Current through Register Vol. 41, No. 3, September 23, 2024
A. The
following conditions apply to all permits. Additional conditions applicable to
permits are in
9VAC25-875-1010. All conditions
applicable to permits shall be incorporated into the permits either expressly
or by reference. If incorporated by reference, a specific citation to this
regulation must be given in the permit.
B. The permittee shall comply with all
conditions of the permit. Any permit noncompliance constitutes a violation of
the State Water Control Law and the CWA, except that noncompliance with certain
provisions of the permit may constitute a violation of the State Water Control
Law but not the CWA. Permit noncompliance is grounds for enforcement action;
for permit termination, revocation and reissuance, modification, or denial of a
permit renewal application.
The permittee shall comply with effluent standards or
prohibitions established under § 307(a) of the CWA for toxic pollutants
within the time provided in the chapters that establish these standards or
prohibitions, even if the permit has not yet been modified to incorporate the
requirement.
C. If the
permittee wishes to continue an activity regulated by the permit after the
expiration date of the permit, the permittee must apply for and obtain a new
permit.
D. 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 the permit.
E. The permittee shall take all reasonable
steps to minimize or prevent any discharge in violation of the permit that has
a reasonable likelihood of adversely affecting human health or the
environment.
F. The permittee shall
at all times properly operate and maintain all facilities and systems of
treatment and control (and related appurtenances) that are installed or used by
the permittee to achieve compliance with the conditions of the permit. Proper
operation and maintenance also includes adequate laboratory controls and
appropriate quality assurance procedures. This provision requires the operation
of back-up or auxiliary facilities or similar systems that are installed by a
permittee only when the operation is necessary to achieve compliance with the
conditions of the permit.
G.
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.
H. Permits do not convey any property rights
of any sort, or any exclusive privilege.
I. The permittee shall furnish to the
department, within a reasonable time, any information that the department may
request to determine whether cause exists for modifying, revoking and
reissuing, or terminating the permit or to determine compliance with the
permit. The department 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 the permittee's discharge on the
quality of state waters, or such other information as may be necessary to
accomplish the purposes of the Virginia Erosion and Stormwater Management Act.
The permittee shall also furnish to the department upon request, copies of
records required to be kept by the permit.
J. The permittee shall allow the director,
the department, or an authorized representative (including an authorized
contractor acting as a representative of the administrator), 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 the permit;
2. Have access to and copy, at reasonable
times, any records that must be kept under the conditions of the
permit;
3. Inspect at reasonable
times any facilities, equipment (including monitoring and control equipment),
practices, or operations regulated or required under the permit; and
4. Sample or monitor at reasonable times, for
the purposes of assuring permit compliance or as otherwise authorized by the
CWA and the Act, any substances or parameters at any location.
K. Monitoring and records.
1. Samples and measurements taken for the
purpose of monitoring shall be representative of the monitored
activity.
2. 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 the permit, and
records of all data used to complete the application for the permit, for a
period of at least three years from the date of the sample, measurement,
report, or application. 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 department.
3. Records of monitoring information shall
include:
a. The date, exact place, and time
of sampling or measurements;
b. The
individual who performed the sampling or measurements;
c. The dates analyses were
performed;
d. The individual who
performed the analyses;
e. The
analytical techniques or methods used; and
f. The results of such analyses.
4. Monitoring results must be
conducted according to test procedures approved under 40 CFR Part 136 or
alternative EPA approved methods, unless other test procedures have been
specified in the permit. Analyses performed according to test procedures
approved under 40 CFR Part 136 shall be performed by an environmental
laboratory certified under regulations adopted by the Department of General
Services (1VAC30-45 or 1VAC30-46).
L. All applications, reports, or information
submitted to the VESMP authority and department shall be signed and certified
as required by
9VAC25-875-940.
M. Reporting requirements.
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 alteration or addition to a permitted
facility may meet one of the criteria for determining whether a facility is a
new source in
9VAC25-875-990 A; or
b. The alteration or addition could
significantly change the nature or increase the quantity of pollutants
discharged. This notification applies to pollutants that are not subject to
effluent limitations in the permit.
2. The permittee shall give advance notice to
the department of any planned changes in the permitted facility or activity
that may result in noncompliance with permit requirements.
3. Permits are not transferable to any person
except in accordance with
9VAC25-875-1220.
4. Monitoring results shall be reported at
the intervals specified in the permit.
a.
