge enters or could be expected to enter state waters, the permittee shall promptly notify, in no case later than 24 hours, the department by telephone after the discovery of the discharge. This notification shall provide all available details of the incident, including any adverse affects on aquatic life and the known number of fish killed. The permittee shall reduce the report to writing and shall submit it to the department within five days of discovery of the discharge in accordance with Part II I 2. Unusual and extraordinary discharges include but are not limited to any discharge resulting from:

1. Unusual spillage of materials resulting directly or indirectly from processing operations;

2. Breakdown of processing or accessory equipment;

3. Failure or taking out of service some or all of the treatment works; and

4. Flooding or other acts of nature.

I. Reports of noncompliance. The permittee shall report any noncompliance which may adversely affect state waters or may endanger public health.

1. An oral report shall be provided within 24 hours from the time the permittee becomes aware of the circumstances. The following shall be included as information which shall be reported within 24 hours under this paragraph:

a. Any unanticipated bypass; and

b. Any upset which causes a discharge to surface waters.

2. A written report shall be submitted within five days and shall contain:

a. A description of the noncompliance and its cause;

b. The period of noncompliance, including exact dates and times, and if the noncompliance has not been corrected, the anticipated time it is expected to continue; and

c. Steps taken or planned to reduce, eliminate, and prevent reoccurrence of the noncompliance.

The board may waive the written report on a case-by-case basis for reports of noncompliance under Part II I if the oral report has been received within 24 hours and no adverse impact on state waters has been reported.

3. The permittee shall report all instances of noncompliance not reported under Part II I 1 or 2, in writing, at the time the next monitoring reports are submitted. The reports shall contain the information listed in Part II I 2.

NOTE: The immediate (within 24 hours) reports required in Part II G, H and I may be made to the department's regional office. Reports may be made by telephone or by fax. For reports outside normal working hours, leave a message and this shall fulfill the immediate reporting requirement. For emergencies, the Virginia Department of Emergency Management maintains a 24-hour telephone service at 1-800-468-8892.

J. Notice of planned changes.

1. The permittee shall give notice to the department as soon as possible of any planned physical alterations or additions to the permitted facility. Notice is required only when:

a. The permittee plans alteration or addition to any building, structure, facility, or installation from which there is or may be a discharge of pollutants, the construction of which commenced:

(1) After promulgation of standards of performance under § 306 of Clean Water Act which are applicable to such source; or

(2) After proposal of standards of performance in accordance with § 306 of Clean Water Act which are applicable to such source, but only if the standards are promulgated in accordance with § 306 within 120 days of their proposal;

b. The alteration or addition could significantly change the nature or increase the quantity of pollutants discharged. This notification applies to pollutants which are subject neither to effluent limitations nor to notification requirements specified elsewhere in this permit; or

c. The alteration or addition results in a significant change in the permittee's sludge use or disposal practices, and such alteration, addition, or change may justify the application of permit conditions that are different from or absent in the existing permit, including notification of additional use or disposal sites not reported during the permit application process or not reported pursuant to an approved land application plan.

2. The permittee shall give advance notice to the department of any planned changes in the permitted facility or activity which may result in noncompliance with permit requirements.

K. Signatory requirements.

1. Registration statement. All registration statements shall be signed as follows:

a. For a corporation: by a responsible corporate officer. For the purpose of this section, a responsible corporate officer means: (i) a president, secretary, treasurer, or vice-president of the corporation in charge of a principal business function, or any other person who performs similar policy-making or decision-making functions for the corporation; or (ii) the manager of one or more manufacturing, production, or operating facilities, provided the manager is authorized to make management decisions that govern the operation of the regulated facility including having the explicit or implicit duty of making major capital investment recommendations, and initiating and directing other comprehensive measures to assure long-term environmental compliance with environmental laws and regulations; the manager can ensure that the necessary systems are established or actions taken to gather complete and accurate information for permit application requirements; and where authority to sign documents has been assigned or delegated to the manager in accordance with corporate procedures;

b. For a partnership or sole proprietorship: by a general partner or the proprietor, respectively; or

c. For a municipality, state, federal, or other public agency: by either a principal executive officer or ranking elected official. For purposes of this section, a principal executive officer of a public agency includes: (i) the chief executive officer of the agency, or (ii) a senior executive officer having responsibility for the overall operations of a principal geographic unit of the agency.

2. Reports, etc. All reports required by permits, and other information requested by the board shall be signed by a person described in Part II K 1 or by a duly authorized representative of that person. A person is a duly authorized representative only if:

a. The authorization is made in writing by a person described in Part II K 1;

b. The authorization specifies either an individual or a position having responsibility for the overall operation of the regulated facility or activity such as the position of plant manager, operator of a well or a well field, superintendent, position of equivalent responsibility, or an individual or position having overall responsibility for environmental matters for the company. A duly authorized representative may thus be either a named individual or any individual occupying a named position; and

c. The written authorization is submitted to the department.

3. Changes to authorization. If an authorization under Part II K 2 is no longer accurate because a different individual or position has responsibility for the overall operation of the facility, a new authorization satisfying the requirements of Part II K 2 shall be submitted to the department prior to or together with any reports, or information to be signed by an authorized representative.

4. Certification. Any person signing a document under Part II K 1 or 2 shall make the following certification:

"I certify under penalty of law that this document and all attachments were prepared under my direction or supervision in accordance with a system designed to assure that qualified personnel properly gather and evaluate the information submitted. Based on my inquiry of the person or persons who manage the system, or those persons directly responsible for gathering the information, the information submitted is, to the best of my knowledge and belief, true, accurate, and complete. I am aware that there are significant penalties for submitting false information, including the possibility of fine and imprisonment for knowing violations."

L. Duty to comply. The permittee shall comply with all conditions of this permit. Any permit noncompliance constitutes a violation of the State Water Control Law and the Clean Water Act, except that noncompliance with certain provisions of this permit may constitute a violation of the State Water Control Law but not the Clean Water Act. Permit noncompliance is grounds for enforcement action; for permit termination, revocation and reissuance, or modification; or denial of a permit renewal application.

The permittee shall comply with effluent standards or prohibitions established under § 307(a) of the Clean Water Act for toxic pollutants and with standards for sewage sludge use or disposal established under § 405(d) of the Clean Water Act within the time provided in the regulations that establish these standards or prohibitions or standards for sewage sludge use or disposal, even if this permit has not yet been modified to incorporate the requirement.

M. Duty to reapply. If the permittee wishes to continue an activity regulated by this permit after the expiration date of this permit, the permittee shall submit a new registration statement at least 180 90 days before the expiration date of the existing permit, unless permission for a later date has been granted by the board. The board shall not grant permission for registration statements to be submitted later than the expiration date of the existing permit.

N. Effect of a permit. This permit does not convey any property rights in either real or personal property or any exclusive privileges, nor does it authorize any injury to private property or invasion of personal rights, or any infringement of federal, state or local law or regulations.

O. State law. Nothing in this permit shall be construed to preclude the institution of any legal action under, or relieve the permittee from any responsibilities, liabilities, or penalties established pursuant to any other state law or regulation or under authority preserved by § 510 of the Clean Water Act. Except as provided in permit conditions on "bypassing" (Part II U), and "upset" (Part II V) nothing in this permit shall be construed to relieve the permittee from civil and criminal penalties for noncompliance.

P. Oil and hazardous substance liability. Nothing in this permit shall be construed to preclude the institution of any legal action or relieve the permittee from any responsibilities, liabilities, or penalties to which the permittee is or may be subject under §§ 62.1-44.34:14 through 62.1-44.34:23 of the State Water Control Law.

Q. Proper operation and maintenance. The permittee shall at all times properly operate and maintain all facilities and systems of treatment and control (and related appurtenances) which are installed or used by the permittee to achieve compliance with the conditions of this permit. Proper operation and maintenance also includes effective plant performance, adequate funding, adequate staffing, and adequate laboratory and process controls, including appropriate quality assurance procedures. This provision requires the operation of back-up or auxiliary facilities or similar systems which are installed by the permittee only when the operation is necessary to achieve compliance with the conditions of this permit.

R. Disposal of solids or sludges. Solids, sludges or other pollutants removed in the course of treatment or management of pollutants shall be disposed of in a manner so as to prevent any pollutant from such materials from entering state waters.

S. Duty to mitigate. The permittee shall take all reasonable steps to minimize or prevent any discharge or sludge use or disposal in violation of this permit which has a reasonable likelihood of adversely affecting human health or the environment.

T. Need to halt or reduce activity not a defense. It shall not be a defense for a permittee in an enforcement action that it would have been necessary to halt or reduce the permitted activity in order to maintain compliance with the conditions of this permit.

U. Bypass.

1. "Bypass" means the intentional diversion of waste streams from any portion of a treatment facility. The permittee may allow any bypass to occur which does not cause effluent limitations to be exceeded, but only if it also is for essential maintenance to assure efficient operation. These bypasses are not subject to the provisions of Part II U 2 and 3.

2. Notice.

a. Anticipated bypass. If the permittee knows in advance of the need for a bypass, prior notice shall be submitted, if possible at least 10 days before the date of the bypass.

b. Unanticipated bypass. The permittee shall submit notice of an unanticipated bypass as required in Part II I.

3. Prohibition of bypass.

a. Bypass is prohibited, and the board may take enforcement action against a permittee for bypass, unless:

(1) Bypass was unavoidable to prevent loss of life, personal injury, or severe property damage;

(2) There were no feasible alternatives to the bypass, such as the use of auxiliary treatment facilities, retention of untreated wastes, or maintenance during normal periods of equipment downtime. This condition is not satisfied if adequate back-up equipment should have been installed in the exercise of reasonable engineering judgment to prevent a bypass which occurred during normal periods of equipment downtime or preventive maintenance; and

(3) The permittee submitted notices as required under Part II U 2.

b. The board may approve an anticipated bypass, after considering its adverse effects, if the board determines that it will meet the three conditions listed above in Part II U 3 a.

V. Upset.

1. An upset constitutes an affirmative defense to an action brought for noncompliance with technology based permit effluent limitations if the requirements of Part II V 2 are met. A determination made during administrative review of claims that noncompliance was caused by upset, and before an action for noncompliance, is not a final administrative action subject to judicial review.

2. A permittee who wishes to establish the affirmative defense of upset shall demonstrate, through properly signed, contemporaneous operating logs, or other relevant evidence that:

a. An upset occurred and that the permittee can identify the cause(s) of the upset;

b. The permitted facility was at the time being properly operated;

c. The permittee submitted notice of the upset as required in Part II I; and

d. The permittee complied with any remedial measures required under Part II S.

3. In any enforcement proceeding the permittee seeking to establish the occurrence of an upset has the burden of proof.

W. Inspection and entry. The permittee shall allow the director, or an authorized representative, upon presentation of credentials and other documents as may be required by law, to:

1. Enter upon the permittee's premises where a regulated facility or activity is located or conducted, or where records must be kept under the conditions of this permit;

2. Have access to and copy, at reasonable times, any records that must be kept under the conditions of this permit;

3. Inspect at reasonable times any facilities, equipment (including monitoring and control equipment), practices, or operations regulated or required under this permit; and

4. Sample or monitor at reasonable times, for the purposes of assuring permit compliance or as otherwise authorized by the Clean Water Act and the State Water Control Law, any substances or parameters at any location.

For purposes of this section, the time for inspection shall be deemed reasonable during regular business hours, and whenever the facility is discharging. Nothing contained herein shall make an inspection unreasonable during an emergency.

X. Permit actions. Permits may be modified, revoked and reissued, or terminated for cause. The filing of a request by the permittee for a permit modification, revocation and reissuance, or termination, or a notification of planned changes or anticipated noncompliance does not stay any permit condition.

Y. Transfer of permits.

1. Permits are not transferable to any person except after notice to the department. Except as provided in Part II Y 2, 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 State Water Control Law and the Clean Water Act.

2. As an alternative to transfers under Part II Y 1, this permit may be automatically transferred to a new permittee if:

a. The current permittee notifies the department at least 30 days in advance of the proposed transfer of the title to the facility or property;

b. 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

c. The board does not notify the existing permittee and the proposed new permittee of its intent to modify or revoke and reissue the permit. If this notice is not received, the transfer is effective on the date specified in the agreement mentioned in Part II Y 2 b.

Z. Severability. The provisions of this permit are severable, and if any provision of this permit or the application of any provision of this permit to any circumstance, is held invalid, the application of such provision to other circumstances, and the remainder of this permit, shall not be affected thereby.

Part III
Storm Water Pollution Prevention Plan

9VAC25-151-80. Storm Water Pollution Prevention Plans.

A Storm Water Pollution Prevention Plan (SWPPP) must shall be developed and implemented for the facility covered by this permit. The SWPPP shall be prepared in accordance include Best Management Practices (BMPs) that are reasonable and appropriate in light of current industry practices. The BMPs shall be selected, designed, installed, implemented and maintained in accordance with good engineering practices and shall identify potential sources of pollution that may reasonably be expected to affect the quality of storm water discharges from the facility. In addition, the plan shall describe and ensure the implementation of practices that will be used to eliminate or reduce the pollutants in all storm water discharges from the facility, and shall assure compliance with the terms and conditions of this permit. Permittees must implement the provisions of the SWPPP as a condition of this permit. The SWPPP shall also include any more stringent measures necessary for the storm water discharges to meet applicable water quality standards.

The SWPPP requirements of this general permit may be fulfilled, in part, by incorporating by reference other plans or documents such as an erosion and sediment control (ESC) plan, a spill prevention control and countermeasure (SPCC) plan developed for the facility under § 311 of the Clean Water Act, or best management practices (BMP) programs otherwise required for the facility, provided that the incorporated plan meets or exceeds the plan requirements of Part III B (Contents of the Plan). If an ESC plan is being incorporated by reference, it shall have been approved by the locality in which the activity is to occur or by another appropriate plan approving authority authorized under the Erosion and Sediment Control Regulations, 4VAC50-30-10 et seq. All plans incorporated by reference into the SWPPP become enforceable under this permit. If a plan incorporated by reference does not contain all of the required elements of the SWPPP of Part III B, the permittee shall develop the missing SWPPP elements and include them in the required plan.

A. Deadlines for plan preparation and compliance.

1. Facilities that were covered under the 1999 2004 Industrial Storm Water General Permit. Owners of facilities that were covered under the 1999 2004 Industrial Storm Water General Permit who are continuing coverage under this general permit shall update and implement any revisions to the SWPPP not later than August 30, 2004 prior to submitting the registration statement.

2. New facilities, facilities previously covered by an expiring individual permit, and existing facilities not currently covered by a VPDES permit. Owners of new facilities, facilities previously covered by an expiring individual permit, and existing facilities not currently covered by a VPDES permit who elect to be covered under this general permit must shall prepare and implement the SWPPP prior to submitting the registration statement.

3. New owners of existing facilities. Where the owner of an existing facility that is covered by this permit changes, the new owner of the facility must shall update and implement any revisions to the SWPPP within 60 days of the ownership change.

4. Extensions. Upon a showing of good cause, the director may establish a later date in writing for the preparation and compliance with the SWPPP.

B. Contents of the plan. The contents of the SWPPP shall comply with the requirements listed below and those in the appropriate sectors of Part IV (9VAC25-151-90 et seq.) These requirements are cumulative. If a facility has colocated activities that are covered in more than one sector of Part IV, that facility's pollution prevention plan must shall comply with the requirements listed in all applicable sectors. The following requirements are applicable to all SWPPPs developed under this general permit. The plan shall include, at a minimum, the following items:

1. Pollution prevention team. The plan shall identify the staff individuals by name or title that comprise the facility's storm water pollution prevention team. The pollution prevention team is responsible for assisting the facility or plant manager in developing, implementing, maintaining, and revising and ensuring compliance with the facility's SWPPP. Responsibilities Specific responsibilities of each staff individual on the team must shall be identified and listed.

2. Site description. The SWPPP shall include the following:

a. Activities at the facility. A description of the nature of the industrial activity(ies) activities at the facility.

b. General location map. A general location map (e.g., USGS quadrangle or other map) with enough detail to identify the location of the facility and the receiving waters within one mile of the facility.

c. Site map. A site Map identifying the following:

(1) Directions The size of the property (in acres);

(2) The location and extent of significant structures and impervious surfaces (roofs, paved areas and other impervious areas);

(3) Locations of all storm water conveyances including ditches, pipes, swales, and inlets, and the directions of storm water flow (e.g., use arrows to show which ways storm water will flow) (use arrows to show which ways storm water will flow);

(2) (4) Locations of all existing structural and source control BMPs;

(3) (5) Locations of all surface water bodies, including wetlands;

(4) (6) Locations of potential pollutant sources identified under Part III B 3 and where significant materials are exposed to precipitation;

(5) (7) Locations where major significant spills or leaks identified under Part III B 4 have occurred;

(6) (8) Locations of the following activities where such activities are exposed to precipitation: fueling stations; vehicle and equipment maintenance and/or cleaning areas; loading/unloading areas; locations used for the treatment, storage or disposal of wastes; and liquid storage tanks; processing and storage areas; access roads, rail cars and tracks; transfer areas for substances in bulk; and machinery;

(7) (9) Locations of storm water outfalls and an approximate outline of the area draining to each outfall, and location of municipal storm sewer systems, if the storm water from the facility discharges to them;

(8) (10) Location and description of all nonstorm water discharges;

(9) (11) Locations of the following activities where such activities are exposed to precipitation: processing and storage areas; access roads, rail cars and tracks; the location of transfer of substance in bulk; and machinery Location of any storage piles containing salt used for deicing or other commercial or industrial purposes; and

(10) (12) Location and source of runoff Locations and sources of runon to the site from adjacent property containing, where the runon contains significant quantities of pollutants of concern to the facility (the permittee may include an evaluation of how the quality of the storm water running onto the facility impacts the facility's storm water discharges). The permittee shall include an evaluation with the SWPPP of how the quality of the storm water running onto the facility impacts the facility's storm water discharges.

d. Receiving waters and wetlands. The name of the nearest all surface waters receiving water(s) discharges from the site, including intermittent streams, dry sloughs, and arroyos and the areal extent. Provide the size and description of wetland sites that may receive discharges from the facility. If the facility discharges through a municipal separate storm sewer system (MS4), identify the MS4 operator, and the receiving water to which the MS4 discharges.

3. Summary of potential pollutant sources. The plan shall identify each separate area at the facility where industrial materials or activities are exposed to storm water. Industrial materials or activities include, but are not limited to: material handling equipment or activities, industrial machinery, raw materials, industrial production and processes, intermediate products, byproducts, final products, or and waste products. Material handling activities include, but are not limited to: the storage, loading and unloading, transportation, disposal, or conveyance of any raw material, intermediate product, final product or waste product. For each separate area identified, the description must shall include:

a. Activities in area. A list of the activities (e.g., material storage, equipment fueling and cleaning, cutting steel beams); and

b. Pollutants. A list of the associated pollutant(s) or pollutant parameter(s) constituents (e.g., crankcase oil, iron, biochemical oxygen demand, pH, etc.) (e.g., crankcase oil, zinc, sulfuric acid, cleaning solvents, etc.) for each activity. The pollutant list must shall include all significant materials that have been handled, treated, stored or disposed in a manner to allow exposure that have been exposed to storm water between the time of in the three years before being covered under this permit and the present prior to the date this SWPPP was prepared or amended. The list shall include any hazardous substances or oil at the facility.

4. Spills and leaks. The SWPPP must shall clearly identify areas where potential spills and leaks that can contribute pollutants to storm water discharges can occur and their accompanying drainage points corresponding outfalls. For areas that are exposed to precipitation or that otherwise drain to a storm water conveyance at the facility to be covered under this permit, the The plan must shall include a list of significant spills and leaks of toxic or hazardous pollutants that actually occurred at exposed areas, or that drained to a storm water conveyance during the three-year period prior to the date of the submission of a registration statement this SWPPP was prepared or amended. The list must shall be updated if significant spills or leaks occur in exposed areas of the facility during the term of the permit. Significant spills and leaks include releases of oil or hazardous substances in excess of reportable quantities, and may also include releases of oil or hazardous substances that are not in excess of reporting requirements.

5. Sampling data. The plan must shall include a summary of existing storm water discharge sampling data taken at the facility, and must also include a. The summary of sampling shall include, at a minimum, any data collected during the term of this previous permit term.

6. Storm water controls. The SWPPP shall include a description of storm water management controls appropriate for the facility. The description of controls shall address the following minimum components:

a. Description of existing and planned BMPs. The plan shall describe the type and location of existing nonstructural and structural best management practices (BMPs) selected for each of the areas where industrial materials or activities are exposed to storm water. All shall be implemented for all the areas identified in Part III B 3 (summary of potential pollutant sources) should have a BMP(s) identified for the area's discharges. For areas where BMPs are not currently in place, include a description of appropriate BMPs that will be used to control pollutants in storm water discharges. to prevent or control pollutants in storm water discharges from the facility. All reasonable steps shall be taken to control or address the quality of discharges from the site that may not originate at the facility. The SWPPP shall describe the type, location and implementation of all BMPs for each area where industrial materials or activities are exposed to storm water.

Selection of BMPs should shall take into consideration:

(1) The quantity and nature of the pollutants, and their potential to impact the water quality of receiving waters;

(2) Opportunities to combine the dual purposes of water quality protection and local flood control benefits, including physical impacts of high flows on streams (e.g., bank erosion, impairment of aquatic habitat, etc.);

(3) Opportunities to offset the impact of impervious areas of the facility on ground water recharge and base flows in local streams, taking into account the potential for ground water contamination.

(1) That preventing storm water from coming into contact with polluting materials is much more effective than trying to remove pollutants from storm water;

(2) BMPs generally shall be used in combination with each other for most effective water quality protection;

(3) The type and quantity of pollutants, including their potential to impact receiving water quality;

(4) That minimizing impervious areas at the facility will reduce runoff and improve groundwater recharge and stream base flows in local streams (taking into account the potential for ground water contamination);

(5) Flow attenuation by use of open vegetated swales and natural depressions;

(6) Diverting flow from areas of materials handling, storage or use;

(7) Conservation or restoration of riparian buffers;

(8) Infiltration of runoff onsite, (including bioretention cells, green roofs, and pervious pavement);

(9) Treatment interceptors (e.g., swirl separators and sand filters); and

(10) The selection of BMPs shall optimize the quantity and quality of storm water discharges from the site.

b. BMP types to be considered. The permittee must consider shall implement the following types of structural, nonstructural and other BMPs for implementation at to prevent and control pollutants in the storm water discharges from the facility, unless it can be demonstrated and documented that such controls are not relevant to the discharges (e.g., there are no storage piles containing salt). The SWPPP shall describe how each BMP is, or will be, implemented. If this requirement was fulfilled with the area-specific BMPs identified under Part III B 6 a, then the previous description is sufficient. However, many of the following BMPs may be more generalized or non-site-specific and therefore not previously considered. If the permittee determines that any of these BMPs are not appropriate for the facility, an explanation of why they are not appropriate shall be included in the plan. The BMP examples listed below are not intended to be an exclusive list of BMPs that may be used. The permittee is encouraged to keep abreast of SWPPP shall incorporate, as appropriate, new BMPs or new applications of existing BMPs to find for the most cost effective means of permit compliance for the facility achieving water quality protection. If BMPs are being used or planned at the facility that are not listed here (e.g., replacing a chemical with a less toxic alternative, adopting a new or innovative BMP, etc.), descriptions of them shall be included in this section of the SWPPP.

(1) Nonstructural BMPs.

(a) (1) Good housekeeping. The permittee must shall keep clean all exposed areas of the facility in a clean, orderly manner where such exposed areas could contribute that are potential sources of pollutants to storm water discharges. Common Typical problem areas include areas around trash containers, storage areas and, loading docks, and vehicle fueling and maintenance areas. Measures must also The plan shall include a schedule for regular pickup and disposal of garbage and waste materials;, along with routine inspections for leaks and conditions of drums, tanks and containers. The introduction of raw, final or waste materials to exposed areas of the facility shall be minimized to the maximum extent practicable. The generation of dust, along with off-site vehicle tracking of raw, final or waste materials, or sediments, shall be minimized to the maximum extent practicable.

(b) Minimizing (2) Eliminating and minimizing exposure. Where To the extent practicable, industrial materials and activities should shall be located inside, or protected by a storm-resistant shelter covering to prevent exposure to rain, snow, snowmelt, or and runoff. Note: Eliminating exposure at all industrial areas may make the facility eligible for the "Conditional Exclusion for No Exposure" provision of 9VAC25-31-120 F, thereby eliminating the need to have a permit.

(c) (3) Preventive maintenance. The permittee must shall have a preventive maintenance program that includes timely inspection and maintenance of storm water management devices (e.g., cleaning oil/water separators, catch basins), as well as regular inspection, testing, maintenance and repairing of facility all industrial equipment and systems to avoid breakdowns or failures that could result in discharges of pollutants to surface waters leaks, spill and other releases. This program is in addition to the specific BMP maintenance required under Part III C (Maintenance of BMPs).

(d) (4) Spill prevention and response procedures. The plan must shall describe the procedures that will be followed for cleaning up preventing and responding to spills or and leaks. The procedures and necessary spill response equipment must be made available to those employees who may cause or detect a spill or leak. Where appropriate, the plan must include an explanation of existing or planned material handling procedures, storage requirements, secondary containment, and equipment (e.g., diversion valves), that are intended to minimize spills or leaks at the facility.

(a) Preventive measures include barriers between material storage and traffic areas, secondary containment provisions, and procedures for material storage and handling.

(b) Response procedures shall include notification of appropriate facility personnel, emergency agencies, and regulatory agencies, and procedures for stopping, containing and cleaning up spills. Measures for cleaning up hazardous material spills or leaks must shall be consistent with applicable RCRA regulations at 40 CFR Part 264 (2002) (2007) and 40 CFR Part 265 (2002) (2007). Employees who may cause, detect or respond to a spill or leak shall be trained in these procedures and have necessary spill response equipment available. If possible, one of these individuals shall be a member of the Pollution Prevention Team.

(c) Contact information for individuals and agencies that must be notified in the event of a spill shall be included in the SWPPP, and in other locations where it will be readily available.

(e) (5) Routine facility inspections. Facility personnel who are familiar with the industrial activity, the BMPs and the storm water pollution prevention plan possess the knowledge and skills to assess conditions and activities that could impact storm water quality at the facility, and who can also evaluate the effectiveness of BMPs shall be identified to regularly inspect all areas of the facility where industrial materials or activities are exposed to storm water. These inspections are in addition to, or as part of, the comprehensive site evaluation required under Part III E, and must shall include an evaluation assessment of how well the existing storm water BMPs are operating. At least one member of the Pollution Prevention Team shall participate in the routine facility inspections.

The inspection frequency shall be specified in the plan based upon a consideration of the level of industrial activity at the facility, but shall be a minimum of quarterly unless more frequent intervals are specified elsewhere in the permit or written approval is received from the department for less frequent intervals. The requirement for routine facility inspections is waived for facilities that have maintained an active E3/E4 status.

Any deficiencies in the implementation of the SWPPP that are found must shall be corrected as soon as practicable, but not later than within 14 30 days of the inspection, unless permission for a later date is granted in writing by the director. The results of the inspections must shall be documented in the SWPPP, along with the date(s) and description(s) of any corrective actions that were taken in response to any deficiencies or opportunities for improvement that were identified.

(f) (6) Employee training. The SWPPP must describe the permittee shall implement a storm water employee training program for the facility. The description should include the topics to be covered, such as spill response, good housekeeping, and material management practices, and must identify periodic dates for such training (e.g., every six months during the months of July and January). The SWPPP shall include a schedule for all types of necessary training, and shall document all training sessions and the employees who received the training. Employee training must Training shall be provided for all employees who work in areas where industrial materials or activities are exposed to storm water, and for employees who are responsible for implementing activities identified in the SWPPP (e.g., inspectors, maintenance people) (e.g., inspectors, maintenance personnel, etc.), and for all members of the Pollution Prevention Team. The training should inform employees of The training shall cover the components and goals of the SWPPP, and include such topics as spill response, good housekeeping, material management practices, BMP operation and maintenance, etc. The SWPPP shall include a summary of any training performed.

(2) Structural BMPs.

(a) (7) Sediment and erosion control. The plan shall identify areas at the facility that, due to topography, land disturbance (e.g., construction) (e.g., construction, landscaping, site grading), or other factors, have a potential for significant soil erosion. The plan must permittee shall identify and implement structural, vegetative, and/or stabilization BMPs that will be implemented to limit prevent or control on-site and off-site erosion and sedimentation. Flow velocity dissipation devices shall be placed at discharge locations and along the length of any outfall channel if the flows would otherwise create erosive conditions.

(b) (8) Management of runoff. The plan shall describe the traditional storm water runoff management practices (permanent structural BMPs other than those that control the generation or source(s) of pollutants) that currently exist or that are planned (i.e., permanent structural BMPs) for the facility. These types of BMPs are typically used to divert, infiltrate, reuse, or otherwise reduce pollutants in storm water discharges from the site. The plan shall provide that all measures that the permittee determines to be reasonable and appropriate, or are required by a state or local authority shall be implemented and maintained. Factors for the permittee to consider when selecting appropriate BMPs should include:

(i) The industrial materials and activities that are exposed to storm water, and the associated pollutant potential of those materials and activities; and

(ii) The beneficial and potential detrimental effects on surface water quality, ground water quality, receiving water base flow (dry weather stream flow), and physical integrity of receiving waters.

Structural measures should be placed on upland soils, avoiding wetlands and floodplains, if possible. Structural BMPs may require a separate permit under § 404 of the CWA and the Virginia Water Protection Permit Program Regulation (9VAC25-210) before installation begins.

(c) Example BMPs. BMPs that could be used include but are not limited to: storm water detention structures (including wet ponds); storm water retention structures; flow attenuation by use of open vegetated swales and natural depressions; infiltration of runoff on-site; and sequential systems (which combine several practices).

(d) Other Controls. Off-site vehicle tracking of raw, final, or waste materials or sediments, and the generation of dust must be minimized. Tracking or blowing of raw, final, or waste materials from areas of no exposure to exposed areas must be minimized. Velocity dissipation devices (or equivalent measures) must be placed at discharge locations and along the length of any outfall channel if they are necessary to provide a nonerosive flow velocity from the structure to a water course.

C. Maintenance. All BMPs identified in the SWPPP must shall be maintained in effective operating condition. Storm water BMPs identified in the SWPPP shall be observed during active operation (i.e., during a storm water runoff event) to ensure that they are functioning correctly. Where discharge locations are inaccessible, nearby downstream locations shall be observed. The observations shall be documented in the SWPPP.

The SWPPP shall include a description of procedures and a regular schedule for preventive maintenance of all BMPs, and shall include the amount of time for maintenance and repair, and a description of the back-up practices that are in place should a runoff event occur while a BMP is off-line. The effectiveness of nonstructural BMPs shall also be maintained by appropriate means (e.g., spill response supplies available and personnel trained, etc.).

If site inspections required by Part III B 6 b (5) (Routine facility inspections) or Part III E (Comprehensive site compliance evaluation) identify BMPs that are not operating effectively, repairs or maintenance must shall be performed before the next anticipated storm event, or as necessary to maintain the continued effectiveness of storm water controls. If maintenance prior to the next anticipated storm event is impracticable not possible, maintenance must shall be scheduled and accomplished as soon as practicable, and documentation included in the SWPPP to justify the extended repair schedule. In the interim, back-up measures shall be employed and documented in the SWPPP until repairs or maintenance is complete. In the case of nonstructural BMPs, the effectiveness of the BMP must be maintained by appropriate means (e.g., spill response supplies available and personnel trained, etc.). All maintenance and repair activities and dates shall be documented in the SWPPP. For repairs, the date of deficiency discovery and the date on which the BMP was restored to full-function shall also be documented in the SWPPP.

