W. Va. Code R. § 47-10-13

Current through Register Vol. XLI, No. 23, June 7, 2024

Section 47-10-13 - Special NPDES Programs

13.1. Concentrated animal feeding operations.

13.1.a. Concentrated animal feeding operations (CAFOs), as defined in subdivision 13.1.b. or designated in accordance with subdivision 13.1.c. of this rule, are point sources subject to NPDES permitting requirements as provided herein. Once an animal feeding operation is defined as a CAFO for at least one (1) type of animal, the NPDES requirements for CAFOs apply with respect to all animals in confinement at the operation and all manure, litter or process wastewater generated by those animals or the production of those animals, regardless of the type of animal.

13.1.b. Definitions applicable to this section:

13.1.b.1. "Animal feeding operation" ("AFO") means a lot or facility, other than an aquatic animal production facility, where the following conditions are met:

13.1.b.1.A. Animals other than aquatic animals have been, are or will be stabled or confined and fed or maintained for a total of forty-five (45) days or more in any twelve (12) month period; and

13.1.b.1.B. Crops, vegetation, forage growth, or post-harvest residues are not sustained in the normal growing season over any portion of the lot or facility.

13.1.b.2. "Concentrated animal feeding operation" ("CAFO") means an AFO that is defined or designated as a Large CAFO or as a Medium CAFO by the terms of this rule. Two or more AFOs under common ownership are considered to be a single AFO for the purposes of determining the number of animals at an operation if they adjoin each other or if they use a common area or system for the disposal of wastes.

13.1.b.3. "Land application area" means land under the control of an AFO owner or operator, whether it is owned, rented or leased, to which manure, litter or process wastewater from the production area is or may be applied.

13.1.b.4. "Large concentrated animal feeding operation" ("Large CAFO") means an AFO that:

13.1.b.4.A. Stables or confines as many as or more than the number of animals specified in any of the following categories:

13.1.b.4.A.1. Seven hundred (700) mature dairy cows, whether milked or dry;

13.1.b.4.A.2. One thousand (1,000) veal calves;

13.1.b.4.A.3. One thousand (1,000) cattle other than mature dairy cows or veal calves. Cattle includes, but is not limited to, heifers, steers, bulls, and cow/calf pairs;

13.1.b.4.A.4. Two thousand five hundred (2,500) swine, each weighing fifty-five (55) pounds or more;

13.1.b.4.A.5. Ten thousand (10,000) swine, each weighing less than fifty-five (55) pounds;

13.1.b.4.A.6. Five hundred (500) horses;

13.1.b.4.A.7. Ten thousand (10,000) sheep or lambs;

13.1.b.4.A.8. Fifty-five thousand (55,000) turkeys;

13.1.b.4.A.9. Thirty thousand (30,000) laying hens or broilers, if the AFO uses a liquid manure handling system;

13.1.b.4.A.10. One hundred twenty-five thousand (125,000) chickens other than laying hens, if the AFO uses other than a liquid manure handling system;

13.1.b.4.A.11. Eighty-two thousand (82,000) laying hens, if the AFO uses other than a liquid manure handling system;

13.1.b.4.A.12. Thirty thousand (30,000) ducks, if the AFO uses other than a liquid manure handling system; or

13.1.b.4.A.13. Five thousand (5,000) ducks, if the AFO uses a liquid manure handling system).

13.1.b.5. "Manure" is defined to include manure, bedding, compost and raw materials or other materials commingled with manure or set aside for disposal.

13.1.b.6. "Medium concentrated animal feeding operation" ("Medium CAFO") means an AFO that:

13.1.b.6.A. Stables or confines the type and number of animals that fall within the following ranges:

13.1.b.6.A.1. Two hundred (200) to six hundred ninety-nine (699) mature dairy cows, whether milked or dry;

13.1.b.6.A.2. Three hundred (300) to nine hundred ninety-nine (999) veal calves;

13.1.b.6.A.3. Three hundred (300) to nine hundred ninety-nine (999) cattle other than mature dairy cows or veal calves. Cattle includes but is not limited to heifers, steers, bulls, and cow/calf pairs;

13.1.b.6.A.4. Seven hundred fifty (750) to two thousand four hundred ninety-nine (2,499) swine, each weighing fifty-five (55) pounds or more;

13.1.b.6.A.5. Three thousand (3,000) to nine thousand nine hundred ninety-nine (9,999) swine, each weighing less than fifty-five (55) pounds;

13.1.b.6.A.6. One hundred fifty (150) to four hundred ninety-nine (499) horses;

13.1.b.6.A.7. Three thousand (3,000) to nine thousand nine hundred ninety-nine (9,999) sheep or lambs;

13.1.b.6.A.8. Sixteen thousand five hundred (16,500) to fifty-four thousand nine hundred ninety-nine (54,999) turkeys;

13.1.b.6.A.9. Nine thousand (9,000) to twenty-nine thousand nine hundred ninety-nine (29,999) laying hens or broilers, if the AFO uses a liquid manure handling system;

