11 Miss. Code. R. 6-1.1.3 - Procedural Aspects of Permit Issuance

A. Permits: Preliminary Determinations, Draft Permits, Certificates of Coverage and Variances

(1) When the Executive Director or his/her authorized representative is satisfied that the application is complete, a preliminary determination with regard to the application will be made, including a proposed determination to issue or deny a State, UIC, NPDES permit or coverage under an issued NPDES general permit or under an issued State general permit for the discharge described in the application.

(2) If the proposed determination is to grant coverage under an issued NPDES general permit or under an issued State general permit, the Permit Board or its designee shall issue a certificate of coverage to the applicant.

(3) If the proposed determination is to issue a State, UIC, or NPDES permit, additional preliminary determinations shall be made as follows:

(a) proposed effluent limitations shall be identified for the constituents proposed to be limited with a supporting rationale (individual storm water permit rationales shall follow the procedures set forth in Rule 1.2.6.E of these regulations);

(b) a proposed schedule of compliance for meeting the proposed effluent limitations, including interim dates and requirements, if applicable, shall be established (schedules of compliance are impermissible for water quality based limitations, except when new, more stringent standards are adopted); and

(c) a description of any other proposed restrictions or other conditions determined necessary or appropriate by the Executive Director or his/her authorized representative which will significantly affect the discharge.

(4) The Executive Director or his/her authorized representative shall prepare a draft permit based upon the preliminary determinations made pursuant to Rule 1.1.3.A. and C

The draft permit shall be mailed to the applicant for comment, except in the case of an NPDES general permit or a State general permit. In the case of an NPDES or UIC permit, the draft permit shall be mailed to the Regional Administrator (or his/her designee) before public notice of the draft NPDES or UIC permit. The Regional Administrator (or his/her designee) may waive his right to comment on draft permits, except for general permits.

(5) Any request for variances as defined in 40 CFR 124.62(a) must be submitted pursuant to 40 CFR 124.62(e), which is incorporated herein and adopted by reference.

(6) The draft permit requirements contained in 40 CFR 124.6(a), (c), (d), and (e) as of the date the application is deemed complete are incorporated herein and adopted by reference with respect to NPDES permits and UIC permits.

B. Public Notice of Draft Permits and Preliminary Determinations

(1) The Executive Director or his/her authorized representative shall prepare a public notice of a draft NPDES or UIC permit, or a State permit as deemed appropriate by the Permit Board. The notice shall be made in accordance with public notice methods contained in 40 CFR, 124.l0(c) and (d) which are incorporated herein and adopted by reference.

(2) A copy of the notice shall be available at the Department office in Jackson, MS. Any person may forward a written request for a copy of the notice, which will be mailed to him.

C. Public Notice and Fact Sheets

(1) Public Notice: Contents and Information

A public notice of a draft State, UIC, or NPDES permit shall contain the following:

(a) the date of posting or publication of the public notice;

(b) the address and telephone number of the Department office in Jackson;

(c) the name and address of the applicant, except in the case of a draft NPDES general permit or a draft State general permit;

(d) a concise description of the activities and operations which result in the discharge identified in the draft permit;

(e) the name of the receiving waters into which the discharge is being made or is proposed to be made, including the location of the proposed or existing discharge point (in the case of general permits, a description of geographical area and/or allowable receiving waters);

(f) a concise description of the procedures for the formulation of the final determinations;

(g) the address and telephone number of the Department office where additional information on the draft permit, copies of the draft permit and fact sheets may be obtained or any other applicable forms and related documents may be inspected or copied; and

(h) for new or expanding NPDES permitted discharges; a statement concerning antidegradation.

(2) Public Notice: Comment Period for Interested Persons

(a) Within thirty (30) days following the date of posting or publication of the public notice pursuant to Rule 1.1.3.B., any interested person may submit in writing his views on the draft permit. The time for public comment may be extended by the Permit Board if the Board determines that an extension of time is necessary or appropriate to facilitate additional public comment.

(b) All views submitted to the Permit Board in writing by interested persons during the comment period shall be retained and considered in the formulation of final determinations on the draft permit by the Permit Board.