Monitoring results must be reported on a Discharge Monitoring Report (DMR) or
forms provided or specified by the department. As of the start date in Table 1
of 9VAC25-31-1020, all reports and
forms submitted in compliance with this subdivision shall be submitted
electronically by the permittee to the department in compliance with this
section and 40 CFR Part 3 (including, in all cases, 40 CFR Part 3 Subpart D),
9VAC25-875-940, and Part XI
(9VAC25-31-950 et seq.) of the
Virginia Pollutant Discharge Elimination System (VPDES) Permit Regulation. Part
XI of 9VAC25-31 is not intended to undo existing requirements for electronic
reporting. Prior to this date, and independent of Part XI of 9VAC25-31,
permittees may be required to report electronically if specified by a
particular permit.
b. If the
permittee monitors any pollutant specifically addressed by the permit more
frequently than required by the permit using test procedures approved under 40
CFR Part 136 or as otherwise specified in the permit, the results of this
monitoring shall be included in the calculation and reporting of the data
submitted in the DMR or reporting form specified by the department.
c. Calculations for all limitations that
require averaging of measurements shall utilize an arithmetic mean unless
otherwise specified in the permit.
5. Reports of compliance or noncompliance
with or any progress reports on interim and final requirements contained in any
compliance schedule of the permit shall be submitted no later than 14 days
following each schedule date.
6. If
any unusual or extraordinary discharge including a bypass or upset should occur
from a facility and such 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 such discharge. This
notification shall provide all available details of the incident, including any
adverse effects 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
subdivision 7 a of this subsection. Unusual and extraordinary discharges
include any discharge resulting from:
a.
Unusual spillage of materials resulting directly or indirectly from processing
operations;
b. Breakdown of
processing or accessory equipment;
c. Failure or taking out of service of the
treatment plant or auxiliary facilities (such as sewer lines or wastewater pump
stations); and
d. Flooding or other
acts of nature.
7.
Twenty-four hour and five-day reporting.
a.
The permittee shall report any noncompliance that may endanger health or the
environment. Any information shall be provided orally within 24 hours from the
time the permittee becomes aware of the circumstances. A report in the format
required by the department shall also be provided within five days of the time
the permittee becomes aware of the circumstances. The five-day report shall
contain a description of the noncompliance and its cause; 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 steps
taken or planned to reduce, eliminate, and prevent reoccurrence of the
noncompliance.
(1) For noncompliance events
related to combined sewer overflows, sanitary sewer overflows, or bypass
events, these reports must include the data described in subdivision 7 a of
this subsection (with the exception of time of discovery), as well as the type
of event (i.e., combined sewer overflows, sanitary sewer overflows, or bypass
events); type of sewer overflow structure (e.g., manhole, combine sewer
overflow outfall); discharge volumes untreated by the treatment works treating
domestic sewage; types of human health and environmental impacts of the sewer
overflow event; and whether the noncompliance was related to wet
weather.
(2) As of the start date
in Table 1 of
9VAC25-31-1020, all reports related
to combined sewer overflows, sanitary sewer overflows, or bypass events
submitted in compliance with this subdivision 7 shall be submitted
electronically by the permittee to the department in compliance with this
subdivision 7 and 40 CFR Part 3 (including, in all cases, 40 CFR Part 3 Subpart
D), 9VAC25-875-940, and Part XI
(9VAC25-31-950 et seq.) of the
Virginia Pollutant Discharge Elimination System (VPDES) Permit Regulation. Part
XI of 9VAC25-31 is not intended to undo existing requirements for electronic
reporting. Prior to this date, and independent of Part XI of 9VAC25-31,
permittees may be required to electronically submit reports related to combined
sewer overflows, sanitary sewer overflows, or bypass events under this
subdivision 7 by a particular permit.
(3) The director may also require permittees
to electronically submit reports not related to combined sewer overflows,
sanitary sewer overflows, or bypass events under this subdivision 7.
b. The following shall be reported
within 24 hours under this subdivision:
(1)
Any unanticipated bypass that exceeds any effluent limitation in the
permit.
(2) Any upset that exceeds
any effluent limitation in the permit.
(3) Violation of a maximum daily discharge
limitation for any of the pollutants listed in the permit to be reported within
24 hours.
c. The
department may waive the five-day report on a case-by-case basis for reports
under this subdivision if the oral report has been received within 24
hours.
