Section 18 AAC 83.135 - Cause to modify or revoke and reissue permit(a) When the department receives any new information, including information received or discovered through a facility inspection, a submittal by the permittee required by the permit, a request to modify or revoke and reissue a permit, or a file review, the department may, in accordance with this section, determine if there is cause to modify or revoke and reissue the permit. If the department finds cause, the department may modify or revoke and reissue the permit in compliance with this section.(b) Cause to modify a permit, but not to revoke and reissue the permit unless the permittee requests or agrees, includes the following: (1) a material and substantial alteration or addition to the permitted facility or activity occurred after permit issuance, and the alteration or addition justifies the imposition of permit conditions different from the existing permit;(2) the department has received new information, other than revised regulations, guidance, or test methods, that was not available at the time of permit issuance, and the new information would have justified the imposition of different permit conditions at the time of issuance; for APDES general permits, cause under this paragraph includes any information indicating that cumulative effects on the environment are unacceptable; for new source or new discharger APDES permits, cause under this paragraph includes any significant information derived from effluent testing required under 18 AAC 83.315(e) (1) or 18 AAC 83.360(c) after issuance of the permit;(3) the standards or regulations on which the permit was based have been changed by the adoption of amended standards or regulations after the permit was issued; the department will modify a permit under this paragraph only when (A) the permit condition to be modified was based on a promulgated effluent limitation guideline, EPA-approved or promulgated water quality standards, or the secondary treatment regulations under 40 C.F.R. Part 133, adopted by reference in 18 AAC 83.010;(B) the EPA has revised, withdrawn, or modified that portion of the regulation or effluent limitation guideline on which the permit condition was based, or has approved a state action with regard to a water quality standard on which the permit condition was based; and(C) a permittee requests the department to modify the permit condition under 18 AAC 83.130 within 90 days after publication of a Federal Registernotice of the action on which the request is based;(4) the standards or regulations on which the permit was based have been changed by judicial decision after the permit was issued; the department will modify a permit under this paragraph only when a court of competent jurisdiction has remanded and stayed EPA-promulgated regulations or effluent limitations guidelines on which the permit condition was based, and a permittee requests the department to modify the permit in accordance with 18 AAC 83.130 within 90 days of the judicial remand;(5) the department determines good cause exists to modify a compliance schedule; good cause includes an act of God, strike, flood, materials shortage or other event over which the permittee has little or no control and for which there is no reasonably available remedy; however, in no case may an APDES compliance schedule be modified to extend beyond an applicable statutory deadline under 33 U.S.C. 1251 - 1387;(6) a permittee files a request for a variance under 33 U.S.C. 1311(c), (g), (h), (i), (k), or 33 U.S.C. 1326(a) or based on fundamentally different factors within the time specified in 18 AAC 83.365(b);(7) the department is required to incorporate an applicable toxic effluent standard or prohibition under 33 U.S.C. 1317(a) in an existing permit;(8) the reopener conditions in a permit require the department to consider a modification;(9) a permittee requests modification when that permittee qualifies for effluent limitations on a net basis or when a discharger is no longer eligible for net limitations under 18 AAC 83.545;(10) a permit modification is necessary under 40 C.F.R. 403.8(e), adopted by reference in 18 AAC 83.010, for development of the pretreatment program using compliance schedules;(11) a state with an EPA approved program has failed to notify, as required by 33 U.S.C. 1342(b)(3), another state whose waters may be affected by a discharge from the approved state;(12) when the level of discharge of any pollutant not limited in the permit exceeds the level that can be achieved by the technology-based treatment requirements appropriate to the permittee under 40 C.F.R. 125.3(c), adopted by reference in 18 AAC 83.010;(13) to establish a notification level as provided in 18 AAC 83.445;(14) 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 that has received a grant under 33 U.S.C. 1282(a)(3) for 100 percent of the costs to modify or replace facilities constructed with a grant for innovative and alternative wastewater technology under 33 U.S.C. 1282(a)(2), but in no case shall the compliance schedule be modified to extend beyond an applicable statutory deadline for compliance under 33 U.S.C. 1251 - 1387;(15) for a small municipal separate storm sewer system, to include an effluent limitation requiring implementation of a minimum control measure or measures as specified in 40 C.F.R. 122.34(b), adopted by reference in 18 AAC 83.010, when (A) the permit does not include a minimum control measure based upon the determination that another entity was responsible for implementation of the requirement; and(B) the other entity fails to implement measures that satisfy the requirement;(16) to correct technical mistakes, such as errors in calculation, or mistaken interpretations of law, made in determining permit conditions;(17) when the discharger has installed the treatment technology considered by the permit writer in setting effluent limitations imposed under 33 U.S.C. 1342(a)(1) and has properly operated and maintained the facilities, but has been unable to achieve those effluent limitations; in that case, the limitations in the modified permit may reflect the level of pollutant control actually achieved, but shall not be less stringent than required by a subsequently promulgated effluent limitation guideline.(c) Cause to modify or, alternatively, revoke and reissue a permit includes the following: (1) circumstances identified as cause for termination under 18 AAC 83.140 exist, and the department determines that it is appropriate to modify or revoke and reissue a permit;(2) the department has received notification, as required in the permit, of a proposed transfer of the permit.(d) Under (c)(2) of this section, a permit also may be modified to reflect a transfer after the effective date of an automatic transfer but will not be revoked and reissued after the effective date of the transfer except upon the request of the new permittee.Eff. 7/29/2006, Register 179; am 11/10/2007, Register 184Authority:AS 44.46.020
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