Current through Register Vol. XLI, No. 50, December 13, 2024
Section 46-2-9 - Modification, Revocation and Reissuance, Suspension and Revocation of Permits9.1. Actions by the Chief. a. Permits may be modified, revoked and reissued, suspended or revoked either at the request of any interested person or upon the Chief's initiative. Permits may only be modified, revoked and reissued, suspended or revoked for the reasons specified in this section. When a permit is modified, only the conditions subject to modification are reopened. All other conditions of the permit shall remain in effect for the duration of the permit. All requests under this section shall be in writing submitted to the Chief citing facts or reasons supporting the request and indicating under which subsection the request is being made. If a permit modification is being requested under an emergency declared by the Chief, an affidavit, signed by a person meeting the requirements of Section 4.6 attesting to the emergency shall be filed with the request. The Chief may require additional information, and in the case of a major modification, may require submission of a new permit application. For a reissuance under Section 9.2.b or Section 9.3, the Chief shall require submission of a new permit application.b. If the Chief decides the request is not justified, he or she shall send the requester a brief written response giving the reasons for the decision. Denials of such requests are not subject to public notice, comment, or hearings.c.1. If the Chief tentatively decides to modify or revoke and reissue a permit, and the modification is not made under Section 9.5, he or she shall prepare a draft permit under Section 10 and shall follow the public notice procedures in Section 12. The Chief may request additional information and, in the case of a modified permit, may require the submission of an updated permit application. In the case of revoked and reissued permits, the Chief shall require the submission of a new application.2. In a permit modification under this section, only those conditions to be modified shall be reopened when a new draft permit is prepared. All other conditions of the existing permit shall remain in effect for the duration of the permit. When a permit is revoked and reissued under this section, the entire permit is reopened just as if the permit had expired and was being reissued. During any revocation and reissuance proceeding, the permittee shall comply with all conditions of the existing permit until a new final permit is reissued.9.2. Causes for modification or permittee requested reissuance of permits. a. Minor modifications. Permits may be modified by the Chief for any good cause (as defined in Section 9.5 of this section) and unless such cause is specified in the following subsection 9.2.b, modification does not require the preparation of a draft permit or the public notice procedures of Section 10 and 12 respectively.b. Modifications. The following are causes for modification, but not reissuance of a permit unless the permittee requests or agrees, and require the preparation of a draft permit under Section 10 and the public notice procedures of Section 12, unless an emergency is declared by the Chief, If the permittee requests or agrees, then the following causes can be reason for a permit reissuance which will open the entire permit for comment and change:1. Alterations. There are material and substantial alterations or additions to the permitted facility or activity which justify the application of permit conditions that are different or absent in the existing permit, including the acceptance of wastes from an indirect discharger under Section 14.2. Information. The Chief has received new information. Permits may be modified during their terms for this cause only if information was not available at the time of permit issuance (other than revised regulations, guidance, or test methods) which would have justified the application of different permit conditions at the time of issuance. For NPDES general permits this cause shall include any information indicating that cumulative effects on the environment are unacceptable.3. New rules. The standards or rules on which the permit was based have been changed by promulgation of amended standards or rules or by judicial decision after the permit was issued. Permits may be modified during their terms for this cause only as follows: i. For promulgation of amended standards or rules, when:A. The permit condition to be modified was based on a promulgated rule, effluent limitation guideline, new source performance standard, pretreatment standard, or water quality standard;B. The State has revised, withdrawn or modified that portion of the rule, effluent limitation guideline, new source rule performance standard, pretreatment standard, or water quality standard on which the permit condition was based; andC. A permittee requests modification within ninety (90) days after the State Register notice of the action on which the request is based.ii. For judicial decision, when a court of competent jurisdiction has remanded and stayed State or Federal promulgated rules, if the remand and stay concern that portion of the rules on which the permit condition was based.4. Modification and extension of compliance schedules:i. The Chief determines good cause exists for extension of a compliance schedule, such as an act of God, strike, flood or materials shortage or other events over which the permittee has little or no control and for which there is no reasonably available remedy.ii. To modify a schedule of compliance to reflect the time lost during construction of an innovative or alternative facility, in the case of a POTW which has received a grant under Section 202(a) (3) of the CWA for 100% of the costs to modify or replace facilities constructed with a grant for innovative or alternative wastewater technology under Section 202(a)(2).iii. In no case shall a compliance schedule be modified to extend beyond an applicable CWA statutory deadline for compliance.5. Transfer of a permit under Section 3.5.c.6. When the permittee has filed a timely request for a variance under CWA 301(c), 301(g), 301(i), 309(k), or for "fundamentally different factors" after compliance with the procedures of Section 10.2 as applicable.7. When required to incorporate an applicable CWA 307(a) toxic effluent standard or prohibition.8. When required by the "reopener" conditions in a permit, which are established in the permit under Section 6.3.b. or 40 CFR 403.10(e).9. Upon