13.1.b.6.A.10. Thirty-seven thousand five hundred (37,500) to one hundred twenty-four thousand nine hundred ninety-nine (124,999) chickens other than laying hens, if the AFO uses other than a liquid manure handling system;

13.1.b.6.A.11. Twenty-five thousand (25,000) to eighty-one thousand nine hundred ninety-nine (81,999) laying hens, if the AFO uses other than a liquid manure handling system;

13.1.b.6.A.12. Ten thousand (10,000) to twenty-nine thousand nine hundred ninety-nine (29,999) ducks, if the AFO uses other than a liquid manure handling system; or

13.1.b.6.A.13. One thousand five hundred (1,500) to four thousand nine hundred ninety-nine (4,999) ducks, if the AFO uses a liquid manure handling system; and

13.1.b.6.B. Either one of the following conditions is met:

13.1.b.6.B.1. Pollutants are discharged into waters of West Virginia through a man-made ditch, flushing system or other similar man-made device; or

13.1.b.6.B.2. Pollutants are discharged directly into waters of West Virginia that originate outside of and pass over, across or through the facility or otherwise come into direct contact with the animals confined in the operation.

13.1.b.7. "Process wastewater" means water directly or indirectly used in the operation of the AFO for any or all of the following: spillage or overflow from animal or poultry watering systems; washing, cleaning or flushing pens, barns, manure pits or other AFO facilities; direct contact swimming, washing or spray-cooling of animals; or dust control. Process wastewater also includes any water that comes into contact with any raw materials, products or byproducts, including manure, litter, feed, milk, eggs or bedding.

13.1.b.8. "Production area" means that part of an AFO that includes the animal confinement area, the manure storage area, the raw materials storage area, and the waste containment areas. The animal confinement area includes but is not limited to open lots, housed lots, feedlots, confinement houses, stall barns, free stall barns, milkrooms, milking centers, cowyards, barnyards, medication pens, walkers, animal walkways, and stables. The manure storage area includes but is not limited to lagoons, runoff ponds, storage sheds, stockpiles, under-house or pit storages, liquid impoundments, static piles, and composting piles. The raw materials storage area includes but is not limited to feed silos, silage bunkers and bedding materials. The waste containment area includes but is not limited to settling basins, and areas within berms and diversions that separate uncontaminated storm water. Also included in the definition of production area is any egg washing or egg processing facility and any area used in the storage, handling, treatment, or disposal of mortalities.

13.1.b.9. "Small concentrated animal feeding operation" ("Small CAFO") means an AFO that is designated as a CAFO and is not a Medium CAFO as defined above.

13.1.c. The appropriate authority (i.e., Director or Regional Administrator or both, as specified in paragraph 13.1.c.1. below) may designate any AFO as a CAFO upon determining that it is a significant contributor of pollutants to the waters of West Virginia.

13.1.c.1. CAFO designations shall be made by the Director. The Regional Administrator may also designate CAFOs, but only where the Regional Administrator has determined that one or more pollutants in the AFO's discharge contributes to an impairment in a downstream or adjacent State or Indian country water that is impaired for that pollutant.

13.1.c.2. In making this designation, the Director or the Regional Administrator shall consider the following factors:

13.1.c.2.A. The size of the AFO and the amount of waste reaching the waters of West Virginia;

13.1.c.2.B. The location of the AFO relative to the waters of West Virginia;

13.1.c.2.C. The means of conveyance of animal wastes and process wastewaters into the waters of West Virginia;

13.1.c.2.D. The slope, vegetation, rainfall, and other factors affecting the likelihood or frequency of discharge of animal wastes, manure, and process wastewaters into the waters of West Virginia; and

13.1.c.2.E. Other relevant factors.

13.1.c.3. No AFO shall be designated under this section unless the Director or the Regional Administrator has conducted an on-site inspection of the operation and determined that the operation should and could be regulated under the permit program. In addition, no AFO with numbers of animals below those established in paragraph 13.1.b.6 of this rule may be designated as a CAFO unless:

13.1.c.3.A. Pollutants are discharged into the waters of West Virginia through a manmade ditch, flushing system or other similar manmade device; or

13.1.c.3.B. Pollutants are discharged directly into the waters of West Virginia that originate outside of the facility and pass over, across or through the facility or otherwise come into direct contact with the animals confined in the operation.

13.1.d. Permit Requirement.

13.1.d.1. The owner or operator of a CAFO must apply for an individual NPDES permit if the CAFO discharges or proposes to discharge into the waters of West Virginia. A CAFO proposes to discharge if it is designed, constructed, operated or maintained such that a discharge will occur.

13.1.d.2. A permit application for an individual permit must include the information specified in paragraph 4.4.c.1 above.

