Current through Register Vol. XLI, No. 21, May 23, 2024
Section 47-30-3 - Permits3.1. Permit Requirements; Exemptions:3.1.a. Permit Requirements. Except as authorized by a WV/NPDES permit, no person shall: 3.1.a.1. Discharge pollutants from a point source associated with any coal mine or preparation plant, or any refuse and waste therefrom;3.1.a.2. Make, cause or permit to be made any outlet or substantially enlarge or add to the load of any existing outlet from a facility for the discharge of pollutants or the effluent therefrom into the waters of the State;3.1.a.3. Acquire, construct, install, modify or operate a disposal system or part thereof for the direct or indirect discharge or deposit of treated or untreated waste or effluent from any facility into the waters of the State, or any extension to or addition to such disposal system;3.1.a.4. Extend, modify, add to or increase in volume or concentration any pollutants or effluent from any point source associated with any facility in excess of the discharges or disposition specified or permitted under any existing permit; or3.1.a.5. Construct, install, modify, open, reopen, operate or abandon any coal mine, coal preparation plant or coal preparation plant associated areas whenever such facilities have associated with them or might reasonably be expected to have associated with them a discharge into or pollution of waters of the State, except that a WV/NPDES permit shall be required for any coal preparation plant regardless of whether it has, may have or might reasonably be expected to have a discharge.3.1.a.6. Conduct activities consisting of discharges of storm water runoff or snow melt composed entirely of flows that are from conveyances used for collecting and conveying precipitation runoff, unless meeting the following requirements: 3.1.a.6.A. The facility shall have a valid WV/NPDES permit;3.1.a.6.B. The storm water activity shall not involve any mineral removal, pumping of storm water or storm water commingled with mine drainage or refuse drainage;3.1.a.6.C. The storm water activity shall be constructed and maintained in accordance with the issued Article 3 Permit Revision including incidental boundaries revisions and with the best management practices and performance standards contained in 38 C.S.R. 2 and W. Va. Code § 22-3-1, et seq.;3.1.a.6.D. Any request for coverage under this rule shall be submitted on forms prescribed by the Secretary for an Article 3 Permit Revision;3.1.a.6.E. Authorization to discharge storm water is effective upon the issuance of the corresponding Article 3 Permit Revision;3.1.a.6.F. Application for reissuance of the WV/NPDES Permit shall include application information on all storm water discharges authorized under this rule; and3.1.a.6.G. The Secretary may require any storm water discharger authorized by this rule to submit a WV/NPDES modification when the Secretary determines that the receiving stream may be better protected by an individual WV/NPDES modification.3.1.a.7. A WV/NPDES permit issued pursuant to Section 3 of this rule shall be deemed to be a permit issued in accordance with Article 11 and the CWA.3.1.a.8. No facility may be an indirect discharger.3.1.b. Exemptions3.1.b.1. Discharges of dredged or fill material into waters of the State that are regulated under Section 404 of CWA do not require a WV/NPDES permit for the activities regulated under section 404 of the CWA. This exemption shall not relieve any person of any requirement imposed by W. Va. Code § 22-11-1, et seq., or other rules, including permit requirements.3.2. Prohibition Against Issuing a WV/NPDES Permit.3.2.a. A WV/NPDES permit may not be issued:3.2.a.1. When the conditions of the permit do not provide for compliance with the applicable requirements of CWA and Article 11;3.2.a.2. By the Secretary where the Regional Administrator has objected to issuance of the WV/NPDES permit;3.2.a.3. When, in the judgment of the Secretary of the United States Army Corps of Engineers, anchorage and navigation in or on any waters of the State would be substantially impaired by the discharge;3.2.a.4. For the discharge of any radiological, chemical or biological warfare agent or high level radioactive waste;3.2.a.5. For any discharge inconsistent with a plan or plan amendment approved under CWA Section 208(b);3.2.a.6. To a new source or a new discharger, if the discharge from its construction or operation will cause or contribute to the violation of water quality standards, unless the applicant has met the requirements of subdivision 4.5.e. of this rule or has met the requirements for a variance under subdivision 4.5.f. of this rule;3.2.a.7. When the imposition of conditions cannot ensure compliance with the applicable water quality requirements of all affected states; or3.2.a.8. To any facility that is an indirect discharger.3.3. Denial of Permits. WV/NPDES permits may be denied for noncompliance with Article 11 or this rule, including the reasons specified in subsection 8.4 of this rule, or when a surface mining permit under WVSCMRA has been denied. In the case of an application for reissuance, an outstanding violation of any existing environmental permit is grounds for denial. Any denial of the WV/NPDES permit is appealable to the West Virginia Environmental Quality Board in accordance with the procedures and authority of W. Va. Code § 22-11-21.3.4. Effect of a Permit. 3.4.a. Except for any toxic effluent standards and prohibitions imposed by CWA Section 307 for toxic pollutants injurious to human health, compliance with a permit during its term constitutes compliance, for purposes of enforcement, with CWA Sections 301, 302, 306, 307, 318, 403, and 405 and Article 11. However, a permit may be modified, reissued or revoked during its term for cause as set forth in Section 8 of this rule.3.4.b. Issuance of a WV/NPDES permit does not convey any property rights of any sort or any exclusive privilege.3.5. Duration and Transferability of Permits. 