D. Nonstorm water discharges.

1. Certification of nonstorm water discharges.

a. The SWPPP must include a certification that all discharges (i.e., outfalls) have been tested or evaluated for the presence of nonstorm water. The certification must be signed in accordance with Part II K of this permit, and include:

(1) The date of any testing and/or evaluation;

(2) Identification of potential significant sources of nonstorm water at the site;

(3) A description of the results of any test and/or evaluation for the presence of nonstorm water discharges;

(4) A description of the evaluation criteria or testing method used; and

(5) A list of the outfalls or on-site drainage points that were directly observed during the test.

b. A new certification does not need to be signed if one was completed for the 1999 Industrial Storm Water General Permit and the permittee has no reason to believe conditions at the facility have changed.

c. If the permittee is unable to provide the certification required (testing for nonstorm water discharges), the director must be notified 180 days after submitting a registration statement to be covered by this permit. If the failure to certify is caused by the inability to perform adequate tests or evaluations, such notification must describe:

(1) The reason(s) why certification was not possible;

(2) The procedure of any test attempted;

(3) The results of such test or other relevant observations; and

(4) Potential sources of nonstorm water discharges to the storm sewer.

d. A copy of the notification must be included in the SWPPP at the facility. Nonstorm water discharges to state waters that are not authorized by a VPDES permit are unlawful, and must be terminated.

2. D. Allowable nonstorm water discharges.

a. The 1. Discharges of certain sources of nonstorm water listed in Part I B 1 (allowable nonstorm water discharges) are allowable discharges under this permit (see Part I B 1 - Allowable nonstorm water discharges) provided the permittee includes the following information in the SWPPP:

(1) a. Identification of each allowable nonstorm water source, except for flows from fire fighting activities;

(2) b. The location where the nonstorm water is likely to be discharged; and

(3) c. Descriptions of any appropriate BMPs that are being used for each source.

b. 2. If mist blown from cooling towers is included as one of the allowable nonstorm water discharges from the facility, the permittee must shall specifically evaluate the potential for the discharges to be contaminated by discharge for the presence of chemicals used in the cooling tower and must select and implement BMPs to control such discharges so that the levels of cooling tower chemicals in the discharges would not cause or contribute to a violation of an applicable water quality standard. The evaluation shall be included in the SWPPP.

3. Allowable nonstorm water discharges are subject to all of the provisions of this permit, including numeric effluent limitations, benchmarks and monitoring requirements.

E. Comprehensive site compliance evaluation. The permittee shall conduct facility inspections (site compliance evaluations) comprehensive site compliance evaluations at least once a year. The inspections must evaluations shall be done by qualified personnel who may be either facility employees or outside constituents hired by the facility. The inspectors must be familiar with the industrial activity, the BMPs and the SWPPP, and must possess the skills to assess conditions at the facility that could impact storm water quality, and to assess the effectiveness of the BMPs that have been chosen to control the quality of the storm water discharges. If more frequent inspections are conducted, the SWPPP must specify the frequency of inspections possess the knowledge and skills to assess conditions and activities that could impact storm water quality at the facility, and who can also evaluate the effectiveness of BMPs. At least one member of the Pollution Prevention Team shall participate in the comprehensive site compliance evaluations.

1. Scope of the compliance evaluation. Inspections must Evaluations shall include all areas where industrial materials or activities are exposed to storm water, as identified in Part III B 3, and areas where spills and leaks have occurred within the past three years. Inspectors should look for. The personnel shall evaluate:

a. Industrial materials, residue or trash on the ground that may have or could contaminate or be washed away in come into contact with storm water;

b. Leaks or spills from industrial equipment, drums, barrels, tanks or similar other containers that have occurred within the past three years;

c. Off-site tracking of industrial or waste materials or sediment where vehicles enter or exit the site;

d. Tracking or blowing of raw, final, or waste materials from areas of no exposure to exposed areas; and

e. Evidence of, or the potential for, pollutants entering the drainage system.;

f. Evidence of pollutants discharging to surface waters at all facility outfalls, and the condition of and around the outfall, including flow dissipation measures to prevent scouring;

g. Review of training performed, inspections completed, maintenance performed, quarterly visual examinations, and effective operation of BMPs;

h. Certification of outfall evaluation for unauthorized discharges.

(NOTE: this was called the "certification of nonstorm water discharges" in the 2004 Industrial Storm Water General Permit)

(1) The SWPPP shall include an annual certification that all discharges (i.e., outfalls) have been evaluated for the presence of unauthorized discharges (i.e., discharges other than: storm water; the authorized nonstorm water discharges described in Part I B 1; or discharges covered under a separate VPDES permit, other than this permit.) The certification shall include:

(a) The date of the evaluation;

(b) A description of the evaluation criteria used;

(c) A list of the outfalls or on-site drainage points that were directly observed during the evaluation;

(d) A description of the results of the evaluation for the presence of unauthorized discharges; and

(e) The actions taken to eliminate unauthorized discharges, if any were identified (i.e., a floor drain was sealed, a sink drain was rerouted to sanitary, or an VPDES permit application was submitted for a cooling water discharge.)

(2) If the permittee is unable to provide the required certification, the director shall be notified no more than 14 days after the completion of the annual site compliance evaluation. The notification shall describe:

(a) The reason(s) why certification was not possible;

(b) The procedure that was followed in any evaluation attempted;

(c) The results of such evaluation or other relevant observations; and

(d) Any potential sources of unauthorized discharges that have not been eliminated.

(3) A copy of the notification shall be included in the SWPPP at the facility.

i. Results of both visual and any analytical monitoring done during the past year must shall be taken into consideration during the evaluation. Storm water BMPs identified in the SWPPP must be observed to ensure that they are operating correctly. Where discharge locations or points are accessible, they must be inspected to see whether BMPs are effective in preventing significant impacts to receiving waters. Where discharge locations are inaccessible, nearby downstream locations must be inspected if possible.

2. Based on the results of the inspection evaluation, the SWPPP shall be modified as necessary (e.g., show additional controls on the map required by Part III B 2 c; revise the description of controls required by Part III B 6 to include additional or modified BMPs designed to correct problems identified). Revisions to the SWPPP shall be completed within two weeks 30 days following the inspection evaluation, unless permission for a later date is granted in writing by the director. If existing BMPs need to be modified or if additional BMPs are necessary, implementation must shall be completed before the next anticipated storm event, if practicable, but not more than 12 weeks 60 days after completion of the comprehensive site evaluation, unless permission for a later date is granted in writing by the director department;

3. Compliance evaluation report. A report shall be written summarizing the scope of the inspection evaluation, name(s) of personnel making the inspection evaluation, the date(s) date of the inspection evaluation, and major all observations relating to the implementation of the SWPPP, and actions taken in accordance with Part III E 2 shall be made and retained as part of the SWPPP for at least three years from the date of the inspection including elements stipulated in Part III E 1 (a) through (f) above. Major observations should Observations shall include such things as: the location(s) of discharges of pollutants from the site; location(s) of previously unidentified sources of pollutants; location(s) of BMPs that need to be maintained or repaired; location(s) of failed BMPs that failed to operate as designed or proved inadequate for a particular location need replacement; and location(s) where additional BMPs are needed that did not exist at the time of inspection. The report shall identify any incidents of noncompliance that were observed. Where a report does not identify any incidents of noncompliance, the report shall contain a certification that the facility is in compliance with the SWPPP and this permit. The report shall be signed in accordance with Part II K; and maintained with the SWPPP.

4. Where compliance evaluation schedules overlap with routine inspections required under Part III B 6 b(1)(e), the annual compliance evaluation may be used as one of the routine inspections.

F. Signature and plan review.

1. Signature/location. The plan shall be signed in accordance with Part II K, dated, and retained on-site at the facility covered by this permit in accordance with Part II B 2. A signature and date are required for both the initial plan preparation and for any revisions to the plan. For inactive facilities, the plan may be kept at the nearest office of the permittee.

2. Availability. The permittee shall make the SWPPP, annual site compliance inspection evaluation report, and other information available to the department upon request.

3. Required modifications. The director may notify the permittee at any time that the plan does SWPPP, BMPs, or other components of the facility's storm water program do not meet one or more of the minimum requirements of this permit. The notification shall identify those specific provisions of the permit that are not being met, as well as the and may include required modifications to the storm water program, additional monitoring requirements, and special reporting requirements. The permittee shall make the any required changes to the SWPPP within 60 days of receipt of such notification, unless permission for a later date is granted in writing by the director, and shall submit a written certification to the director that the requested changes have been made.

G. Maintaining an updated SWPPP.

1. The permittee shall review and amend the SWPPP as appropriate whenever:

1. a. There is construction or a change in design, construction, operation, or maintenance at the facility that has a significant effect on the discharge, or the potential for the discharge, of pollutants from the facility;

b. Routine inspections or compliance evaluations determine that there are deficiencies in the BMPs;

2. During inspections, monitoring, or investigations by facility personnel or c. Inspections by local, state, or federal officials it is determined determine that modifications to the SWPPP is ineffective in eliminating or significantly minimizing pollutants from sources identified under Part III B 3, or is otherwise not achieving the general objectives of controlling pollutants in discharges from the facility are necessary;

d. There is a spill, leak or other release at the facility;

e. There is an unauthorized discharge from the facility; or

f. The department notifies the permittee that a TMDL has been developed and applies to the permitted facility.

2. SWPPP modifications shall be made within 30 calendar days after discovery, observation or event requiring a SWPPP modification. Implementation of new or modified BMPs (distinct from regular preventive maintenance of existing BMPs described in Part III C) shall be initiated before the next storm event if possible, but no later than 60 days after discovery, or as otherwise provided or approved by the director. The amount of time taken to modify a BMP or implement additional BMPs shall be documented in the SWPPP.

3. If the SWPPP modification is based on a release or unauthorized discharge, include a description and date of the release, the circumstances leading to the release, actions taken in response to the release, and measures to prevent the recurrence of such releases. Unauthorized releases and discharges are subject to the reporting requirements of Part II G of this permit.

H. Special pollution prevention plan requirements.

1. Additional requirements for storm water discharges associated with industrial activity that discharge into or through municipal separate storm sewer systems.

a. In addition to the applicable requirements of this permit, facilities covered by this permit must comply with applicable requirements in municipal storm water management programs developed under VPDES permits issued for the discharge of the municipal separate storm sewer system that receives the facility's discharge, provided the permittee has been notified of such conditions.

b. Permittees that discharge storm water associated with industrial activity through a municipal separate storm sewer system, or a municipal system designated by the director shall make plans available to the municipal operator of the system upon request.

2. Additional requirements for storm water discharges associated with industrial activity from facilities subject to EPCRA § 313 reporting requirements.

Any potential pollutant sources for which the facility has reporting requirements under EPCRA 313 must be identified in the SWPPP in Part III B 3 (Summary of Potential Pollutant Sources). Note: this additional requirement is only applicable if the facility is subject to reporting requirements under EPCRA 313.

Part IV
Sector Specific Permit Requirements

The permittee must only comply with the additional requirements of Part IV (9VAC25-151-90 et seq.) that apply to the sector(s) of industrial activity located at the facility. These sector specific requirements are in addition to the "basic" requirements specified in Parts I, II and III of this permit. All numeric effluent limitations and benchmark monitoring concentration values reflect two significant digits, unless otherwise noted.

9VAC25-151-90. Sector A - Timber products.

A. Discharges covered under this section. The requirements listed under this section apply to storm water discharges associated with industrial activity from facilities generally classified under Standard Industrial Classification (SIC) Major Group 24 that are engaged in the following activities: cutting timber and pulpwood (those that have log storage or handling areas), mills, including merchant, lath, shingle, cooperage stock, planing, plywood and veneer, and producing lumber and wood materials; wood preserving, manufacturing wood buildings or mobile homes; and manufacturing finished articles made entirely of wood or related materials, except for wood kitchen cabinet manufacturers (SIC Code 2434), which are addressed under Sector W (9VAC25-151-300).

B. Special conditions.

1. Prohibition of nonstorm water discharges. Discharges of storm water from areas where there may be contact with chemical formulations sprayed to provide surface protection are not authorized by this permit. These discharges must be covered under a separate VPDES permit.

2. Authorized nonstorm water discharges. In addition to the discharges described in Part I B 1, the following nonstorm water discharges may be authorized by this permit provided the nonstorm water component of the discharge is in compliance with 9VAC25-151-90 C and the effluent limitations described in 9VAC25-151-90 D: discharges from the spray down of lumber and wood product storage yards where no chemical additives are used in the spray down waters and no chemicals are applied to the wood during storage.

C. Storm water pollution prevention plan requirements. In addition to the requirements of Part III, the SWPPP shall include, at a minimum, the following items.

1. Site description.

a. Site map. The site map shall identify where any of the following may be exposed to precipitation/surface runoff: processing areas; treatment chemical storage areas; treated wood and residue storage areas; wet decking areas; dry decking areas; untreated wood and residue storage areas; and treatment equipment storage areas.

b. Summary of potential pollutant sources. Where information is available, facilities that have used chlorophenolic, creosote, or chromium-copper-arsenic formulations for wood surface protection or wood preserving activities on-site in the past should shall identify in the inventory the following: areas where contaminated soils, treatment equipment, and stored materials still remain, and the management practices employed to minimize the contact of these materials with storm water runoff.

2. Storm water controls. The description of storm water management controls shall address the following areas of the site: log, lumber and other wood product storage areas; residue storage areas; loading and unloading areas; material handling areas; chemical storage areas; and equipment/vehicle maintenance, storage and repair areas. Facilities that surface protect and/or preserve wood products should shall address specific BMPs for wood surface protection and preserving activities. The SWPPP should shall address the following minimum components:

a. Good housekeeping. Good housekeeping measures in storage areas, loading and unloading areas, and material handling areas should shall be designed to:

(1) Limit the discharge of wood debris;

(2) Minimize the leachate generated from decaying wood materials; and

(3) Minimize the generation of dust.

b. Routine facility inspections. Inspections at processing areas, transport areas, and treated wood storage areas of facilities performing wood surface protection and preservation activities should shall be performed monthly to assess the usefulness of practices in minimizing the deposit of treatment chemicals on unprotected soils and in areas that will come in contact with storm water discharges.

D. Numeric effluent limitations.

1. In addition to the numeric effluent limitations described in Part I A 1 c and d, the following limitations shall be met by existing and new facilities.

Wet deck storage area runoff. Nonstorm water discharges from areas used for the storage of logs where water, without chemical additives, is intentionally sprayed or deposited on logs to deter decay or infestation by insects are required to meet the following effluent limitations: pH shall be within the range of 6.0-9.0, and there will be no discharge of debris. Chemicals are not allowed to be applied to the stored logs. The term "debris" is defined as woody material such as bark, twigs, branches, heartwood or sapwood that will not pass through a 2.54 cm (1 in.) diameter round opening and is present in the discharge from a wet deck storage area. Permittees subject to these numeric limitations must shall be in compliance with these limitations through the duration of permit coverage.

Table 90-1.
Sector A - Numeric Effluent Limitations.

Parameter

Effluent Limitations

Wet Decking Discharges at Log Storage and Handling Areas (SIC 2411)

pH

6.0 - 9.0 s.u.

Debris (woody material such as bark, twigs, branches, heartwood, or sapwood)

No discharge of debris that will not pass through a 2.54 cm (1") diameter round opening.

2. Compliance monitoring requirements. In addition to the parameters listed above, the permittee shall provide an estimate of the total volume (in gallons) of the discharge sampled.

E. Benchmark monitoring and reporting requirements. Timber product facilities are required to monitor their storm water discharges for the pollutants of concern listed in the appropriate section of Table 90-2.

Table 90-2.
Sector A - Benchmark Monitoring Requirements.

Pollutants of Concern

Monitoring Cut-Off Benchmark Concentration

General Sawmills and Planing Mills (SIC 2421)

Total Suspended Solids (TSS)

100 mg/L

Total Recoverable Zinc

120 μg/L

Wood Preserving Facilities (SIC 2491)

Total Recoverable Arsenic

50 μg/L

Total Recoverable Chromium

16 μg/L

Total Recoverable Copper

18 μg/L

Phenols

16 μg/L

Total Suspended Solids (TSS)

100 mg/L

Log Storage and Handling Facilities (SIC 2411)

Total Suspended Solids (TSS)

100 mg/L

Hardwood Dimension and Flooring Mills; Special Products Sawmills, not elsewhere classified; Millwork, Veneer, Plywood and Structural Wood; Wood Containers; Wood Buildings and Mobile Homes; Reconstituted Wood Products; and Wood Products Facilities not elsewhere classified (SIC Codes 2426, 2429, 2431-2439 (except 2434), 2448, 2449, 2451, 2452, 2493, and 2499).

Total Suspended Solids (TSS)

100 mg/L

9VAC25-151-100. Sector B - Paper and allied products manufacturing.

A. Discharges covered under this section. The requirements listed under this section apply to storm water discharges associated with industrial activity from facilities generally classified under SIC Major Group 26 that are engaged in the following activities: the manufacture of pulps from wood and other cellulose fibers and from rags; the manufacture of paper and paperboard into converted products, such as paper coated off the paper machine, paper bags, paper boxes and envelopes; and the manufacture of bags of plastic film and sheet.

B. Benchmark monitoring and reporting requirements. Paperboard mills are required to monitor their storm water discharges for the pollutant pollutants of concern listed in Table 100.

Table 100.
Sector B – Benchmark Monitoring Requirements.

Pollutants of Concern

Monitoring Cut-Off Benchmark Concentration

Paperboard Mills (SIC 2631)

Biochemical Oxygen Demand (BOD5)

30 mg/L

Total Suspended Solids (TSS)

100 mg/L

9VAC25-151-110. Sector C - Chemical and allied products manufacturing.

A. Discharges covered under this section. The requirements listed under this section apply to storm water discharges associated with industrial activity from facilities engaged in manufacturing the following products and generally described by the SIC code shown:

1. Basic industrial inorganic chemicals (including SIC Code 281);

2. Plastic materials and synthetic resins, synthetic rubbers, and cellulosic and other humanmade fibers, except glass (including SIC Code 282);

3. Medicinal chemicals and pharmaceutical products, including the grading, grinding and milling of botanicals (including SIC Code 283).

4. Soap and other detergents, including facilities producing glycerin from vegetable and animal fats and oils; specialty cleaning, polishing, and sanitation preparations; surface active preparations used as emulsifiers, wetting agents, and finishing agents, including sulfonated oils; and perfumes, cosmetics, and other toilet preparations (including SIC Code 284);

5. Paints (in paste and ready-mixed form); varnishes; lacquers; enamels and shellac; putties, wood fillers, and sealers; paint and varnish removers; paint brush cleaners; and allied paint products (including SIC Code 285);

6. Industrial organic chemicals (including SIC Code 286);

7. Nitrogenous and phosphatic basic fertilizers, mixed fertilizer, pesticides, and other agricultural chemicals (including SIC Code 287);

8. Industrial and household adhesives, glues, caulking compounds, sealants, and linoleum, tile, and rubber cements from vegetable, animal, or synthetic plastics materials; explosives; printing ink, including gravure ink, screen process and lithographic inks; miscellaneous chemical preparations, such as fatty acids, essential oils, gelatin (except vegetable), sizes, bluing, laundry sours, and writing and stamp pad ink; industrial compounds, such as boiler and heat insulating compounds; and chemical supplies for foundries (including SIC Code 289); and

9. Ink and paints, including china painting enamels, India ink, drawing ink, platinum paints for burnt wood or leather work, paints for china painting, artists' paints and artists' water colors (SIC Code 3952, limited to those listed; for others in SIC Code 3952 not listed above, see Sector Y (9VAC25-151-320)).

B. Special conditions. Prohibition of nonstorm water discharges. In addition to the general prohibition of nonstorm water discharges in Part I B 1, the following discharges are not covered by this permit: inks, paints, or substances (hazardous, nonhazardous, etc.) resulting from an on-site spill, including materials collected in drip pans; washwaters from material handling and processing areas; or washwaters from drum, tank, or container rinsing and cleaning.

C. Storm water pollution prevention plan requirements. In addition to the requirements of Part III, the plan shall include, at a minimum, the following items.

1. Site description.

a. Site map. The site map shall identify where any of the following may be exposed to precipitation/surface runoff: processing and storage areas; access roads, rail cars and tracks; areas where substances are transferred in bulk; and operating machinery.

b. Summary of potential pollutant sources. A description of the following sources and activities that have potential pollutants associated with them: loading, unloading and transfer of chemicals; outdoor storage of salt, pallets, coal, drums, containers, fuels, fueling stations; vehicle and equipment maintenance/cleaning areas; areas where the treatment, storage or disposal (on-site or off-site) of waste/wastewater occur; storage tanks and other containers; processing and storage areas; access roads, rail cars and tracks; areas where the transfer of substances in bulk occurs; and areas where machinery operates.

2. Storm water controls. Nonstructural BMPs. Good housekeeping. At a minimum, the The SWPPP shall include:

a. Include a A schedule for regular pickup and disposal of garbage and waste materials, or a description of other appropriate measures used to reduce the potential for the discharge of storm water that has come into contact with garbage or waste materials;

b. Include routine Routine inspections of the condition of drums, tanks and containers for potential leaks.

D. Numeric effluent limitations. In addition to the numeric effluent limitations described in Part I A 1 c and d, the following effluent limitations shall be met by existing and new discharges with phosphate fertilizer manufacturing runoff. The provisions of this paragraph are applicable to storm water discharges from the phosphate subcategory of the fertilizer manufacturing point source category (40 CFR 418.10 (2002)) (40 CFR 418.10 (2006)). The term contaminated storm water runoff shall mean precipitation runoff, that during manufacturing or processing, comes into contact with any raw materials, intermediate product, finished product, by-products or waste product. The concentration of pollutants in storm water discharges shall not exceed the effluent limitations in Table 110-1.

Table 110-1.
Sector C – Numeric Effluent Limitations.

Parameter

Effluent Limitations

Daily Maximum

30-day Average

Phosphate Subcategory of the Fertilizer Manufacturing Point Source Category (40 CFR 418.10 (2002)) (40 CFR 418.10 (2006)) - applies to precipitation runoff that, during manufacturing or processing, comes into contact with any raw materials, intermediate product, finished product, by-products or waste product (SIC 2874)

Total Phosphorus (as P)

105 mg/L

35 mg/L

Fluoride

75 mg/L

25 mg/L

E. Benchmark monitoring and reporting requirements. Agricultural chemical manufacturing facilities; industrial inorganic chemical facilities; soaps, detergents, cosmetics, and perfume manufacturing facilities; and plastics, synthetics, and resin manufacturing facilities are required to monitor their storm water discharges for the pollutants of concern listed in Table 110-2 below.

Table 110-2.
Sector C – Benchmark Monitoring Requirements.

Pollutants of Concern

Monitoring Cut-Off Benchmark Concentration

Agricultural Chemicals (SIC 2873-2879)

Total Nitrogen

2.2 mg/L

Total Recoverable Iron

1 1.0 mg/L

Total Recoverable Zinc

120 μg/L

Phosphorus

2 2.0 mg/L

Total Suspended Solids (TSS)

100 mg/L

Industrial Inorganic Chemicals (SIC 2812-2819)

Total Recoverable Aluminum

750 μg/L

Total Recoverable Iron

1 1.0 mg/L

Total Nitrogen

2.2 mg/L

Total Recoverable Zinc

120 μg/L

Total Suspended Solids (TSS)

100 mg/L

Soaps, Detergents, Cosmetics, and Perfumes (SIC 2841-2844)

Total Nitrogen

2.2 mg/L

Total Recoverable Zinc

120 μg/L

Total Suspended Solids (TSS)

100 mg/L

Plastics, Synthetics, and Resins (SIC 2821-2824)

Total Recoverable Zinc

120 μg/L

Total Suspended Solids (TSS)

100 mg/L

9VAC25-151-120. Sector D - Asphalt paving and roofing materials and lubricant manufacturers.

A. Discharges covered under this section. The requirements listed under this section apply to storm water discharges associated with industrial activity from facilities engaged in the following activities: manufacturing asphalt paving and roofing materials, including those facilities commonly identified by SIC Codes 2951 and 2952; portable asphalt plants (also commonly identified by SIC Code 2951); and manufacturing miscellaneous products of petroleum and coal, including those facilities classified as SIC Code 2992 and 2999.

B. Limitations on coverage. The following storm water discharges associated with industrial activity are not authorized by this section of the permit:

1. Storm water discharges from petroleum refining facilities, including those that manufacture asphalt or asphalt products that are classified as SIC Code 2911;

2. Storm water discharges from oil recycling facilities; and

3. Storm water discharges associated with fats and oils rendering.

C. Storm water pollution prevention plan requirements. In addition to the requirements of Part III, the plan shall include, at a minimum, the following item: routine facility inspections. Material storage and handling areas, liquid storage tanks, hoppers or silos, vehicle and equipment maintenance, cleaning, and fueling areas, material handling vehicles, equipment and processing areas shall be inspected at least once per month, as part of the maintenance program. The permittee shall ensure that appropriate action is taken in response to the inspection by implementing tracking or follow-up procedures.

D. Numeric effluent limitations. In addition to the numeric effluent limitations listed in Part I A c and d, discharges from areas where production of asphalt paving and roofing emulsions occurs may not exceed the limitations in Table 120-1.

Table 120-1.
Sector D – Numeric Effluent Limitations.

Parameter

Effluent Limitations

Daily Maximum

30-day Average

Discharges from areas where production of asphalt paving and roofing emulsions occurs (SIC 2951, 2952)

Total Suspended Solids (TSS)

23 mg/L

15 mg/L

Oil and Grease

15 mg/L

10 mg/L

pH

6.0 - 9.0 s.u.

E. Benchmark monitoring and reporting requirements. Asphalt paving and roofing materials manufacturing facilities are required to monitor their storm water discharges for the pollutant pollutants of concern listed in Table 120-2.

Table 120-2.
Sector D – Benchmark Monitoring Requirements.

Pollutants of Concern

Monitoring Cut-Off Benchmark Concentration

Asphalt Paving and Roofing Materials (SIC 2951, 2952)

Total Suspended Solids (TSS)

100 mg/L

9VAC25-151-130. Sector E - Glass, clay, cement, concrete, and gypsum products.

A. Discharges covered under this section. The requirements listed under this section apply to storm water discharges associated with industrial activity from facilities generally classified under SIC Major Group 32 that are engaged in either manufacturing the following products or performing the following activities: flat, pressed, or blown glass or glass containers; hydraulic cement; clay products including tile and brick; pottery and porcelain electrical supplies; concrete products; gypsum products; nonclay refractories; minerals and earths, ground or otherwise treated; lime manufacturing; cut stone and stone products; asbestos products; and mineral wool and mineral wool insulation products.

Ready-mixed Concrete block and brick facilities (SIC Code 3271), concrete products facilities, except block and brick (SIC Code 3272), and ready-mixed concrete facilities (SIC Code 3273) are not covered by this permit.

B. Storm water pollution prevention plan requirements. In addition to the requirements of Part III, the plan shall include, at a minimum, the following items:

1. Site description and site map. The site map shall identify the locations of the following, if applicable: bag house or other dust control device; recycle/sedimentation pond, clarifier or other device used for the treatment of process wastewater and the areas that drain to the treatment device.

2. Storm water controls.

a. Good housekeeping.

(1) Facilities shall prevent or minimize the discharge of: spilled cement; aggregate (including sand or gravel); kiln dust; fly ash; settled dust; and other significant materials in storm water from paved portions of the site that are exposed to storm water. Measures used to minimize the presence of these materials may include regular sweeping, or other equivalent measures. The plan shall indicate the frequency of sweeping or equivalent measures. The frequency shall be determined based upon consideration of the amount of industrial activity occurring in the area and frequency of precipitation, but shall not be less than once per week if cement, aggregate, kiln dust; fly ash, or settled dust are being handled or processed.

(2) Facilities shall prevent the exposure of fine granular solids (such as cement, kiln dust, etc.) (such as cement, fly ash, kiln dust, etc.) to storm water. Where practicable, these materials shall be stored in enclosed silos or hoppers, buildings, or under other covering.

b. Routine facility inspections. The inspection shall take place while the facility is in operation and shall include all of the following areas that are exposed to storm water: material handling areas, aboveground storage tanks, hoppers or silos, dust collection/containment systems, truck wash down/equipment cleaning areas.

c. Certification of nonstorm water outfall evaluation for unauthorized discharges. Facilities engaged in production of ready-mix concrete, concrete block, brick or similar products shall include in the certification a description of measures that ensure that process wastewater that results from washing of trucks, mixers, transport buckets, forms or other equipment are discharged in accordance with a separate VPDES permit or are recycled.

C. Numeric effluent limitations. In addition to the numeric effluent limitations described by Part I A 1 c and d, the following limitations shall be met by existing and new facilities: Cement manufacturing facility, material storage runoff. Any discharge composed of runoff that derives from the storage of materials including raw materials, intermediate products, finished products, and waste materials that are used in or derived from the manufacture of cement shall not exceed the limitations in Table 130-1. Runoff from the storage piles shall not be diluted with other storm water runoff or flows to meet these limitations. Any untreated overflow from facilities designed, constructed and operated to treat the volume of material storage pile runoff that is associated with a 10-year, 24-hour rainfall event shall not be subject to the TSS or pH limitations. Facilities subject to these numeric effluent limitations must shall be in compliance with these limits upon commencement of coverage and for the entire term of this permit.

Table 130-1.
Sector E – Numeric Effluent Limitations.

Parameter

Effluent Limitations

Daily Maximum

30-day Average

Cement Manufacturing Facility, Material Storage Runoff: Any discharge composed of runoff that derives from the storage of materials including raw materials, intermediate products, finished products, and waste materials that are used in or derived from the manufacture of cement.

Total Suspended Solids (TSS)

50 mg/L

pH

6.0 - 9.0 s.u.

D. Benchmark monitoring and reporting requirements. Clay product manufacturers (SIC 3245-3259, SIC 3261-3269) (SIC 3251-3259, SIC 3261-3269) and concrete lime and gypsum product manufacturers (SIC 3271-3275) (SIC 3274, 3275) are required to monitor their storm water discharges for the pollutants of concern listed in Table 130-2.

Table 130-2.
Sector E – Benchmark Monitoring Requirements.

Pollutants of Concern

Monitoring Cut-Off Benchmark Concentration

Clay Product Manufacturers (SIC 3245-3259, 3261-3269) (SIC 3251-3259, 3261-3269)

Total Recoverable Aluminum

750 ug/L

Total Suspended Solids (TSS)

100 mg/L

Concrete Lime and Gypsum Product Manufacturers (SIC 3271-3275) (SIC 3274, 3275)

Total Suspended Solids (TSS)

100 mg/L

pH

6.0 - 9.0 s.u.

Total Recoverable Iron

1 1.0 mg/L

9VAC25-151-140. Sector F - Primary metals.

A. Discharges covered under this section. The requirements listed under this section apply to storm water discharges associated with industrial activity from the following types of facilities in the primary metal industry, and generally described by the SIC code shown:

1. Steel works, blast furnaces, and rolling and finishing mills, including: steel wire drawing and steel nails and spikes; cold-rolled steel sheet, strip, and bars; and steel pipes and tubes (SIC Code 331).

2. Iron and steel foundries, including: gray and ductile iron, malleable iron, steel investment, and steel foundries not elsewhere classified (SIC Code 332).

3. Primary smelting and refining of nonferrous metals, including: primary smelting and refining of copper, and primary production of aluminum (SIC Code 333).