13.1.e. Land application discharges from a CAFO are subject to NPDES requirements. The discharge of manure, litter or process wastewater to waters of West Virginia from a CAFO as a result of the application of manure, litter or process wastewater by the CAFO to land areas under its control is a discharge from that CAFO subject to NPDES permit requirements, except where it is an agricultural storm water discharge as provided in 33 U.S.C. '1362(14). For purposes of this paragraph, where the manure, litter or process wastewater has been applied in accordance with site-specific nutrient management practices that ensure appropriate agricultural utilization of the nutrients in the manure, litter or process wastewater, a precipitation-related discharge of manure, litter or process wastewater from land areas under the control of a CAFO is an agricultural storm water discharge.

13.1.e.1. For unpermitted Large CAFOs, a precipitation-related discharge of manure, litter or process wastewater from land areas under the control of the CAFO shall be considered an agricultural storm water discharge only where the manure, litter or process wastewater has been land applied in accordance with site-specific nutrient management practices that ensure appropriate agricultural utilization of the nutrients in the manure, litter or process wastewater, as specified in subparagraphs 13.1.h.1.A through 13.1.h.1.I below.

13.1.e.2. Unpermitted Large CAFOs must maintain documentation specified in subparagraph 13.1.h.1.I. below, either on site or at a nearby office or otherwise make such documentation readily available to the Director or Regional Administrator upon request.

13.1.f. Any CAFO that is required to seek permit coverage under paragraph 13.1.d.1 of this rule must seek coverage when the CAFO proposes to discharge.

13.1.f.1. New sources. -- The owner or operator of a new source must seek to obtain coverage under a permit at least one hundred eighty (180) days prior to the time that the CAFO commences operation.

13.1.f.2. Expansion of AFO to CAFO. -- For other operations (e.g. resulting from an increase in the number of animals), the owner or operator must seek to obtain coverage under a permit as soon as possible, but no later than ninety (90) days after becoming defined as a CAFO.

13.1.f.3. Operations that are designated as CAFOs. -- For an operation designated as a CAFO in accordance with subdivision 13.1.c. above, the owner or operator must seek to obtain a permit no later than ninety (90) days after receiving notice of the designation.

13.1.g. Duty to Maintain Permit Coverage. -- No later than one hundred eighty (180) days before the expiration of the permit, or as provided by the Director, any permitted CAFO must submit an application to renew its permit in accordance with paragraph 4.4.c.1 of this rule, unless the CAFO will not discharge or propose to discharge upon expiration of the permit.

13.1.h. Additional conditions applicable to NPDES permits issued to CAFOs. -- Any permit issued to a CAFO must include the following:

13.1.h.1. Requirement to implement a nutrient management plan. -- Any permit issued to a CAFO must include a requirement to implement a nutrient management plan (NMP) that, at a minimum, contains BMPs necessary to meet the requirements of this section and applicable effluent limitations and standards, including those specified in 40 C.F.R. '412. The NMP must, to the extent applicable:

13.1.h.1.A. Ensure adequate storage of manure, litter, and process wastewater, including procedures to ensure proper operation and maintenance of the storage facilities;

13.1.h.1.B. Ensure proper management of mortalities (i.e. dead animals) to make certain that they are not disposed of in a liquid manure, storm water or process wastewater storage or treatment system that is not specifically designed to treat animal mortalities;

13.1.h.1.C. Ensure that clean water is diverted, as appropriate, from the production area;

13.1.h.1.D. Prevent direct contact of confined animals with waters of West Virginia;

13.1.h.1.E. Ensure that chemicals and other contaminants handled on-site are not disposed of in any manure, litter, process wastewater or storm water storage or treatment system, unless such system is specifically designed to treat such chemicals and other contaminants;

13.1.h.1.F. Identify appropriate site-specific conservation practices to be implemented, including as appropriate buffers or equivalent practices to control runoff of pollutants into the waters of West Virginia;

13.1.h.1.G. Identify protocols for appropriate testing of manure, litter, process wastewater, and soil;

13.1.h.1.H. Establish protocols to land-apply manure, litter and/or process wastewater in accordance with site-specific nutrient management practices that ensure appropriate agricultural utilization of the nutrients in the manure, litter and/or process wastewater; and

13.1.h.1.I. Identify specific records that will be maintained to document the implementation and management of the minimum elements described hereinabove.

13.1.h.2. Recordkeeping requirements.

13.1.h.2.A. The permittee must create, maintain for five (5) years, and make available to the Director upon request the following records:

13.1.h.2.A.1. All applicable records identified in subparagraph 13.1.h.1.I above;

13.1.h.2.A.2. In addition, all CAFOs subject to 40 C.F.R. '412 must comply with the recordkeeping requirements of 40 C.F.R. ''412.37(b) and (c) and 40 C.F.R. ''412.47(b) and (c).

13.1.h.2.B. A copy of the CAFO's site-specific NMP must be maintained on site and made available to the Director upon request.

13.1.h.3. Requirements relating to the transfer of manure or process wastewater to other persons. -- Prior to transferring manure, litter or process wastewater to other persons, Large CAFOs must provide the recipient of the manure, litter or process wastewater with the most current nutrient analysis. The analysis provided must be consistent with the requirements of 40 C.F.R. '412. Large CAFOs must retain for five (5) years records of the recipient's name and address, approximate amount of manure, litter or process wastewater transferred, and the date of the transfer.

