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2011 SESSION
11104656DBe it enacted by the General Assembly of Virginia:
1. That § 45.1-254 of the Code of Virginia is amended and reenacted as follows:
§ 45.1-254. National pollutant discharge elimination system permits.
A. Upon request of the Director, the State Water Control
Board may delegate to the Director its authority, under the State Water Control
Law, Chapter 3.1 (§ 62.1-44.2 et seq.) of Title 62.1 to issue, amend, revoke
and enforce national pollutant discharge elimination system permits for the
discharge of sewage, industrial wastes and other wastes from coal surface
mining operations. Upon receiving such delegation, the The authority
to issue, amend, revoke and enforce national pollutant discharge elimination
system permits under the State Water Control Law (§ 62.1-44.2 et seq.)
for the discharge of sewage, industrial wastes and other wastes from coal
surface mining operations, to the extent delegated by the U.S. Environmental
Protection Agency and required under the federal Clean Water Act, P.L.
92-500, as amended, shall be is vested solely in the Director,
notwithstanding any provision of law contained in Title 62.1, except as
provided herein. For the purpose of enforcement under this section, the
provisions of §§ 62.1-44.31 and 62.1-44.32 shall apply to permits, orders and
regulations issued by the Director in accordance with this section.
B. After having received delegation of authority pursuant
to subsection A of this section, the The Director shall transmit to
the State Water Control Board a copy of each application for a national
pollutant discharge elimination system permit received by the Director, and
provide written notice to the State Water Control Board of every action related
to the consideration of such permit application.
C. Prior to the issuance or reissuance of a permit, applicants shall submit an application on a form approved by the Director and a fee of $300 for each discharge outfall point under the permit. If an application is approved the permittee shall, on the anniversary of the permit approval for each year of the permit term, submit $300 for each discharge outfall point under the permit. Each permit shall remain valid for five years. All fees provided for under this section shall be in addition to any other fees levied pursuant to this chapter.
D. No national pollutant elimination system permit shall be
issued if, within thirty 30 days of the date of the transmittal
of the complete application and the proposed national pollution discharge
elimination system permit, the State Water Control Board objects in writing to
the issuance of such permit. Whenever the State Water Control Board objects to
the issuance of such permit under this section, such written objection shall
contain a statement of the reasons for such objection and the effluent
limitations and conditions which such permits would include if it were issued
by the State Water Control Board.
E. An applicant who is aggrieved by an objection made under subsection D of this section shall have the right to a hearing before the State Water Control Board pursuant to § 62.1-44.25. If the State Water Control Board withdraws, in writing, its objection to the issuance of a certificate, the Director may issue the permit. Any applicant, aggrieved by a final decision of the State Water Control Board made pursuant to this subsection, shall have the right to judicial review in accordance with the provisions of the Administrative Process Act (§ 2.2-4000 et seq.).
F. Whenever, on the basis of any information available to it, the State Water Control Board finds that any person is in violation of any condition or limitation contained in a national pollutant discharge elimination system permit issued by the Director, it shall notify the person in alleged violation and the Director. If beyond the thirtieth day after notification by the State Water Control Board, the Director has not commenced appropriate enforcement action, the State Water Control Board may take appropriate enforcement action pursuant to §§ 62.1-44.15, 62.1-44.23, and 62.1-44.32.
G. The Director shall promulgate such regulations as he
deems deemed necessary for the issuance, administration, monitoring
and enforcement of national pollutant discharge elimination system permits for
coal surface mining operations.
H. For the purpose of this section, the terms "sewage," "industrial wastes" and "other wastes" shall have the meanings ascribed to them in § 62.1-44.3.
I. The Director, by examining the available and relevant data, shall determine whether a discharge may cause or contribute to an instream excursion above the narrative or numeric criteria of a water quality standard.
J. If a total maximum daily load (TMDL) has been
established by the State Water Control Board for the receiving water body, then
there shall be consideration of the TMDL in the reasonable potential
determination as to whether a discharge may cause or contribute to an instream
excursion above the narrative or numeric criteria of a water quality standard.
If the receiving water body does not have a TMDL established, the Director may
consider biological monitoring, chemical monitoring, and whole effluent
toxicity testing to determine whether a discharge may cause or contribute to an
instream excursion above the narrative or numeric criteria of a water quality
standard. The Director may require whole effluent toxicity testing if he
determines that the discharge [ causes a decline in the baseline
adversely affects the ] biological condition of the receiving water
body.