4. Secondary smelting and refining of nonferrous metals (SIC Code 334).

5. Rolling, drawing, and extruding of nonferrous metals, including: rolling, drawing, and extruding of copper; rolling, drawing and extruding of nonferrous metals except copper and aluminum; and drawing and insulating of nonferrous wire (SIC Code 335).

6. Nonferrous foundries (castings), including: aluminum die-castings, nonferrous die-castings, except aluminum, aluminum foundries, copper foundries, and nonferrous foundries, except copper and aluminum (SIC Code 336).

7. Miscellaneous primary metal products, not elsewhere classified, including: metal heat treating, and primary metal products, not elsewhere classified (SIC Code 339).

Activities covered include, but are not limited to, storm water discharges associated with coking operations, sintering plants, blast furnaces, smelting operations, rolling mills, casting operations, heat treating, extruding, drawing, or forging of all types of ferrous and nonferrous metals, scrap, and ore.

B. Storm water pollution prevention plan requirements. In addition to the requirements of Part III, the plan shall include, at a minimum, the following items.

1. Site description.

a. Site map. The site map shall identify where any of the following activities may be exposed to precipitation/surface runoff: storage or disposal of wastes such as spent solvents/baths, sand, slag/dross; liquid storage tanks/drums; processing areas including pollution control equipment (e.g., baghouses); and storage areas of raw materials such as coal, coke, scrap, sand, fluxes, refractories, or metal in any form. In addition, indicate sources where an accumulation of significant amounts of particulate matter could occur from such sources as furnace or oven emissions, losses from coal/coke handling operations, etc., and that could result in a discharge of pollutants to surface waters.

b. Inventory of exposed materials Summary of potential pollutant sources. The inventory of materials handled at the site that potentially may be exposed to precipitation/runoff should shall include areas where deposition of particulate matter from process air emissions or losses during material handling activities are possible.

2. Storm water controls.

a. Good housekeeping. The SWPPP should shall consider implementation of the following measures, or equivalent measures, where applicable.

(1) Establishment of a cleaning/maintenance program for all impervious areas of the facility where particulate matter, dust, or debris may accumulate, especially areas where material loading/unloading, storage, handling, and processing occur.

(2) The paving of areas where vehicle traffic or material storage occur, but where vegetative or other stabilization methods are not practicable. Sweeping programs shall be instituted in these areas as well.

(3) For unstabilized areas of the facility where sweeping is not practical, the permittee should shall consider using storm water management devices such as sediment traps, vegetative buffer strips, filter fabric fence, sediment filtering boom, gravel outlet protection, or other equivalent measures, that effectively trap or remove sediment.

b. Routine facility inspections. Inspections shall be conducted at least quarterly monthly, and shall address all potential sources of pollutants, including (if applicable):

(1) Air pollution control equipment (e.g., baghouses, electrostatic precipitators, scrubbers, and cyclones) should shall be inspected for any signs of degradation (e.g., leaks, corrosion, or improper operation) that could limit their efficiency and lead to excessive emissions. The permittee should shall consider monitoring air flow at inlets/outlets, or equivalent measures, to check for leaks (e.g., particulate deposition) or blockage in ducts;

(2) All process or material handling equipment (e.g., conveyors, cranes, and vehicles) should shall be inspected for leaks, drips, or the potential loss of materials; and

(3) Material storage areas (e.g., piles, bins or hoppers for storing coke, coal, scrap, or slag, as well as chemicals stored in tanks/drums) should shall be examined for signs of material losses due to wind or storm water runoff.

C. Benchmark monitoring and reporting requirements. Primary metals facilities are required to monitor their storm water discharges for the pollutants of concern listed in Table 140 below.

Table 140.
Sector F – Benchmark Monitoring Requirements.

Pollutants of Concern

Monitoring Cut-Off Benchmark Concentration

Steel Works, Blast Furnaces, and Rolling and Finishing Mills (SIC 3312-3317)

Total Recoverable Aluminum

750 μg/L

Total Recoverable Zinc

120 μg/L

Total Suspended Solids (TSS)

100 mg/L

Iron and Steel Foundries (SIC 3321-3325)

Total Recoverable Aluminum

750 μg/L

Total Suspended Solids (TSS)

100 mg/L

Total Recoverable Copper

18 μg/L

Total Recoverable Iron

1 1.0 mg/L

Total Recoverable Zinc

120 μg/L

Rolling, Drawing, and Extruding of Nonferrous Metals (SIC 3351-3357)

Total Recoverable Copper

18 μg/L

Total Recoverable Zinc

120 μg/L

Total Suspended Solids (TSS)

100 mg/L

Nonferrous Foundries (SIC 3363-3369)

Total Recoverable Copper

18 μg/L

Total Recoverable Zinc

120 μg/L

Total Suspended Solids (TSS)

100 mg/L

9VAC25-151-150. Sector G - Metal mining (ore mining and dressing).

A. Discharges covered under this section. The requirements listed under this section apply to storm water discharges associated with industrial activity from active, temporarily inactive and inactive metal mining and ore dressing facilities including mines abandoned on federal lands, as classified under SIC Major Group 10. Coverage is required for facilities that discharge storm water that has come into contact with, or is contaminated by, any overburden, raw material, intermediate product, finished product, byproduct, or waste product located on the site of the operation. SIC Major Group 10 includes establishments primarily engaged in mining of ores, developing mines, or exploring for metallic minerals (ores) and also includes ore dressing and beneficiating operations, whether performed at colocated, dedicated mills or at separate mills, such as custom mills. For the purposes of this section, the term "metal mining" includes any of the separate activities listed above. Covered discharges include:

1. All storm water discharges from inactive metal mining facilities; and

2. Storm water discharges from the following areas of active and temporarily inactive metal mining facilities: waste rock/overburden piles if composed entirely of storm water and not combining with mine drainage; topsoil piles; off-site haul/access roads; on-site haul/access roads constructed of waste rock/overburden if composed entirely of storm water and not combining with mine drainage; on-site haul/access roads not constructed of waste rock/overburden/spent ore except if mine drainage is used for dust control; runoff from tailings dams/dikes when not constructed of waste rock/tailings and no process fluids are present; runoff from tailings dams/dikes when constructed of waste rock/tailings and no process fluids are present if composed entirely of storm water and not combining with mine drainage; concentration building if no contact with material piles; mill site if no contact with material piles; office/administrative building and housing if mixed with storm water from industrial area; chemical storage area; docking facility if no excessive contact with waste product that would otherwise constitute mine drainage; explosive storage; fuel storage; vehicle/equipment maintenance area/building; parking areas (if necessary); power plant; truck wash areas if no excessive contact with waste product that would otherwise constitute mine drainage; unreclaimed, disturbed areas outside of active mining area; reclaimed areas released from reclamation bonds prior to December 17, 1990; and partially/inadequately reclaimed areas or areas not released from reclamation bonds;

3. Storm water discharges from exploration and development of metal mining and/or ore dressing facilities; and

4. Storm water discharges from facilities at mining sites undergoing reclamation.

B. Limitations on coverage. Storm water discharges from active metal mining facilities that are subject to the effluent limitation guidelines for the Ore Mining and Dressing Point Source Category (40 CFR Part 440 (2002)) (2007)) are not authorized by this permit.

Note: Discharges that come in contact with overburden/waste rock are subject to 40 CFR Part 440 (2002) (2007), providing: the discharges drain to a point source (either naturally or as a result of intentional diversion), and they combine with mine drainage that is otherwise regulated under 40 CFR Part 440 (2002) (2007). Discharges from overburden/waste rock can be covered under this permit if they are composed entirely of storm water and do not combine with sources of mine drainage that are subject to 40 CFR Part 440 (2002) (2007).

C. Special Conditions. Prohibition of nonstorm water discharges. In addition to the general prohibition of nonstorm water discharges in Part I B 1, the following discharges are not covered by this permit: adit drainage or contaminated springs or seeps. Contaminated seeps and springs discharging from waste rock dumps that do not directly result from precipitation events are not authorized by this permit.

D. Special definitions. The following definitions are only for this section of the general permit:

"Active metal mining facility" means a place where work or other related activity to the extraction, removal, or recovery of metal ore is being conducted. For surface mines, this definition does not include any land where grading has returned the earth to a desired contour and reclamation has begun.

"Active phase" means activities including each step from extraction through production of a salable product.

"Exploration and construction development phase" entails exploration and land disturbance activities to determine the financial viability of a site. Construction Development includes the building of site access roads and removal of overburden and waste rock to expose mineable minerals.

"Final stabilization" - a site or portion of a site is “finally stabilized” when:

1. All soil-disturbing activities at the site have been completed and either of the two following criteria are met:

a. A uniform (e.g., evenly distributed, without large bare areas) perennial vegetative cover with a density of 70% of the native background vegetative cover for the area has been established on all unpaved areas and areas not covered by permanent structures, or

(b) Equivalent permanent stabilization measures (such as the use of riprap, gabions, or geotextiles) have been employed.

2. When background native vegetation will cover less than 100% of the ground (e.g., arid areas, beaches), the 70% coverage criteria is adjusted as follows: if the native vegetation covers 50% of the ground, 70% of 50% (0.70 x 0.50 = 0.35) would require 35% total cover for final stabilization. On a beach with no natural vegetation, no stabilization is required.

"Inactive metal mining facility" means a site or portion of a site where metal mining and/or milling occurred in the past but is not an active facility as defined in this permit, and where the inactive portion is not covered by an active mining permit issued by the applicable (federal or state) federal or state governmental agency.

"Mining operation" typically consists of three phases, any one of which individually qualifies as a "mining activity." The phases are the exploration and construction development phase, the active phase, and the reclamation phase.

"Reclamation phase" means activities intended to return the land to its premining use.

"Temporarily inactive metal mining facility" means a site or portion of a site where metal mining and/or milling occurred in the past but currently are not being actively undertaken, and the facility is covered by an active mining permit issued by the applicable (federal or state) federal or state government agency.

E. Clearing, grading, and excavation activities. Clearing, grading, and excavation activities being conducted as part of the exploration and development phase of a mining operation are covered under this permit.

1. Management practices for clearing, grading, and excavation activities.

a. Selecting and installing control measures. A combination of erosion and sedimentation control measures are required to achieve maximum pollutant prevention and removal. All control measures shall be properly selected, installed, and maintained in accordance with any relevant manufacturer specifications and good engineering practices.

b. Removal of sediment. If sediment escapes the site, off-site accumulations of sediment shall be removed at a frequency sufficient to prevent off-site impacts.

c. Good housekeeping. Litter, debris, and chemicals shall be prevented from becoming a pollutant source in storm water discharges.

d. Velocity dissipation. Velocity dissipation devices shall be placed at discharge locations and along the length of any outfall channel to provide a nonerosive flow velocity from disturbed areas and from any storm water retention or detention facilities to a water course so that the natural physical and biological characteristics and functions are maintained and protected (e.g., no significant changes in the hydrological regime of the receiving water).

e. Retention and detention of storm water runoff. For drainage locations serving more than one acre, sediment basins and/or temporary sediment traps should be used. At a minimum, silt fences, vegetative buffer strips, or equivalent sediment controls are required for all down slope boundaries (and for those side slope boundaries deemed appropriate as dictated by individual site conditions) of the development area unless a sediment basin providing storage for a calculated volume of runoff from a two-year, 24-hour storm or 3,600 cubic feet of storage per acre drained is provided.

f. Temporary stabilization of disturbed areas. Stabilization measures shall be initiated immediately in portions of the site where development activities have temporarily or permanently ceased, but in no case more than 14 days after the construction activity in that portion of the site has temporarily or permanently ceased. In arid, semiarid, and drought-stricken areas where initiating perennial vegetative stabilization measures is not possible within 14 days after construction activity has temporarily or permanently ceased, final vegetative stabilization measures shall be initiated as soon as possible. Until full vegetative stabilization is achieved, interim measures such as blankets and tackifiers shall be employed.

2. Requirements for inspection of clearing, grading, and excavation activities.

a. Inspection frequency. Inspections shall be conducted at least once every seven calendar days or at least once every 14 calendar days and within 24 hours of the end of a storm event of 0.5 inches or greater. Inspection frequency may be reduced to at least once every month if the entire site is temporarily stabilized, if runoff is unlikely due to winter conditions (e.g., site is covered with snow, ice, or the ground is frozen), or construction is occurring during seasonal arid periods in arid areas and semi-arid areas.

b. Qualified personnel for inspections. Inspections shall be conducted by qualified personnel. "Qualified personnel" means a person knowledgeable in the principles and practice of erosion and sediment control who possesses the skills to assess conditions at the construction site that could impact storm water quality and the effectiveness of any sediment and erosion control measures selected to control the quality of storm water discharges from the clearing, grading, and excavation activities.

c. Location of inspections. Inspections shall include all areas of the site disturbed by clearing, grading, and excavation activities and areas used for storage of materials that are exposed to precipitation. Sedimentation and erosion control measures identified in the SWPPP shall be observed to ensure proper operation. Discharge locations shall be inspected to ascertain whether erosion control measures are effective in preventing significant impacts to state waters, where accessible. Where discharge locations are inaccessible, nearby downstream locations shall be inspected to the extent that such inspections are practicable. Locations where vehicles enter or exit the site shall be inspected for evidence of off-site sediment tracking.

d. Inspection reports. For each inspection required above, an inspection report shall be completed. At a minimum, the inspection report shall include:

(1) The inspection date;

(2) Names, titles, and qualifications of personnel making the inspection;

(3) Weather information for the period since the last inspection (or note if it is the first inspection) including a best estimate of the beginning of each storm event, duration of each storm event, approximate amount of rainfall for each storm event (in inches), and whether any discharges occurred;

(4) Weather information and a description of any discharges occurring at the time of the inspection;

(5) Location(s) of discharges of sediment or other pollutants from the site;

(6) Location(s) of BMPs that need to be maintained;

(7) Location(s) of BMPs that failed to operate as designed or proved inadequate for a particular location;

(8) Location(s) where additional BMPs are needed that did not exist at the time of inspection; and

(9) Corrective action(s) required, including any changes to the SWPPP necessary and implementation dates.

A record of each inspection and of any actions taken in accordance with this section shall be retained as part of the SWPPP for at least three years from the date that permit coverage expires or is terminated. The inspection reports shall identify any incidents of noncompliance with the permit conditions. Where a report does not identify any incidents of noncompliance, the report shall contain a certification that the clearing, grading, and excavation activities are in compliance with the SWPPP and this permit. The report shall be signed in accordance with Part II K of the permit.

3. Maintenance of controls for clearing, grading, and excavation activities.

a. Maintenance of BMPs. All erosion and sediment control measures and other protective measures identified in the SWPPP shall be maintained in effective operating condition. If site inspections required by subdivision 2 of this subsection identify BMPs that are not operating effectively, maintenance shall be performed as soon as possible and before the next storm event whenever practicable to maintain the continued effectiveness of storm water controls.

b. Modification of BMPs. Existing BMPs need to be modified or, if additional BMPs are necessary for any reason, implementation shall be completed before the next storm event whenever practicable. If implementation before the next storm event is impracticable, the situation shall be documented in the SWPPP and alternative BMPs shall be implemented as soon as possible.

c. Maintenance of sediment traps and ponds. Sediment from sediment traps or sedimentation ponds shall be removed when design capacity has been reduced by 50%.

4. Requirements for cessation of clearing, grading, and excavation activities.

a. Inspections and maintenance. Inspections and maintenance of BMPs associated with clearing, grading, and excavation activities being conducted as part of the exploration and construction phase of a mining operation shall continue until final stabilization has been achieved on all portions of the disturbed area.

b. Final stabilization. Stabilization measures shall be initiated immediately in portions of the site where development activities have permanently ceased, but in no case more than 14 days after the construction activity in that portion of the site has permanently ceased. In arid, semiarid, and drought-stricken areas where initiating perennial vegetative stabilization measures is not possible within 14 days after construction activity has temporarily or permanently ceased, final vegetative stabilization measures shall be initiated as soon as possible. Until final stabilization is achieved temporary stabilization measures, such as blankets and tackifiers, shall be used.

E. F. Storm water pollution prevention plan requirements. In addition to the requirements of Part III, the plan shall include, at a minimum, the following items.

1. SWPPP requirements for active, inactive, and temporarily inactive metal mining facilities, and sites undergoing reclamation.

a. Site description.

(1) Activities at the facility. A description of the mining and associated activities taking place at the site that can potentially affect storm water discharges covered by this permit. The description shall include the total acreage within the mine site; an estimate of the number of acres of disturbed land; an estimate of the total amount of land proposed to be disturbed throughout the life of the mine and a general description of the location of the site relative to major transportation routes and communities.

(2) Site map. The site map shall identify the locations of the following, as appropriate: mining/milling site boundaries; access and haul roads; an outline of the drainage areas of each storm water outfall within the facility, and an indication of the types of discharges from the drainage areas; location(s) of all permitted discharges covered under an individual VPDES permit; equipment storage, fueling and maintenance areas; materials handling areas; outdoor manufacturing, storage or material disposal areas; storage areas for chemicals and explosives; areas used for storage of overburden, materials, soils or wastes; location of mine drainage (where water leaves mine) or any other process water; tailings piles/ponds, both proposed and existing; heap leach pads; points of discharge from the property for mine drainage/process water; surface waters; and boundary of tributary areas that are subject to effluent limitations guidelines; and location(s) of reclaimed areas.

b. Summary of potential pollutant sources. For each area of the mine/mill site where storm water discharges associated with industrial activities occur, the plan shall identify the types of pollutants likely to be present in significant amounts must be identified (e.g., heavy metals, sediment). The following factors must shall be considered: the mineralogy of the ore and waste rock (e.g., acid forming); toxicity and quantity of chemicals used, produced or discharged; the likelihood, if any, of contact with storm water; vegetation of site; history of significant leaks/spills of toxic or hazardous pollutants. A summary of any existing ore or waste rock/overburden characterization data and test results for potential generation of acid rock shall also be included. If the ore or waste rock/overburden characterization data are updated due to a change in the ore type being mined, the SWPPP shall be updated with the new data.

c. Storm water controls.

(1) Nonstructural BMPs.

(a) (1) Routine facility inspections. Active mining sites must Sites shall be inspected at least monthly. Temporarily inactive sites must be inspected at least quarterly unless adverse weather conditions make the site inaccessible.

(b) (2) Employee training. Employee training shall be conducted at least annually at active mining and temporarily inactive sites. All employee training shall be documented in the SWPPP.

(2) (3) Structural BMPs. Each of the following BMPs shall be considered in the SWPPP. The potential pollutants identified in subpart E F 1 b above shall determine the priority and appropriateness of the BMPs selected. If it is determined that one or more of these BMPs are not appropriate for the facility, the plan must explain why it is not appropriate. If BMPs are implemented or planned but are not listed here (e.g., substituting a less toxic chemical for a more toxic one), descriptions of them must shall be included in the SWPPP.

(a) Sediment and erosion control. The measures to consider include: diversion of flow away from areas susceptible to erosion (measures such as interceptor dikes and swales, diversion dikes, curbs and berms); stabilization methods to prevent or minimize erosion (such as temporary or permanent seeding; vegetative buffer strips; protection of trees; topsoiling; soil conditioning; contouring; mulching; geotextiles (matting, netting, or blankets); riprap; gabions; and retaining walls); and structural methods for controlling sediment (such as check dams; rock outlet protection; level spreaders; gradient terraces; straw bale barriers; silt fences; gravel or stone filter berms; brush barriers; sediment traps; grass swales; pipe slope drains; earth dikes; other controls such as entrance stabilization, waterway crossings or wind breaks; or other equivalent measures).

(b) Storm water diversion. A description of how and where storm water will be diverted away from potential pollutant sources to prevent storm water contamination. BMP options may include the following: interceptor dikes and swales; diversion dikes, curbs and berms; pipe slope drains; subsurface drains; drainage/storm water conveyance systems (channels or gutters, open top box culverts and waterbars; rolling dips and road sloping; roadway surface water deflector and culverts) or equivalent measures.

(c) Management of runoff. The potential pollutant sources given in 9VAC25-151-150 E 1 b must subdivision 1 b of this subsection shall be considered when determining reasonable and appropriate measures for managing runoff.

(d) Capping. Where When capping of a contaminant source is necessary, the source being capped and materials and procedures used to cap the contaminant source must shall be identified.

(e) Treatment. If treatment of a storm water discharge is necessary to protect water quality, include a description of the type and location of storm water treatment that will be used. Storm water treatments include the following: chemical or physical systems; oil/water separators; artificial wetlands; etc. The permittee is encouraged to use both passive and/or active treatment of storm water runoff. Treated runoff may be discharged as a storm water source regulated under this permit provided the discharge is not combined with discharges subject to effluent limitation guidelines for the Ore Mining and Dressing Point Source Category (40 CFR Part 440 (2007)).

(f) Certification of discharge testing. The permittee must shall test or evaluate all outfalls covered under this permit for the presence of specific mining-related nonstorm water discharges such as seeps or adit discharges or discharges subject to effluent limitations guidelines (e.g., 40 CFR Part 440 (2007)), such as mine drainage or process water. Alternatively (if applicable), the permittee may certify in the SWPPP that a particular discharge comprised composed of commingled storm water and nonstorm water is covered under a separate VPDES permit; and that permit subjects the nonstorm water portion to effluent limitations prior to any commingling. This certification shall identify the nonstorm water discharges, the applicable VPDES permit(s), the effluent limitations placed on the nonstorm water discharge by the permit(s), and the points at which the limitations are applied.

2. SWPPP requirements for inactive metal mining facilities.

a. Site description.

(1) Activities at the facility. The SWPPP shall briefly describe the mining and associated activities that took place at the site that can potentially affect the storm water discharges covered by this permit. The following must be included: approximate dates of operation; total acreage within the mine and/or processing site; estimate of acres of disturbed earth; activities currently occurring on-site (e.g., reclamation); a general description of site location with respect to transportation routes and communities.

(2) Site map. The site map shall identify the locations of the following, as appropriate: mining/milling site boundaries; access and haul roads; an outline of the drainage areas of each storm water outfall within the facility, and an indication of the types of discharges from the drainage areas; equipment storage, fueling and maintenance areas; materials handling areas; outdoor manufacturing, storage or material disposal areas; storage areas for chemicals and explosives; areas used for storage of overburden, materials, soils or wastes; location of mine drainage (where water leaves mine) or any other process water; tailings piles/ponds, both proposed and existing; heap leach pads; points of discharge from the property for mine drainage/process water; surface waters; and boundary of tributary areas that are subject to effluent limitations guidelines.

b. Summary of potential pollutant sources. For each area of the mine/mill site where storm water discharges associated with industrial activities occur, the types of pollutants likely to be present in significant amounts must be identified (e.g., heavy metals, sediment). The following factors must be considered: the mineralogy of the ore and waste rock (e.g., acid forming); toxicity and quantity of chemicals used, produced or discharged; the likelihood, if any, of contact with storm water; vegetation of site; history of significant leaks/spills of toxic or hazardous pollutants. A summary of any existing ore or waste rock/overburden characterization data and test results for potential generation of acid rock shall also be included. If the ore or waste rock/overburden characterization data are updated due to a change in the ore type being mined, the SWPPP shall be updated with the new data.

c. Storm water controls.

(1) Nonstructural BMPs. The nonstructural controls in the general requirements at Part III B 6 b 1 are not required for inactive facilities.

(2) Structural BMPs. Each of the following BMPs shall be considered in the SWPPP. The potential pollutants identified in subpart E 2 b above shall determine the priority and appropriateness of the BMPs selected. If it is determined that one or more of these BMPs are not appropriate for the facility, the plan must explain why it is not appropriate. If BMPs are implemented or planned but are not listed here (e.g., substituting a less toxic chemical for a more toxic one), descriptions of them must be included in the SWPPP.

(a) Sediment and erosion control. The measures to consider include: diversion of flow away from areas susceptible to erosion (measures such as interceptor dikes and swales, diversion dikes, curbs and berms); stabilization methods to prevent or minimize erosion (such as temporary or permanent seeding; vegetative buffer strips; protection of trees; topsoiling; soil conditioning; contouring; mulching; geotextiles (matting; netting; or blankets); riprap; gabions; and retaining walls; and structural methods for controlling sediment (such as check dams; rock outlet protection; level spreaders; gradient terraces; straw bale barriers; silt fences; gravel or stone filter berms; brush barriers; sediment traps; grass swales; pipe slope drains; earth dikes; other controls such as entrance stabilization, waterway crossings or wind breaks; or other equivalent measures).

(b) Storm water diversion. A description of how and where storm water will be diverted away from potential pollutant sources to prevent storm water contamination. BMP options may include the following: interceptor dikes and swales; diversion dikes, curbs and berms; pipe slope drains; subsurface drains; drainage/storm water conveyance systems (channels or gutters, open top box culverts and waterbars; rolling dips and road sloping; roadway surface water deflector and culverts) or equivalent measures.

(c) Management of runoff. The potential pollutant sources given in 9VAC25-151-150 E 2 b must be considered when determining reasonable and appropriate measures for managing runoff.

(d) Capping. Where capping of a contaminant source is necessary, the source being capped and materials and procedures used to cap the contaminant source must be identified.

(e) Treatment. If treatment of a storm water discharge is necessary to protect water quality, include a description of the type and location of storm water treatment that will be used. Storm water treatments include the following: chemical or physical systems; oil/water separators; artificial wetlands; etc.

d. Comprehensive site compliance evaluation. Annual site compliance evaluations may be impractical for inactive mining sites due to remote location/inaccessibility of the site, in which case the permittee must conduct the evaluation at least once every three years. The SWPPP must be documented to explain why annual compliance evaluations are not possible. If the evaluations will be conducted more often than every three years, the frequency of evaluations must be specified.

2. Termination of permit coverage.

a. Termination of permit coverage for sites reclaimed after December 17, 1990. A site or a portion of a site that has been released from applicable state or federal reclamation requirements after December 17, 1990, is no longer required to maintain coverage under this permit, provided that the covered storm water discharges do not have the potential to cause or contribute to violations of state water quality standards. If the site or portion of a site reclaimed after December 17, 1990, was not subject to reclamation requirements, the site or portion of the site is no longer required to maintain coverage under this permit if the site or portion of the site has been reclaimed as defined in subpart 2 b below.

b. Termination of permit coverage for sites reclaimed before December 17, 1990. A site or portion of a site that was released from applicable state or federal reclamation requirements before December 17, 1990, or that was otherwise reclaimed before December 17, 1990, is no longer required to maintain coverage under this permit if the site or portion of the site has been reclaimed. A site or portion of a site is considered to have been reclaimed if storm water runoff that comes into contact with (i) raw materials, intermediate byproducts, finished products, and waste products does not have the potential to cause or contribute to violations of state water quality standards, (ii) soil-disturbing activities related to mining at the sites or portion of the site have been completed, (iii) the site or portion of the site has been stabilized to minimize soil erosion, and (iv) as appropriate depending on location, size, and the potential to contribute pollutants to storm water discharges, the site or portion of the site has been revegetated, will be amenable to natural revegetation, or will be left in a condition consistent with the post-mining land use.

F. G. Benchmark monitoring and reporting requirements.

1. Copper ore mining and dressing facilities. Active copper ore mining and dressing facilities are required to monitor their storm water discharges for the pollutants of concern listed in Table 150-1 below.

2. Discharges from waste rock and overburden piles at active ore mining and dressing facilities sites, inactive sites, and sites undergoing reclamation. Active ore mining and dressing facilities with discharges Discharges from waste rock and overburden piles must perform analytic monitoring at active sites, inactive sites, and sites undergoing reclamation shall be analyzed for the parameters listed in Table 150-1 150-2. Facilities must shall also monitor for the parameters listed in Table 150-2 150-3. However, the The director may also notify the facility that additional monitoring must be performed to accurately characterize the quality and quantity of pollutants discharged from the waste rock/overburden piles. Monitoring requirements for discharges from waste rock and overburden piles are not eligible for the waiver in Part I A 3 b.

Table 150-1.
Sector G – Benchmark Monitoring Requirements - Copper Ore Mining and Dressing Facilities.

Pollutants of Concern

Monitoring Cut-Off Benchmark Concentration

Active Copper Ore Mining and Dressing Facilities (SIC 1021)

Total Suspended Solids (TSS)

100 mg/L

Discharges From Waste Rock and Overburden Piles From Active Ore Mining or Dressing Facilities Iron Ores; Copper Ores; Lead and Zinc Ores; Gold and Silver Ores; Ferroalloy Ores Except Vanadium; Miscellaneous Metal Ores (SIC Codes 1011, 1021, 1031, 1041, 1044, 1061, 1081, 1094, 1099)

Total Suspended Solids (TSS)

100 mg/L

Turbidity (NTUs)

5 NTUs above background

PH

6.0 - 9.0 s.u.

Hardness (as CaCO3)

no benchmark value

Total Recoverable Antimony

640 μg/L

Total Recoverable Arsenic

50 μg/L

Total Recoverable Beryllium

130 μg/L

Total Recoverable Cadmium

3.9 μg/L

Total Recoverable Copper

18 μg/L

Total Recoverable Iron

1.0 mg/L

Total Recoverable Lead

120 μg/L

Total Recoverable Manganese

1.0 mg/L

Total Recoverable Mercury

2.4 μg/L

Total Recoverable Nickel

1.4 mg/L

Total Recoverable Selenium

20 μg/L

Total Recoverable Silver

4.1 μg/L

Total Recoverable Zinc

120 μg/L

Table 150-2.
Sector G – Benchmark Monitoring Requirements - Discharges from Waste Rock and Overburden Piles from Active Ore Mining or Dressing Facilities, Inactive Ore Mining or Dressing Facilities, and Sites Undergoing Reclamation.

Pollutants of Concern

Benchmark Concentration

Iron Ores; Copper Ores; Lead and Zinc Ores; Gold and Silver Ores; Ferroalloy Ores Except Vanadium; Miscellaneous Metal Ores (SIC Codes 1011, 1021, 1031, 1041, 1044, 1061, 1081, 1094, 1099)

Total Suspended Solids (TSS)

100 mg/L

Turbidity (NTUs)

50 NTU

pH

6.0 - 9.0 s.u.

Hardness (as CaCO3)

no benchmark value

Total Recoverable Antimony

640 μg/L

Total Recoverable Arsenic

50 μg/L

Total Recoverable Beryllium

130 μg/L

Total Recoverable Cadmium

2.1 μg/L

Total Recoverable Copper

18 μg/L

Total Recoverable Iron

1.0 mg/L

Total Recoverable Lead

120 μg/L

Total Recoverable Mercury

1.4 μg/L

Total Recoverable Nickel

470 μg/L

Total Recoverable Selenium

5.0 μg/L

Total Recoverable Silver

3.8 μg/L

Total Recoverable Zinc

120 μg/L

Table 150-2 150-3.
Sector G – Additional Monitoring Requirements for Discharges From Waste Rock and Overburden Piles From Active Ore Mining or Dressing Facilities, Inactive Ore Mining or Dressing Facilities, and Sites Undergoing Reclamation.

Type of Ore Mined

Pollutants of Concern

TSS (mg/L)

pH

Metals, Total Recoverable

Tungsten Ore

X

X

Arsenic, Cadmium (H), Copper (H), Lead (H), Zinc (H).

Nickel Ore

X

X

Arsenic, Cadmium (H), Copper (H), Lead (H), Zinc (H).

Aluminum Ore

X

X

Iron.

Mercury Ore

X

X

Nickel (H).

Iron Ore

X

X

Iron (Dissolved).

Platinum Ore

Cadmium (H), Copper (H), Mercury, Lead (H), Zinc (H).

Titanium Ore

X

X

Iron, Nickel (H), Zinc (H).

Vanadium Ore

X

X

Arsenic, Cadmium (H), Copper (H), Lead (H), Zinc (H).