13.1.h.4. Annual reporting requirements for CAFOs. The permittee must submit an annual report to the Director, which must include:

13.1.h.4.A. The number and type of animals, as listed in paragraphs 13.1.b.4 and 13.1.b.6 above, whether in open confinement or housed under roof;

13.1.h.4.B. The estimated amount of total manure, litter or process wastewater generated by the CAFO in the previous twelve (12) months, measured in tons or gallons;

13.1.h.4.C. The estimated amount of total manure, litter or process wastewater transferred to another person by the CAFO in the previous twelve (12) months, measured in tons or gallons;

13.1.h.4.D. The total number of acres of land application covered by the NMP developed in accordance with this rule;

13.1.h.4.E. The total number of acres under the control of the CAFO that were used for land application of manure, litter or process wastewater in the previous twelve (12) months;

13.1.h.4.F. A summary of all manure, litter or process wastewater discharges from the production area in the previous twelve (12) months, including date, time, and approximate volume;

13.1.h.4.G. A statement indicating whether the current version of the CAFO's NMP was developed or approved by a certified nutrient management planner; and

13.1.h.4.H. The actual crop(s) planted and actual yield(s) for each field, the actual nitrogen and phosphorus content of the manure, litter or process wastewater, the results of calculations conducted in accordance with parts 13.1.h.5.A.2 and 13.1.h.5.B.4 below, and the amount of manure, litter or process wastewater applied to each field during the previous twelve (12) months; and, for any CAFO that implements a NMP that addresses rates of application in accordance with subparagraph 13.1.h.5.B of this rule, the results of any soil testing for nitrogen or phosphorus taken during the preceding twelve (12) months, the data used in calculations conducted in accordance with part 13.1.h.5.B.4 below, and the amount of any supplemental fertilizer applied during the previous twelve (12) months.

13.1.h.5. Terms of the NMP. -- Any permit issued to a CAFO must require compliance with the terms of the CAFO's site-specific NMP. The terms of the NMP are the information, protocols, BMPs, and other conditions determined by the Director to be necessary to meet the requirements of paragraph 13.1.h.1 above. The terms of the NMP with respect to protocols for land application of manure, litter or process wastewater required by subparagraph 13.1.h.1.H above and, if applicable, 40 C.F.R. '412.4(c), must include the fields available for land application; field-specific rates of application, properly developed in accordance with subparagraphs 13.1.h.5.A through 13.1.h.5.B below, to ensure appropriate agricultural utilization of the nutrients in the manure, litter or process wastewater; and any timing limitations identified in the NMP concerning land application on the fields available for such use. The terms must address rates of application using one of the following two approaches, unless the Director specifies that a certain approach must be used:

13.1.h.5.A. Linear approach. -- An approach that expresses rates of application as pounds of nitrogen and phosphorus, according to the following specifications:

13.1.h.5.A.1. The terms include maximum application rates from manure, litter or process wastewater for each year of permit coverage for each crop identified in the NMP, in chemical forms determined to be acceptable to the Director, in pounds per acre per year for each field to be used for land application, and certain factors necessary to determine such rates. At a minimum, the factors that are terms must include: the outcome of the field-specific assessment of the potential for nitrogen and phosphorus transport from each field; the crops to be planted in each field or any other uses of a field, such as pasture or fallow fields; the realistic yield goal for each crop or use identified for each field; the nitrogen and phosphorus recommendations from sources specified by the Director for each crop or use identified for each field; credits for all nitrogen in the field that will be plant-available; consideration of multi-year phosphorus application; and accounting for all other additions of plant-available nitrogen and phosphorus to the field. In addition, the terms include the form and source of manure, litter or process wastewater to be land-applied; the timing and method of land application; and the methodology by which the NMP accounts for the amount of nitrogen and phosphorus in the manure, litter, and process wastewater to be applied.

13.1.h.5.A.2. Large CAFOs that use this approach must calculate the maximum amount of manure, litter or process wastewater to be land-applied at least once each year, using the results of the most recent representative manure, litter or process wastewater tests for nitrogen and phosphorus taken within twelve (12) months of the date of land application.

13.1.h.5.B. Narrative rate approach. -- An approach that expresses rates of application as a narrative rate of application that results in the amount in tons or gallons of manure, litter or process wastewater to be land-applied, according to the following specifications:

13.1.h.5.B.1. The terms include maximum amounts of nitrogen and phosphorus derived from all sources of nutrients for each crop identified in the NMP, in chemical forms determined to be acceptable to the Director, in pounds per acre for each field, and certain factors necessary to determine such amounts. At a minimum, the factors that are terms must include: the outcome of the field-specific assessment of the potential for nitrogen and phosphorus transport from each field; the crops to be planted in each field or any other uses of a field, such as pasture or fallow fields (including alternative crops identified in part 13.1.h.5.B.2 below); the realistic yield goal for each crop or use identified for each field; and the nitrogen and phosphorus recommendations from sources specified by the Director for each crop or use identified for each field. In addition, the terms include the methodology by which the NMP accounts for the following factors when calculating the amounts of manure, litter or process wastewater to be land applied: results of soil tests conducted in accordance with protocols identified in the NMP required by subparagraph 13.1.h.1.G of this rule; credits for all nitrogen in the field that will be plant-available; the amount of nitrogen and phosphorus in the manure, litter or process wastewater to be applied; consideration of multi-year phosphorus application; accounting for all other additions of plant-available nitrogen and phosphorus to the field; the form and source of manure, litter, and process wastewater; the timing and method of land application; and volatilization of nitrogen and mineralization of organic nitrogen.