8. The permittee
shall report all instances of noncompliance not reported under subdivisions 4,
5, 6, and 7 of this subsection, in the format required by the department, at
the time the next monitoring reports are submitted. The reports shall contain
the information listed in subdivision 7 of this subsection.
a. For noncompliance events related to
combined sewer overflows, sanitary sewer overflows, or bypass events, these
reports shall contain the information described in subdivision 7 a of this
subsection and the applicable required data in Appendix A to 40 CFR Part 127 as
adopted by reference in
9VAC25-31-1030.
b. As of the start date in Table 1 of
9VAC25-31-1020, all reports related
to combined sewer overflows, sanitary sewer overflows, or bypass events
submitted in compliance with this subdivision 8 shall be submitted
electronically by the permittee to the department in compliance with this
subdivision 8 and 40 CFR Part 3 (including, in all cases, 40 CFR Part 3 Subpart
D), 9VAC25-875-940, and Part XI
(9VAC25-31-950 et seq.) of the
Virginia Pollutant Discharge Elimination System (VPDES) Permit Regulation. Part
XI of 9VAC25-31 is not intended to undo existing requirements for electronic
reporting. Prior to this date, and independent of Part XI of 9VAC25-31,
permittees may be required to electronically submit reports related to combined
sewer overflows, sanitary sewer overflows, or bypass events under this section
by a particular permit.
c. The
director may also require permittees to electronically submit reports not
related to combined sewer overflows, sanitary sewer overflows, or bypass events
under this section.
9.
Where the permittee becomes aware that it failed to submit any relevant facts
in a permit application, or submitted incorrect information in a permit
application or in any report to the department, it shall promptly submit such
facts or information.
10. The
owner, operator, or the duly authorized representative of an VPDES-regulated
entity is required to electronically submit the required information, as
specified in Appendix A to 40 CFR Part 127 as adopted by reference in
9VAC25-31-1030, to the
department.
N. Bypass.
1. The permittee may allow any bypass to
occur that does not cause effluent limitations to be exceeded, but only if it
also is for essential maintenance to ensure efficient operation. These bypasses
are not subject to the provisions of subdivisions 2 and 3 of this
subsection.
2. Notice.
a. Anticipated bypass. If the permittee knows
in advance of the need for a bypass, it shall submit prior notice, if possible
at least 10 days before the date of the bypass. As of the start date in Table 1
of 9VAC25-31-1020, all notices
submitted in compliance with this subdivision shall be submitted electronically
by the permittee to the department in compliance with this subsection and 40
CFR Part 3 (including, in all cases, 40 CFR Part 3 Subpart D),
9VAC25-875-940, and Part XI
(9VAC25-31-950 et seq.) of the
Virginia Pollutant Discharge Elimination System (VPDES) Permit Regulation. Part
XI of 9VAC25-31 is not intended to undo existing requirements for electronic
reporting. Prior to this date, and independent of Part XI of 9VAC25-31,
permittees may be required to report electronically if specified by a
particular permit.
b. Unanticipated
bypass. The permittee shall submit notice of an unanticipated bypass as
required in subdivision M 7 of this section. As of the start date in Table 1 of
9VAC25-31-1020, all notices
submitted in compliance with this subdivision shall be submitted electronically
by the permittee to the department in compliance with this subdivision and 40
CFR Part 3 (including, in all cases, 40 CFR Part 3 Subpart D),
9VAC25-875-940, and Part XI
(9VAC25-31-950 et seq.) of the
Virginia Pollutant Discharge Elimination System (VPDES) Permit Regulation. Part
XI of 9VAC25-31 is not intended to undo existing requirements for electronic
reporting. Prior to this date, and independent of Part XI of 9VAC25-31,
permittees may be required to report electronically if specified by a
particular permit.
3.
Prohibition of bypass.
a. Bypass is
prohibited, and the department 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 that occurred during normal periods of equipment downtime or preventive
maintenance; and
(3) The permittee
submitted notices as required under subdivision 2 of this subsection.
b. The department may approve an
anticipated bypass, after considering its adverse effects, if the department
determines that it will meet the three conditions listed in subdivision 3 a of
this subsection.
O. Upset.
1. An upset constitutes an affirmative
defense to an action brought for noncompliance with such technology based
permit effluent limitations if the requirements of subdivision 2 of this
subsection are met. No determination made during administrative review of
claims that noncompliance was caused by upset, and before an action for
noncompliance, is 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 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 subdivision M 7 b (2) of
this section (24-hour notice); and
d. The permittee complied with any remedial
measures required under subsection E of this section.
3. In any enforcement proceeding the
permittee seeking to establish the occurrence of an upset has the burden of
proof.
Statutory Authority: §
62.1-44.15:28 of the Code of
Virginia; Chapters 68 and 758 of the 2016 Acts of
Assembly.