Copper, Lead, Zinc, Gold, Silver and Molybdenum

X

X

Arsenic, Cadmium (H), Copper (H), Lead (H), Mercury, Zinc (H).

Uranium, Radium and Vanadium

X

X

Chemical Oxygen Demand, Arsenic, Radium (Dissolved and Total Recoverable), Uranium, Zinc (H).

Note: (H) indicates that hardness must also be measured when this pollutant is measured.

9VAC25-151-160. Sector H - Coal mines and coal mining-related facilities.

A. Discharges covered under this section. The requirements listed under this section apply to storm water discharges associated with industrial activity from coal mining-related areas (SIC Major Group 12) if (i) they are not subject to effluent limitations guidelines under 40 CFR Part 434 (2002) (2007) or (ii) they are not subject to the standards of the Surface Mining Control and Reclamation Act of 1977 (SMCRA) (30 USC § 1201 et seq.) and the Virginia Department of Mines, Minerals and Energy's individual permit requirements. The requirements of this section shall apply to storm water discharges from coal mining-related activities exempt from SMCRA, including the public financed exemption, the 16-2/3% exemption, the private use exemption, the under 250 tons exemption, the nonincidental tipple exemption, and the exemption for coal piles and preparation plants associated with the end user. Storm water discharges from the following portions of eligible coal mines and coal mining related facilities may be eligible for this permit: haul roads (nonpublic roads on which coal or coal refuse is conveyed), access roads (nonpublic roads providing light vehicular traffic within the facility property and to public roadways), railroad spurs, sidings, and internal haulage lines (rail lines used for hauling coal within the facility property and to off-site commercial railroad lines or loading areas); conveyor belts, chutes, and aerial tramway haulage areas (areas under and around coal or refuse conveyor areas, including transfer stations); and equipment storage and maintenance yards, coal handling buildings and structures, coal tipples, coal loading facilities and inactive coal mines and related areas (abandoned and other inactive mines, refuse disposal sites and other mining-related areas).

B. Special conditions. Prohibition of nonstorm water discharges. In addition to the general prohibition of nonstorm water discharges in Part I B 1, the following discharges are not covered by this permit: discharges from pollutant seeps or underground drainage from inactive coal mines and refuse disposal areas that do not result from precipitation events and discharges from floor drains in maintenance buildings and other similar drains in mining and preparation plant areas.

C. Storm water pollution prevention plan requirements. In addition to the requirements of Part III, the SWPPP shall include at a minimum, the following items.

1. Site description.

a. Site map. The site map shall identify where any of the following may be exposed to precipitation/surface runoff:

(1) Drainage direction and discharge points from all applicable mining-related areas described in 9VAC25-151-160 A subpart A above;

(2) Acidic spoil, refuse or unreclaimed disturbed areas; and

(3) Liquid storage tanks containing pollutants such as caustics, hydraulic fluids and lubricants.

b. Summary of potential pollutant sources. A description of the potential pollutant sources from the following activities: truck traffic on haul roads and resulting generation of sediment subject to runoff and dust generation; fuel or other liquid storage; pressure lines containing slurry, hydraulic fluid or other potential harmful liquids; and loading or temporary storage of acidic refuse/spoil.

2. Storm water controls.

a. Good housekeeping. As part of the facility's good housekeeping program, the permittee should shall consider the following: using sweepers, covered storage, and watering of haul roads to minimize dust generation; and conservation of vegetation (where possible) to minimize erosion.

b. Preventive maintenance. The permittee shall also perform inspections of storage tanks and pressure lines for fuels, lubricants, hydraulic fluid or slurry to prevent leaks due to deterioration or faulty connections; or other equivalent measures.

3. Comprehensive site compliance evaluation. The evaluation program shall also include inspections for pollutants entering the drainage system from activities located on or near coal mining-related areas. Among the areas to be inspected: haul and access roads; railroad spurs, sliding and internal hauling lines; conveyor belts, chutes and aerial tramways; equipment storage and maintenance yards; coal handling buildings/structures; and inactive mines and related areas.

D. Benchmark monitoring and reporting requirements. Coal mining facilities are required to monitor their storm water discharges for the pollutants of concern listed in Table 160.

Table 160.
Sector H - Benchmark Monitoring Requirements.

Pollutants of Concern

Monitoring Cut-Off Benchmark Concentration

Coal Mines and Related Areas (SIC 1221-1241)

Total Recoverable Aluminum

750 μg/L

Total Recoverable Iron

1 1.0 mg/L

Total Suspended Solids (TSS)

100 mg/L

9VAC25-151-170. Sector I - Oil and gas extraction and refining.

A. Discharges covered under this section. The requirements listed under this section apply to storm water discharges associated with industrial activity from oil and gas extraction and refining facilities listed under SIC Major Group 13 which have had a discharge of a reportable quantity (RQ) of oil or a hazardous substance for which notification is required under 40 CFR 110.6 (2002) (2007), 40 CFR 117.21 (2002) (2007) or 40 CFR 302.6 (2002) (2007). These include oil and gas exploration, production, processing, or treatment operations, or transmission facilities that discharge storm water contaminated by contact with or that has come into contact with any overburden raw material, intermediate products, finished products, by-products or waste products located on the site of such operations. Industries in SIC Major Group 13 include the extraction and production of crude oil, natural gas, oil sands and shale; the production of hydrocarbon liquids and natural gas from coal; and associated oilfield service, supply and repair industries. This section also covers petroleum refineries listed under SIC Code 2911.

Contaminated storm water discharges from petroleum refining or drilling operations that are subject to nationally established BAT or BPT guidelines found at 40 CFR Part 419 (2002) (2006) and 40 CFR Part 435 (2002) (2007) respectively are not authorized by this permit.

Note: most contaminated discharges from petroleum refining and drilling facilities are subject to these effluent guidelines and are not eligible for coverage under this permit.

B. Special conditions. Prohibition of nonstorm water discharges. In addition to the general prohibition of nonstorm water discharges in Part I B 1, the following discharges are not covered by this permit: discharges of vehicle and equipment washwater, including tank cleaning operations. Alternatively, washwater discharges must be authorized under a separate VPDES permit, or be discharged to a sanitary sewer in accordance with applicable industrial pretreatment requirements.

C. Storm water pollution prevention plan requirements. In addition to the requirements of Part III, the SWPPP shall include, at a minimum, the following items.

1. Site description.

a. Site map. The site map shall identify where any of the following may be exposed to precipitation/surface runoff: reportable quantity (RQ) releases; locations used for the treatment, storage or disposal of wastes; processing areas and storage areas; chemical mixing areas; construction and drilling areas; all areas subject to the effluent guidelines requirement of "No Discharge" in accordance with 40 CFR 435.32 (2002) (2007) and the structural controls to achieve compliance with the "No Discharge" requirement.

b. Summary of potential pollutant sources.

(1) The plan shall also include a description of the potential pollutant sources from the following activities: chemical, cement, mud or gel mixing activities; drilling or mining activities; and equipment cleaning and rehabilitation activities.

(2) The plan must shall include information about the RQ release which triggered the permit application requirements, including: the nature of the release (e.g., spill of oil from a drum storage area); the amount of oil or hazardous substance released; amount of substance recovered; date of the release; cause of the release (e.g., poor handling techniques and lack of containment in the area); areas affected by the release, including land and waters; procedure to cleanup release; actions or procedures implemented to prevent or improve response to a release; and remaining potential contamination of storm water from release (taking into account human health risks, the control of drinking water intakes, and the designated uses of the receiving water).

2. Storm water controls.

a. Routine facility inspections. All equipment and areas addressed in the SWPPP shall be inspected at a minimum of six-month intervals least monthly. Equipment and vehicles which store, mix (including all on-site and off-site mixing tanks) or transport chemicals/hazardous materials (including those transporting supplies to oil field activities) will be inspected at least quarterly on a monthly basis. For temporarily or permanently inactive oil and gas extraction facilities within Major SIC Group 13, which are remotely located and unstaffed, the inspections shall be performed at least annually.

b. Sediment and erosion control. Unless covered by another VPDES permit, the additional The erosion control requirement for well drillings and sand/shale mining areas are as follows:

(1) Site description. Each plan shall provide a description of the following:

(a) A description of the nature of the exploration activity;

(b) Estimates of the total area of the site and the area of the site that is expected to be disturbed due to the exploration activity;

(c) An estimate of the runoff coefficient of the site;

(d) A site map indicating drainage patterns and approximate slopes; and

(e) The name of all receiving water(s).

(2) Vegetative controls. The SWPPP shall include a description of vegetative practices designed to preserve existing vegetation where attainable and revegetate open areas as soon as practicable after grade drilling. Such practices may include: temporary or permanent seeding, mulching, sod stabilization, vegetative buffer strips, tree protection practices. The permittee shall initiate appropriate vegetative practices on all disturbed areas within 14 calendar days of the last activity at that area.

(3) Off-site vehicle tracking of sediments shall be minimized.

(4) Procedures in the plan shall provide that all erosion controls on the site are inspected at least once every seven calendar days.

c. Good housekeeping measures.

(1) Vehicle and equipment storage areas. The storage of vehicles and equipment awaiting or having completed maintenance must shall be confined to designated areas (delineated on the site map). The plan must shall describe measures that prevent or minimize contamination of the storm water runoff from these areas (e.g., drip pans under equipment, indoor storage, use of berms and dikes, or other equivalent measures.

(2) Materials and chemical storage areas. Storage units of all chemicals and materials must shall be maintained in good condition so as to prevent contamination of storm water. Hazardous materials must shall be plainly labeled.

(3) Chemical mixing areas. The plan must shall describe measures that prevent or minimize contamination of the storm water runoff from chemical mixing areas.

d. Contact with waste water pollutants at exploration and production facilities. The permittee shall take all measures necessary to prevent the discharge of storm water that has come into contact with waste water pollutants from any sources associated with production, field exploration, drilling, well completion, or well treatment (i.e., produced water, drilling muds, drill cuttings, and produced sand).

D. Benchmark monitoring and reporting requirements. Oil refining facilities are required to monitor their storm water discharges for the pollutants of concern listed in Table 170.

Table 170.
Sector I - Benchmark Monitoring Requirements.

Pollutants of Concern

Benchmark Concentration

Oil Refining (SIC 2911)

Total Recoverable Lead

120 μg/L

Total Recoverable Nickel

470 μg/L

Total Recoverable Zinc

120 μg/L

Total Kjeldahl Nitrogen (TKN)

1.5 mg/L

Total Nitrogen

2.2 mg/L

Total Suspended Solids (TSS)

100 mg/L

Sector J – Mineral Mining and Dressing (facilities described by this sector are not covered by this general permit – see 9VAC25-190, Nonmetallic Mineral Mining General Permit) (SIC 1411-1499). Facilities described by this sector are not covered by this general permit. Facilities with storm water discharges that fall under this sector should apply for coverage under the VPDES Nonmetallic Mineral Mining General Permit (VAG 84).

9VAC25-151-180. Sector K - Hazardous waste treatment, storage, or disposal facilities.

A. Discharges covered under this section. The requirements listed under this section apply to storm water discharges associated with industrial activity from facilities that treat, store, or dispose of hazardous wastes, including those that are operating under interim status or a permit under subtitle C of RCRA (Industrial Activity Code "HZ"). Disposal facilities that have been properly closed and capped, and have no significant materials exposed to storm water, are considered inactive and do not require permits.

B. Special conditions. Prohibition of nonstorm water discharges. In addition to the general prohibition of nonstorm water discharges in Part I B 1, the following discharges are not covered by this permit: leachate, gas collection condensate, drained free liquids, contaminated ground water, laboratory-derived wastewater and contact washwater from washing truck and railcar exteriors and surface areas that have come in direct contact with solid waste at the landfill facility.

C. Definitions.

"Contaminated storm water" means storm water that comes in direct contact with landfill wastes, the waste handling and treatment areas, or landfill wastewater as defined in this section. Some specific areas of a landfill that may produce contaminated storm water include, but are not limited to: the open face of an active landfill with exposed waste (no cover added); the areas around wastewater treatment operations; trucks, equipment or machinery that has been in direct contact with the waste; and waste dumping areas.

"Drained free liquids" means aqueous wastes drained from waste containers (e.g., drums, etc.) prior to landfilling.

"Land treatment facility" means a facility or part of a facility at which hazardous waste is applied onto or incorporated into the soil surface; such facilities are disposal facilities if the waste will remain after closure.

"Landfill" means an area of land or an excavation in which wastes are placed for permanent disposal, that is not a land application or land treatment unit, surface impoundment, underground injection well, waste pile, salt dome formation, a salt bed formation, an underground mine or a cave as these terms are defined in 40 CFR 257.2 (2002) (2006), 40 CFR 258.2 (2002) (2006) and 40 CFR 260.10 (2002) (2007).

"Landfill wastewater" as defined in 40 CFR Part 445 (2002) (2007) (Landfills Point Source Category) means all wastewater associated with, or produced by, landfilling activities except for sanitary wastewater, noncontaminated storm water, contaminated ground water, and wastewater from recovery pumping wells. Landfill wastewater includes, but is not limited to, leachate, gas collection condensate, drained free liquids, laboratory derived wastewater, contaminated storm water and contact washwater from washing truck, equipment, and railcar exteriors and surface areas that have come in direct contact with solid waste at the landfill facility.

"Leachate" means liquid that has passed through or emerged from solid waste and contains soluble, suspended, or miscible materials removed from such waste.

"Noncontaminated storm water" means storm water that does not come into direct contact with landfill wastes, the waste handling and treatment areas, or landfill wastewater as defined above. Noncontaminated storm water includes storm water that flows off the cap, cover, intermediate cover, daily cover, and/or final cover of the landfill.

"Pile" means any noncontainerized accumulation of solid, nonflowing hazardous waste that is used for treatment or storage and that is not a containment building.

"Surface impoundment" means a facility or part of a facility that is a natural topographic depression, man-made excavation or diked area formed primarily of earthen materials (although it may be lined with man-made materials), which is designed to hold an accumulation of liquid wastes or wastes containing free liquids, and which is not an injection well. Examples of surface impoundments are holding, storage, settling, and aeration pits, ponds and lagoons.

D. Numeric effluent limitations. As set forth at 40 CFR Part 445 Subpart A (2002) (2007), the numeric limitations in Table 180-1 apply to contaminated storm water discharges from hazardous waste landfills subject to the provisions of RCRA Subtitle C at 40 CFR Parts 264 (Subpart N) (2002) (2007) and 265 (Subpart N) (2002) (2007) except for any of the facilities described in subdivisions 1 through 4 of this subsection:

1. Landfills operated in conjunction with other industrial or commercial operations when the landfill only receives wastes generated by the industrial or commercial operation directly associated with the landfill;

2. Landfills operated in conjunction with other industrial or commercial operations when the landfill receives wastes generated by the industrial or commercial operation directly associated with the landfill and also receives other wastes provided the other wastes received for disposal are generated by a facility that is subject to the same provisions in 40 CFR Subchapter N (2002) (2007) as the industrial or commercial operation or the other wastes received are of similar nature to the wastes generated by the industrial or commercial operation;

3. Landfills operated in conjunction with Centralized Waste Treatment (CWT) facilities subject to 40 CFR Part 437 (2002) (2007) so long as the CWT facility commingles the landfill wastewater with other nonlandfill wastewater for discharge. A landfill directly associated with a CWT facility is subject to this part if the CWT facility discharges landfill wastewater separately from other CWT wastewater or commingles the wastewater from its landfill only with wastewater from other landfills; or

4. Landfills operated in conjunction with other industrial or commercial operations when the landfill receives wastes from public service activities so long as the company owning the landfill does not receive a fee or other remuneration for the disposal service.

Table 180-1.
Sector K – Numeric Effluent Limitations.

Parameter

Effluent Limitations

Maximum Daily

Maximum Monthly Average

Hazardous Waste Treatment, Storage, or Disposal Facilities (Industrial Activity Code "HZ") Subject to the Provisions of 40 CFR Part 445 Subpart A (2002) (2007).

Biochemical Oxygen Demand (BOD5)

220 mg/L

56 mg/L

Total Suspended Solids (TSS)

88 mg/L

27 mg/L

Ammonia

10 mg/L

4.9 mg/L

Alpha Terpineol

0.042 mg/L

0.019 mg/L

Aniline

0.024 mg/L

0.015 mg/L

Benzoic Acid

0.119 mg/L*

0.073 mg/L

Naphthalene

0.059 mg/L

0.022 mg/L

p-Cresol

0.024 mg/L

0.015 mg/L

Phenol

0.048 mg/L

0.029 mg/L

Pyridine

0.072 mg/L

0.025 mg/L

Arsenic (Total)

1.1 mg/L

0.54 mg/L

Chromium (Total)

1.1 mg/L

0.46 mg/L

Zinc (Total)

0.535 mg/L*

0.296 mg/L*

pH

Within the range of 6.0 - 9.0 s.u.

* - These effluent limitations are three significant digits for reporting purposes.

E. Benchmark monitoring and reporting requirements. Permittees with hazardous waste treatment, storage, or disposal facilities (TSDFs) are required to monitor their storm water discharges for the pollutants of concern listed in Table 180-2. These benchmark monitoring cutoff concentrations apply to storm water discharges associated with industrial activity other than contaminated storm water discharges from landfills subject to the numeric effluent limitations set forth in Table 180-1.

Table 180-2.
Sector K – Benchmark Monitoring Requirements.

Pollutants of Concern

Monitoring Cut-Off Benchmark Concentration

Hazardous Waste Treatment, Storage, or Disposal Facilities (Industrial Activity Code "HZ")

Total Kjeldahl Nitrogen (TKN)

1.5 mg/L

Total Suspended Solids (TSS)

100 mg/L

Total Organic Carbon (TOC)

110 mg/L

Total Recoverable Arsenic

50 μg/L

Total Recoverable Cadmium

3.9 2.1 μg/L

Total Cyanide

22 μg/L

Total Recoverable Lead

120 μg/L

Total Recoverable Mercury

2.4 1.4 μg/L

Total Recoverable Selenium

20 5.0 μg/L

Total Recoverable Silver

4.1 3.8 μg/L

9VAC25-151-190. Sector L - Landfills, land application sites and open dumps.

A. Discharges covered under this section. The requirements listed under this section apply to storm water discharges associated with industrial activity from waste disposal at landfills, land application sites, and open dumps that receive or have received industrial wastes (Industrial Activity Code "LF"), including sites subject to regulation under Subtitle D of RCRA. Open dumps are solid waste disposal units that are not in compliance with state/federal criteria established under RCRA Subtitle D. Landfills, land application sites, and open dumps that have storm water discharges from other types of industrial activities such as vehicle maintenance, truck washing, and/or recycling may be subject to additional requirements specified elsewhere in this permit.

B. Special conditions. Prohibition of nonstorm water discharges. In addition to the general nonstorm water prohibition in Part I B 1, the following discharges are not covered by this permit: leachate, gas collection condensate, drained free liquids, contaminated ground water, laboratory wastewater, and contact washwater from washing truck and railcar exteriors and surface areas that have come in direct contact with solid waste at the landfill facility.

C. Definitions.

"Contaminated storm water" means storm water that comes in direct contact with landfill wastes, the waste handling and treatment areas, or landfill wastewater as defined below. Some specific areas of a landfill that may produce contaminated storm water include, but are not limited to: the open face of an active landfill with exposed waste (no cover added); the areas around wastewater treatment operations; trucks, equipment or machinery that has been in direct contact with the waste; and waste dumping areas.

"Drained free liquids" means aqueous wastes drained from waste containers (e.g., drums, etc.) prior to landfilling.

"Land treatment facility" means a facility or part of a facility at which hazardous waste is applied onto or incorporated into the soil surface; such facilities are disposal facilities if the waste will remain after closure.

"Landfill" means an area of land or an excavation in which wastes are placed for permanent disposal, that is not a land application or land treatment unit, surface impoundment, underground injection well, waste pile, salt dome formation, salt bed formation, an underground mine or a cave as these terms are defined in 40 CFR 257.2 (2002), 40 CFR 258.2 (2002) and 40 CFR 260.10 (2002).

"Landfill wastewater" as defined in 40 CFR Part 445 (2002) (2007) (Landfills Point Source Category) means all wastewater associated with, or produced by, landfilling activities except for sanitary wastewater, noncontaminated storm water, contaminated groundwater, and wastewater from recovery pumping wells. Landfill process wastewater includes, but is not limited to, leachate, gas collection condensate, drained free liquids, laboratory derived wastewater, contaminated storm water and contact washwater from washing truck, equipment, and railcar exteriors and surface areas that have come in direct contact with solid waste at the landfill facility.

"Leachate" means liquid that has passed through or emerged from solid waste and contains soluble, suspended, or miscible materials removed from such waste.

"Noncontaminated storm water" means storm water that does not come into direct contact with landfill wastes, the waste handling and treatment areas, or landfill wastewater as defined above. Noncontaminated storm water includes storm water that flows off the cap, cover, intermediate cover, daily cover, and/or final cover of the landfill.

"Surface impoundment" means a facility or part of a facility that is a natural topographic depression, man-made excavation or diked area formed primarily of earthen materials (although it may be lined with man-made materials), which is designed to hold an accumulation of liquid wastes or wastes containing free liquids, and which is not an injection well. Examples of surface impoundments are holding, storage, settling, and aeration pits, ponds and lagoons.

D. Storm water pollution prevention plan requirements. In addition to the requirements in Part III, the SWPPP shall include, at a minimum, the following items.

1. Site description.

a. Site map. The site map shall identify where any of the following may be exposed to precipitation/surface runoff: active and closed landfill cells or trenches; active and closed land application areas; locations where open dumping is occurring or has occurred; locations of any known leachate springs or other areas where uncontrolled leachate may commingle with runoff; and leachate collection and handling systems.

b. Summary of potential pollutant sources. The SWPPP shall also include a description of potential pollutant sources associated with any of the following: fertilizer, herbicide and pesticide application; earth/soil moving; waste hauling and loading/unloading; outdoor storage of significant materials including daily, interim and final cover material stockpiles as well as temporary waste storage areas; exposure of active and inactive landfill and land application areas; uncontrolled leachate flows; and failure or leaks from leachate collection and treatment systems.

2. Storm water controls.

a. Preventive maintenance program. As part of the preventive maintenance program, the permittee shall maintain: all containers used for outdoor chemical/significant materials storage to prevent leaking; all elements of leachate collection and treatment systems to prevent commingling of leachate with storm water; and the integrity and effectiveness of any intermediate or final cover (including making repairs to the cover as necessary to minimize the effects of settlement, sinking, and erosion).

b. Good housekeeping measures. As part of the good housekeeping program, the permittee shall consider providing protected storage areas for pesticides, herbicides, fertilizer and other significant materials.

c. Routine facility inspections.

(1) Inspections of active sites. Operating landfills, open dumps, and land application sites shall be inspected at least once every seven days. Qualified personnel shall inspect areas of landfills that have not yet been finally stabilized, active land application areas, areas used for storage of materials/wastes that are exposed to precipitation, stabilization and structural control measures, leachate collection and treatment systems, and locations where equipment and waste trucks enter and exit the site. Erosion and sediment control measures shall be observed to ensure they are operating correctly. For stabilized sites and areas where land application has been completed, or where the climate is seasonally arid (annual rainfall averages from 0 to 10 inches) or semi-arid (annual rainfall averages from 10 to 20 inches), inspections shall be conducted at least once every month.

(2) Inspections of inactive sites. Inactive landfills, open dumps, and land application sites shall be inspected at least quarterly. Qualified personnel shall inspect landfill (or open dump) stabilization and structural erosion control measures and leachate collection and treatment systems, and all closed land application areas.

d. Recordkeeping and internal reporting procedures. Landfill and open dump owners shall provide for a tracking system for the types of wastes disposed of in each cell or trench of a landfill or open dump. Land application site owners shall track the types and quantities of wastes applied in specific areas.

e. Nonstorm water discharge test certification Certification of outfall evaluation for unauthorized discharges. The discharge test and certification must shall also be conducted for the presence of leachate and vehicle washwater.

f. Sediment and erosion control plan. Landfill and open dump owners shall provide for temporary stabilization of materials stockpiled for daily, intermediate, and final cover. Stabilization practices to consider include, but are not limited to, temporary seeding, mulching, and placing geotextiles on the inactive portions of the stockpiles. Landfill and open dump owners shall provide for temporary stabilization of inactive areas of the landfill or open dump which have an intermediate cover but no final cover. Landfill and open dump owners shall provide for temporary stabilization of any landfill or open dumping areas which have received a final cover until vegetation has established itself. Land application site owners shall also stabilize areas where waste application has been completed until vegetation has been established.

g. Comprehensive site compliance evaluation. Areas contributing to a storm water discharge associated with industrial activities at landfills, open dumps and land application sites shall be evaluated for evidence of, or the potential for, pollutants entering the drainage system.

E. Numeric effluent limitations. As set forth at 40 CFR Part 445 Subpart B (2002) (2007), the numeric limitations in Table 190-1 apply to contaminated storm water discharges from municipal solid waste landfills (MSWLFs) that have not been closed in accordance with 40 CFR 258.60 (2002) (2006), and contaminated storm water discharges from those landfills that are subject to the provisions of 40 CFR Part 257 (2002) (2006) (these include CDD landfills (also known as C&D landfills), and industrial landfills) except for discharges from any of the facilities described in subdivisions 1 through 4 of this subsection:

1. Landfills operated in conjunction with other industrial or commercial operations when the landfill only receives wastes generated by the industrial or commercial operation directly associated with the landfill;

2. Landfills operated in conjunction with other industrial or commercial operations when the landfill receives wastes generated by the industrial or commercial operation directly associated with the landfill and also receives other wastes provided the other wastes received for disposal are generated by a facility that is subject to the same provisions in 40 CFR Subchapter N (2002) (2007) as the industrial or commercial operation or the other wastes received are of similar nature to the wastes generated by the industrial or commercial operation;

3. Landfills operated in conjunction with centralized waste treatment (CWT) facilities subject to 40 CFR Part 437 (2002) (2007) so long as the CWT facility commingles the landfill wastewater with other nonlandfill wastewater for discharge. A landfill directly associated with a CWT facility is subject to this part if the CWT facility discharges landfill wastewater separately from other CWT wastewater or commingles the wastewater from its landfill only with wastewater from other landfills; or

4. Landfills operated in conjunction with other industrial or commercial operations when the landfill receives wastes from public service activities so long as the company owning the landfill does not receive a fee or other remuneration for the disposal service.

Table 190-1.
Sector L – Numeric Effluent Limitations.

Parameter

Effluent Limitations

Maximum Daily

Maximum Monthly Average

Landfills (Industrial Activity Code "LF") that are Subject to the Requirements of 40 CFR Part 445 Subpart B (2002) (2007).

Biochemical Oxygen Demand (BOD5)

140 mg/L

37 mg/L

Total Suspended Solids (TSS)

88 mg/L

27 mg/L

Ammonia

10 mg/L

4.9 mg/L

Alpha Terpineol

0.033 mg/L

0.016 mg/L

Benzoic Acid

0.12 mg/L

0.071 mg/L

p-Cresol

0.025 mg/L

0.014 mg/L

Phenol

0.026 mg/L

0.015 mg/L

Zinc (Total)

0.20 mg/L

0.11 mg/L

pH

Within the range of 6.0 - 9.0 s.u.

F. Benchmark monitoring and reporting requirements. Landfill/land application/open dump sites are required to monitor their storm water discharges for the pollutants of concern listed in Table 190-2. These benchmark monitoring cutoff concentrations apply to storm water discharges associated with industrial activity other than contaminated storm water discharges from landfills subject to the numeric effluent limitations set forth in Table 190-1.

Table 190-2.
Sector L – Benchmark Monitoring Requirements.

Pollutants of Concern

Monitoring Cut-Off Benchmark Concentration

Landfills, Land Application Sites and Open Dumps (Industrial Activity Code "LF").

Total Suspended Solids (TSS)

100 mg/L

Landfills, Land Application Sites and Open Dumps (Industrial Activity Code "LF"), except MSWLF Areas Closed in Accordance with the Requirements of the Virginia Solid Waste Management Regulation, 9VAC20-80

Total Recoverable Iron

1 1.0 mg/L

9VAC25-151-200. Sector M - Automobile salvage yards.

A. Discharges covered under this section. The requirements listed under this section apply to storm water discharges associated with industrial activity from facilities engaged in dismantling or wrecking used motor vehicles for parts recycling/resale and for scrap (SIC Code 5015).

B. Storm water pollution prevention plan requirements.

In addition to the requirements of Part III, the SWPPP shall include, at a minimum, the following items:

1. Site description.

a. Site map. The map must shall include the location of each monitoring point, and an estimation (in acres) of the total area used for industrial activity including, but not limited to, dismantling, storage, and maintenance of used motor vehicle parts. The site map must shall also identify where any of the following may be exposed to precipitation/surface runoff: vehicle storage areas; dismantling areas; parts storage areas (e.g., engine blocks, tires, hub caps, batteries, hoods, mufflers); and liquid storage tanks and drums for fuel and other fluids.

b. Summary of potential pollutant sources. The permittee must shall assess the potential for the following activities to contribute pollutants to storm water discharges: vehicle storage areas; dismantling areas; parts storage areas (e.g., engine blocks, tires, hub caps, batteries, and hoods); fueling stations.

2. Storm water controls.

a. Spill and leak prevention procedures. After clean up from a spill, absorbents must be promptly placed in containers for proper disposal. All vehicles that are intended to be dismantled must shall be properly drained of all fluids prior to being dismantled or crushed, or other equivalent means must shall be taken to prevent leaks or spills of fluids including motor oil, transmission fluid, fuel and antifreeze.

b. Inspections. Upon arrival at the site, or as soon thereafter as feasible thereafter, vehicles must shall be inspected for leaks. Any equipment containing oily parts, hydraulic fluids, or any other types of fluids, or mercury switches shall be inspected at least quarterly (four times per year) for signs of leaks. Any outdoor storage of All vessels and areas where hazardous materials and general automotive fluids are stored, including, but not limited to, mercury switches, brake fluid, transmission fluid, radiator water, and antifreeze, must shall be inspected at least quarterly for leaks. All outdoor liquid storage containers (e.g., tanks, drums) must be inspected at least quarterly for leaks.

c. Employee training. Employee training must shall, at a minimum, address the following areas when applicable to a facility: proper handling (collection, storage, and disposal) of oil, used mineral spirits, anti-freeze, mercury switches, and solvents.

d. Management of runoff. The plan must shall consider management practices, such as berms or drainage ditches on the property line, that may be used to help prevent runon from neighboring properties. Berms must shall be considered for uncovered outdoor storage of oily parts, engine blocks, and aboveground liquid storage. The permittee shall consider the installation of detention ponds, filtering devices, and oil/water separators.

C. Benchmark monitoring and reporting requirements. Automobile salvage yards are required to monitor their storm water discharges for the pollutants of concern listed in Table 200.

Table 200.
Sector M – Benchmark Monitoring Requirements.

Pollutants of Concern

Monitoring Cut-Off Benchmark Concentration

Automobile Salvage Yards (SIC 5015)

Total Suspended Solids (TSS)

100 mg/L

Total Recoverable Aluminum

750 μg/L

Total Recoverable Iron

1 1.0 mg/L

Total Recoverable Lead

120 μg/L

9VAC25-151-210. Sector N - Scrap recycling and waste recycling facilities.

