Current through Register Vol. XLI, No. 17, April 26, 2024
Section 47-10-9 - Modification, Revocation and Reissuance, Suspension and Revocation of Permits9.1. Actions by the Director. 9.1.a. Permits may be modified, revoked and reissued, suspended or revoked either at the request of any interested person or upon the Director'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 Director citing facts or reasons supporting the request and indicating under which subsection the request is being made. If a permit modification is being requested pursuant to an emergency declared by the Director, an affidavit signed by a person meeting the requirements of subsection 4.6 above attesting to the emergency shall be filed with the request. The Director may require additional information, and in the case of a major modification, may require submission of a new permit application. For a reissuance under subdivision 9.2.b or subsection 9.3 below, the Director shall require submission of a new permit application.9.1.b. If the Director decides the request is not justified, he or she shall send the requestor a brief written response giving the reasons for the decision. Denials of such requests are not subject to public notice, comment, or hearings.9.1.c. Permit modifications shall be governed as follows: 9.1.c.1. If the Director tentatively decides to modify or revoke and reissue a permit and the modification is not made pursuant to subsection 9.5 below, he or she shall prepare a draft permit in accordance with section 10 of this rule and shall follow the public notice procedures in section 12. The Director 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 Director shall require the submission of a new application.9.1.c.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.9.2.a. Minor modifications. -- Permits may be modified by the Director for any good cause as defined in subsection 9.4 below and, unless such cause is specified in subdivision 9.2.b, modification does not require the preparation of a draft permit or the public notice procedures of sections 10 and 12 respectively.9.2.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 in accordance with section 10 and the public notice procedures of section 12 of this rule, unless an emergency is declared by the Director. 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. 9.2.b.1. Alterations. -- There are material and substantial alterations or additions to the permitted facility or activity that justify the application of permit conditions that are different or absent in the existing permit, including the acceptance of wastes from an indirect discharger pursuant to section 14 of this rule.9.2.b.2. Information. -- The Director 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 rules, 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.9.2.b.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: 9.2.b.3.A. For promulgation of amended standards or rules when: 9.2.b.3.A.1. 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;9.2.b.3.A.2. The State has revised, withdrawn or modified that portion of the rule, effluent limitation guideline, new source performance standard, pretreatment standard, or water quality standard on which the permit condition was based; and9.2.b.3.A.3. A permittee requests modification within ninety (90) days after the State Register notice of the action on which the request is based.9.2.b.3.B. For judicial decisions, 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.9.2.b.4. Modification and extension of compliance schedules:9.2.b.4.A. The Director determines good cause exists for extension of a compliance schedule, such as an act of God, strike, flood or materials shortage or other event over which the permittee has little or no control and for which there is no reasonably available remedy.9.2.b.4.B. To modify a schedule of compliance to reflect the time lost during construction of an innovation or alternative facility, in the case of a POTW that has received a grant under '202(a)(3) of the CWA for one hundred percent (100%) of the costs to modify or replace facilities constructed with a grant for innovative or alternative wastewater technology under '202(a)(2).9.2.b.4.C. In no case shall a compliance schedule be modified to extend beyond an applicable CWA statutory deadline for compliance.9.2.b.5. Transfer of a permit under subdivision 3.5.c above.9.2.b.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 subsection 10.2 below, as applicable.9.2.b.7. When required to incorporate an applicable CWA '307(a) toxic effluent standard or prohibition.9.2.b.8. When required by the "Reopener" conditions in a permit, which are established in the permit under subdivision 6.3.c of this rule or 40 C.F.R. '403.10(e).9.2.b.9. Upon request of a permittee who qualifies for effluent limitations on a net basis under subsection 7.7 above.9.2.b.10. When a discharger is no longer eligible for net limitations, as provided in subdivision 7.2.a above.9.2.b.11. As necessary in accordance with 40 C.F.R. '403.8(e) (compliance schedule for development of pretreatment programs).9.2.b.12. When the level of discharge of any pollutant that is not limited in the permit exceeds the level that can be achieved by the technology-based treatment requirements appropriate to the permittee.9.2.b.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 that was not reported in the permit application.9.2.b.14. Upon failure of the Director to notify another State whose waters may be affected by a discharge from this State, as required by subsection 12.1 of this rule.9.2.b.15. A determination that the permitted activity endangers human health or the environment and cannot be regulated to acceptable levels by a permit modification.9.2.b.16. Any of the reasons cited in subsection 9.4 below.9.2.b.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.9.2.b.18. To correct technical mistakes, such as errors in calculation or mistaken interpretations of law made in determining permit conditions.9.2.b.19. When the discharger has installed the treatment technology considered by the permit writer in setting effluent limitations imposed under '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.9.2.b.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 that were based upon rules that 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 in accordance with section 10 and the public notice procedures of section 12 of this rule. Processing of a reissuance application does not exempt the permittee from compliance with any permit term or condition. The following are causes for reissuance: 9.3.a. Cause exists for revocation under subsection 9.4 below and the Director determines reissuance is appropriate.9.3.b. The permit was issued prior to July 1, 1974 and has no expiration date.9.4. Suspension and revocation of permits. 9.4.a. The following are causes for revocation or suspension of a permit or for denying a permit renewal application: 9.4.a.1. Noncompliance by the permittee with any condition of the permit; or9.4.a.2. 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; or9.4.a.3. 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; or9.4.a.4. A change in any condition that requires either a temporary or a permanent reduction or elimination of any discharge controlled by the permit.9.4.b. If the Director 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 that follows the same procedures as any draft prepared under section 10 and shall fulfill the requirements of notice under Section 12 of this rule.9.5. Minor modifications of permits. -- Upon the consent of the permittee, the Director 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 pursuant to section 10 or following the notice procedures in Section 12 of this rule. Minor modifications may only:9.5.a. Correct typographical errors.9.5.b. Require more frequent monitoring or reporting by the permittee.9.5.c. Change an interim compliance date in a schedule of compliance, provided the new date is not more than one hundred twenty (120) days after the date specified in the existing permit and does not interfere with attainment of the final compliance date requirement.9.5.d. Allow for a change in ownership or operational control of a facility where the Director determines that no other change in the permit is necessary, provided that any forms prescribed by the Director, 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 Director.9.5.e. Change the construction schedule for a discharger that 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.9.5.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.9.5.g. Allow disposal system equipment substitution when the substituted equipment would not require new or different permit conditions.9.5.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.9.5.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).9.5.j. Allow the addition of wastes from indirect dischargers under paragraph 14.2.b.2 below.9.5.k. Incorporate substantial modifications of POTW pretreatment programs after approval is granted in accordance with the procedures of 40 C.F.R. '403.18.