13.1.h.5.B.2. The terms of the NMP include alternative crops identified in the CAFO's NMP that are not in the planned crop rotation. Where a CAFO includes alternative crops in its nutrient management plan, the crops must be listed in field, in addition to the crops identified in the planned crop rotation for that field, and the NMP must include realistic crop yield goals and the nitrogen and phosphorus recommendations from sources specified by the Director for each crop. Maximum amounts of nitrogen and phosphorus from all sources of nutrients and the amounts of manure, litter and/or process wastewater to be applied must be determined in accordance with the methodology described in part 13.1.h.5.B.1 above.

13.1.h.5.B.3. For CAFOs using this approach, the following projections must be included in the NMP submitted to the Director, but are not terms of the NMP the CAFO's planned crop rotations for each field for the period of permit coverage; the projected amount of manure, litter or process wastewater to be applied; projected credits for all nitrogen in the field that will be plant-available; consideration of multi-year phosphorus application; accounting for all other additions of plant-available nitrogen and phosphorus to the field; and the predicted form, source, and method of application of manure, litter or process wastewater for each crop. Timing of application for each field, insofar as it concerns the calculation of rates of application, is not a term of the NMP.

13.1.h.5.B.4. CAFOs that use this approach must calculate maximum amounts of manure, litter or process wastewater to be land-applied at least once each year, using the methodology required by part 13.1.h.5.B.1 above, before land-applying manure, litter or process wastewater and must rely on the following data:

13.1.h.5.B.4.a. A field-specific determination of soil levels of nitrogen and phosphorus, including for nitrogen a concurrent determination of nitrogen that will be plant-available consistent with the methodology required by part 13.1.h.5.B.1 above, and for phosphorus, the results of the most recent soil test conducted in accordance with soil testing requirements approved by the Director; and

13.1.h.5.B.4.b. The results of most recent representative manure, litter or process wastewater tests for nitrogen and phosphorus, taken within twelve (12) months of the date of land application, in order to determine the amount of nitrogen and phosphorus in the manure, litter or process wastewater to be applied.

13.1.h.6. Changes to a NMP. -- Any permit issued to a CAFO must require the following procedures to apply when a CAFO owner or operator makes changes to the NMP previously submitted to the Director:

13.1.h.6.A. The CAFO owner or operator must provide the Director with the most current version of the its NMP and identify changes from the previous version, except that the results of calculations made in accordance with the requirements of parts 13.1.h.5.A.2 and 13.1.h.5.B.4 of this rule are not subject to the requirements of paragraph 13.1.h.6.

13.1.h.6.B. The Director must review the revised NMP to ensure that it meets the requirements of this section and applicable effluent limitations and standards, including those specified in 40 C.F.R. '412, and must determine whether the changes to the NMP necessitate revision to the terms of the NMP incorporated into the permit issued to the CAFO. If revision to the terms of the NMP is not necessary, the Director must notify the CAFO owner or operator and, upon such notification, the CAFO may implement the revised NMP. If revision to the terms of the NMP is necessary, the Director must determine whether such changes are substantial changes as described in subparagraph 13.1.h.6.C below.

13.1.h.6.B.1. If the Director determines that the changes to the terms of the NMP are not substantial, the Director must make the revised NMP publicly available and include in it the permit record, revise the terms of the NMP, notify the owner or operator, and inform the public of any changes to the terms of the NMP that are incorporated into the permit.

13.1.h.6.B.2. If the Director determines that the changes to the terms of the NMP are substantial, the Director must notify the public and make the proposed changes and the information submitted by the CAFO owner or operator available for public review and comment. The process for public comments, hearing requests, the hearing process, if a hearing is held, and revisions to the CAFO's permit must follow the procedures applicable to draft permits set forth in sections 10 and 12 above. Once the Director incorporates the revised terms of the NMP into the permit, the Director must notify the owner or operator and inform the public of the final decision concerning revisions to the terms and conditions of the permit.