A. Discharges covered under this section. The requirements listed under this section apply to storm water discharges associated with industrial activity from facilities that are engaged in the processing, reclaiming and wholesale distribution of scrap and waste materials such as ferrous and nonferrous metals, paper, plastic, cardboard, glass, animal hides (these types of activities are typically identified as SIC Code 5093), and facilities that are engaged in reclaiming and recycling liquid wastes such as used oil, antifreeze, mineral spirits, and industrial solvents (also identified as SIC Code 5093). Separate permit requirements have been established for recycling facilities that only receive source-separated recyclable materials primarily from nonindustrial and residential sources (also identified as SIC Code 5093) (e.g., common consumer products including paper, newspaper, glass, cardboard, plastic containers, aluminum and tin cans). This includes recycling facilities commonly referred to as material recovery facilities (MRF). Separate permit requirements have also been established for facilities that are engaged in dismantling ships, marine salvaging, and marine wrecking–ships for scrap (SIC 4499, limited to those listed; for others in SIC 4499 not listed above, see Sector Q (9VAC25-151-240)).

B. Special conditions. Prohibition of nonstorm water discharges. In addition to the general nonstorm water prohibition in Part I B 1, nonstorm water discharges from turnings containment areas are not covered by this permit (see also 9VAC25-151-210 C 2 c) (see also subdivision C 2 c section). Discharges from containment areas in the absence of a storm event are prohibited unless covered by a separate VPDES permit.

C. Storm water pollution prevention plan requirements. In addition to the requirements of Part III, all facilities are required to comply with the general SWPPP requirement in subdivision 1 of this subsection.

Subdivisions 2 through 5 of this subsection have SWPPP requirements for specific types of recycling facilities. The permittee shall implement and describe in the SWPPP a program to address those items that apply. Included are lists of BMP options that, along with any functional equivalents, should shall be considered for implementation. Selection or deselection of a particular BMP or approach is up to the best professional judgment of the permittee, as long as the objective of the requirement is met.

1. Site description. Site map. The site map shall identify the locations where any of the following activities or sources may be exposed to precipitation/surface runoff: scrap and waste material storage, outdoor scrap and waste processing equipment, and containment areas for turnings exposed to cutting fluids.

2. Scrap recycling and waste recycling facilities nonsource-separated, nonliquid recyclable materials). The following SWPPP special conditions have been established for facilities that receive, process and do wholesale distribution of nonliquid recyclable wastes (e.g., ferrous and nonferrous metals, plastics, glass, cardboard and paper). These facilities may receive both nonrecyclable and recyclable materials. This section is not intended for those facilities that only accept recyclable materials primarily from nonindustrial and residential sources.

a. Inbound recyclable and waste material control program. The plan shall include a recyclable and waste material inspection program to minimize the likelihood of receiving materials that may be significant pollutant sources to storm water discharges. BMP options:

(1) Provision of Provide information/education flyers, brochures and pamphlets to suppliers of scrap and recyclable waste materials on draining and properly disposing of residual fluids prior to delivery to the facility (e.g., from vehicles and equipment engines, radiators, and transmissions, oil-filled transformers, and individual containers or drums), and on removal of mercury switches prior to delivery to the facility;

(2) Procedures Establish procedures to minimize the potential of any residual fluids from coming in contact with precipitation/runoff;

(3) Procedures Establish procedures for accepting scrap lead-acid batteries. (Additional requirements for the handling, storage and disposal or recycling of batteries are contained in the scrap lead-acid battery program provisions in 9VAC25-151-210 C 2 f) Additional requirements for the handling, storage and disposal or recycling of batteries are contained in the scrap lead-acid battery program provisions in subdivision 2 f of this subsection;

(4) Training Provide training targeted for those personnel engaged in the inspection and acceptance of inbound recyclable materials;

(5) Liquid Establish procedures to ensure that liquid wastes, including used oil, shall be are stored in materially compatible and nonleaking containers and disposed or recycled in accordance with all requirements under the Resource Recovery and Conservation Act (RCRA), and other state or local requirements.

b. Scrap and waste material stockpiles/storage (outdoor). The plan must shall describe measures and controls to minimize contact of storm water runoff with stockpiled materials, processed materials and nonrecyclable wastes. BMP options:

(1) Permanent or semipermanent covers;

(2) The use of sediment traps, vegetated swales and strips, catch basin filters and sand filters to facilitate settling or filtering of pollutants;

(3) Diversion of runoff away from storage areas via dikes, berms, containment trenches, culverts and surface grading;

(4) Silt fencing;

(5) Oil/water separators, sumps and dry adsorbents for areas where potential sources of residual fluids are stockpiled (e.g., automotive engine storage areas).

c. Stockpiling of turnings exposed to cutting fluids (outdoor) (outdoor storage). The plan shall implement measures necessary to minimize contact of surface runoff with residual cutting fluids. BMP options (use singularly or in combination):

(1) Storage of all turnings exposed to cutting fluids under some form of permanent or semipermanent cover. Storm water discharges from these areas are permitted provided the runoff is first treated by an oil/water separator or its equivalent. Procedures to collect, handle, and dispose or recycle residual fluids that may be present shall be identified in the plan;

(2) Establish dedicated containment areas for all turnings that have been exposed to cutting fluids. Storm water runoff from these areas can be discharged provided:

(a) The containment areas are constructed of either concrete, asphalt or other equivalent type of impermeable material;

(b) There is a barrier around the perimeter of the containment areas to prevent contact with storm water runon (e.g., berms, curbing, elevated pads, etc.);

(c) There is a drainage collection system for runoff generated from containment areas;

(d) There is a schedule to maintain the oil/water separator (or its equivalent); and

(e) Procedures are identified for the proper disposal or recycling of collected residual fluids.

d. Scrap and waste material stockpiles/storage (covered or indoor storage). The plan shall address measures and controls to minimize contact of residual liquids and particulate matter from materials stored indoors or under cover from coming in contact with surface runoff. BMP options:

(1) Good housekeeping measures, including the use of dry absorbent or wet vacuum clean up methods, to contain or dispose/recycle residual liquids originating from recyclable containers, or mercury spill kits from storage of mercury switches;

(2) Prohibiting the practice of allowing washwater from tipping floors or other processing areas from discharging to the storm sewer system;

(3) Disconnecting or sealing off all floor drains connected to the storm sewer system.

e. Scrap and recyclable waste processing areas. The plan shall include measures and controls to minimize surface runoff from coming in contact with scrap processing equipment. In the case of processing equipment that generate visible amounts of particulate residue (e.g., shredding facilities), the plan shall describe measures to minimize the contact of residual fluids and accumulated particulate matter with runoff (i.e., through good housekeeping, preventive maintenance, etc.). BMP options:

(1) A schedule of regular inspections of equipment for leaks, spills, malfunctioning, worn or corroded parts or equipment;

(2) A preventive maintenance program for processing equipment;

(3) Removal of mercury switches from the hood and trunk lighting units, and removal of anti-lock brake system units containing mercury switches;

(3) (4) Use of dry-absorbents or other cleanup practices to collect and to dispose/recycle spilled/leaking fluids, or use of mercury spill kits for spills from storage of mercury switches;

(4) (5) Installation of low-level alarms or other equivalent protection devices on unattended hydraulic reservoirs over 150 gallons in capacity. Alternatively, provide secondary containment with sufficient volume to contain the entire volume of the reservoir.

(5) (6) Containment or diversion structures such as dikes, berms, culverts, trenches, elevated concrete pads, and grading to minimize contact of storm water runoff with outdoor processing equipment or stored materials;

(6) (7) Oil/water separators or sumps;

(7) (8) Permanent or semipermanent covers in processing areas where there are residual fluids and grease;

(8) (9) Retention and detention basins or ponds, sediment traps, vegetated swales or strips, to facilitate pollutant settling/ filtration;

(9) (10) Catch basin filters or sand filters.

f. Scrap lead-acid battery program. The plan shall address measures and controls for the proper handling, storage and disposal of scrap lead-acid batteries. BMP options:

(1) Segregate scrap lead-acid batteries from other scrap materials;

(2) A description of procedures and/or measures for the proper handling, storage and disposal of cracked or broken batteries;

(3) A description of measures to collect and dispose of leaking lead-acid battery fluid;

(4) A description of measures to minimize and, whenever possible, eliminate exposure of scrap lead-acid batteries to precipitation or runoff;

(5) A description of employee training for the management of scrap batteries.

g. Spill prevention and response procedures. The SWPPP shall include measures to minimize storm water contamination at loading/unloading areas, and from equipment or container failures. BMP options:

(1) Description of spill prevention and response measures to address areas that are potential sources of fluid leaks or spills;

(2) Immediate containment and clean up of spills/leaks. If malfunctioning equipment is responsible for the spill/leak, repairs should shall also be conducted as soon as possible;

(3) Cleanup procedures should shall be identified in the plan, including the use of dry absorbents. Where dry absorbent cleanup methods are used, an adequate supply of dry absorbent material should shall be maintained on-site. Used absorbent material should shall be disposed of properly;

(4) Drums containing liquids, especially oil and lubricants, should shall be stored: indoors; in a bermed area; in overpack containers or spill pallets; or in similar containment devices;

(5) Overfill prevention devices should shall be installed on all fuel pumps or tanks;

(6) Drip pans or equivalent measures should shall be placed under any leaking piece of stationary equipment until the leak is repaired. The drip pans should shall be inspected for leaks and potential overflow and all liquids properly disposed of in accordance with RCRA requirements;

(7) An alarm and/or pump shut off system should shall be installed on outdoor equipment with hydraulic reservoirs exceeding 150 gallons in order to prevent draining the tank contents in the event of a line break. Alternatively, the equipment may have a secondary containment system capable of containing the contents of the hydraulic reservoir plus adequate freeboard for precipitation. A mercury spill kit shall be used for any release of mercury from switches, anti-lock brake systems, and switch storage areas.

h. Quarterly inspection Inspection program. All designated areas of the facility and equipment identified in the plan shall be inspected at least quarterly monthly.

i. Supplier notification program. The plan shall include a program to notify major suppliers which scrap materials will not be accepted at the facility or are only accepted under certain conditions.

3. Waste recycling facilities (liquid recyclable wastes) (liquid recyclable materials).

a. Waste material storage (indoor). The plan shall include measures and controls to minimize/eliminate contact between residual liquids from waste materials stored indoors and surface runoff. The plan may refer to applicable portions of other existing plans such as SPCC plans required under 40 CFR Part 112 (2002) (2007). BMP options:

(1) Procedures for material handling (including labeling and marking);

(2) A sufficient supply of dry-absorbent materials or a wet vacuum system to collect spilled or leaked materials (note: spilled or leaking mercury should never be vacuumed);

(3) An appropriate containment structure, such as trenches, curbing, gutters or other equivalent measures;

(4) A drainage system, including appurtenances (e.g., pumps or ejectors, or manually operated valves), to handle discharges from diked or bermed areas. Drainage should shall be discharged to an appropriate treatment facility, sanitary sewer system, or otherwise disposed of properly. Discharges from these areas may require coverage under a separate VPDES permit or industrial user permit under the pretreatment program.

b. Waste material storage (outdoor). The plan shall describe measures and controls to minimize contact between stored residual liquids and precipitation or runoff. The plan may refer to applicable portions of other existing plans such as SPCC plans required under 40 CFR Part 112 (2002) (2007). Discharges of precipitation from containment areas containing used oil shall also be in accordance with applicable sections of 40 CFR Part 112 (2002) (2007). BMP options:

(1) Appropriate containment structures (e.g., dikes, berms, curbing, pits) to store the volume of the largest single tank, with sufficient extra capacity for precipitation;

(2) Drainage control and other diversionary structures;

(3) For storage tanks, provide corrosion protection and/or leak detection systems;

(4) Dry-absorbent materials or a wet vacuum system to collect spills.

c. Truck and rail car waste transfer areas. The plan shall describe measures and controls to minimize pollutants in discharges from truck and rail car loading/unloading areas. The plan shall also address measures to clean up minor spills/leaks resulting from the transfer of liquid wastes. BMP options:

(1) Containment and diversionary structures to minimize contact with precipitation or runoff;

(2) Use of dry cleanup methods, wet vacuuming, roof coverings, or runoff controls.

d. Quarterly inspections Inspections. The quarterly inspections Inspections shall be made monthly and shall also include all areas where waste is generated, received, stored, treated or disposed that are exposed to either precipitation or storm water runoff.

4. Recycling facilities (source separated materials). The following SWPPP special conditions have been established for facilities that receive only source-separated recyclable materials primarily from nonindustrial and residential sources.

a. Inbound recyclable material control. The plan shall include an inbound materials inspection program to minimize the likelihood of receiving nonrecyclable materials (e.g., hazardous materials) that may be a significant source of pollutants in surface runoff. BMP options:

(1) Information Provide information and education measures to inform suppliers of recyclable materials on the types of materials that are acceptable and those that are not acceptable;

(2) A description of training measures for drivers responsible for pickup of recyclable materials;

(3) Clearly marking mark public drop-off containers regarding which materials can be accepted;

(4) Rejecting nonrecyclable wastes or household hazardous wastes at the source;

(5) Procedures Establish procedures for the handling and disposal of nonrecyclable materials.

b. Outdoor storage. The plan shall include procedures to minimize the exposure of recyclable materials to surface runoff and precipitation. The plan shall include good housekeeping measures to prevent the accumulation of particulate matter and fluids, particularly in high traffic areas. BMP options:

(1) Provide totally-enclosed drop-off containers for the public;

(2) Install a sump/pump with each containment pit, and discharge collected fluids to a sanitary sewer system;

(3) Provide dikes and curbs for secondary containment (e.g., around bales of recyclable waste paper);

(4) Divert surface runoff away from outside material storage areas;

(5) Provide covers over containment bins, dumpsters, roll-off boxes;

(6) Store the equivalent one day's volume of recyclable materials indoors.

c. Indoor storage and material processing. The plan shall include measures to minimize the release of pollutants from indoor storage and processing areas. BMP options:

(1) Schedule routine good housekeeping measures for all storage and processing areas;

(2) Prohibit a practice of allowing tipping floor washwaters from draining to any portion of the storm sewer system; and

(3) Provide employee training on pollution prevention practices.

d. Vehicle and equipment maintenance. The plan shall also provide for BMPs in those areas where vehicle and equipment maintenance is occurring outdoors. BMP options:

(1) Prohibit vehicle and equipment washwater from discharging to the storm sewer system;

(2) Minimize or eliminate outdoor maintenance areas, wherever possible;

(3) Establish spill prevention and clean-up procedures in fueling areas;

(4) Avoid topping off fuel tanks;

(5) Divert runoff from fueling areas;

(6) Store lubricants and hydraulic fluids indoors;

(7) Provide employee training on proper, handling, storage of hydraulic fluids and lubricants.

5. Facilities engaged in dismantling ships, marine salvaging, and marine wrecking-ships for scrap. The following SWPPP special conditions have been established for facilities that are engaged in dismantling ships, marine salvaging, and marine wrecking-ships for scrap.

Vessel Breaking/Scrapping Activities. Scrapping of vessels shall be accomplished ashore beyond the range of mean high tide, whenever practicable. If this activity must be conducted while a vessel is afloat or grounded in state waters, then the permittee must shall employ BMPs to reduce the amount of pollutants released. The following BMPs shall be implemented during those periods when vessels (ships, barges, yachts, etc.) are brought to the facility's site for recycling, scrapping and storage prior to scrapping.

a. Fixed or floating platforms sufficiently sized and constructed to catch and prevent scrap materials and pollutants from entering state waters (or equivalent measures approved by the department) shall be used as work surfaces when working on or near the water surface. These platforms shall be cleaned as required to prevent pollutants from entering state waters and at the end of each work shift. All scrap metals and pollutants shall be collected in a manner to prevent releases (containerization is recommended).

b. There shall be no discharge of oil or oily wastewater at the facility. Drip pans and other protective devices shall be required for all oil and oily waste transfer operations to catch incidental spillage and drips from hose nozzles, hose racks, drums or barrels. Drip pans and other protective devices shall be inspected and maintained to prevent releases. Oil and oily waste must shall be disposed at a permitted facility and adequate documentation of off-site disposition shall be retained for review by the board upon request.

c. During the storage/breaking/scrapping period, oil containment boom(s) shall be deployed either around the vessel being scrapped, or across the mouth of the facility's wetslip, to contain pollutants in the event of a spill. Booms must shall be inspected, maintained, and repaired as needed. Oil, grease and fuel spills shall be prevented from reaching state waters. Cleanup shall be carried out promptly after an oil, grease, and/or fuel spill is detected.

d. Paint and solvent spills shall be immediately cleaned up to prevent pollutants from reaching storm drains, deck drains, and state waters.

e. Contaminated bilge and ballast water shall not be discharged to state waters. If it becomes necessary to dispose of contaminated bilge and ballast waters during a vessel breaking activity, the wastewater must shall be disposed at a permitted facility and adequate documentation of off-site disposition shall be retained for review by the board upon request.

D. Benchmark monitoring and reporting requirements. Scrap recycling and waste recycling facilities (nonsource-separated facilities only), and facilities engaged in dismantling ships, marine salvaging, and marine wrecking-ships for scrap are required to monitor their storm water discharges for the pollutants of concern listed in Table 210.

Table 210.
Sector N – Benchmark Monitoring Requirements.

Pollutants of Concern

Monitoring Cut-Off Benchmark Concentration

Scrap Recycling and Waste Recycling Facilities (nonsource-separated facilities only) (SIC 5093)

Total Suspended Solids (TSS)

100 mg/L

Total Recoverable Aluminum

750 μg/L

Total Recoverable Cadmium

3.9 2.1 μg/L

Hexavalent Total Recoverable Chromium

16 μg/L

Total Recoverable Copper

18 μg/L

Total Recoverable Iron

1 1.0 mg/L

Total Recoverable Lead

120 μg/L

Total Recoverable Zinc

120 μg/L

Facilities Engaged in Dismantling Ships, Marine Salvaging, and Marine Wrecking - Ships For Scrap (SIC 4499, limited to list)

Total Recoverable Aluminum

750 μg/L

Total Recoverable Cadmium

2.1 μg/L

Total Recoverable Chromium

16 μg/L

Total Recoverable Copper

18 μg/L

Total Recoverable Iron

1.0 mg/L

Total Recoverable Lead

120 μg/L

Total Recoverable Zinc

120 μg/L

Total Suspended Solids (TSS)

100 mg/L

9VAC25-151-220. Sector O - Steam electric generating facilities.

A. Discharges covered under this section. The requirements listed under this section apply to storm water discharges associated with industrial activity from steam electric power generating facilities using coal, natural gas, oil, nuclear energy, etc. to produce a steam source, including coal handling areas (Industrial Activity Code "SE").

Storm water discharges from coal pile runoff subject to numeric effluent limitations are eligible for coverage under this permit, but are subject to the limitations established by Part I A 1 c (2).

Storm water discharges from ancillary facilities (e.g., fleet centers, gas turbine stations, and substations) that are not contiguous to a steam electric power generating facility are not covered by this permit. Heat capture/heat recovery combined cycle generation facilities are also not covered by this permit; however, dual fuel co-generation facilities that generate electric power are included.

B. Special conditions. Prohibition of nonstorm water discharges. In addition to the general nonstorm water prohibition in Part I B 1, nonstorm water discharges subject to effluent limitation guidelines are also not covered by this permit.

C. Storm water pollution prevention plan requirements. In addition to the requirements of Part III, the plan shall include, at a minimum, the following items.

1. Site description. Site map. The site map shall identify the locations of any of the following activities or sources that may be exposed to precipitation/surface runoff: storage tanks, scrap yards, general refuse areas; short and long term storage of general materials (including, but not limited to: supplies, construction materials, plant paint equipment, oils, fuels, used and unused solvents, cleaning materials, paint, water treatment chemicals, fertilizer, and pesticides); landfills; construction sites; and stock pile areas (such as coal or limestone piles).

2. Storm water controls.

a. Good housekeeping measures.

(1) Fugitive dust emissions. The permittee shall describe and implement measures that prevent or minimize fugitive dust emissions from coal handling areas. The permittee shall consider establishing procedures to minimize off-site tracking of coal dust such as installing specially designed tires, or washing vehicles in a designated area before they leave the site, and controlling the wash water.

(2) Delivery vehicles. The plan must shall describe measures that prevent or minimize contamination of storm water runoff from delivery vehicles arriving on the plant site. At a minimum the permittee shall consider the following:

(a) Develop procedures for the inspection of delivery vehicles arriving on the plant site, and ensure overall integrity of the body or container; and

(b) Develop procedures to deal with leakage/spillage from vehicles or containers.

(3) Fuel oil unloading areas. The plan must shall describe measures that prevent or minimize contamination of precipitation/surface runoff from fuel oil unloading areas. At a minimum the permittee must shall consider using the following measures, or an equivalent:

(a) Use of containment curbs in unloading areas;

(b) During deliveries, having station personnel familiar with spill prevention and response procedures present to ensure that any leaks/spills are immediately contained and cleaned up; and

(c) Use of spill and overflow protection (e.g., drip pans, drip diapers, and/or other containment devices placed beneath fuel oil connectors to contain potential spillage during deliveries or from leaks at the connectors).

(4) Chemical loading/unloading areas. The permittee must shall describe and implement measures that prevent or minimize the contamination of precipitation/surface runoff from chemical loading/unloading areas. At a minimum the permittee must shall consider using the following measures (or their equivalents):

(a) Use of containment curbs at chemical loading/unloading areas to contain spills;

(b) During deliveries, having station personnel familiar with spill prevention and response procedures present to ensure that any leaks/spills are immediately contained and cleaned up; and

(c) Covering chemical loading/unloading areas, and storing chemicals indoors.

(5) Miscellaneous loading/unloading areas. The permittee shall describe and implement measures that prevent or minimize the contamination of storm water runoff from loading and unloading areas. The permittee shall consider the following, at a minimum (or their equivalents):

(a) covering the loading area;

(b) grading, berming, or curbing around the loading area to divert runon; or

(c) locating the loading/unloading equipment and vehicles so that leaks are contained in existing containment and flow diversion systems.

(6) Liquid storage tanks. The permittee shall describe and implement measures that prevent or minimize contamination of storm water runoff from aboveground liquid storage tanks. At a minimum the permittee must shall consider employing the following measures (or their equivalents):

(a) Use of protective guards around tanks;

(b) Use of containment curbs;

(c) Use of spill and overflow protection; and

(d) Use of dry cleanup methods.

(7) Large bulk fuel storage tanks. The permittee shall describe and implement measures that prevent or minimize contamination of storm water runoff from large bulk fuel storage tanks. At a minimum the permittee must shall consider employing containment berms (or its equivalent). The permittee shall also comply with applicable state and federal laws, including Spill Prevention Control and Countermeasures (SPCC).

(8) Spill reduction measures. The permittee shall describe and implement measures to reduce the potential for an oil/chemical spill, or reference the appropriate section of their SPCC plan. At a minimum the structural integrity of all aboveground tanks, pipelines, pumps and other related equipment shall be visually inspected on a weekly basis. All repairs deemed necessary based on the findings of the inspections shall be completed immediately to reduce the incidence of spills and leaks occurring from such faulty equipment.

(9) Oil bearing equipment in switchyards. The permittee shall describe and implement measures to prevent or minimize contamination of surface runoff from oil bearing equipment in switchyard areas. The permittee shall consider the use of level grades and gravel surfaces to retard flows and limit the spread of spills, and the collection of storm water runoff in perimeter ditches.

(10) Residue hauling vehicles. All residue hauling vehicles shall be inspected for proper covering over the load, adequate gate sealing and overall integrity of the container body. Vehicles without load coverings or adequate gate sealing, or with leaking containers or beds must shall be repaired as soon as practicable.

(11) Ash loading areas. The permittee shall describe and implement procedures to reduce or control the tracking of ash/residue from ash loading areas where practicable, clear the ash building floor and immediately adjacent roadways of spillage, debris and excess water before departure of each loaded vehicle.

(12) Areas adjacent to disposal ponds or landfills. The permittee shall describe and implement measures that prevent or minimize contamination of storm water runoff from areas adjacent to disposal ponds or landfills. The permittee must shall develop procedures to:

(a) Reduce ash residue which may be tracked on to access roads traveled by residue trucks or residue handling vehicles; and

(b) Reduce ash residue on exit roads leading into and out of residue handling areas.

(13) Landfills, scrapyards, surface impoundments, open dumps, general refuse sites. The plan must shall address and include appropriate BMPs for landfills, scrapyards, surface impoundments, open dumps and general refuse sites.

(14) Vehicle maintenance activities. For vehicle maintenance activities performed on the plant site, the permittee shall use the applicable BMPs outlined in Sector P (9VAC25-151-230).

(15) Material storage areas. The permittee shall describe and implement measures that prevent or minimize contamination of storm water runoff from material storage areas (including areas used for temporary storage of miscellaneous products, and construction materials stored in lay down lay-down areas). The permittee shall consider the use of the following measures (or their equivalents): flat yard grades; runoff collection in graded swales or ditches; erosion protection measures at steep outfall sites (e.g., concrete chutes, riprap, stilling basins); covering lay down lay-down areas; storing materials indoors; and covering materials temporarily with polyethylene, polyurethane, polypropylene, or hypalon. Storm water runon may be minimized by constructing an enclosure or building a berm around the area.

b. Comprehensive site compliance evaluation. As part of the evaluation, qualified facility personnel shall inspect the following areas on a monthly basis: coal handling areas, loading/unloading areas, switchyards, fueling areas, bulk storage areas, ash handling areas, areas adjacent to disposal ponds and landfills, maintenance areas, liquid storage tanks, and long term and short term material storage areas.

D. Numeric effluent limitations. Permittees with point sources of coal pile runoff associated with steam electric power generation must shall monitor these storm water discharges for the presence of TSS and for pH at least annually (one time per year) in accordance with PART I A 1 c (2).

E. Benchmark monitoring and reporting requirements. Steam electric power generating facilities are required to monitor their storm water discharges for the pollutant pollutants of concern listed in Table 220.

Table 220.
Sector O – Benchmark Monitoring Requirements.

Pollutants of Concern

Monitoring Cut-Off Benchmark Concentration

Steam Electric Generating Facilities (Industrial Activity Code "SE")

Total Recoverable Iron

1 1.0 mg/L

Total Suspended Solids (TSS)

100 mg/L

9VAC25-151-230. Sector P - Land transportation and warehousing.

A. Discharges covered under this section. The requirements listed under this section apply to storm water discharges associated with industrial activity from ground transportation facilities and rail transportation facilities (generally identified by SIC Codes 40, 41, 42, 43, and 5171), that have vehicle and equipment maintenance shops (vehicle and equipment rehabilitation, mechanical repairs, painting, fueling and lubrication) and/or equipment cleaning operations. Also covered under this section are facilities found under SIC Codes 4221 through 4225 (public warehousing and storage) that do not have vehicle and equipment maintenance shops and/or equipment cleaning operations.

B. Special conditions. Prohibition of nonstorm water discharges. This permit does not authorize the discharge of vehicle/equipment/surface washwater, including tank-cleaning operations. Such discharges must be authorized under a separate VPDES permit, discharged to a sanitary sewer in accordance with applicable industrial pretreatment requirements, or recycled on-site.

B. C. Storm water pollution prevention plan requirements. In addition to the requirements of Part III, the SWPPP shall include, at a minimum, the following items.

1. Site description. Site Map. The site map shall identify the locations of any of the following activities or sources and indicate whether the activities may be exposed to precipitation/surface runoff: fueling stations; vehicle/equipment maintenance or cleaning areas; storage areas for vehicle/equipment with actual or potential fluid leaks; loading/unloading areas; areas where treatment, storage or disposal of wastes occur; liquid storage tanks; processing areas; and storage areas; and all monitoring areas.

2. Summary of potential pollutant sources. The plan shall describe and assess the potential for the following to contribute pollutants to storm water discharges: on-site waste storage or disposal; dirt/gravel parking areas for vehicles awaiting maintenance; plumbing connections between shop floor drains and the stormwater conveyance system; and fueling areas.

3. Storm water controls.

a. Good housekeeping.

(1) Vehicle and equipment storage areas. The storage of vehicles and equipment awaiting maintenance with actual or potential fluid leaks must shall be confined to designated areas (delineated on the site map). The permittee shall consider the following measures (or their equivalents): the use of drip pans under vehicles and equipment; indoor storage of vehicles and equipment; installation of berms or dikes; use of absorbents; roofing or covering storage areas; and cleaning pavement surface to remove oil and grease.

(2) Fueling areas. The permittee shall describe and implement measures that prevent or minimize contamination of the storm water runoff from fueling areas. The permittee shall consider the following measures (or their equivalents): covering the fueling area; using spill/overflow protection and cleanup equipment; minimizing storm water runon/runoff to the fueling area; using dry cleanup methods; and treating and/or recycling collected storm water runoff.

(3) Material storage areas. Storage vessels of all materials (e.g., for used oil/oil filters, spent solvents, paint wastes, hydraulic fluids) must shall be maintained in good condition, so as to prevent contamination of storm water, and plainly labeled (e.g., "used oil," "spent solvents," etc.). The permittee shall consider the following measures (or their equivalents): indoor storage of the materials; installation of berms/dikes around the areas, minimizing runoff of storm water to the areas; using dry cleanup methods; and treating and/or recycling the collected storm water runoff.

(4) Vehicle and equipment cleaning areas. The permittee shall describe and implement measures that prevent or minimize contamination of storm water runoff from all areas used for vehicle/equipment cleaning. The permittee shall consider the following measures (or their equivalents): performing all cleaning operations indoors; covering the cleaning operation; ensuring that all washwaters drain to a proper collection system (i.e., not the storm water drainage system unless VPDES permitted); and treating and/or recycling the collected storm water runoff. Note: the discharge of vehicle/equipment wash waters, including tank cleaning operations, are not authorized by this permit and must be covered under a separate VPDES permit or discharged to a sanitary sewer in accordance with applicable industrial pretreatment requirements.

(5) Vehicle and equipment maintenance areas. The permittee shall describe and implement measures that prevent or minimize contamination of the storm water runoff from all areas used for vehicle/equipment maintenance. The permittee shall consider the following measures (or their equivalents): performing maintenance activities indoors; using drip pans; keeping an organized inventory of materials used in the shop; draining all parts of fluids prior to disposal; prohibiting wet clean up practices where the practices would result in the discharge of pollutants to storm water drainage systems; using dry cleanup methods; treating and/or recycling collected storm water runoff; and minimizing runon/runoff of storm water to maintenance areas.

(6) Locomotive sanding (loading sand for traction) areas. The plan must shall describe measures that prevent or minimize contamination of the storm water runoff from areas used for locomotive sanding. The permittee shall consider the following measures (or their equivalents): covering sanding areas; minimizing storm water runon/runoff; or appropriate sediment removal practices to minimize the off-site transport of sanding material by storm water.

b. Routine facility inspections. The following areas/activities shall be included in all inspections: storage area for vehicles/equipment awaiting maintenance; fueling areas; indoor and outdoor vehicle/equipment maintenance areas; material storage areas; vehicle/equipment cleaning areas; and loading/unloading areas.

c. Employee training. Employee training shall take place, at a minimum, annually (once per calendar year). Employee training must shall address the following as applicable: used oil and spent solvent management; fueling procedures; general good housekeeping practices; proper painting procedures; and used battery management.

d. Nonstorm water discharges Vehicle and equipment washwater requirements. For facilities that discharge vehicle and equipment washwaters to the sanitary sewer system, the operator of the sanitary system and associated treatment plant must be notified. In such cases, a copy of the notification letter must shall be attached to the plan. If an industrial user permit is issued under a pretreatment program, a reference to that permit must shall be in the plan. In all cases, any permit conditions or pretreatment requirements must shall be considered in the plan. If the washwaters are handled in another manner (e.g., hauled off-site), the disposal method must shall be described and all pertinent documentation (e.g., frequency, volume, destination, etc.) must shall be attached to the plan.