(3) Fact Sheets on Draft Permits

(a) A fact sheet shall be prepared for every NPDES or UIC permit required to have a fact sheet under 40 CFR 124.8(a).

(b) The Executive Director or his/her designee may prepare a fact sheet for any existing or proposed discharge if he deems the discharge to be of significant importance to warrant additional information for public comment.

(c) A copy of the fact sheet shall be available at the Department office in Jackson, MS. Any person may forward a written request for a copy of the fact sheet, which will be mailed to him.

(4) Fact Sheets on Draft Permits: Contents and Information The fact sheet prepared pursuant to Section C.3. of this Rule shall contain, but is not limited to, the following information:

(a) A brief description of the type of facility or activity which is subject of the draft permit.

(b) A sketch or detailed description of the location of the existing or proposed discharge described in the draft permit. In the case of general permits, a description of geographical areas and/or allowable receiving waters shall be provided.

(c) A brief description of the type and quantity of wastes which are proposed to be treated, discharged, or otherwise disposed.

(d) A brief summary of the basis for the draft permit conditions including references to applicable statutory or regulatory provisions and appropriate supporting references to the administrative record required by 40 CFR 124.9 (for EPA-issued permits).

(e) For NPDES draft permits, a concise citation of water quality standards, effluent limitations and mixing zones, if applicable, to be applied to the discharge and the uses for which the receiving waters have been classified.

(f) A complete description of the procedures used by the Permit Board to formulate final determinations on the draft permit and the existing or proposed discharges, including the 30-day comment period on the public notice, procedures for requesting a public hearing on the draft permit pursuant to Section G. of this Rule, and other procedures to facilitate public comment and participation in the formulation of final determinations by the Permit Board.

(g) The name and telephone number of a person to contact for further information.

(5) Public Notices, Rationales and Fact Sheets: Mailing Lists

(a) Any interested person who desires to receive copies of public notices may request that his name be placed on a mailing list of the Permit Board for the information. The request shall be made in writing to the Department office in Jackson, MS, and shall be renewed in December of each year. Failure to renew the request is just cause for the Permit Board to remove a name from the mailing list.

(b) The written request of any interested person to the Permit Board shall clearly identify the name of the person, the person's address, and the desired documents.

(6) Public Notices and Fact Sheets: Notice to Other Governmental Agencies

(a) When an NPDES or UIC permit with an existing or proposed discharge into interstate waters is drafted and the Permit Board determines that the discharge may affect the quality of the waters of any other state, the Executive Director or his/her duly authorized designee shall notify any appropriate state or interstate agency of the discharge and shall transmit to the agency a copy of the public notice. Additional information will be submitted upon request of the state and/or interstate agency.

(b) A state or interstate agency given notice pursuant to Rule 1.1.3.C.6 shall have 30 days in which to comment on the existing or proposed discharge and may submit in writing to the Executive Director or the Regional Administrator (or his/her designee) its views and recommendations. The views and recommendations submitted to the Executive Director by another state or interstate agency may be incorporated into the NPDES or UIC permit if determined by the Permit Board to be necessary or appropriate. If the views and recommendations are not incorporated into the NPDES or UIC permit, the Executive Director shall so notify the commenting agency in writing.

(c) Upon the posting of a public notice of a draft permit, the Executive Director or his/her duly authorized designee shall transmit a copy of the notice and fact sheet thereon to all agencies and other entities specified in EPA regulations.

(d) A copy of a public notice or fact sheet, or both, for a draft NPDES or UIC permit shall be sent to any federal, state, or local agency upon written request. The provisions of C.6.b. of this Rule, with regard to opportunity for comment, shall apply to the federal, state, or local agencies.

D. Draft Permits: Transmittal to Regional Administrator (or his/her designee), Deficiencies, Additional Data Requirements

(1) Upon drafting an NPDES or UIC permit, the Executive Director shall transmit a copy thereof and any other applicable related forms to the Regional Administrator (or his/her designee) for his review and comment in accordance with 40 CFR 123.43 and 123.44. Timely written comments submitted to the Executive Director by the Regional Administrator (or his/her designee) outlining any deficiencies or other changes he deems necessary to complete the permit application shall be considered by the Permit Board. The Permit Board will not issue an NPDES permit over the EPA Regional Administrator's (or his/her designee)'s written objection.