13.1.h.6.C. Substantial changes to the terms of a NMP incorporated as terms and conditions of a permit include, but are not limited to:

13.1.h.6.C.1. Addition of new land application areas not previously included in the CAFO's NMP. Except that if the land application area that is being added to the NMP is covered by terms of a NMP incorporated into an existing NPDES permit in accordance with the requirements of paragraph 13.1.h.5 above, and the CAFO owner or operator applies manure, litter or process wastewater on the newly added land application area in accordance with the existing field-specific permit terms applicable to the newly added land application area, such addition of new land would be a change to the new CAFO owner or operator's NMP, but not a substantial change for purposes of this section;

13.1.h.6.C.2. Any changes to the field-specific maximum annual rates for land application as set forth in subparagraph 13.1.h.5.A above, and to the maximum amounts of nitrogen and phosphorus derived from all sources for each crop as set forth in subparagraph13.1.h.5.B above;

13.1.h.6.C.3. Addition of any crop or other uses not included in the terms of the CAFO's NMP and corresponding field-specific rates of application expressed in accordance with paragraph 13.1.h.5 of this rule; and

13.1.h.6.C.4. Changes to site-specific components of the CAFO's NMP, where such changes are likely to increase the risk of nitrogen and phosphorus transport to the waters of West Virginia.

13.2. Concentrated aquatic animal production facilities.

13.2.a. Permit requirement. -- Concentrated aquatic animal production facilities, as defined in this section, are point sources subject to the permit program.

13.2.b. Definition. -- "Concentrated Aquatic Animal Production Facility" means a hatchery, fish farm, or other facility that meets the criteria set forth in Appendix B below or that the Director designates as such pursuant to subdivision 13.2.c below.

13.2.c. Case-by-case designation of concentrated aquatic animal production facilities:

13.2.c.1. The Director may designate any warm or cold water aquatic animal production facility as a concentrated aquatic animal production facility upon determining that it is a significant contributor of pollution to the waters of the State. In making this designation, the Director shall consider the following factors:

13.2.c.1.A. The location and quality of the receiving waters of the State;

13.2.c.1.B. The holding, feeding, and production capacities of the facility;

13.2.c.1.C. The quantity and nature of the pollutants reaching waters of the State;

13.2.c.1.D. The slope, vegetation, rainfall, and other factors affecting the likelihood or frequency of discharge of animal wastes and process wastewaters into waters of the state; and

13.2.c.1.E. Other relevant factors.

13.2.d. A permit application shall not be required from a concentrated aquatic animal production facility designated under this section until the Director has conducted on-site inspection of the facility and has determined that the facility should and could be regulated under the permit program.

13.3. Aquaculture projects.

13.3.a. Permit requirements. -- Discharges into aquaculture projects, as defined in this section, are subject to the permit program pursuant to '318 of CWA.

13.3.b. Definitions:

13.3.b.1. "Aquaculture Project" means a defined managed water area that uses discharges of pollutants into that designated area for the maintenance or production of harvestable freshwater plants or animals.

13.3.b.2. "Designated Project Area" means the portions of the waters of the State within which the permittee or permit applicant plans to confine the cultivated species, using a method or plan or operation (including, but not limited to, physical confinement) which, on the basis of reliable scientific evidence, is expected to ensure that specific individual organisms comprising an aquaculture crop will enjoy increased growth attributable to the discharge of pollutants and will be harvested within a defined geographic area.

13.4. Separate storm sewers.

13.4.a. Permit requirement. -- Separate storm sewers, as defined in this section, are point sources subject to the permit program. Separate storm sewers may be permitted either individually or under a general permit. A permit for discharges into the waters of the State from a separate storm sewer covers all conveyances that are a part of the separate storm sewer system, even though there may be several owners or operators of these conveyances. However, discharges into separate storm sewers from point sources that are not part of the separate storm sewer systems may also require a permit.

13.4.b. Definition:

13.4.b.1. "Separate Storm Sewer" means a conveyance or system of conveyances (including pipes, conduits, ditches, and channels) primarily used for collecting and conveying storm water runoff and that is either:

13.4.b.1.A. Located in an urbanized area as determined by the United States Bureau of the Census in the 1990 Decennial Census; or

13.4.b.1.B. Not located in an urbanized area but designated under subdivision 13.4.c of this rule.

13.4.b.2. Except as provided in paragraph 13.4.b.3 below, a conveyance or system of conveyances operated primarily for the purpose of collecting and conveying storm water runoff that is not located in an urbanized area and has not been designated by the Director under subdivision 13.4.c below is not considered a point source and is not subject to the provisions of this series.

13.4.b.3. Conveyances that discharge process wastewater or storm water runoff contaminated by contact with wastes, raw material, or pollutant-contaminated soil from land or facilities used for industrial or commercial activities into waters of the State or into separate storm sewers are point sources subject to the requirements of this series, but are not separate storm sewers for purposes of this section. As used in this paragraph, the term "wastes" does not include sand, silt and gravel.

13.4.b.4. Whether a system of conveyances is or is not a separate storm sewer for purposes of this section shall have no bearing on whether the system is eligible for funding under Title 2 of the CWA.