D. Benchmark monitoring and reporting requirements. Land transportation and warehousing facilities are required to monitor their storm water discharges for the pollutants of concern listed in Table 230.

Table 230.
Sector P - Benchmark Monitoring Requirements.

Pollutants of Concern

Benchmark Concentration

Land Transportation and Warehousing Facilities (SIC 4011, 4013, 4111-4173, 4212-4231, 4311, and 5171)

Total Petroleum Hydrocarbons (TPH) *

15.0 mg/L

Total Suspended Solids (TSS)

100 mg/L

* - Total Petroleum Hydrocarbons shall be analyzed using the Wisconsin Department of Natural Resources Modified Diesel Range Organics Method as specified in Wisconsin publication SW-141 (1995), or by EPA SW-846 Method 8015C for diesel range organics, or by EPA SW-846 Method 8270D. If Method 8270D is used, the lab must report the combination of diesel range organics and polynuclear aromatic hydrocarbons.

9VAC25-151-240. Sector Q - Water transportation.

A. Discharges covered under this section. The requirements listed under this section apply to storm water discharges associated with industrial activity from water transportation facilities (generally identified by SIC Major Group 44), that have vehicle (vessel) maintenance shops and/or equipment cleaning operations. The water transportation industry includes facilities engaged in foreign or domestic transport of freight or passengers in deep sea or inland waters; marine cargo handling operations; ferry operations; towing and tugboat services; and marinas.

B. Special conditions. Prohibition of nonstorm water discharges. In addition to the general nonstorm water prohibition in Part I B 1, the following discharges are not covered by this permit: bilge and ballast water, sanitary wastes, pressure wash water, and cooling water originating from vessels.

C. Storm water pollution prevention plan requirements. In addition to the requirements of Part III, the SWPPP shall include, at a minimum, the following items.

1. Site description.

a. Site map. The site map shall identify the locations where any of the following activities may be exposed to precipitation/surface runoff: fueling; engine maintenance/repair; vessel maintenance/repair, pressure washing; painting; sanding; blasting; welding; metal fabrication; loading/unloading areas; locations used for the treatment, storage or disposal of wastes; liquid storage tanks; liquid storage areas (e.g., paint, solvents, resins); and material storage areas (e.g., blasting media, aluminum, steel, scrap iron).

b. Summary of potential pollutant sources. The plan shall describe the following additional sources and activities that have potential pollutants associated with them: outdoor manufacturing or processing activities (i.e., welding, metal fabricating); and significant dust or particulate generating processes (e.g., abrasive blasting, sanding, painting).

2. Storm water controls.

a. Good housekeeping.

(1) Pressure washing area. If pressure washing is used to remove marine growth from vessels, the discharge water must be permitted by a separate VPDES permit. The SWPPP must shall describe: the measures to collect or contain the discharge from the pressure washing area; the method for the removal of the visible solids; the methods of disposal of the collected solids; and where the discharge will be released.

(2) Blasting and painting areas. The permittee must shall describe and implement measures to prevent spent abrasives, paint chips, and overspray from discharging into the receiving water or the storm sewer system. The permittee may consider containing all blasting/painting activities, or the use of other measures to prevent or minimize the discharge of contaminants (e.g., hanging plastic barriers or tarpaulins during blasting or painting operations to contain debris). Storm water conveyances shall be regularly cleaned to remove deposits of abrasive blasting debris and paint chips. The plan should shall include any standard operating practices with regard to blasting and painting activities, such as the prohibition of uncontained blasting/painting over open water, or the prohibition of blasting/painting during windy conditions which can render containment ineffective.

(3) Material storage areas. All containerized materials (fuels, paints, solvents, waste oil, antifreeze, batteries) (e.g., fuels, paints, solvents, waste oil, antifreeze, batteries) must shall be plainly labeled and stored in a protected, secure location away from drains. The permittee must shall describe and implement measures to prevent or minimize the contamination of precipitation/surface runoff from the storage areas. The plan must shall specify which materials are stored indoors and consider containment or enclosure for materials that are stored outdoors. The permittee must shall consider implementing an inventory control plan to limit the presence of potentially hazardous materials on-site. Where abrasive blasting is performed, the plan must shall specifically include a discussion on the storage and disposal of spent abrasive materials generated at the facility.

(4) Engine maintenance and repair areas. The permittee must shall describe and implement measures to prevent or minimize contamination of precipitation/surface runoff from all areas used for engine maintenance and repair. The permittee shall consider the following measures (or their equivalent): performing all maintenance activities indoors; maintaining an organized inventory of materials used in the shop; draining all parts of fluids prior to disposal; prohibiting the practice of hosing down the shop floor using dry cleanup methods; and treating and/or recycling storm water runoff collected from the maintenance area.

(5) Material handling areas. The permittee must shall describe and implement measures to prevent or minimize contamination of precipitation/surface runoff from material handling operations and areas (e.g., fueling, paint and solvent mixing, disposal of process wastewater streams from vessels). The permittee shall consider the following measures (or their equivalents): covering fueling areas; using spill/overflow protection; mixing paints and solvents in a designated area (preferably indoors or under a shed); and minimizing runon of storm water to material handling areas.

(6) Drydock activities. The plan must shall address the routine maintenance and cleaning of the drydock to minimize the potential for pollutants in the storm water runoff. The plan must shall describe the procedures for cleaning the accessible areas of the drydock prior to flooding and final cleanup after the vessel is removed and the dock is raised. Cleanup procedures for oil, grease, or fuel spills occurring on the drydock must shall also be included within the plan. The permittee shall consider the following measures (or their equivalents): sweeping rather than hosing off debris/spent blasting material from the accessible areas of the drydock prior to flooding; and having absorbent materials and oil containment booms readily available to contain/cleanup any spills.

(7) General yard area. The plan must shall include a schedule for routine yard maintenance and cleanup. Scrap metal, wood, plastic, miscellaneous trash, paper, glass, industrial scrap, insulation, welding rods, packaging, etc., must shall be routinely removed from the general yard area.

b. Preventative Maintenance. As part of the facility's preventive maintenance program, storm water management devices shall be inspected and maintained in a timely manner (e.g., oil/water separators and sediment traps cleaned to ensure that spent abrasives, paint chips and solids are intercepted and retained prior to entering the storm drainage system). Facility equipment and systems shall also be inspected and tested to uncover conditions that could cause breakdowns or failures resulting in discharges of pollutants to surface waters.

c. Routine facility inspections. The following areas shall be included in all monthly inspections: pressure washing area; blasting, sanding, and painting areas; material storage areas; engine maintenance and repair areas; material handling areas; drydock area; and general yard area.

d. Employee training. Training shall address, at a minimum, the following activities (as applicable): used oil management; spent solvent management; disposal of spent abrasives; disposal of vessel wastewaters; spill prevention and control; fueling procedures; general good housekeeping practices; painting and blasting procedures; and used battery management.

e. Comprehensive site compliance evaluation. The permittee shall conduct regularly scheduled evaluations at least once a year and address those areas contributing to a storm water discharge associated with industrial activity (e.g., pressure washing area, blasting/sanding areas, painting areas, material storage areas, engine maintenance/repair areas, material handling areas, and drydock area). These sources shall be inspected for evidence of, or the potential for, pollutants entering the drainage system.

D. Benchmark monitoring and reporting requirements. Water transportation facilities are required to monitor their storm water discharges for the pollutants of concern listed in Table 240.

Table 240.
Sector Q – Benchmark Monitoring Requirements.

Pollutants of Concern

Monitoring Cut-Off Benchmark Concentration

Water Transportation Facilities (SIC 4412-4499)

Total Recoverable Aluminum

750 μg/L

Total Recoverable Iron

1 1.0 mg/L

Total Recoverable Zinc

120 μg/L

Total Suspended Solids (TSS)

100 mg/L

9VAC25-151-250. Sector R - Ship and boat building or repair yards.

A. Discharges covered under this section. The requirements listed under this section apply to storm water discharges associated with industrial activity from facilities engaged in ship building and repairing and boat building and repairing (SIC Code 373). (According to the U.S. Coast Guard, a vessel 65 feet or greater in length is referred to as a ship and a vessel smaller than 65 feet is a boat.)

B. Special conditions. Prohibition of nonstorm water discharges. In addition to the general nonstorm water prohibition in Part I B 1, the following discharges are not covered by this permit: bilge and ballast water, pressure wash water, sanitary wastes, and cooling water originating from vessels.

C. Storm water pollution prevention plan requirements. In addition to the requirements of Part III, the SWPPP shall include, at a minimum, the following items.

1. Site description.

a. Site map. The site map shall identify the locations where any of the following activities may be exposed to precipitation/surface runoff: fueling; engine maintenance/repair; vessel maintenance/repair; pressure washing; painting; sanding; blasting; welding; metal fabrication; loading/unloading areas; locations used for the treatment, storage or disposal of wastes; liquid storage tanks; liquid storage areas (e.g., paint, solvents, resins); and material storage areas (e.g., blasting media, aluminum, steel, scrap iron).

b. Potential pollutant sources. The plan shall include a description of the following additional sources and activities that have potential pollutants associated with them (if applicable): outdoor manufacturing/processing activities (e.g., welding, metal fabricating); and significant dust/particulate generating processes (e.g., abrasive blasting, sanding, painting).

2. Storm water controls.

a. Good housekeeping measures.

(1) Pressure washing area. If pressure washing is used to remove marine growth from vessels, the discharge water must be permitted as a process wastewater by a separate VPDES permit.

(2) Blasting and painting areas. The permittee must shall describe and implement measures to prevent spent abrasives, paint chips and overspray from discharging into the receiving waterbody or the storm sewer system. To prevent the discharge of contaminants, the permittee shall consider containing all blasting/painting activities or using other methods, such as hanging plastic barriers or tarpaulins during blasting or painting operations to contain debris. Where necessary, the The plan should shall include a schedule for regularly cleaning storm systems to remove deposits of abrasive blasting debris and paint chips. The plan should shall include any standard operating practices with regard to blasting and painting activities, such as the prohibition of uncontained blasting/painting over open water or the prohibition of blasting/painting during windy conditions that can render containment ineffective.

(3) Material storage areas. All containerized materials (fuels, paints, solvents, waste oil, antifreeze, batteries) must shall be plainly labeled and stored in a protected, secure location away from drains. The permittee must shall describe and implement measures to prevent or minimize contamination of precipitation/surface runoff from the storage areas. The plan must shall specify which materials are stored indoors and consider containment or enclosure for materials that are stored outdoors. The permittee must shall consider implementing an inventory control plan to limit the presence of potentially hazardous materials on-site. Where abrasive blasting is performed, the plan must shall specifically include a discussion on the storage and disposal of spent abrasive materials generated at the facility.

(4) Engine maintenance and repair areas. The permittee must shall describe and implement measures to prevent or minimize contamination of precipitation/surface runoff from all areas used for engine maintenance and repair. The permittee shall consider the following measures (or their equivalent): performing all maintenance activities indoors; maintaining an organized inventory of materials used in the shop; draining all parts of fluids prior to disposal; prohibiting the practice of hosing down the shop floor; using dry cleanup methods; and treating and/or recycling storm water runoff collected from the maintenance area.

(5) Material handling areas. The permittee must shall describe and implement measures to prevent or minimize contamination of precipitation/surface runoff from material handling operations and areas (e.g., fueling, paint and solvent mixing, disposal of process wastewater streams from vessels). The permittee shall consider the following methods (or their equivalents): covering fueling areas; using spill/overflow protection; mixing paints and solvents in a designated area (preferably indoors or under a shed); and minimizing runon of storm water to material handling areas.

(6) Drydock activities. The plan must shall address the routine maintenance and cleaning of the drydock to minimize the potential for pollutants in the storm water runoff. The plan must shall describe the procedures for cleaning the accessible areas of the drydock prior to flooding and final cleanup after the vessel is removed and the dock is raised. Cleanup procedures for oil, grease, or fuel spills occurring on the drydock must shall also be included within the plan. The permittee shall consider the following measures (or their equivalents): sweeping rather than hosing off debris/spent blasting material from the accessible areas of the drydock prior to flooding and having absorbent materials and oil containment booms readily available to contain/cleanup any spills.

(7) General yard area. The plan must shall include a schedule for routine yard maintenance and cleanup. Scrap metal, wood, plastic, miscellaneous trash, paper, glass, industrial scrap, insulation, welding rods, packaging, etc., must shall be routinely removed from the general yard area.

b. Preventative maintenance. As part of the facility's preventive maintenance program, storm water management devices shall be inspected and maintained in a timely manner (e.g., oil/water separators and sediment traps cleaned to ensure that spent abrasives, paint chips and solids are intercepted and retained prior to entering the storm drainage system). Facility equipment and systems shall also be inspected and tested to uncover conditions that could cause breakdowns or failures resulting in discharges of pollutants to surface waters.

c. Routine facility inspections. The following areas shall be included in all monthly inspections: pressure washing area; blasting, sanding, and painting areas; material storage areas; engine maintenance/repair areas; material handling areas; drydock area; and general yard area.

d. Employee training. Training shall address, at a minimum, the following activities (as applicable): used oil management; spent solvent management; proper disposal of spent abrasives; proper disposal of vessel wastewaters, spill prevention and control; fueling procedures; general good housekeeping practices; painting and blasting procedures; and used battery management.

e. Comprehensive site compliance evaluation. The permittee shall conduct regularly scheduled evaluations at least once a year and address those areas contributing to a storm water discharge associated with industrial activity (e.g., pressure washing area, blasting/sanding areas, painting areas, material storage areas, engine maintenance/repair areas, material handling areas, and drydock area). These sources areas shall be inspected for evidence of, or the potential for, pollutants entering the drainage system.

D. Benchmark monitoring and reporting requirements. Ship and boat building or repairing yards are required to monitor their storm water discharges for the pollutants of concern listed in Table 250.

Table 250.
Sector R - Benchmark Monitoring Requirements.

Pollutants of Concern

Benchmark Concentration

Ship and Boat Building or Repairing Yards (SIC 3731, 3732)

Total Suspended Solids (TSS)

100 mg/L

9VAC25-151-260. Sector S - Air transportation.

A. Discharges covered under this section. The requirements listed under this section apply to storm water discharges associated with industrial activity from air transportation facilities including airports, airport terminal services, air transportation (scheduled and nonscheduled), flying fields, air courier services, and establishments engaged in operating and maintaining airports, and servicing, repairing or maintaining aircraft (generally classified under SIC Code 45), which have vehicle maintenance shops, material handling facilities, equipment cleaning operations or airport and/or aircraft deicing/anti-icing operations. For the purpose of this section, the term "deicing" is defined as the process to remove frost, snow, or ice and "anti-icing" is the process which prevents the accumulation of frost, snow, or ice. Only those portions of the facility that are either involved in vehicle maintenance (including vehicle rehabilitation, mechanical repairs, painting, fueling, and lubrication), equipment cleaning operations, or deicing/anti-icing operations are addressed under this section.

B. Special conditions.

1. Prohibition of nonstorm water discharges. In addition to the general nonstorm water prohibition in Part I B 1, the following discharges are not covered by this permit: aircraft, ground vehicle, runway and equipment washwaters, and dry weather discharges of deicing/anti-icing chemicals. These discharges must be covered by a separate VPDES permit.

2. Releases of reportable quantities of hazardous substances and oil. Each individual permittee is required to report spills as described at Part I B 2 3. If an airport authority is the sole permittee, then the sum total of all spills at the airport must shall be assessed against the reportable quantity. If the airport authority is a copermittee with other deicing/anti-icing operators at the airport, such as numerous different airlines, the assessed amount must shall be the summation of spills by each copermittee. If separate, distinct individual permittees exist at the airport, then the amount spilled by each separate permittee must shall be the assessed amount for the reportable quantity determination.

C. Storm water pollution prevention plan requirements. SWPPPs developed for areas of the facility occupied by tenants of the airport shall be integrated with the plan for the entire airport. For the purposes of this permit, tenants of the airport facility include airline passenger or cargo companies, fixed based operators and other parties who have contracts with the airport authority to conduct business operations on airport property and whose operations result in storm water discharges associated with industrial activity. In addition to the requirements of Part III, the SWPPP shall include, at a minimum, the following items.

1. Site description.

a. Site map. The site map shall identify where any the location of the following activities and indicate any of the activities that may be exposed to precipitation/surface runoff: aircraft and runway deicing/anti-icing operations; fueling stations; aircraft, ground vehicle and equipment maintenance/cleaning areas; and storage areas for aircraft, ground vehicles and equipment awaiting maintenance.

b. Summary of potential pollutant sources. A The plan shall include a narrative description of the potential pollutant sources from the following activities: aircraft, runway, ground vehicle and equipment maintenance and cleaning; aircraft and runway deicing/anti-icing operations (including apron and centralized aircraft deicing/anti-icing stations, runways, taxiways and ramps). Facilities which conduct deicing/anti-icing operations shall maintain a record of the types (including the Material Safety Data Sheets (MSDS)) and monthly quantities of deicing/anti-icing chemicals used, either as measured amounts, or in the absence of metering, as estimated amounts. This includes all deicing/anti-icing chemicals, not just glycols and urea (e.g., potassium acetate). Tenants and fixed-base operators who conduct deicing/anti-icing operations shall provide the above information to the airport authority for inclusion in the storm water pollution prevention plan for the entire facility.

The SWPPP shall define the average seasonal timeframe (e.g., December-February, October-March, etc.) during which deicing activities typically occur at the facility. Implementation of BMPs, facility inspections and monitoring shall be conducted with particular emphasis throughout the defined deicing season.

2. Storm water controls.

a. Good housekeeping.

(1) Aircraft, ground vehicle and equipment maintenance areas. The permittee must shall describe and implement measures that prevent or minimize the contamination of storm water runoff from all areas used for aircraft, ground vehicle and equipment maintenance (including the maintenance conducted on the terminal apron and in dedicated hangars). The following practices (or their equivalents) shall be considered: performing maintenance activities indoors; maintaining an organized inventory of materials used in the maintenance areas; draining all parts of fluids prior to disposal; preventing the practice of hosing down the apron or hangar floor; using dry cleanup methods; and collecting the storm water runoff from the maintenance area and providing treatment or recycling.

(2) Aircraft, ground vehicle and equipment cleaning areas. Permittees should shall ensure that cleaning of equipment is conducted in designated areas only and clearly identify these areas on the ground and delineate them on the site map. The permittee must shall describe and implement measures that prevent or minimize the contamination of the storm water runoff from cleaning areas.

(3) Aircraft, ground vehicle and equipment storage areas. The storage of aircraft, ground vehicles and equipment awaiting maintenance must shall be confined to designated areas (delineated on the site map). The following BMPs (or their equivalents) shall be considered: indoor storage of aircraft and ground vehicles; the use of drip pans for the collection of fluid leaks; and perimeter drains, dikes or berms surrounding storage areas.

(4) Material storage areas. Storage vessels of all materials (e.g., used oils, hydraulic fluids, spent solvents, and waste aircraft fuel) must shall be maintained in good condition, so as to prevent or minimize contamination of storm water, and plainly labeled (e.g., "used oil," "Contaminated Jet A," etc.). The permittee must shall describe and implement measures that prevent or minimize contamination of precipitation/runoff from storage areas. The following BMPs or their equivalents shall be considered: indoor storage of materials; centralized storage areas for waste materials; and installation of berms/dikes around storage areas.

(5) Airport fuel system and fueling areas. The permittee must shall describe and implement measures that prevent or minimize the discharge of fuels to the storm sewer/surface waters resulting from fuel servicing activities or other operations conducted in support of the airport fuel system. The following BMPs (or their equivalents) shall be considered: implementing spill and overflow practices (e.g., placing absorptive materials beneath aircraft during fueling operations); using dry cleanup methods; and collecting the storm water runoff.

b. Source reduction. Owners who conduct deicing/anti-icing operations shall consider alternatives to the use of urea and glycol-based deicing/anti-icing chemicals to reduce the aggregate amount of deicing/anti-icing chemicals used and/or lessen the environmental impact. Chemical options to replace ethylene glycol, propylene glycol and urea include: potassium acetate; magnesium acetate; calcium acetate; anhydrous sodium acetate.

(1) Runway deicing operations. Owners shall evaluate present application rates to ensure against excessive over application by analyzing application rates and adjusting as necessary, consistent with considerations of flight safety. Also the following BMP options shall be considered (or their equivalents): metered application of chemicals; prewetting dry chemical constituents prior to application; installation of runway ice detection systems; implementing anti-icing operations as a preventive measure against ice buildup.

(2) Aircraft deicing/anti-icing operations. Owners shall determine whether excessive application of deicing/anti-icing chemicals occurs, and adjust as necessary, consistent with considerations of flight safety. This evaluation should shall be carried out by the personnel most familiar with the particular aircraft and flight operations in question (versus an outside entity such as the airport authority). The use of alternative deicing/anti-icing agents as well as containment measures for all applied chemicals shall be considered. Also, the following BMP options (or their equivalents) shall be considered for reducing deicing fluid use: forced-air deicing systems; computer-controlled fixed-gantry systems; infrared technology; hot water; varying glycol content to air temperature; enclosed-basket deicing trucks; mechanical methods; solar radiation; hangar storage; aircraft covers; and thermal blankets for MD-80s and DC-9s. The use of ice-detection systems and airport traffic flow strategies and departure slot allocation systems shall also be considered.

c. Management of runoff. Where deicing/anti-icing operations occur, owners shall describe and implement a program to control or manage contaminated runoff to reduce the amount of pollutants being discharged from the site. The plan shall describe the controls used for collecting or containing contaminated melt water from collection areas used for disposal of contaminated snow. The following BMPs (or their equivalents) shall be considered: establishing a dedicated deicing facility with a runoff collection/recovery system; using vacuum/collection trucks; storing contaminated storm water/deicing fluids in tanks and releasing controlled amounts to a publicly owned treatment works; collecting contaminated runoff in a wet pond for biochemical decomposition (be aware of attracting wildlife that may prove hazardous to flight operations); and directing runoff into vegetative swales or other infiltration measures. The plan should shall consider the recovery of deicing/anti-icing materials when these materials are applied during nonprecipitation events (e.g., covering storm sewer inlets, using booms, installing absorptive interceptors in the drains, etc.) to prevent these materials from later becoming a source of storm water contamination. Used deicing fluid should shall be recycled whenever possible.

d. Routine facility inspections. The inspection frequency shall be specified in the plan. At a minimum, inspections shall be conducted once per month during deicing/anti-icing season (e.g., October through April for most airports). If deicing occurs before or after this period, the inspections shall be expanded to include all months during which deicing chemicals may be used. Also, if significantly or deleteriously large quantities of deicing chemicals are being spilled or discharged, or if water quality impacts have been reported, the inspection frequency shall be increased to weekly until such time as the chemical spills/discharges or impacts are reduced to acceptable levels. The director may specifically require increased inspections and the SWPPP to be reevaluated as necessary.

e. Comprehensive site compliance evaluation. The annual site compliance evaluations shall be conducted by qualified facility personnel during periods of actual deicing operations, if possible. If not practicable during active deicing or if the weather is too inclement, the evaluations shall be conducted when deicing operations are likely to occur and the materials and equipment for deicing are in place.

f. Vehicle and equipment washwater requirements. For facilities that discharge vehicle and equipment washwaters to the sanitary sewer system, the operator of the sanitary system and associated treatment plant must be notified. In such cases, a copy of the notification letter shall be attached to the plan. If an industrial user permit is issued under a pretreatment program, a reference to that permit shall be in the plan. In all cases, any permit conditions or pretreatment requirements shall be considered in the plan. If the washwaters are handled in another manner (e.g., hauled off-site), the disposal method shall be described and all pertinent documentation (e.g., frequency, volume, destination, etc.) shall be attached to the plan.

D. Benchmark monitoring and reporting requirements. Airports that use more than 100,000 gallons of glycol-based deicing/anti-icing chemicals and/or 100 tons or more of urea on an average annual basis shall sample their storm water discharges for the parameters listed in Table 260. Only those outfalls from the airport facility that collect runoff from areas where deicing/anti-icing activities occur must shall be monitored. The alternative certification provision of Part I A 3 b is not applicable to discharges covered under this section.

Table 260.
Sector S – Benchmark Monitoring Requirements.

Pollutants of Concern

Monitoring Cut-Off Benchmark Concentration

Facilities at airports that use more than 100,000 gallons of glycol-based deicing/anti-icing chemicals and/or 100 tons or more of urea on an average annual basis: monitor ONLY those outfalls from the airport facility that collect runoff from areas where deicing/anti-icing activities occur (SIC 45).

Biochemical Oxygen Demand (BOD5)

30 mg/L

Chemical Oxygen Demand (COD)

120 mg/L

Total Kjeldahl Nitrogen (TKN)

1.5 mg/L

pH

within the range 6.0 to 9 s.u.

Total Suspended Solids (TSS)

100 mg/L

9VAC25-151-270. Sector T - Treatment works.

A. Discharges covered under this section. The requirements listed under this section apply to storm water discharges associated with industrial activity from treatment works treating domestic sewage or any other sewage sludge or wastewater treatment device or system, used in the storage, treatment, recycling, and reclamation of municipal or domestic sewage, including lands dedicated to the disposal of sewage sludge that are located within the confines of the facility with a design flow of 1.0 MGD or more, or required to have an approved pretreatment program under 9VAC25-31-730 (Industrial Activity Code "TW"). Farm lands, domestic gardens or lands used for sludge management where sludge is beneficially reused and that are not physically located within the facility, or areas that are in compliance with § 405 of the CWA are not required to have permit coverage.

B. Special conditions. Prohibition of nonstorm water discharges. In addition to the general nonstorm water prohibition in Part I B 1, the following discharges are not covered by this permit: sanitary and industrial wastewater; and equipment/vehicle washwaters.

C. Storm water pollution prevention plan requirements. In addition to the requirements of Part III, the SWPPP shall include, at a minimum, the following items.

1. Site description.

a. Site map. The site map shall identify where any of the following may be exposed to precipitation/surface runoff: grit, screenings and other solids handling, storage or disposal areas; sludge drying beds; dried sludge piles; compost piles; septage or hauled waste receiving station; and storage areas for process chemicals, petroleum products, solvents, fertilizers, herbicides and pesticides.

b. Summary of potential pollutant sources. A The plan shall include a description of the potential pollutant sources from the following activities, as applicable: grit, screenings and other solids handling, storage or disposal areas; sludge drying beds; dried sludge piles; compost piles; septage or hauled waste receiving station; and access roads/rail lines.

2. Storm water controls.

a. Best Management Practices (BMPs). In addition to the other BMPs considered, the following BMPs shall be considered: routing storm water to the treatment works; or covering exposed materials (i.e., from the following areas: grit, screenings and other solids handling, storage or disposal areas; sludge drying beds; dried sludge piles; compost piles; septage or hauled waste receiving station).

b. Inspections. The following areas shall be included in all inspections: access roads/rail lines, grit, screenings and other solids handling, storage or disposal areas; sludge drying beds; dried sludge piles; compost piles; septage or hauled waste receiving station areas.

c. Employee training. Employee training must shall, at a minimum, address the following areas when applicable to a facility: petroleum product management; process chemical management; spill prevention and control; fueling procedures; general good housekeeping practices; proper procedures for using fertilizers, herbicides and pesticides.

d. Nonstorm water discharges. For facilities that discharge vehicle and equipment washwaters to the sanitary sewer system, the operator of the sanitary system and associated treatment plant must be notified. In such cases, a copy of the notification letter must be attached to the plan. If an industrial user permit is issued under a pretreatment program, a reference to that permit must be in the plan. These provisions do not apply if the discharger and the operator of the treatment works receiving the discharge are the same. In all cases, any permit conditions must be considered in the plan. If vehicle and equipment washwaters are handled in another manner (e.g., hauled off-site), the disposal method must be described and all pertinent documentation (e.g., frequency, volume, destination, etc.) must be attached to the plan.

9VAC25-151-280. Sector U - Food and kindred products.

A. Discharges covered under this section. The requirements listed under this section apply to storm water discharges associated with industrial activity from food and kindred products processing facilities (commonly identified by SIC Code 20), including: meat products; dairy products; canned, frozen and preserved fruits, vegetables, and food specialties; grain mill products; bakery products; sugar and confectionery products; fats and oils; beverages; and miscellaneous food preparations and kindred products and tobacco products manufacturing (SIC Code 21).

B. Special conditions. Prohibition of nonstorm water discharges. In addition to the general nonstorm water prohibition in Part I B 1, the following discharges are not covered by this permit: boiler blowdown, cooling tower overflow and blowdown, ammonia refrigeration purging, and vehicle washing/clean-out operations.

C. Storm water pollution prevention plan requirements. In addition to the requirements of Part III, the SWPPP shall include, at a minimum, the following items.

1. Site description.

a. Site map. The site map shall identify the locations of the following activities if they are exposed to precipitation/surface runoff: vents/stacks from cooking, drying, and similar operations; dry product vacuum transfer lines; animal holding pens; spoiled product; and broken product container storage areas.

b. Summary of potential pollutant sources. In addition to food and kindred products processing-related industrial activities, the plan must shall also describe application and storage of pest control chemicals (e.g., rodenticides, insecticides, fungicides, etc.) used on plant grounds.

2. Storm water controls.

a. Routine facility inspections. At a minimum, the following areas, where the potential for exposure to storm water exists, must shall be inspected on a monthly basis: loading and unloading areas for all significant materials; storage areas, including associated containment areas; waste management units; vents and stacks emanating from industrial activities; spoiled product and broken product container holding areas; animal holding pens; staging areas; and air pollution control equipment.

b. Employee training. The employee training program must shall also address pest control.

D. Benchmark monitoring and reporting requirements. Grain Dairy products, grain mills and fats and oils products facilities are required to monitor their storm water discharges for the pollutants of concern listed in Table 280.

Table 280.
Sector U – Benchmark Monitoring Requirements.

Pollutants of Concern

Monitoring Cut-Off Benchmark Concentration

Dairy Products (SIC 2021-2026)

Biochemical Oxygen Demand (BOD5)

30 mg/L

Total Suspended Solids (TSS)

100 mg/L

Grain Mill Products (SIC 2041-2048)

Total Kjeldahl Nitrogen (TKN)

1.5 mg/L

Total Suspended Solids (TSS)

100 mg/L

Fats and Oils Products (SIC 2074-2079)

Biochemical Oxygen Demand (BOD5)

30 mg/L

Total Nitrogen

2.2 mg/L

Total Suspended Solids (TSS)

100 mg/L

9VAC25-151-290. Sector V - Textile mills, apparel, and other fabric products.

A. Discharges covered under this section. The requirements listed under this section apply to storm water discharges associated with industrial activity from textile mills, apparel and other fabric product manufacturing, generally described by SIC 22 and 23. This section also covers facilities engaged in manufacturing finished leather and artificial leather products (SIC 31, except 3111). Facilities in this sector are primarily engaged in the following activities: textile mill products, of and regarding facilities and establishments engaged in the preparation of fiber and subsequent manufacturing of yarn, thread, braids, twine, and cordage, the manufacturing of broad woven fabrics, narrow woven fabrics, knit fabrics, and carpets and rugs from yarn; processes involved in the dyeing and finishing of fibers, yarn fabrics, and knit apparel; the integrated manufacturing of knit apparel and other finished articles of yarn; the manufacturing of felt goods (wool), lace goods, nonwoven fabrics, miscellaneous textiles, and other apparel products.

B. Special conditions. Prohibition of nonstorm water discharges. In addition to the general nonstorm water prohibition in Part I B 1, the following discharges are not covered by this permit: discharges of wastewater (e.g., wastewater as a result of wet processing or from any processes relating to the production process); reused/recycled water; and waters used in cooling towers. These discharges must be covered under a separate VPDES permit.