(2) The Permit Board, in its discretion, or upon request of the Regional Administrator (or his/her designee), may request of an applicant any additional information deemed necessary to complete or correct deficiencies in the application before processing the application or issuing or denying the issuance of a permit. No permit application shall be deemed to be complete and ready for disposition by the Permit Board until all information requested by the Permit Board has been supplied.

(3) The Commission may take enforcement action as prescribed by the State law or this regulation against any person who fails to either: (1) file a complete application; (2) correct deficiencies in the application; or (3) submit any additional information requested by the Permit Board.

E. Public Access to Forms and Commission Files and Records

A copy of a permit application, (except for an NPDES general permit or a State general permit), public notice, fact sheet, draft permit and other forms relating thereto, including written public comments not classified as confidential information by the Commission under the provisions of Miss. Code Ann. § 49-17-39 shall be available for public inspection and copying during normal business hours at the Department office in Jackson, MS. Written request must be provided in accordance with policies developed by the Commission and must state, specifically, records proposed for review, date proposed for review, and copying requirements.

F. Protection of Confidential Information

(1) Pursuant to Miss. Code Ann. §§ 49-17-39 and 25-61-1 (The Mississippi Public Records Act of 1983), 40 CFR 123.41, and the Commission's Regulation Title 11, Part 1, Chapter 2, Regulations Regarding the Review and Reproduction of Public Records, the Permit Board shall make available to the public all information contained on any form and all public comments on such information. Effluent data and information concerning air or water quality also shall be made available to the public. Information that is determined by the Commission to be trade secrets shall not be disclosed to the public without prior consent of the source of such information. When a claim of confidentiality is made by a person in accordance with the provisions of Miss. Code Ann. § 49-17-39 and Regulation Title 11, Part 1, Chapter 2, a recommendation on the questions of confidentiality shall be made by the Commission and forwarded to the Regional Administrator (or his/her designee) of EPA for his concurrence in such determination of confidentiality.

(2) A copy of a State, UIC, or NPDES permit application, public notice, fact sheet, draft permit and other forms relating thereto, including written public comment and other reports, files and information relating to the application not classified as confidential information by the Commission pursuant to 1.1.3.F.1.of this Rule, shall be available for public inspection and copying during normal business hours at the office of the Department in Jackson, Mississippi.

(3) Upon determination by the Commission that information submitted by a permit applicant is entitled to protection against disclosure as trade secrets, the information shall be so labeled and otherwise handled as confidential. Copies of the information and a notice of the Commission's action shall be forwarded to the Regional Administrator (or his/her designee). In making its determination of the entitlement of information to protection as confidential, the Commission shall follow the procedure set forth in Regulation Title 11, Part 1, Chapter 2.

G. Draft Permits: Public Hearings

(1) Determinations and Scheduling

(a) Within the 30-day comment period or other applicable comment period provided after posting or publishing of a public notice pursuant to B. of this Rule, an applicant, any affected state or interstate agency, the Regional Administrator (or his/her designee) or any other interested person or agency may file a petition with the Permit Board for a public hearing on a draft NPDES or UIC permit. A petition for a public hearing shall indicate the reasons why a hearing is requested, the interest in or relationship of the petitioner to the draft permit or existing or proposed discharge identified therein and shall specifically indicate which portions of the draft permit or NPDES or UIC form or information warrants a public hearing. If the Permit Board determines that a petition states sufficient cause or that there is significant public interest in a draft permit for a public hearing, it may schedule such a hearing.

(b) The hearing may be held in the geographical location of the proposed discharge or, in the discretion of the Permit Board, at another appropriate location, and shall be noticed at least thirty (30) days before the hearing. The notice of public hearing shall be transmitted to the applicant and shall be published in at least one newspaper of general circulation in the geographical area of the existing or proposed discharge identified on the draft permit and shall be mailed to any person or group upon request. Notice shall be mailed to all persons and governmental agencies which received a copy of the notice or the fact sheet for the draft permit

(c) The Permit Board may hold a single public hearing on related groups of draft permits.