request of a permittee who qualifies for" effluent limitations on a net basis under Section 7.7.10. When a discharger is no longer eligible for net limitations, as provided in Section 7.a.2.11. As necessary under 40 CFR 403.8(e) (compliance schedule for development of pretreatment programs).12. When the level of discharge of any pollutant which is not limited in the permit exceeds the level which can be achieved by the technology-based treatment requirements appropriate to the permittee.13. When the permittee begins or expects to begin to use or manufacture, as an intermediate or final product or by-product, any toxic pollutant which was not reported in the permit application.14. Upon failure of the Chief to notify another State as required by Section 12.1. whose waters may be affected by a discharge from this State.15. A determination that the permitted activity endangers human health or the environment and can be regulated to acceptable levels by a permit modification.16. Any of the reasons cited in Section 9.4.17. When the permittee's effluent limitations were imposed under 402(a)(1) of the CWA and the permittee demonstrates operation and maintenance costs that are totally disproportionate from the operation and maintenance costs considered in the development of a subsequently promulgated effluent limitations guideline, but in no case may the limitations be made less stringent than the subsequent guideline.18. To correct technical mistakes, such as errors in calculation, or mistaken interpretations of law made in determining permit conditions.19. "Then the discharger has installed the treatment technology considered by the permit writer in setting effluent limitations imposed under Section 402(a)(1) of the CWA and has properly operated and maintained the facilities but nevertheless has been unable to achieve those effluent limitations. In this case, the limitations in the modified permit may reflect the level of pollution control actually achieved (but shall not be less stringent than required by a subsequently promulgated effluent limitations guideline).20. Upon request by the permittee, following final adoption by the Board of amendments to its rules consistent with changes in EPA rules adopted as a result of the legal challenge to EPA rules in the case of Natural Resources Defense Council v. EPA, No. 80-1607 and consolidated cases, or other cases challenging EPA's NPDES rules, a permit may be reopened for the limited purpose of changing any conditions in this permit which were based upon rules which have subsequently been so amended, provided that the request is made within six (6) months of adoption of the new rules.9.3. Reissuance. When a permit is reissued under this subsection, the entire permit is reopened, just as if the permit has expired. Reissuance requires a draft permit under Section 10 and the public notice procedures of Section 12. Processing of a reissuance application does not exempt the permittee from compliance with any permit terra or condition. The following are causes for reissuance: a. Cause exists for revocation under Section 9.4 and the Chief determines reissuance is appropriate.b. The permit was issued prior to July 1, 1974 and has no expiration date.9.4. Suspension and revocation of permits. a. The following are causes for revocation or suspension of a permit or for denying a permit renewal application: 1. Noncompliance by the permittee with any condition of the permit; or2. The permittee's failure in the application or during the permit issuance process to disclose fully all relevant facts, or the permittee's misrepresentation of any relevant facts at any time; or3. A determination that the permitted activity endangers human health or the environment and can only be regulated to acceptable levels by permit modification or revocation; or4. A change in any condition that requires either a temporary or a permanent reduction or elimination of any discharge controlled by the permit.b. If the Chief tentatively decides to suspend or revoke a permit, he or she shall issue a notice of intent to suspend or revoke. A notice of intent to suspend or revoke a permit is a type of draft permit which follows the same procedures as any draft permit prepared under Section 10 and shall fulfill the requirements of notice required under Section 8 of the State Act.9.5. Minor modifications of permits. Upon the consent of the permittee, the Chief may modify a permit to make the corrections or allowances for changes in the permitted activity listed in this section without preparing a draft permit or following the procedures of Section 12 or procedures in Section 8 of the State Act, Minor modifications may only: a. Correct typographical errors.b. Require more frequent monitoring or reporting by the permittee.c. Change an interim compliance date in an schedule of compliance, provided the new date is not more than 120 days after the date specified in the existing permit and does not interfere with attainment of the final compliance date requirement.d. Allow for a change in ownership or operational control of a facility where the Chief determines that no other change in the permit is necessary, provided that any forms prescribed by the Chief, including a written agreement containing a specific date for transfer of permit responsibility, coverage, and liability between the current and new permittees have been submitted to the Chief.e. Change the construction schedule for a discharger which is a new source. No such change shall affect a discharger's obligation to have all pollution control equipment installed and in operation prior to discharge.f. Delete a point source outlet when the discharge from that outlet is terminated and does not result in discharge of pollutants from other outlets except in accordance with permit limits.g. Allow disposal system equipment substitution, when the substituted equipment would not require new or different permit conditions.h. Allow rerouting of discharge lines, when the rerouted line would not discharge to a different receiving stream and would not require new or different permit conditions.i. Allow relocation of elements of treatment facilities or disposal systems, when the relocation would not require new or different permit conditions (for example, relocation due to topography or equipment failures).j. Allow the addition of wastes from indirect dischargers under Section 14.2.b.2.k.Incorporate substantial modifications of POTW Pretreatment Programs after approval is granted in accordance with the procedures of 40 CFR 403.18.