C. Storm water pollution prevention plan requirements. In addition to the requirements of Part III, the SWPPP shall include, at a minimum, the following items.

1. Site description. Summary of potential pollutant sources. A The plan shall include a description of the potential pollutant sources from the following activities: industry-specific significant materials and industrial activities (e.g., backwinding, beaming, bleaching, backing, bonding carbonizing, carding, cut and sew operations, desizing, drawing, dyeing, flocking locking, fulling, knitting, mercerizing, opening, packing, plying, scouring, slashing, spinning, synthetic-felt processing, textile waste processing, tufting, turning, weaving, web forming, winging, yarn spinning, and yarn texturing).

2. Storm water controls.

a. Good housekeeping measures.

(1) Material storage areas. All containerized materials (fuels, petroleum products, solvents, dyes, etc.) must (e.g., fuels, petroleum products, solvents, dyes, etc.) shall be clearly labeled and stored in a protected area, away from drains. The permittee must shall describe and implement measures that prevent or minimize contamination of storm water runoff from such storage areas, and must shall include a description of the containment area or enclosure for those materials that are stored outdoors. The permittee may consider an inventory control plan to prevent excessive purchasing of potentially hazardous substances. The permittee shall ensure that empty chemical drums/containers are clean (triple-rinsing should be considered) (triple-rinsing shall be considered) and residuals are not subject to contact with precipitation/runoff. Washwater from these cleanings must shall be collected and disposed of properly.

(2) Material handling area. The permittee must shall describe and implement measures that prevent or minimize contamination of the storm water runoff from materials handling operations and areas. The permittee shall consider the following measures (or their equivalents): use of spill/overflow protection; covering fueling areas; and covering and enclosing areas where the transfer of materials may occur. Where applicable, the plan must shall address the replacement or repair of leaking connections, valves, transfer lines and pipes that may carry chemicals, dyes, or wastewater.

(3) Fueling areas. The permittee must shall describe and implement measures that prevent or minimize contamination of the storm water runoff from fueling areas. The permittee shall consider the following measures (or their equivalents): covering the fueling area; using spill and overflow protection; minimizing runon of storm water to the fueling areas; using dry cleanup methods; and treating and/or recycling storm water runoff collected from the fueling area.

(4) Aboveground storage tank areas. The permittee must shall describe and implement measures that prevent or minimize contamination of the storm water runoff from aboveground storage tank areas, including the associated piping and valves. The permittee shall consider the following measures (or their equivalents): regular cleanup of these areas; preparation of a spill prevention control and countermeasure program; (SPCC) to provide spill and overflow protection; minimizing runon of storm water from adjacent areas; restricting access to the area; insertion of filters in adjacent catch basins; absorbent booms in unbermed fueling areas; use of dry cleanup methods; and permanently sealing drains within critical areas that may discharge to a storm drain.

b. Routine facility inspections. Inspections shall be conducted at least monthly, and shall include the following activities and areas (at a minimum): transfer and transmission lines; spill prevention; good housekeeping practices; management of process waste products; all structural and nonstructural management practices.

c. Employee training. Employee training must shall, at a minimum address, the following areas when applicable to a facility: use of reused/recycled waters; solvents management; proper disposal of dyes; proper disposal of petroleum products and spent lubricants; spill prevention and control; fueling procedures; and general good housekeeping practices.

d. Comprehensive Site Compliance Evaluation. Regularly scheduled evaluations shall be conducted at least once a year and address those areas contributing to a storm water discharge associated with industrial activity. Inspections should shall look for evidence of, or the potential for, pollutants entering the drainage system from the following areas, as appropriate: storage tank areas; waste disposal and storage areas; dumpsters and open containers stored outside; materials storage areas; engine maintenance and repair areas; material handling areas and loading dock areas.

9VAC25-151-310. Sector X - Printing and publishing.

A. Discharges covered under this section. The requirements listed under this section apply to storm water discharges associated with industrial activity from printing and publishing facilities (generally classified under SIC Major Group 27), and include the following types of facilities: newspaper, periodical, and book publishing and/or printing (SIC Codes 271 through 273); miscellaneous publishing (SIC Code 274); commercial printing (SIC Code 275); manifold business forms, greeting cards, bankbooks, looseleaf binders and book binding and related work (SIC Codes 276 through 278); and service industries for the printing trade (SIC 279).

B. Storm water pollution prevention plan requirements. In addition to the requirements of Part III, the SWPPP shall include, at a minimum, the following items:

1. Site description.

a. Site map. The site map shall identify where any of the following may be exposed to precipitation/surface runoff: aboveground storage tanks, drums and barrels permanently stored outside.

b. Summary of potential pollutant sources. The plan shall include a description of the following additional sources and activities that have potential pollutants associated with them, as applicable: loading and unloading operations; outdoor storage activities; significant dust or particulate generating processes; and on-site waste disposal practices (e.g., blanket wash). Also, the pollutant or pollutant parameter (e.g., oil and grease, scrap metal, etc.) associated with each pollutant source shall be identified (e.g., oil and grease, scrap metal, etc.).

2. Storm water controls.

a. Good housekeeping measures.

(1) Material storage areas. All containerized materials (skids, pallets, solvents, bulk inks, and hazardous waste, empty drums, portable/mobile containers of plant debris, wood crates, steel racks, fuel oil, etc.) should shall be properly labeled and stored in a protected area, away from drains. The permittee shall describe and implement measures that prevent or minimize contamination of the storm water runoff from such storage areas and shall include a description of the containment area or enclosure for those materials which are stored outdoors. The permittee may consider an inventory control plan to prevent excessive purchasing of potentially hazardous substances.

(2) Material handling areas. The permittee must shall describe and implement measures that prevent or minimize contamination of the storm water runoff from material handling operations and areas (e.g., blanket wash, mixing solvents, loading/unloading materials). The permittee shall consider the following measures (or their equivalents): the use of spill/overflow protection; covering fuel areas; and covering/enclosing areas where the transfer of materials may occur. Where When applicable, the plan must shall address the replacement or repair of leaking connections, valves, transfer lines and pipes that may carry chemicals, or wastewater.

(3) Fueling areas. The permittee must shall describe and implement measures that prevent or minimize contamination of the storm water runoff from fueling areas. The permittee shall consider the following measures (or their equivalents): covering the fueling area; using spill and overflow protection; minimizing runon of storm water to the fueling area; using dry cleanup methods; and treating and/or recycling storm water runoff collected from the fueling areas.

(4) Aboveground storage tank areas. The permittee must shall describe and implement measures that prevent or minimize contamination of the storm water runoff from aboveground storage tank areas, including the associated piping and valves. The permittee shall consider the following measures (or their equivalents): regular cleanup of these areas; preparation of a spill prevention control and countermeasure program; (SPCC) to provide spill and overflow protection; minimizing runon of storm water from adjacent facilities and properties; restricting access to the area; insertion of filters in adjacent catch basins; absorbent booms in unbermed fueling areas; use of dry cleanup methods; and permanently sealing drains within critical areas that may discharge to a storm drain.

b. Employee training. Employee training must shall, at a minimum, address the following areas when applicable to a facility: spent solvent management; spill prevention and control; used oil management; fueling procedures; and general good housekeeping practices.

9VAC25-151-320. Sector Y - Rubber, miscellaneous plastic products, and miscellaneous manufacturing industries.

A. Discharges covered under this section. The requirements listed under this section apply to storm water discharges associated with industrial activity from rubber and miscellaneous plastic products manufacturing facilities (SIC Major Group 30) and miscellaneous manufacturing industries, except jewelry, silverware, and plated ware (SIC Major Group 39, except 391).

B. Storm water pollution prevention plan requirements. In addition to the requirements of Part III, the SWPPP shall include, at a minimum, the following items:

1. Site description. Summary of potential pollutant sources. The permittee Rubber manufacturing facilities shall review the use of zinc at the facility and the possible pathways through which zinc may be discharged in storm water runoff.

2. Storm water controls.

a. Controls for rubber manufacturers. The permittee Rubber manufacturing facilities shall describe and implement specific controls to minimize the discharge of zinc in storm water discharges from the facility. The following Subdivision 2 of this subsection lists possible sources of zinc. These shall be reviewed and the accompanying BMPs (or their equivalents) shall be considered in the SWPPP. Also, some general BMP options to consider include: using chemicals that are purchased in pre-weighed, sealed polyethylene bags; storing materials that are in use in sealable containers; ensuring an airspace between the container and the cover to minimize "puffing" losses when the container is opened; and using automatic dispensing and weighing equipment.

a. (1) Inadequate housekeeping. All permittees shall review the handling and storage of zinc bags at their facilities and consider the following BMP options: employee training regarding the handling/storage of zinc bags; indoor storage of zinc bags; cleanup of zinc spills without washing the zinc into the storm drain; and the use of 2,500-pound sacks of zinc rather than 50- to 100-pound sacks.

b. (2) Dumpsters. The following BMPs shall be considered to reduce discharges of zinc from dumpsters: providing a cover for the dumpster; move the dumpster to an indoor location; or provide a lining for the dumpster.

c. (3) Malfunctioning dust collectors or baghouses. Permittees shall review dust collectors/baghouses as possible sources in zinc in storm water runoff. Improperly operating dust collectors/baghouses shall be replaced or repaired as appropriate.

d. (4) Grinding operations. Permittees shall review dust generation from rubber grinding operations at their facility and, as appropriate, install a dust collection system.

e. (5) Zinc stearate coating operations. Permittees shall include in the SWPPP appropriate measures to prevent or clean up drips/spills of zinc stearate slurry that may be released to the storm drain. Alternate compounds to zinc stearate shall also be considered.

b. Controls for plastic products manufacturers. Plastic products manufacturing facilities shall describe and implement specific controls to minimize the discharge of plastic resin pellets in stormwater discharges from the facility. The following BMPs (or their equivalents) shall be considered in the SWPPP: minimizing spills; cleaning up of spills promptly and thoroughly; sweeping thoroughly; pellet capturing; employee education; and disposal precautions.

C. Benchmark monitoring and reporting requirements. Rubber product manufacturing facilities are required to monitor their storm water discharges for the pollutants of concern listed in Table 320.

Table 320.
Sector Y – Benchmark Monitoring Requirements.

Pollutants of Concern

Monitoring Cut-Off Benchmark Concentration

Tires and Inner Tubes; Rubber Footwear; Gaskets, Packing and Sealing Devices; Rubber Hose and Belting; and Fabricated Rubber Products, Not Elsewhere Classified (SIC 3011-3069).

Total Recoverable Zinc

120 µg/L

Total Recoverable Lead

120 µg/L

Total Suspended Solids (TSS)

100 mg/L

9VAC25-151-330. Sector Z - Leather tanning and finishing.

A. Discharges covered under this section. The requirements listed under this section apply to storm water discharges associated with industrial activity from leather tanning, currying and finishing (commonly identified by SIC Code 3111).

B. Storm water pollution prevention plan requirements. In addition to the requirements of Part III, the SWPPP shall include, at a minimum, the following items.

1. Site description.

a. Site map. The site map shall identify where any of the following may be exposed to precipitation/surface runoff: processing and storage areas of the beamhouse, tanyard, retan-wet finishing and dry finishing operations; and haul roads, access roads and rail spurs.

b. Summary of potential pollutant sources. A description of potential pollutant sources including (as appropriate): temporary or permanent storage of fresh and brine cured hides; chemical drums, bags, containers and aboveground tanks; leather dust, scraps, trimmings and shavings; spent solvents; extraneous hide substances and hair; empty chemical containers and bags; floor sweepings/washings; refuse and, waste piles and sludge; and significant dust/particulate generating processes (e.g., buffing).

2. Storm water controls.

a. Good housekeeping.

(1) Storage areas for raw, semiprocessed, or finished tannery by-products. Pallets/bales of raw, semiprocessed or finished tannery by-products (e.g., splits, trimmings, shavings, etc.) should shall be stored indoors or protected by polyethylene wrapping, tarpaulins, roofed storage area or other suitable means. Materials should shall be placed on an impermeable surface, the area should shall be enclosed or bermed, or other equivalent measures should shall be employed to prevent runon/runoff of storm water.

(2) Material storage areas. Label storage Storage units of all materials should be labeled (e.g., specific chemicals, hazardous materials, spent solvents, waste materials). Describe The permittee shall describe and implement measures that prevent or minimize contact with storm water.

(3) Buffing and shaving areas. The permittee must shall describe and implement measures that prevent or minimize contamination of the storm water runoff with leather dust from buffing/shaving areas. The permittee may consider dust collection enclosures, preventive inspection/maintenance programs or other appropriate preventive measures.

(4) Receiving, unloading, and storage areas. The permittee must shall describe and implement measures that prevent or minimize contamination of the storm water runoff from receiving, unloading, and storage areas. The following measures (or their equivalents) shall be considered for exposed receiving, unloading and storage areas: hides and chemical supplies protected by a suitable cover; diversion of drainage to the process sewer; and grade berming/curbing area to prevent runoff of storm water.

(5) Outdoor storage of contaminated equipment. The permittee must shall describe and implement measures that prevent or minimize contact of storm water with contaminated equipment. The following measures (or their equivalents) shall be considered: equipment protected by suitable cover; diversion of drainage to the process sewer; thorough cleaning prior to storage.

(6) Waste management. The permittee must shall describe and implement measures that prevent or minimize contamination of the storm water runoff from waste storage areas. The permittee shall consider the following measures (or their equivalents): inspection/maintenance programs for leaking containers or spills; covering dumpsters; moving waste management activities indoors; covering waste piles with temporary covering material such as tarpaulins or polyethylene; and minimizing storm water runoff by enclosing the area or building berms around the area.

C. Benchmark monitoring and reporting requirements. Leather tanning and finishing facilities are required to monitor their storm water discharges for the pollutants of concern listed in Table 330.

Table 330.
Sector Z – Benchmark Monitoring Requirements.

Pollutants of Concern

Monitoring Cut-Off Benchmark Concentration

Leather Tanning and Finishing (SIC 3111)

Total Kjeldahl Nitrogen (TKN)

1.5 mg/L

Total Suspended Solids (TSS)

100 mg/L

9VAC25-151-340. Sector AA - Fabricated metal products.

A. Discharges covered under this section. The requirements listed under this section apply to storm water discharges associated with industrial activity from the fabricated metals industry listed below, except for electrical related industries: fabricated metal products, except machinery and transportation equipment (SIC Code 34); and jewelry, silverware, and plated ware (SIC Code 391).

B. Storm water pollution prevention plan requirements. In addition to the requirements of Part III, the SWPPP shall include, at a minimum, the following items.

1. Site description.

a. Site Map. The site map shall identify where any of the following may be exposed to precipitation/surface runoff: raw metal storage areas; finished metal storage areas; scrap disposal collection sites; equipment storage areas; retention and detention basins; temporary/permanent diversion dikes or berms; right-of-way or perimeter diversion devices; sediment traps/barriers; processing areas including outside painting areas; wood preparation; recycling; and raw material storage.

b. Spills and Leaks. When listing significant spills/leaks, the permittee shall pay attention to the following materials, at a minimum: chromium, toluene, pickle liquor, sulfuric acid, zinc and other water priority chemicals and hazardous chemicals and wastes.

c. Summary of potential pollutant sources. A The plan shall include a description of the potential pollutant sources from the following activities: loading and unloading operations for paints, chemicals and raw materials; outdoor storage activities for raw materials, paints, empty containers, corn cob, chemicals, scrap metals; outdoor manufacturing or processing activities such as grinding, cutting, degreasing, buffing, brazing, etc.; and on-site waste disposal practices for spent solvents, sludge, pickling baths, shavings, ingots pieces, refuse and waste piles.

2. Storm water controls.

a. Good housekeeping.

(1) Raw steel handling storage. Describe The permittee shall describe and implement measures controlling or recovering scrap metals, fines, and iron dust, including measures for containing materials within storage handling areas.

(2) Paints and painting equipment. Describe The permittee shall describe and implement measures to prevent or minimize exposure of paint and painting equipment from exposure to storm water.

b. Spill prevention and response procedures. The permittee shall ensure that the necessary equipment to implement a clean up is available to personnel. The following areas should shall be addressed:

(1) Metal fabricating areas. Describe The permittee shall describe and implement measures for maintaining clean, dry, orderly conditions in these areas. Use of dry clean-up techniques should shall be considered in the plan.

(2) Storage areas for raw metal. Describe The permittee shall describe and implement measures to keep these areas free of conditions that could cause spills or leakage of materials. The following measures (or their equivalents) should shall be considered: storage areas maintained such that there is easy access in the event of a spill; stored materials labeled to aid in identifying spill contents.

(3) Receiving, unloading, and storage areas. Describe The permittee shall describe and implement measures to prevent spills and leaks; plan for quick remedial clean up and instruct employees on clean-up techniques and procedures.

(4) Storage of equipment. Describe The permittee shall describe and implement measures for preparing equipment for storage and the proper method to store equipment. The following measures (or their equivalents) shall be considered: protecting with covers; storing indoors; and cleaning potential pollutants from equipment to be stored outdoors.

(5) Metal working fluid storage areas. Describe The permittee shall describe and implement measures for storage of metal working fluids.

(6) Cleaners and rinse water. Describe The permittee shall describe and implement measures to control/cleanup spills of solvents and other liquid cleaners; control sand buildup and disbursement from sand-blasting operations; and prevent exposure of recyclable wastes. Environmentally benign cleaners should shall be substituted when possible.

(7) Lubricating oil and hydraulic fluid operations. Consider The permittee shall consider using devices or monitoring equipment or other devices to detect and control leaks/overflows. Consider the The installation of perimeter controls such as dikes, curbs, grass filter strips, or other equivalent measures shall also be considered.

(8) Chemical storage areas. Describe The permittee shall describe and implement proper storage methods that prevent storm water contamination and accidental spillage. The plan should shall include a program to inspect containers, and identify proper disposal methods.

c. Inspections. Metal fabricators shall at a minimum include the following areas for inspection: raw metal storage areas; finished product storage areas; material and chemical storage areas; recycling areas; loading and unloading areas; equipment storage areas; paint areas; and vehicle fueling and maintenance areas.

d. Comprehensive site compliance evaluation. The site compliance evaluation shall also include inspections of: areas associated with the storage of raw metals; storage of spent solvents and chemicals; outdoor paint areas; and roof drainage. Potential pollutants include chromium, zinc, lubricating oil, solvents, aluminum, oil and grease, methyl ethyl ketone, steel and other related materials.

C. Benchmark monitoring and reporting requirements. Metal fabricating facilities are required to monitor their storm water discharges for the pollutants of concern listed in Table 340.

Table 340.
Sector AA – Benchmark Monitoring Requirements.

Pollutants of Concern

Monitoring Cut-Off Benchmark Concentration

Fabricated Metal Products Except Coating (SIC 3411-3471, 3482-3499, 3911-3915)

Total Recoverable Aluminum

750 µg/L

Total Recoverable Iron

1 1.0 mg/L

Total Recoverable Zinc

120 µg/L

Total Suspended Solids (TSS)

100 mg/L

Fabricated Metal Coating and Engraving (SIC 3479)

Total Recoverable Zinc

120 µg/L

Total Suspended Solids (TSS)

100 mg/L

9VAC25-151-350. Sector AB - transportation equipment, industrial, or commercial machinery.

A. Discharges covered under this section. The requirements listed under this section apply to storm water discharges associated with industrial activity from transportation equipment, industrial or commercial machinery manufacturing facilities (commonly described by SIC Major Group 35 (except SIC Code 357), and SIC Major Group 37 (except SIC Code 373)).

B. Storm water pollution prevention plan requirements. In addition to the requirements of Part III, the SWPPP shall include, at a minimum, the following items:

1. Site description. Site map. The site map shall identify where any of the following may be exposed to precipitation/surface runoff: vents and stacks from metal processing and similar operations.

2. Storm water controls. Nonstorm water discharges. For facilities that discharge wastewater, other than solely domestic wastewater, to the sanitary sewer system, the permittee must shall notify the operator of the sanitary sewer and associated treatment works of its discharge. In such cases, a copy of a notification letter must shall be attached to the plan. Any specific permit conditions must shall be considered in the plan.

9VAC25-151-360. Sector AC - Electronic, electrical equipment and components, photographic and optical goods.

A. Discharges covered under this section. The requirements listed under this section apply to storm water discharges associated with industrial activity from facilities that manufacture: electronic and other electrical equipment and components, except computer equipment (SIC Major Group 36); measuring, analyzing, and controlling instruments; photographic, medical and optical goods; watches and clocks (SIC Major Group 38) and computer and office equipment (SIC Code 357).

B. Additional requirements. No additional sector-specific requirements apply to this sector.

C. Benchmark monitoring and reporting requirements. Electronic and electrical equipment and components facilities (except computers) (SIC 3612-3699) are required to monitor their storm water discharges for the pollutants of concern listed in Table 360.

Table 360.
Sector AC - Benchmark Monitoring Requirements.

Pollutants of Concern

Benchmark Concentration

Electronic and Electrical Equipment and Components, except Computers (SIC 3612-3699)

Total Recoverable Copper

18 µg/L

Total Recoverable Lead

120 μg/L

Total Suspended Solids (TSS)

100 mg/L

9VAC25-151-370. Sector AD - Nonclassified facilities/storm water discharges designated by the board as requiring permits.

A. Discharges covered under this section. Sector AD is used to provide permit coverage for facilities designated by the board as needing a storm water permit, or any discharges of industrial activity that do not meet the description of an industrial activity covered by Sectors A-AC. Therefore, almost any type of storm water discharge could be covered under this sector. Permittees must shall be assigned to Sector AD by the director and may not choose Sector AD as the sector describing the facility's activities.

B. Additional requirements. No additional sector-specific requirements apply to this sector.

C. Benchmark monitoring and reporting requirements. Nonclassified facilities/storm water discharges designated by the board as requiring permits are required to monitor their storm water discharges for the pollutants of concern listed in Table 370.

Table 370.
Sector AD - Benchmark Monitoring Requirements.

Pollutants of Concern

Benchmark Concentration

Nonclassified Facilities/Storm Water Discharges Designated By the Board As Requiring Permits

Total Suspended Solids (TSS)

100 mg/L

NOTICE: The forms used in administering the above regulation are not being published; however, the name of each form is listed below. The forms are available for public inspection by contacting the agency contact for this regulation, or at the office of the Registrar of Regulations, General Assembly Building, 2nd Floor, Richmond, Virginia.

FORMS (9VAC25-151)

Department of Environmental Quality Water Quality Division Permit Application Fee Form (rev. 7/02) (rev. 1/08).

VPDES General Permit Registration Statement – Industrial Activity Storm Water Discharges, SWGP VAR05-RS (eff. 7/04) (eff. 7/09).

VPDES General Permit Notice of Termination – Industrial Activity Storm Water Discharges, SWGP VAR05-NOT (eff. 7/04) (eff. 7/09).

Virginia Pollutant Discharge Elimination System (VPDES) Discharge Monitoring Report (DMR) – Industrial Activity Storm Water Discharges (eff. 7/04) (eff. 7/09).

VPDES Change of Ownership Agreement Form.

DOCUMENTS INCORPORATED BY REFERENCE (9VAC25-151)

Standard Industrialization Classification (SIC) Manual, 1987, Office of Management and Budget.

Modified DRO Method for Determining Diesel Range Organics, PUBL-SW-141, September 1995, Wisconsin Department of Natural Resources.

Method 8015C, Nonhalogenated Organics Using GC/FID, Revision 3, February 2007, U.S. Government Printing Office.

Method 8270D, Semivolatile Organic Compounds by Gas Chromatography/Mass Spectrometry (GC/MS), Revision 4, February 2007, U.S. Government Printing Office.

VA.R. Doc. No. R08-1078; Filed October 22, 2008, 10:51 a.m.
TITLE 9. ENVIRONMENT
DEPARTMENT OF ENVIRONMENTAL QUALITY
Final Regulation

REGISTRAR'S NOTICE: The State Water Control Board has claimed an exemption 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 or the appropriation act 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.

Title of Regulation: 9VAC25-210. Virginia Water Protection Permit Program Regulation (amending 9VAC25-210-10, 9VAC25-210-50, 9VAC25-210-60, 9VAC25-210-130, 9VAC25-210-220).

Statutory Authority: § 62.1-44.155 of the Code of Virginia; § 401 of the Clean Water Act.

Effective Date: December 10, 2008.

Agency Contact: David L. Davis, Department of Environmental Quality, 629 East Main Street, P.O. Box 1105, Richmond, VA 23218, telephone (804) 698-4105, FAX (804) 698-4032, or email dldavis@deq.virginia.gov.

Summary:

No Virginia Water Protection permit is required for the construction and maintenance of agricultural or silvicultural ponds or impoundments that meet specific criteria of the Virginia Soil and Water Conservation Board pursuant to Article 2 (§ 10.1-604 et seq.) of Chapter 6 of Title 10.1 of the Code of Virginia. The amendments conform the regulation to the Code of Virginia. Additionally, several processing forms used by the Virginia Water Permit program are updated.

9VAC25-210-10. Definitions.

Unless a different meaning is required by the context, the following terms as used in this chapter shall have the following meanings:

"Act" or "Clean Water Act" means 33 USC § 1251 et seq. as amended 1987.

"Adjacent" means bordering, contiguous or neighboring; wetlands separated from other surface water by man-made dikes or barriers, natural river berms, sand dunes and the like are adjacent wetlands.

"Affected stream reach" means the portion of a surface water body beginning at the location of a withdrawal and ending at a point where effects of the withdrawal are not reasonably expected to adversely affect beneficial uses.

"Agricultural surface water withdrawal" means a withdrawal of surface water in Virginia or from the Potomac River for the purpose of agricultural, silvicultural, horticultural, or aquacultural operations. Agricultural surface water withdrawals include withdrawals for turf farm operations, but do not include withdrawals for landscaping activities, or turf installment and maintenance associated with landscaping activities.

"Applicant" means a person applying for a VWP individual permit or VWP general permit authorization.

"Aquatic environment" means surface waters and the habitat they provide, including both plant and animal communities.

"Avoidance" means not taking or modifying a proposed action or parts of an action so that there is no adverse impact to the aquatic environment.

"Beneficial use" means both instream and offstream uses. Instream beneficial uses include, but are not limited to: the protection of fish and wildlife habitat; maintenance of waste assimilation; recreation; navigation; and cultural and aesthetic values. Offstream beneficial uses include, but are not limited to: domestic (including public water supply); agricultural; electric power generation; and commercial and industrial uses.

"Best management practices (BMPs)" means a schedule of activities, prohibition of practices, maintenance procedures and other management practices that prevent or reduce the pollution of surface waters.

"Board" means the State Water Control Board.

"Channelization of streams" means alteration of a stream by widening, deepening, straightening, cleaning, or paving.

"Compensation" or "compensatory mitigation" means actions taken that provide some form of substitute aquatic resource for the impacted aquatic resource.

"Consumptive water use" means the withdrawal of surface waters, without recycle of said waters to their source of origin.

"Creation" means the establishment of a wetland or other aquatic resource where one did not formerly exist.

"Cross-sectional sketch" means a scaled graph or plot that represents the plane made by cutting across an object at right angles to its length. For purposes of this regulation, objects may include, but are not limited to, a surface water body or a portion of it, a man-made channel, an above-ground structure, a below-ground structure, a geographical feature, or the ground surface itself.

"Director" means the Director of the Department of Environmental Quality (DEQ) or an authorized representative.

"Discharge" means, when used without qualification, a discharge of a pollutant, or any addition of any pollutant or combination of pollutants, to state waters or waters of the contiguous zone or ocean other than a discharge from a vessel or other floating craft when being used as a means of transportation.

"Draft VWP permit" means a document indicating the board's tentative decision relative to a VWP permit action.

"Draining" means human-induced activities such as ditching, excavation, installation of tile drains, hydrologic modification by surface water runoff diversion, pumping water from wells, or similar activities such that the activities have the effect of artificially dewatering the wetland or altering its hydroperiod.

"Dredged material" means material that is excavated or dredged from surface waters.

"Dredging" means a form of excavation in which material is removed or relocated from beneath surface waters.

"Drought" means that a Severe Intensity Drought (D2) has been declared by the weekly "U.S. Drought Monitor" for the location in which the withdrawal is located.

"Ecologically preferable" means capable of providing a higher likelihood of replacing existing wetland or stream functions and values, water quality and fish and wildlife resources than alternative proposals.

"Emergency Virginia Water Protection Permit" means a Virginia Water Protection Permit issued pursuant to § 62.1-44.15:22 C of the Code of Virginia authorizing a new or increased surface water withdrawal to address insufficient public drinking water supplies that are caused by a drought and may result in a substantial threat to human health or public safety.

"Enhancement" means activities conducted in existing wetlands or other portions of the aquatic environment that increase one or more aquatic functions or values.

"Excavate" or "excavation" means ditching, dredging, or mechanized removal of earth, soil or rock.

"Fill" means replacing portions of surface water with upland, or changing the bottom elevation of a surface water for any purpose, by placement of any pollutant or material including but not limited to rock, sand, earth, and man-made materials and debris.

"Fill material" means any pollutant which replaces portions of surface water with dry land or which changes the bottom elevation of a surface water for any purpose.

"General permit" means a permit authorizing a specified category of activities.

"Geographic area of a delineated wetland" means the area contained within and up to a wetland boundary determined by delineation methods consistent with this chapter.

"Impacts" means results caused by human-induced activities conducted in surface waters, as specified in § 62.1-44.15:20 A of the Code of Virginia.

"Impairment" means the damage, loss or degradation of the functions and values of state waters.

"In-lieu fee fund" means a monetary fund operated by a nonprofit organization or governmental agency which receives financial contributions from persons impacting wetlands or streams pursuant to an authorized permitted activity and which expends the moneys received to provide consolidated compensatory mitigation for permitted wetland or stream impacts.

"Intake structure" means any portion of a withdrawal system used to withdraw surface water that is located within the surface water, such as, but not limited to, a pipe, culvert, hose, tube, or screen.

"Isolated wetlands of minimal ecological value" means those wetlands that: (i) do not have a surface water connection to other state waters; (ii) are less than one-tenth of an acre (0.10 acre or 4,356 square feet) in size; (iii) are not located in a Federal Emergency Management Agency designated 100-year floodplain; (iv) are not identified by the Virginia Natural Heritage Program as a rare or state significant natural community; (v) are not forested; and (vi) do not contain listed federal or state threatened or endangered species.

"Joint Permit Application (JPA)" means an application form that is used to apply for permits from the Norfolk District Army Corps of Engineers, the Virginia Marine Resources Commission, the Virginia Department of Environmental Quality, and local wetland boards for work in waters of the United States and in surface waters of Virginia.

"Law" means the State Water Control Law of Virginia.

"Major surface water withdrawal" means a surface water withdrawal of 90 million gallons per month (mgm) or greater.

"Minimization" means lessening impacts by reducing the degree or magnitude of the proposed action and its implementation.

"Minor surface water withdrawal" means a surface water withdrawal of less than 90 million gallons per month (mgm).

"Mitigation" means sequentially avoiding and minimizing impacts to the maximum extent practicable, and then compensating for remaining unavoidable impacts of a proposed action.

"Mitigation bank" means a site providing off-site, consolidated compensatory mitigation that is developed and approved in accordance with all applicable federal and state laws or regulations for the establishment, use and operation of mitigation banks, and is operating under a signed banking agreement.

"Mitigation banking" means compensating for unavoidable wetland or stream losses in advance of development actions through the sale, purchase or use of credits from a mitigation bank.

"Multi-project mitigation site" means an area of wetland restoration, creation, enhancement and, in appropriate circumstances, preservation of wetlands or streams or upland buffers adjacent to wetlands or other state waters, that is or has been utilized to meet compensation requirements for more than one project but that is not a mitigation bank.