(2) Public Hearing Notice Contents

A notice by the Permit Board of a public hearing on a draft permit shall contain in addition to the time and place of the hearing:

(a) The address and telephone number of the Department office in Jackson, MS, and the name of a contact person.

(b) The name and address of the applicant whose draft permit will be considered at the public hearing

(c) The name of the waters of the State to which a discharge, as identified on the draft permit, is or will be made and a concise description of the location of the discharge point. In the case of general permits, a description of geographical area and/or allowable receiving waters shall be provided.

(d) Reference to the public notice posted and published for the draft permit, including the identification numbers and dates of issuance thereof, if applicable.

(e) A brief statement of the purpose of the public hearing.

(f) The address or addresses of Department offices where interested persons may inspect or obtain copies of a draft permit, fact sheet or other applicable forms or other reports, files or information relating to a draft permit subject to public hearing, which has not been declared confidential by the Commission.

(g) A concise description of the nature of the public hearing and the issues to be heard, with reference to Permit Board rules and procedures to be followed.

H. Permit Board Determinations, Issuance or Denial of Permits.

(1) In considering an application for a permit issuance or transfer, the Permit Board may consider the applicant's compliance history, financial capability, financial responsibility, or any other aspect of the applicant's history it deems necessary or appropriate.

(2) The Permit Board, in considering the designee's list of denials for coverage under a general permit, shall hear any request for reconsideration at the next appropriate Permit Board meeting following the issuance of the denial.

(3) Following review of preliminary determinations or modifications made by the Department pursuant to Rule 1.1.3.B, any comments on the draft permit received by the Executive Director from the Regional Administrator (or his/her designee) pursuant to Rule 1.3.D., comments received from the public during the 30-day comment period following public notice of the draft permit as provided by Rule 1.1.3.C, comments received from the applicant pursuant to Rule 1.1.3.A, other applicable recommendations or determinations and review of the public hearing record after any hearing on a draft permit pursuant to Rule 1.1.3.G.1, the Permit Board shall make a determination to issue or deny the permit. The provisions of 40 CFR 124.17 in effect as of the date the permit is issued regarding response to comments are incorporated herein and adopted by reference.

(4) Any appeal from the decision of the Permit Board to issue or deny a permit or coverage under an existing permit made pursuant to Rule 1.1.3.H.2 or 3 above, or to a condition of a permit issued, shall be in the form of a request for a formal evidentiary hearing before the Permit Board, in accordance with and subject to Miss. Code Ann. § 49-17-29. All such formal hearings shall be transcribed by a court reporter, and the testimony given shall be under oath.

(5) Upon completion of any formal hearing convened pursuant to Rule 1.3.H.4 above, the Permit Board shall make a final decision affirming, reversing, or modifying its earlier determination. Any person aggrieved by this final action of the Permit Board may perfect an appeal to the Chancery Court upon the record made at the formal hearing, pursuant to Miss. Code Ann. § 49-17-29.

(6) An NPDES or UIC permit issued by the Permit Board pursuant to the State law and this regulation is a permit for the purposes of State law. A State permit issued for pretreatment purposes or for the operation of a treatment works from which no discharge occurs, is not an NPDES or UIC permit.

(7) NPDES and UIC permits issued by EPA, for which the State has issued certification, shall have the same force and effect as if they had been issued by the State under this regulation.

I. Final Permits: Transmittal to EPA

The Executive Director or his/her duly authorized representative shall transmit copies of all NPDES and UIC permits issued by the Permit Board pursuant to the State law and this regulation to the Regional Administrator (or his/her designee) immediately following issuance as agreed upon in the State/EPA Memorandum of Agreement (MOA).

Notes

11 Miss. Code. R. 6-1.1.3

Miss. Code Ann. §§ 49-2-1, et seq. and 49-17-1, et seq.