3.5.a. Duration. WV/NPDES permits shall be effective for a fixed term not to exceed five (5) years. The Secretary may shorten the term of a WV/NPDES permit to ensure that expiration dates of WV/NPDES permits in the same watershed coincide, but a WV/NPDES permit may not be shortened to less than three (3) years for the sole purpose of reconciling expiration dates of WV/NPDES permits, unless the permittee agrees.3.5.b. Extension. An extension of a WV/NPDES permit may be initiated by either the permittee or the Secretary. Permits extended under subdivision 3.5.b. of this rule remain fully effective and enforceable. When a WV/NPDES permit is reissued the existing permit is automatically void. 3.5.b.1. Reissuance Extensions. Prior to the expiration date of the permit, the permittee may request an extension of its WV/NPDES permit for the purpose of compiling or processing a reissuance application. Such requests must be in writing to the Secretary and shall not be granted for more than 12 months beyond the expiration date. The request for extension shall be signed as required by subsection 4.7. of this rule. After receiving the reissuance application, the Secretary may extend any WV/NPDES permit for the purpose of ensuring coverage of a facility during processing of the reissuance. The Secretary may grant successive extensions for periods not to exceed 12 months if he or she determines additional time is necessary in order to process the application for reissuance.3.5.b.2. Watershed Framework Extensions. The Secretary may grant a one-time extension of a WV/NPDES permit for up to 24 months for the purpose of adjusting expiration dates to coincide with the West Virginia Watershed Management Framework initiative cycle dates of the watershed groups.3.5.c. Transfer of Permits. Permits may be transferred from a permittee to a new operator by either modifying an existing permit pursuant to subparagraph 8.2.c.1.D. of this rule, reissuing the permit under paragraph 8.3.c.3. of this rule or by an automatic transfer under subdivision 3.5.d. of this rule. The proposed permittee shall demonstrate that he or she has accepted all necessary permit responsibilities. 3.5.c.1 The Secretary may grant advanced approval of the transfer of the WV/NPDES Permit to temporarily allow the new owner or operator to operate and discharge under the conditions of the WV/NPDES permit. Approval will be contingent upon the corresponding Article 3 approval granted under the terms and conditions specified in 38 C.S.R. 2 § 23.25.a.4.3.5.d. Automatic Transfer of Permits. Any permit may be automatically transferred to a new permittee if: 3.5.d.1. The current permittee notifies the Secretary on the forms prescribed, at least 30 days in advance of the proposed transfer date;3.5.d.2. The notice includes a written agreement between the existing and proposed permittee containing a proposed date for transfer of the permit and explaining the extent of permit responsibility, coverage, and liability between them; and3.5.d.3. The Secretary does not notify the existing permittee and the proposed new permittee of his or her intent: 3.5.d.3.A. To deny the transfer request;3.5.d.3.B. To require the transfer through permit modification;3.5.d.3.C. To require the transfer through reissuance and require a new application to be filed rather than approving the transfer; or3.5.d.3.D. The permittee and the proposed new permittee do not receive notification under paragraph 3.5.d.3. of this rule within 45 days after receipt of the current permittee's notification under paragraph 3.5.d.1. of this rule.3.5.e. Permits Issued After July 1, 1984. A permit may be issued to expire on or after the statutory deadline set forth in CWA Sections 301(b)(2)(A), 301(b)(2)(C), and 301(b)(2)(E) (July 1, 1984) if the permit includes effluent limitations to meet the requirements of CWA Sections 301(b)(2)(A), 301(b)(2)(C), 301(b)(2)(D), 301(b)(2)(E), and 301(b)(2)(F), whether or not the applicable effluent limitations guidelines have been promulgated or approved. A determination that a particular discharger falls within a given industrial category for purposes of setting a permit expiration date under this subdivision is not conclusive as to the discharger's inclusion in the industrial category for any other purposes, and does not prejudice any rights to challenge or change that inclusion at the time that a permit based on that determination is formulated.3.6. NPDES Permits Issued by EPA and the Secretary. 3.6.a. The Secretary shall issue, administer and enforce all WV/NPDES or Article 11 permits relating to coal mines, preparation plants, and all refuse and waste therefrom.3.6.b. The Secretary may adopt as WV/NPDES permits all NPDES permits relating to coal mines, preparation plants, and all refuse and waste therefrom issued by the Regional Administrator that are transferred by the Regional Administrator and accepted by the Secretary. Acceptance of a NPDES permit from the Regional Administrator shall not supersede any permit previously issued under Article 11. All provisions of both permits shall be in force, except that, in the event of a conflict, the more stringent provisions shall apply. All permits relating to the same facility shall be deemed consolidated and considered as a single permit for the purposes of reporting, administration and enforcement.3.6.c. Unexpired permits previously issued under Article 11 shall be void whenever a new WV/NPDES permit is issued for the same facility. Any unexpired NPDES permit issued by the EPA shall not be enforceable by the Secretary upon the issuance of a new WV/NPDES permit for the same facility.