"Nationwide permit" means a general permit issued by the USACE under 40 CFR Part 241 and, except where suspended by individual USACE Corps Districts, applicable nationwide.

"Normal agricultural activities" means those activities defined as an agricultural operation in § 3.1-22.29 § 3.2-300 of the Code of Virginia and any activity that is conducted as part of or in furtherance of such agricultural operation, but shall not include any activity for which a permit would have been required as of January 1, 1997, under 33 USC § 1344 or any regulations promulgated pursuant thereto.

"Normal residential gardening, lawn and landscape maintenance" means ongoing noncommercial residential activities conducted by or on behalf of an individual occupant, including mowing, planting, fertilizing, mulching, tilling, vegetation removal by hand or by hand tools, placement of decorative stone, fencing and play equipment. Other appurtenant noncommercial activities, provided that they do not result in the conversion of a wetland to upland or to a different wetland type, may also be included.

"Normal silvicultural activities" means any silvicultural activity as defined in § 10.1-1181.1 of the Code of Virginia, and any activity that is conducted as part of or in furtherance of such silvicultural activity, but shall not include any activity for which a permit would have been required as of January 1, 1997, under 33 USC § 1344 or any regulations promulgated pursuant thereto.

"Out-of-kind mitigation" means compensatory mitigation that does not replace the same type of wetland or surface water as was impacted, but does replace lost wetland or surface water functions, values, or beneficial uses.

"Permanent flooding or impounding" means a permanent increase in the duration or depth of standing water on a land surface, such as from a dam. Permanent increases in duration or depth of standing water that result from extended-detention basins and enhanced extended-detention basins, when designed, constructed, and maintained to function in accordance with Virginia Department of Conservation and Recreation (DCR) standards for such facilities (Virginia Stormwater Management Handbook, First Edition, 1999, Volume 1, Chapter 3), or when designed in accordance with local standards that, at a minimum, meet the DCR standards, are not considered to be permanent flooding and impounding.

"Permanent impacts" are those impacts to surface waters, including wetlands that cause a permanent alteration of the physical, chemical, or biological properties of the surface waters or of the functions and values of a wetland.

"Permittee" means the person who holds a VWP individual or general permit.

"Person" means one or more individuals, a corporation, a partnership, an association, a governmental body, a municipal corporation, or any other legal entity.

"Plan view sketch" means a scaled graph or plot that represents the view of an object as projected onto orthogonal planes. For purposes of this regulation, objects may include, but are not limited to, structures, contours, or boundaries.

"Pollutant" means any substance, radioactive material, or heat which causes or contributes to, or may cause or contribute to pollution.

"Pollution" means such alteration of the physical, chemical or biological properties of any state waters as will or is likely to create a nuisance or render such waters: (i) harmful or detrimental or injurious to the public health, safety or welfare, or to the health of animals, fish or aquatic life; (ii) unsuitable with reasonable treatment for use as present or possible future sources of public water supply; or (iii) unsuitable for recreational, commercial, industrial, agricultural, or other reasonable uses; provided that (a) an alteration of the physical, chemical, or biological property of state waters, or a discharge or deposit of sewage, industrial wastes or other wastes to state waters by any owner which by itself is not sufficient to cause pollution, but which, in combination with such alteration of or discharge or deposit to state waters by other owners is sufficient to cause pollution; (b) the discharge of untreated sewage by any owner into state waters; and (c) contributing to the contravention of standards of water quality duly established by the board, are "pollution" for the terms and purposes of this chapter.

"Potomac River Low Flow Allocation Agreement" means the agreement among the United States of America, the State of Maryland, the Commonwealth of Virginia, the District of Columbia, the Washington Suburban Sanitation Commission, and the Fairfax County Water Authority dated January 11, 1978, consented to by Congress in § 181 of the Water Resources Development Act of 1976, Public Law 94-587, as modified on April 22, 1986.

"Practicable" means available and capable of being done after taking into consideration cost, existing technology and logistics in light of overall project purposes.

"Preservation" means the protection of resources in perpetuity through the implementation of appropriate legal and physical mechanisms.

"Profile sketch" means a scaled graph or plot that represents the side view of an object. For purposes of this regulation, objects may include, but are not limited to, a surface water body or a portion of it, a man-made channel, an above-ground structure, a below-ground structure, a geographical feature, or the ground surface itself.

"Public hearing" means a fact finding proceeding held to afford interested persons an opportunity to submit factual data, views and comments to the board pursuant to the board's Procedural Rule No. 1 - Public and Formal Hearing Procedures (9VAC25-230).

"Public surface water supply withdrawal" means a withdrawal of surface water in Virginia or from the Potomac River for the production of drinking water, distributed to the general public for the purpose of, but not limited to, domestic use.

"Public water supply emergency" means a substantial threat to public health or safety due to insufficient public drinking water supplies caused by drought.

"Regional permit" means a general permit issued by the USACE under 40 CFR Part 241 and applicable within a specified geographic area.

"Restoration" means the reestablishment of a wetland or other aquatic resource in an area where it previously existed. Wetland restoration means the reestablishment of wetland hydrology and vegetation in an area where a wetland previously existed. Stream restoration means the process of converting an unstable, altered or degraded stream corridor, including adjacent areas and floodplains, to its natural conditions.

"Riprap" means a layer of nonerodible material such as stone or chunks of concrete.

"Schedule of compliance" means a schedule of remedial measures including a sequence of enforceable actions or operations leading to compliance with the Act, the law, and the board regulations, standards and policies.

"Section 401" means § 401 of the Clean Water Act, or 33 USC § 1341, as amended in 1987.

"Section for Cooperative Water Supply Operations on the Potomac (CO-OP)" means a section of the Interstate Commission on the Potomac River Basin designated by the Water Supply Coordination Agreement as responsible for coordination of water resources during times of low flow in the Potomac River.

"Significant alteration or degradation of existing wetland acreage or function" means human-induced activities that cause either a diminution of the areal extent of the existing wetland or cause a change in wetland community type resulting in the loss or more than minimal degradation of its existing ecological functions.

"State waters" means all water, on the surface and under the ground, wholly or partially within or bordering the Commonwealth or within its jurisdiction, including wetlands.

"Surface water" means all state waters that are not ground water as defined in § 62.1-255 of the Code of Virginia.

"Surface water supply project" means a project that withdraws or diverts water from a surface water body for consumptive or nonconsumptive purposes thereby altering the hydrologic regime of the surface water body. Projects that do not alter the hydrologic regime or that alter the hydrologic regime but whose sole purpose is flood control or storm water management are not included in this definition.

"Surface water withdrawal" means a removal or diversion of surface water from its natural water course in Virginia or from the Potomac River.

"Temporary impacts" means those impacts to surface waters, including wetlands, that do not cause a permanent alteration of the physical, chemical or biological properties of the surface water or of the functions and values of a wetland. Temporary impacts include activities in which the ground is restored to its preconstruction contours and elevations, such that previous functions and values are restored.

"Toxic pollutant" means any agent or material including, but not limited to, those listed under § 307(a) of the Act (33 USC § 1317(a)), which after discharge will, on the basis of available information, cause toxicity. Toxicity means the inherent potential or capacity of a material to cause adverse effects in a living organism, including acute or chronic effects to aquatic life, detrimental effects on human health or other adverse environmental effects.

"Undesirable plant species" means any species that invades, naturally colonizes, or otherwise dominates a compensatory mitigation site or mitigation bank and may cause or contribute to the failure of the vegetative success criteria for a particular compensatory mitigation site or mitigation bank.

"USACE" means the United States Army Corps of Engineers.

"VMRC" means the Virginia Marine Resources Commission.

"VWP general permit" means a regulation that constitutes a VWP permit for a category of activities.

"VWP permit" means an individual or general permit issued by the board under § 62.1-44.15:20 of the Code of Virginia that authorizes activities otherwise unlawful under § 62.1-44.5 of the Code of Virginia or otherwise serves as the Commonwealth of Virginia's § 401 certification.

"Water quality standards" means water quality standards adopted by the board and approved by the administrator of the EPA under § 303 of the Act as defined at 9VAC25-260.

"Water Supply Coordination Agreement" means the agreement among the United States of America, the Fairfax County Water Authority, the Washington Suburban Sanitary Commission, the District of Columbia, and the Interstate Commission on the Potomac River Basin, dated July 22, 1982, which establishes agreement among the suppliers to operate their respective water supply systems in a coordinated manner and which outlines operating rules and procedures for reducing impacts of severe droughts in the Potomac River Basin.

"Wetlands" means those areas that are inundated or saturated by surface or groundwater at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions. Wetlands generally include swamps, marshes, bogs, and similar areas.

"Withdrawal system" means any device or combination of evices used to withdraw surface water, such as, but not limited to, a machine, pump, pipe, culvert, hose, tube, screen, or fabricated concrete or metal structure.

9VAC25-210-50. Prohibitions and requirements for VWP permits.

A. Except in compliance with a VWP permit, unless the activity is otherwise exempted or excluded, no person shall dredge, fill or discharge any pollutant into, or adjacent to surface waters, withdraw surface water, otherwise alter the physical, chemical or biological properties of surface waters and make them detrimental to the public health, or to animal or aquatic life, or to the uses of such waters for domestic or industrial consumption, or for recreation, or for other uses; excavate in wetlands or on or after October 1, 2001, conduct the following activities in a wetland:

1. New activities to cause draining that significantly alters or degrades existing wetland acreage or functions;

2. Filling or dumping;

3. Permanent flooding or impounding; or

4. New activities that cause significant alteration or degradation of existing wetland acreage or functions.

B. No VWP permit shall be issued for the following:

1. Where the proposed activity or the terms or conditions of the VWP permit do not comply with state law or regulations including but not limited to § 10.1-1408.5 of the Code of Virginia;

2. For the discharge of any radiological, chemical or biological warfare agent or high level radioactive material into surface waters.

9VAC25-210-60. Exclusions.

A. The following activities do not require a VWP permit but may require other permits under state and federal law:

1. Discharges of dredged or fill material into state waters, excepting wetlands, which are addressed under a USACE Regional, General or Nationwide Permit, and for which no § 401 Water Quality Certificate is required.

2. Discharges of dredged or fill material into wetlands when addressed under a USACE Regional, General, or Nationwide Permit and that meet the provisions of subdivision 10 a of this subsection.

2. 3. Any discharge, other than an activity in a surface water governed by § 62.1-44.15:20 of the Code of Virginia, permitted by a Virginia Pollutant Discharge Elimination System (VPDES) permit in accordance with 9VAC25-31.

3. 4. Any activity, other than an activity in a surface water governed by § 62.1-44.15:20 of the Code of Virginia, permitted by a Virginia Pollution Abatement (VPA) permit in accordance with 9VAC25-32.

4. 5. Septic tanks, when authorized by a state Department of Health permit.

5. 6. Any activity permitted under Chapter 13 (§ 28.2-1300 et seq.) of Title 28.2 of the Code of Virginia, unless state certification is required by § 401 of the Clean Water Act. State certification is waived if the activity meets the provisions of subdivision 10 a of this subsection. The activity does not require a VWP permit pursuant to § 62.1-44.15:21 H of the Code of Virginia.

6. 7. Normal residential gardening, lawn and landscape maintenance in a wetland.

7. 8. Normal agriculture and silviculture activities in a wetland such as plowing, seeding, cultivating, minor drainage and harvesting for the production of food, fiber and forest products, or upland soil and water conservation practices.

a. To fall under this exclusion, the activities specified in subdivision 7 8 of this section must be part of an established (i.e., ongoing) agriculture or silviculture, operation, and must be in accordance with applicable best management practices set forth in either Forestry Best Management Practices for Water Quality in Virginia Technical Guide (Fourth Edition, July 2002) or Virginia Agricultural BMP Manual (2000), which facilitate compliance with the § 404(b)(1) Guidelines (40 CFR Part 230). Activities on areas lying fallow as part of a conventional rotational cycle are part of an established operation.

b. Activities which bring a new area into agricultural or silvicultural use are not part of an established operation. An operation ceases to be established when the area in which it was conducted has been converted to another use or has lain idle so long that modifications to the hydrological regime are necessary to resume operation. If the activity takes place outside surface waters, it does not need a VWP permit, whether or not it is part of an established agriculture or silviculture operation.

c. For the purposes of subdivision 7 8 of this section, cultivating, harvesting, minor drainage, plowing, and seeding are defined as follows:

(1) "Cultivating" means physical methods of soil treatment employed within established agriculture and silviculture lands on farm or forest crops to aid and improve their growth, quality, or yield.

(2) "Harvesting" means physical measures employed directly upon farm, forest, or crops within established agricultural and silviculture lands to bring about their removal from farm or forest land, but does not include the construction of farm or forest roads.

(3) "Minor drainage" means:

(a) The discharge of dredged or fill material incidental to connecting upland drainage facilities to surface waters, adequate to effect the removal of excess soil moisture from upland croplands. Construction and maintenance of upland (dryland) facilities, such as ditching and tiling, incidental to the planting, cultivating, protecting, or harvesting of crops;

(b) The discharge of dredged or fill material for the purpose of installing ditching or other water control facilities incidental to planting, cultivating, protecting, or harvesting of rice, or other wetland crop species, where these activities and the discharge occur in surface waters which are in established use for such agricultural and silviculture wetland crop production;

(c) The discharge of dredged or fill material for the purpose of manipulating the water levels of, or regulating the flow or distribution of water within, existing impoundments which have been constructed in accordance with applicable requirements of the Act, and which are in established use for the production of rice, or other wetland crop species;

(d) The discharge of dredged or fill material incidental to the emergency removal of sandbars, gravel bars, or other similar blockages which are formed during flood flows or other events, where such blockages close or constrict previously existing drainageways and, if not promptly removed, would result in damage to or loss of existing crops or would impair or prevent the plowing, seeding, harvesting or cultivating of crops on land in established use for crop production. Such removal does not include enlarging or extending the dimensions of, or changing the bottom elevations of, the affected drainageway as it existed prior to the formation of the blockage. Removal must be accomplished within one year after such blockages are discovered in order to be eligible for exclusion; and

(e) Minor drainage in surface waters is limited to drainage within areas that are part of an established agriculture or silviculture operation. It does not include drainage associated with the immediate or gradual conversion of a wetland to a nonwetland (for example, wetland species to upland species not typically adapted to life in saturated soil conditions), or conversion from one wetland use to another (for example, silviculture to agriculture). In addition, minor drainage does not include the construction of any canal, ditch, dike or other waterway or structure which drains or otherwise significantly modifies a stream, lake, swamp, bog or any other wetland or aquatic area constituting surface water. Any discharge of dredged or fill material into surface water incidental to the construction of any such structure or waterway requires a VWP permit, unless otherwise excluded or exempted by this regulation.

(4) "Plowing" means all forms of primary tillage, including moldboard, chisel, or wide-blade plowing, discing, harrowing, and similar physical means used on farm or forest land for the breaking up, cutting, turning over, or stirring of soil to prepare it for the planting of crops. Plowing does not include the redistribution of soil, rock, sand, or other surficial materials in a manner which changes any area of surface water to dry land. For example, the redistribution of surface materials by blading, grading, or other means to fill in wetland areas is not plowing. Rock crushing activities which result in the loss of natural drainage characteristics, the reduction of water storage and recharge capabilities, or the overburden of natural water filtration capacities does not constitute plowing. Plowing as described above will never involve a discharge of dredged or fill material.

(5) "Seeding" means the sowing of seed and placement of seedlings to produce farm or forest crops and includes the placement of soil beds for seeds or seedlings on established farm and forest lands.

8. 9. Maintenance, including emergency reconstruction of recently damaged parts, of currently serviceable structures, such as dikes, groins, levees, dams, riprap breakwaters, causeways, bridge abutments or approaches, and transportation and utility structures. Maintenance does not include modifications that change the character, scope, or size of the original design. In order to qualify for this exclusion, emergency reconstruction must occur within a reasonable period of time after damage occurs.

9. 10. Construction or maintenance of farm ponds or impoundments, stock ponds or impoundments, or irrigation ditches, or the maintenance (but not construction) of drainage ditches.

a. The exclusion for the construction and maintenance of farm or stock ponds and farm or stock impoundments applies to those structures that are operated for normal agricultural or silvicultural purposes, and are less than 25 feet in height or create a maximum impoundment capacity smaller than 100 acre-feet.

b. The exclusion for the construction and maintenance of farm or stock ponds and farm or stock impoundments does not include the impacts associated with the withdrawal of surface water from, within, or behind such structures. A VWP permit may be required for the surface water withdrawal.

c. Discharge associated with siphons, pumps, headgates, wingwalls, weirs, diversion structures, and such other facilities as are appurtenant and functionally related to irrigation ditches are included in this exclusion.

d. The maintenance dredging of existing ditches is included in this exclusion provided that the final dimensions of the maintained ditch do not exceed the average dimensions of the original ditch. This exclusion does not apply to the construction of new ditches or to the channelization of streams.

10. 11. Construction of temporary sedimentation basins on a construction site which does not include the placement of fill materials into surface waters or excavation in wetlands. The term "construction site" refers to any site involving the erection of buildings, roads, and other discrete structures and the installation of support facilities necessary for construction and utilization of such structures. The term "construction site" also includes any other land areas which involve land-disturbing excavation activities, including quarrying or other mining activities, where an increase in run-off of sediment is controlled through the use of temporary sedimentation basins.

11. 12. Construction or maintenance of farm roads, forest roads, or temporary roads for moving mining equipment, where such roads are constructed and maintained in accordance with applicable best management practices (BMPs) set forth in either Forestry Best Management Practices for Water Quality in Virginia, Technical Guide, Fourth Edition, July 2002, or Virginia Agricultural BMP Manual, 2000, to ensure that flow and circulation patterns and chemical and biological characteristics of surface waters are not impaired, that the reach of such waters is not reduced, and that any adverse effect on the aquatic environment will otherwise be minimized. The BMPs which must be applied to satisfy this provision include the following baseline provisions:

a. Permanent roads (for agriculture or forestry activities), temporary access roads (for mining, forestry, or farm purposes), and skid trails (for logging) in surface waters shall be held to the minimum feasible number, width, and total length consistent with the purpose of specific agriculture, silviculture or mining operations, and local topographic and climatic conditions;

b. All roads, temporary or permanent, shall be located sufficiently far from streams or other water bodies (except for portions of such roads which must cross water bodies) to minimize discharges of dredged or fill material into surface waters;

c. The road fill shall be bridged, culverted, or otherwise designed to prevent the restriction of expected flood flows;

d. The fill shall be properly stabilized and maintained to prevent erosion during and following construction;

e. Discharges of dredged or fill material into surface waters to construct road fill shall be made in a manner which minimizes the encroachment of trucks, tractors, bulldozers, or other heavy equipment within state waters (including adjacent wetlands) that lie outside the lateral boundaries of the fill itself;

f. In designing, constructing, and maintaining roads, vegetative disturbance in surface waters shall be kept to a minimum;

g. The design, construction and maintenance of the road crossing shall not disrupt the migration or other movement of those species of aquatic life inhabiting the water body;

h. Borrow material shall be taken from upland sources whenever feasible;

i. The discharge shall not take, or jeopardize the continued existence of a state- or federally-listed threatened or endangered species as defined under the Endangered Species Act (16 USC § 1531 et seq.), in § 29.1-566 of the Code of Virginia and in 4VAC15-20-130 B and C, except as provided in § 29.1-568 of the Code of Virginia, or adversely modify or destroy the critical habitat of such species;

j. Discharges into the nesting and breeding areas for migratory waterfowl, spawning areas, and wetlands shall be avoided if practical alternatives exist;

k. The discharge shall not be located in proximity of a public water supply or intake;

l. The discharge shall not occur in areas of concentrated shellfish production;

m. The discharge shall not occur in a component to the National Wild and Scenic River System;

n. The discharge material shall consist of suitable material free from toxic pollutants in toxic amounts; and

o. All temporary fills shall be removed in their entirety and the area restored to its original elevation.

B. The following surface water withdrawals are excluded from VWP permit requirements. Activities, other than the surface water withdrawal, which are contained in 9VAC25-210-50 and are associated with the construction and operation of the surface water withdrawal, are subject to VWP permit requirements unless excluded by subsection A of this section. Other permits under state and federal law may be required.

1. Any surface water withdrawal in existence on July 1, 1989; however, a permit shall be required if a new § 401 certification is required to increase a withdrawal. To qualify for this exclusion, the surface water withdrawal shall be deemed to be in existence on July 1, 1989, if there was an actual withdrawal on or before that date that has not been abandoned.

a. Abandonment of a surface water withdrawal. A surface water withdrawal shall be deemed to be abandoned if the owner of the withdrawal system (i) notifies the DEQ in writing that the withdrawal has been abandoned or (ii) removes or disables the withdrawal system with the intent to permanently cease such withdrawal. Transfer of ownership or operational control of the withdrawal system, a change in use of the water, or temporary cessation of the withdrawal shall not be deemed evidence of abandonment. The notification shall be signed by the owner of record or shall include evidence satisfactory to the DEQ that the signatory is authorized to submit the notice on behalf of the owner of record. Evidence may include, but shall not be limited to, a resolution of the governing body of the owner or corporate minutes.

b. Information to be furnished to the DEQ. Each owner or operator of a permanent withdrawal system engaging in a withdrawal that is subject to this exclusion shall provide the DEQ the estimated maximum capacity of the intake structure, the location of the existing intake structure and any other information that may be required by the board. Each owner or operator of a temporary withdrawal system engaging in a withdrawal that is subject to this exclusion, where the purpose of the withdrawal is for agriculture, shall provide to the DEQ the maximum annual surface water withdrawal over the last 10 years. The information shall be provided within one year of the date that notice of such request is received from the DEQ and shall be updated when the maximum capacity of the existing intake structure changes. The information provided to the DEQ shall not constitute a limit on the exempted withdrawal. Such information shall be utilized by the DEQ and board to protect existing beneficial uses and shall be considered when evaluating applications for new withdrawal permits.

2. Any surface water withdrawal not in existence on July 1, 1989, if the person proposing to make the withdrawal received a § 401 certification before January 1, 1989, with respect to installation of any necessary withdrawal structures to make such withdrawal; however, a permit shall be required before any such withdrawal is increased beyond the amount authorized by the certification.

3. Any existing lawful unpermitted surface water withdrawal initiated between July 1, 1989, and July 25, 2007, which is not subject to other exclusions contained in this section. These withdrawals shall be excluded from permit requirements only if they comply with the conditions in this subdivision. Regardless of complying with the conditions of this subdivision, these withdrawals shall require a permit for any increased withdrawal amount.

a. Information to be furnished to the DEQ. Each owner or operator of a withdrawal system engaging in a withdrawal that is subject to this exclusion shall provide the DEQ with copies of water withdrawal reports required by Water Withdrawal Reporting Regulations (9VAC25-200) documenting the largest 12-consecutive month withdrawal that occurred in the 10 years prior to July 25, 2007. In the case of unreported agricultural surface water withdrawals, estimates of withdrawals will be accepted that are based on one of the following:

(1) The area irrigated, depth of irrigation, and annual number of irrigations; pumping capacity and annual pumping time; annual energy consumption for pumps; number and type of livestock watered annually; number and type of livestock where water is used for cooling purposes; or

(2) Other methods approved by the board for the largest 12 consecutive month withdrawal that occurred in the 10 years prior to July 25, 2007. The board shall evaluate all estimates of surface water withdrawals based on projected water demands for crops and livestock as published by the Virginia Cooperative Extension Service, the United States Natural Resources Conservation Service, or other similar references and make a determination whether they are reasonable. In all cases only reasonable estimates will be used to document the excluded withdrawal amount.

b. The information noted in subdivision 3 a of this subsection shall be provided within 12 months of July 25, 2007. The information provided to the DEQ shall constitute a limit on the withdrawal that is excluded from permit requirements; any increase in that withdrawal above the limited amount shall require an application for a permit for the withdrawal system. Information regarding excluded withdrawal amounts shall be utilized by the DEQ and board to protect existing beneficial uses and shall be considered when evaluating applications for new withdrawal permits.

c. All owners and operators of surface water withdrawals excluded from permit requirements by this section shall annually report withdrawals as required by Water Withdrawal Reporting Regulations (9VAC25-200). Failure to file annual reports either reporting actual withdrawals or the fact that withdrawals did not occur may result in the owner or operator being required to file an application and receive a permit prior to resuming any withdrawal.

4. Agricultural surface water withdrawals from nontidal waters that total less than one million gallons in a single month.

5. Surface water withdrawals from nontidal waters for all other purposes that total less than 10,000 gallons per day.

6. Surface water withdrawals from tidal waters for nonconsumptive uses.

7. Agricultural surface water withdrawals from tidal waters that total less than 60 million gallons in a single month.

8. Surface water withdrawals from tidal waters for all other consumptive purposes that total less than two million gallons per day.

9. Surface water withdrawals for firefighting or for the training activities related to firefighting, such as dry hydrants and emergency surface water withdrawals.

10. Surface water withdrawals placed into portable containers by persons owning property on, or holding easements to, riparian lands.

11. Surface water withdrawals for the purposes of hydrostatic pressure testing of water tight containers, pipelines, and vessels.

12. Surface water withdrawals for normal single family home residential gardening, lawn, and landscape maintenance.

13. Surface water withdrawals that are located on a property, such that the withdrawal returns to the stream of origin; not more than half of the instantaneous flow is diverted; not more than 1,000 feet of stream channel separate the withdrawal point from the return point; and both banks of the affected stream segment are located within that property boundary.

14. Surface water withdrawals from quarry pits, such that the withdrawal does not alter the physical, biological, or chemical properties of surface waters connected to the quarry pit.

15. Surface water withdrawals from a privately owned agriculture pond, emergency water storage facility, or other water retention facility, provided that such pond or facility is not placed in the bed of a perennial or intermittent stream or wetland. Surface water withdrawals from such facilities constructed in beds of ephemeral streams are excluded from permit requirements.

C. DEQ may require any owner or operator of a withdrawal system excluded from permit requirements by subdivisions B 3 through 15 of this section to cease withdrawals and file an application and receive a permit prior to resuming any withdrawal when the board's assessment indicates that a withdrawal, whether individually or in combination with other existing or proposed projects:

1. Causes or contributes to, or may reasonably be expected to cause or contribute to, a significant impairment of the state waters or fish and wildlife resources;

2. Adversely impacts other existing beneficial uses; or

3. Will cause or contribute to a violation of water quality standards.

9VAC25-210-130. VWP general permits.

A. The board may issue VWP general permits by regulation for certain specified categories of activities as it deems appropriate.

B. When the board determines on a case-by-case basis that concerns for water quality and the aquatic environment so indicate, the board may require individual applications and VWP individual permits rather than approving coverage under a VWP general permit regulation. Cases where an individual VWP permit may be required include the following:

1. Where the activity may be a significant contributor to pollution;

2. Where the applicant or permittee is not in compliance with the conditions of the VWP general permit regulation or authorization;

3. When an applicant or permittee no longer qualifies for coverage under the VWP general permit regulation or authorization; and

4. When a permittee operating under a VWP general permit authorization requests to be excluded from the coverage of the VWP general permit regulation by applying for a VWP individual permit.

C. When a VWP individual permit is issued to a permittee, the applicability of the VWP general permit authorization to the individual permittee is automatically terminated on the effective date of the VWP individual permit.

D. When a VWP general permit regulation is issued which applies to a permittee already covered by a VWP individual permit, such person may request exclusion from the provisions of the VWP general permit regulation and subsequent coverage under a VWP individual permit.

E. A VWP general permit authorization may be revoked from an individual permittee for any of the reasons set forth in 9VAC25-210-180 subject to appropriate opportunity for a hearing.

F. When all permitted activities requiring notification have been completed, the permittee shall be required to submit a notice of termination unless the permittee has previously submitted a termination by consent request for the same permitted activities and such request has been approved by the board.

G. Activities authorized under a VWP general permit regulation shall be authorized for a fixed term based upon project length and duration. When a general permit regulation is amended or replaced, it shall contain provisions such that coverage authorized under the general permit existing as of the effective date of the amended or replacement VWP general permit regulation may continue under the amended or replacement VWP general permit and that all terms and conditions of the authorization may continue in full force and effect. Notwithstanding any other provision, a request for continuation of a VWP general permit authorization beyond the expiration date of such authorization in order to complete monitoring requirements shall not be considered a new application for coverage and no application fee will be charged.

H. The board may certify, or certify with conditions, a general, regional, or nationwide or regional permit proposed by the USACE in accordance with § 401 of the federal Clean Water Act as meeting the requirements of this regulation and a VWP general permit, provided that the nationwide or regional permit and the certification conditions:

1. Require that wetland or stream impacts be avoided and minimized to the maximum extent practicable;

2. Prohibit impacts that cause or contribute to a significant impairment of state waters or fish and wildlife resources;

3. Require compensatory mitigation sufficient to achieve no net loss of existing wetland acreage and functions or stream functions and water quality benefits; and

4. Require that compensatory mitigation for unavoidable wetland impacts be provided through the following options, as appropriate to replace acreage and function:

a. Wetland creation;

b. Wetland restoration;

c. The purchase or use of credits from a mitigation bank, pursuant to § 62.1-44.15:23 of the Code of Virginia;

d. A contribution to an approved in-lieu fee fund;

e. Preservation of upland buffers adjacent to state waters, when utilized in conjunction with subdivision 4 a, b, or c of this subsection, and when consistent with 9VAC25-210-116 A;

f. Restoration of upland buffers adjacent to state waters, when utilized in conjunction with subdivision 4 a, b, or c of this subsection, and when consistent with 9VAC25-210-116 A;

g. Preservation of wetlands, when utilized in conjunction with subdivision 4 a, b, or c of this subsection.

5. Require that compensatory mitigation for unavoidable stream impacts may be met through the following options as appropriate to replace functions or water quality benefits; one factor in determining the required compensation shall be an analysis of stream impacts utilizing a stream impact assessment methodology approved by the board:

a. Stream channel restoration or enhancement;

b. Riparian buffer restoration or enhancement;

c. Riparian buffer preservation, when consistent with 9VAC25-210-116 A;

d. A contribution to an approved in-lieu fee fund;

e. The purchase or use of credits from a mitigation bank, pursuant to § 62.1-44.15:23 of the Code of Virginia.

I. The certifications allowed by subsection H of this section may be provided only after the board has advertised and accepted public comment on its intent to provide certification for at least 30 days.

J. Coverage under a general, regional, or nationwide or regional permit promulgated by the USACE and certified by the board in accordance with this section shall be deemed coverage under a VWP general permit regulation upon submission of proof of coverage under the general, regional, or nationwide or regional permit and any other information required by the board through the certification process. Notwithstanding the provisions of 9VAC25-20-10, no fee shall be required from applicants seeking coverage under this subsection.

9VAC25-210-220. Waiver of VWP permit or § 401 certification.

A. The board may waive permitting requirements when the board determines that a proposed project impacts an isolated wetland that is of minimal ecological value as defined in 9VAC25-210-10. Any person claiming this waiver bears the burden to demonstrate that he qualifies for the waiver.

B. The board may waive the requirement for a VWP individual permit when the proposed activity qualifies for a permit issued by the USACE and receives a permit from the VMRC or wetlands boards, pursuant to Chapter 12 (§ 28.2-1200 et seq.) or Chapter 13 (§ 28.2-1300 et seq.) of Title 28.2 of the Code of Virginia, and the activity does not impact instream flows.

C. The board shall waive the requirement for a VWP general permit authorization or VWP individual permit when the proposed activity meets the exclusion set forth in 9VAC25-210-60 A 10 a regardless of the issuance of an individual permit by the United States Army Corps of Engineers.