Proposed Text
CHAPTER 240
PROCEDURAL RULE NO. 3 - CERTIFICATION PURSUANT TO 33 USC § 1341
("401" CERTIFICATION): PROCEDURES FOR APPLICATIONS, FOR ISSUANCE, AND
FOR REQUESTS FOR MODIFICATION OR REVOCATION (REPEALED)
9VAC25-240-10. Definitions. (Repealed.)
For purposes of this chapter, the term
"Certification" means certification by the board
pursuant to 33 USC § 1341. Unless otherwise indicated, the definitions contained
in § 62.1-44.3 of the Code of Virginia and in the board's Procedural Rule No. 1
(9VAC25-230-10 et seq.) and Regulation No. 6 also apply.
9VAC25-240-20. General requirement and purpose. (Repealed.)
In order to comply with § 401 of the Clean Water Act of
1977 (33 USC § 1341) (the Act), any applicant for a federal license or permit to
conduct any activity, including, but not limited to, the construction or
operation of facilities which may result in a discharge to State waters, must
provide the federal licensing or permitting authority with a certification from
the State Water Control Board (Board) in accordance with the State Water
Control Law (the Law) that the activity will comply with the applicable
provisions of §§ 301, 302, 303, 306 and 307 of the Act. A certification must
set forth any effluent limitations and other limitations and monitoring
requirements necessary to assure compliance with the Act itself and with other
appropriate requirements of state law, and these become a condition on the
federal license or permit. The following procedures are to be followed when
applying for certification, and when requesting that certification be modified
or revoked.
9VAC25-240-30. Time of filing. (Repealed.)
The application for certification should be filed prior to
or concurrently with the application for the federal license or permit for
which the certification is required. Applications for certification that are filed
after the application for a federal permit has been filed will be accepted and
processed but the issuance of the federal permit may be delayed.
9VAC25-240-40. Filing and content of the application. (Repealed.)
Prospective applicants for certification should contact the
Bureau of Surveillance and Field Studies at the Board or the Virginia Marine Resources
Commission concerning application forms. Where possible the Board will utilize
existing forms; ordinarily the "Joint Permit/Application for Dredge, Fill
and Structures in the Waters and Wetlands of Virginia" will be used. Joint
permit applications may be obtained from the Commissioner of Marine Resources;
those applications will be processed in accordance with the procedures
specified in the application form.
9VAC25-240-50. Public notice; application for certification.
(Repealed.)
Upon receipt of a completed application for certification
of a project that requires a permit from the Secretary of the Army, the board, the
commissioner of Marine Resources, or the district engineer, as appropriate,
will arrange to distribute public notice of the application. Where appropriate,
this notification shall be accomplished by the Joint State-Federal Public
Notice as circulated by the U.S. Army Corps of Engineers. If this Joint
State-Federal Public Notice procedure has not been implemented within a corps
of engineers district, or if no corps permit is involved, the public notice
will be published once in a newspaper of general circulation in the area in
which the proposed activity is to take place. The publication will be at the
applicant's expense. In addition to any other information required by Law, the
public notice will include:
1. The name and address of the board and the address and
telephone number of the board office at which persons may obtain information
pertinent to the application;
2. A brief description of the activity or operation for
which the application is made or which will or may result in a discharge to
state waters;
3. The precise location of such activity and the state
waters that will or may be affected. The location should be described, where
possible, with reference to route numbers, road intersections, map coordinates
or similar information; and
4. A brief description of the board's procedures for
formulation of final determinations, including the appropriate comment period
required by paragraph A of 9 VAC25-240-60 and the means by which interested
persons may comment on the application.
9VAC25-240-60. Hearings and final decisions. (Repealed.)
A. The board shall provide a period of not less than 15
days nor more than 30 days following the date of the publication of public notice
during which interested persons may submit written comments and requests for a
hearing on the application or request. All written comments submitted during
the comment period will be retained by the board and considered during its
final decision on the application or request.
B. The executive secretary shall consider all written
comments and requests for hearing received during the comment period, and shall
make a determination on the necessity of a hearing in accordance with
9VAC25-230-50 (Procedural Rule No. 1). All proceedings, hearings and decisions
from it will be in accordance with Procedural Rule No. 1.
C. Should the executive secretary, in accordance with
9VAC25-230-70, (Procedural Rule No. 1), determine to dispense with the hearing,
he may grant the certification, or, in his discretion, transmit the application
or request, together with all written comments thereon and relevant staff
documents, to the board for its decision. The executive secretary may transmit
with the application or request a staff recommendation for the board's
consideration, together with any supporting documents.
9VAC25-240-70. Requests for modification or revocation;
public notice. (Repealed.)
A. The certification holder or the board's staff, may, at
any time, file with the executive secretary a written request that
certification be modified or revoked. Requests for modification or revocation
of certification shall contain the following information:
1. If the request is made by the certification holder, the
name, mailing address and telephone number of the requester and the name, mailing
address, and telephone number of anyone representing him;
2. Where applicable, a statement specifically setting forth
the requested modification, and the reason for it; and
3. Where applicable, a statement specifically setting forth
the reason for the requested revocation.
B. The executive secretary shall review all requests for
modification or revocation filed in accordance with this section, and shall
make a tentative determination whether to grant or deny the requested
modification or revocation. He shall then act upon the request within 30
calendar days following receipt of a complete request in accordance with one of
the following subsections.
C. The executive secretary shall, in his discretion, either
(i) promptly schedule a public hearing and advertise it as provided in
9VAC25-230-50 D, (Procedural Rule No. 1), or (ii) publish public notice of his
determination in accordance with the procedures for the publication of
completed applications contained in 9VAC25-240-50, if he finds the following:
1. The certification holder objects to the proposed
revocation and the proposed revocation is not on its face inconsistent with or
in violation of the law, federal law, or any pertinent regulation; or
2. The requested modification is not a minor one but affects
the substance of the certification and the requested modification is not on its
face inconsistent with, or in violation of the law, federal law or any
applicable regulation.
D. The executive secretary or the board may, without public
notice, grant the requested modification where the executive secretary finds
the following:
1. The holder of the certification has either requested the
modification, or does not object; and
2. The requested modification is not inconsistent with, or
in violation of the Law, federal law or any applicable regulation; and
3. The requested modification is a minor one and does not
affect the substance of the certification.
E. The board may, without public notice, grant the
requested revocation where it finds that the certification holder has either
requested the revocation or does not object.
F. The executive secretary shall summarily deny the
requested modification or revocation where he finds that it is on its face
inconsistent with, or in violation of the Law, federal law or any pertinent
regulation.