13.4.c. Case-by-case designation of separate storm sewers. -- The Director may designate a storm sewer not located in an urbanized area as a separate storm sewer. This designation may be made to the extent allowed or required by EPA-promulgated effluent guidelines for point sources in the separate storm sewer category or when:

13.4.c.1. A Water Quality Management plan under '208 of the CWA that contains requirements applicable to such point sources is approved; or

13.4.c.2. The Director determines that a storm sewer is a significant contributor of pollution to the waters of the State. In making this determination, the Director shall consider the following factors:

13.4.c.2.A. The location of the discharge with respect to waters of the State;

13.4.c.2.B. The size of the discharge;

13.4.c.2.C. The quantity and nature of the pollutants reaching waters of the State; and

13.4.c.2.D. Other relevant factors.

13.5. Silvicultural activities.

13.5.a. Permit requirement. -- Silvicultural point sources, as defined in this section, are point sources subject to the permit program.

13.5.b. Definitions:

13.5.b.1. "Silvicultural Point Source" means any discernible, confined, and discrete conveyance related to rock crushing, gravel washing, log sorting or log storage facilities that are operated in connection with silvicultural activities and from which pollutants are discharged into waters of the State. The term does not include non-point source silvicultural activities such as nursery operations, site preparation, reforestation and subsequent cultural treatment, thinning, prescribed burning, pest and fire control, harvesting operations, surface drainage, or road construction and maintenance from which there is natural runoff. However, some of these activities (such as stream crossing for roads) may involve point source discharges of dredged or fill material that may require a CWA '404 permit.

13.5.b.2. "Rock Crushing and Gravel Washing Facilities" means facilities that process crushed and broken stone, gravel, and riprap.

13.5.b.3. "Log Sorting and Log Storage Facilities" means facilities whose discharges result from the holding of unprocessed wood, for example, logs or roundwood with bark or after removal of bark held in self-contained bodies of water (mill ponds or log ponds) or stored on land where water is applied intentionally on the logs (wet decking).

13.6. General permits.

13.6.a. Coverage. -- The Director may issue a general permit in accordance with the following:

13.6.a.1. Area. -- The general permit shall be written to cover a category of discharges described in the permit under paragraph 13.6.a.2 below, except those covered by individual permits, within a geographic area. The area shall correspond to existing geographic or political boundaries, such as:

13.6.a.1.A. Designated planning areas under ''208 and 303 of the CWA;

13.6.a.1.B. Sewer districts or sewer authorities;

13.6.a.1.C. City, county, or state political boundaries;

13.6.a.1.D. State highway systems;

13.6.a.1.E. Standard metropolitan statistical areas, as defined by the United States Office of Management and Budget; and

13.6.a.1.F. Any other appropriate division or combination of boundaries.

13.6.a.2. Sources. -- The general permit may be written to regulate, within the area described in paragraph 13.6.a.1 above, either:

13.6.a.2.A. Separate storm sewers; or

13.6.a.2.B. A category of point sources other than separate storm sewers, if the sources all:

13.6.a.2.B.1. Involve the same or substantially similar types of operations;

13.6.a.2.B.2. Discharge the same types of wastes;

13.6.a.2.B.3. Require the same effluent limitations or operating conditions;

13.6.a.2.B.4. Require the same or similar monitoring; and

13.6.a.2.B.5. In the opinion of the Director, are more appropriately controlled under a general permit than under individual permits.

13.6.b. Administration:

13.6.b.1. In general. -- General permits may be modified, revoked and reissued, suspended or revoked in accordance with the applicable requirements of section 9 of this series.

13.6.b.2. Requiring an individual permit:

13.6.b.2.A. The Director may require any person authorized by a general permit to apply for and obtain an individual permit. Any interested person may petition the Director to take action under this subparagraph. Cases where an individual permit may be required include the following:

13.6.b.2.A.1. The discharger is a significant contributor of pollution as determined by the factors set forth in paragraph 13.4.c.2 above;

13.6.b.2.A.2. The discharger is not in compliance with the conditions of the general permit;

13.6.b.2.A.3. A change has occurred in the availability of demonstrated technology or practices for the control or abatement of pollutants applicable to the point source;

13.6.b.2.A.4. Effluent limitation guidelines are promulgated for point sources covered by the general permit; or

13.6.b.2.A.5. A Water Quality Management Plan containing requirements applicable to such point sources is approved.

13.6.b.2.B. The Director may require any owner or operator authorized by a general permit to apply for an individual permit as provided in subparagraph 13.6.b.2.A of this rule only if the owner or operator has been notified in writing that a permit application is required. This notice shall include a brief statement of the reasons for this decision, an application form, a statement setting a time for the owner or operator to file the application, and a statement that on the effective date of the individual permit the general permit as it applies to the individual permittee shall automatically terminate. The Director may grant additional time upon request of the applicant.

13.6.b.2.C. Any owner or operator authorized by a general permit may request to be excluded from the coverage of the general permit by applying for an individual permit. The owner or operator shall submit an application pursuant to section 4 of this rule, with reasons supporting the request, to the Director no later than ninety (90) days after the general permit notice, in accordance with subsection 12.1 above.

13.6.b.3. Upon issuance of a general permit, the Director shall cause to be published a notice of issuance as a Class I legal advertisement in a qualified daily or weekly newspaper within the geographical area affected by the subject of the permit, and by any other means reasonably calculated to give notice of issuance to the persons affected by it.

13.7. New sources and new discharges.

13.7.a. Definitions:

13.7.a.1. "Site," "New Source," and "New Discharger" are defined in section 2 above.

13.7.a.2. "Source" means any building, structure, facility or installation from which there is or may be a discharge of pollutants.

13.7.a.3. "Existing Source" means any source that is not a new source or a new discharger.

13.7.a.4. "Facilities or Equipment" means buildings, structures, process or production equipment or machinery that form a permanent part of the new source and that will be used in its operation, if these facilities or equipment are of such value as to represent a substantial commitment to construct. It excludes facilities or equipment used in connection with feasibility, engineering, and design studies regarding the source of water pollution treatment for the source.

13.7.b. Criteria for new source determination.

13.7.b.1. Except as otherwise provided in an applicable new source performance standard, a source is a "new source" if it meets that definition of "new source" in section 2 of this rule, and

13.7.b.1.A. It is constructed at a site at which no other source is located; or

13.7.b.1.B. It totally replaces the process or production equipment that causes the discharge of pollutants at an existing source; or

13.7.b.1.C. Its processes are substantially independent of an existing source at the same site. In determining whether these processes are substantially independent, the Director shall consider such factors as the extent to which the new facility is integrated with the existing plant and the extent to which the new facility is engaged in the same general type of activity as the existing source.

13.7.b.2. A source meeting the requirements of subparagraphs 13.7.b.1.A, 13.7.b.1.B or 13.7.b.1.C above is a new source only if a new source performance standard is independently applicable to it. If there is no such independently applicable standard, the source is a new discharger (see, section 2).

13.7.b.3. Construction on a site at which an existing source is located results in a modification subject to section 9 of this rule, rather than a new source or a new discharger, if the construction does not create a new building, structure, facility or installation meeting the criteria of subparagraphs 13.7.b.1.B or 13.7.b.1.C above, but otherwise alters, replaces, or adds to existing process or production equipment.

13.7.b.4. Construction of a new source as defined in section 2 has commenced if the owner or operator has:

13.7.b.4.A. Begun, or caused to begin as part of a continuous on-site construction program:

13.7.b.4.A.1. Any placement, assembly or installation of facilities or equipment; or

13.7.b.4.A.2. Significant site preparation work, including clearing, excavation or removal of existing buildings, structures or facilities that is necessary for the placement, assembly or installation of new source equipment; or

13.7.b.4.B. Entered into a binding contractual obligation for the purchase of facilities or equipment, which is intended to be used in its operation within a reasonable time. Options to purchase or contracts that can be terminated or modified without substantial loss and contracts for feasibility engineering and design studies do not constitute a contractual obligation under this subparagraph.

13.7.c. Effect of compliance with new source performance standards:

13.7.c.1. Except as provided in paragraph 13.7.c.2 below, any new discharger, the construction of which commenced after October 18, 1972, or new source that meets the applicable promulgated new source performance standards before the commencement of discharge may not be subject to any more stringent new source performance standards or to any more stringent technology-based standards under '301(b)(2) of the CWA for the shortest of the following periods:

13.7.c.1.A. Ten (10) years from the date that construction is completed;

13.7.c.1.B. Ten (10) years from the date the source begins to discharge process or other non-construction related wastewater; or

13.7.c.1.C. The period of depreciation or amortization of the facility for the purposes of ''167 or 169 (or both) of the Internal Revenue Code of 1954.

13.7.c.2. The protection from more stringent standards of performance afforded by the above paragraph does not apply to:

13.7.c.2.A. Additional or more stringent permit conditions that are not technology based; for example, conditions based on water quality standards or toxic effluent standards or prohibitions under '307(a) of the CWA; or

13.7.c.2.B. Additional permit conditions controlling pollutants that are listed as toxic in '307(a) of the CWA and that are not controlled by new source performance standards. This includes permit conditions controlling pollutants other than those identified as toxic pollutants or hazardous substances, when control of these pollutants has been specifically identified as the method to control the toxic pollutants or hazardous substances.

13.7.c.3. When a NPDES permit with a "Protection Period" is issued to a source in accordance with paragraph 13.7.c.1 above, it will expire on or after the expiration of the protection period. Such permit shall require the owner or operator of the source to comply with the requirements of '301 and any other applicable requirements of the CWA immediately upon the expiration of the protection period. No additional period for achieving compliance with these requirements shall be allowed, except when necessary to achieve compliance with requirements promulgated less than three (3) years before the expiration of the protection period.

13.7.c.4. The owner or operator of a new source, a new discharger that commenced discharge after August 13, 1979, or a recommencing discharger shall install, have in operating condition, and "Start Up" all pollution control equipment required to meet the conditions of its permit before beginning to discharge. Within the shortest feasible time, not to exceed ninety (90) days, the owner or operator must meet all permit conditions.

13.7.c.5. After the effective date of new source performance standards, it shall be unlawful for any owner or operator of any new source to operate the source in violation of those standards applicable to the source.

W. Va. Code R. § 47-10-13