Current through Register Vol. XLI, No. 23, June 7, 2024
Section 47-10-3 - Permits3.1. Permit requirement. -- No person shall discharge pollutants from a point source into State waters except as authorized by a State NPDES permit. A NPDES permit issued pursuant to this series shall be deemed to be a permit issued in accordance with W. Va. Code '22-11-4.3.2. Specific exclusions from NPDES permits. 3.2.a. It is recognized that the Federal NPDES program excludes certain discharges from the requirement of a NPDES permit (although other Federal permits may be necessary) and that the State Act, in certain instances, is broader in scope than the Federal NPDES program. The discharge of dredged or fill material into navigable waters of the United States, for example, does not need a Federal NPDES permit; rather a 404 permit from the United States Army Corps of Engineers is required. The State Act regulates discharges into all waters of the State including groundwater; the Federal NPDES program, on the other hand, regulates discharges into a less inclusive category of waters. In addition, the State Act requires permits for construction of a disposal system or part thereof and the discharge of pollutants into the State's waters; the Federal NPDES program, however, does not require permits for the construction of the facility, but rather just for the discharge of pollutants from a point source into waters of the United States. Finally, the Natural Streams Preservation Act, W. Va. Code '22-13-1, et seq., requires a separate permit to modify any of the streams designated protected by the Legislature.3.2.b. The following discharges do not require a NPDES permit; however, the specification of exclusions under subdivision 3.2.a of this rule shall not relieve any person of any requirement imposed by the State Act or regulations, including State Act permitting requirements.3.2.b.1. Any discharge of sewage from vessels, effluent from properly functioning marine engines, laundry, shower, and galley sink wastes or any other discharge incidental to the normal operation of a vessel. This exclusion does not apply to rubbish, trash, garbage, or other such materials discharged overboard or to other discharges when the vessel is operating in a capacity other than a means of transportation, such as when used as an energy or mining facility, a storage facility or when secured to a storage facility, or when secured to the bed of the water or waters of the State for the purpose of mineral or oil exploration or development.3.2.b.2. Discharges of dredged or fill material into waters of the State that are regulated under '404 of the CWA.3.2.b.3. The introduction of pollutants into publicly or privately owned treatment works except as the Director may otherwise require under subdivision 6.3.k below. Plans or agreements to switch to this method of disposal in the future do not relieve dischargers of the obligation to have and comply with permits until all discharges of pollutants into waters of the State are eliminated.3.2.b.4. Any introduction of pollutants from non-point source agricultural and silvicultural activities, including runoff from orchards, cultivated crops, pastures, range lands, and forest lands, but not discharges from concentrated animal feeding operations as defined in subsection 13.1 below, discharges from concentrated aquatic animal production facilities as defined in subsection 13.2 below, and discharges from silvicultural point sources as defined in subsection 13.5 below.3.2.b.5. Water, gas or other material that is injected into a well either to facilitate production of oil or gas or for disposal purposes and is approved by the Office of Oil and Gas pursuant to applicable State law.3.2.b.6. Return flows from irrigated agriculture.3.2.b.7. Any discharge in compliance with the instructions of an On-Scene Coordinator pursuant to 40 C.F.R. '1510 (The National Oil and Hazardous Substance Pollution Plan) or 33 C.F.R. '153.10(e) (Pollution by Oil and Hazardous Substances).3.2.c. When issuing permits required under the State Act but not required by NPDES, the Director may follow the procedures set forth in this series.3.3. NPDES permits issued by EPA. 3.3.a. The Director shall adopt as permits issued under the State Act all NPDES permits that have been issued by the Regional Administrator and made effective prior to the effective date of this series that are transferred by the Regional Administrator and accepted by the Director for administration and enforcement.3.3.b. Acceptance of a NPDES permit from the Regional Administrator shall not supersede any permit previously issued under the State Act. All provisions of both permits shall be in force; except, in the event of a conflict, the more stringent provisions shall apply. Such permits shall be deemed consolidated and considered as a single permit for the purposes of reporting, administration and enforcement.3.3.c. Those unexpired permits previously issued under the State Act shall be revoked by the Director whenever a new NPDES permit is issued for the same facility under this series. The issuance of the new permit shall constitute cause for revocation under the State Act. Any unexpired NPDES permit issued by the EPA shall not be enforceable by the Director upon the issuance of a NPDES permit under this series.3.4. Effect of a permit. 3.4.a. Except for any toxic effluent standards and prohibitions imposed by '307 of the CWA, compliance with a permit during its term constitutes compliance for purposes of enforcement under ''301, 302, 306, 307, 318, 403 and 405 of the CWA. In addition, one who is in compliance with the terms and conditions of a permit shall not be subject to criminal prosecution under W. Va. Code '22-11-19 for pollution recognized and authorized by such permit. However, a permit may be revoked, suspended, revoked and reissued or modified during its term for cause as set forth in section 9 of this rule.3.4.b. The issuance of a permit does not convey any property rights of any sort or any exclusive privilege.3.5. Duration and transferability of permits. 3.5.a. Permits shall be effective for a fixed term not to exceed five (5) years.3.5.b. A permit may be extended by the Director for a period not to exceed eighteen (18) months beyond its expiration date, if the applicant has made a timely and complete application for permit reissuance. Timeliness of an application for permit reissuance is governed by subsection 4.3 of this rule. A complete application, for purposes of this extension, shall mean that the required number of copies of the application were submitted, including the permit application fee required by the 47 C.S.R. 26, and the application forms were signed as required by subsection 4.6 of this rule. Completion, as set forth in this section, shall not preclude the Director from requesting additional information from the applicant during the subsequent substantive review and does not result in the imposition of the regulatory time frame established in subdivision 4.2.f. below. When a permit is issued, the extended permit, if still effective, is automatically void.3.5.c. Transfer of permits. -- Permits may be transferred from a permittee to another person by either modifying an existing permit or by an automatic transfer under subdivision 3.5.d of this rule. In transferring a permit from a permittee to another person, the Director shall determine that the proposed permittee has all necessary permit responsibility.3.5.d. Any permit may be automatically transferred to a new permittee if: 3.5.d.1. The current permittee notifies the Director on the forms prescribed by the Director at least thirty (30) days in advance of the proposed transfer date in paragraph 3.5.d.2 of this rule;3.5.d.2. The notice includes a written agreement between the existing and new permittees containing a specific date for transfer of the permit and explaining the extent of permit responsibility, coverage, and liability between them; and3.5.d.3. The Director does not notify the existing permittee and the proposed new permittee of his or her intent to require the transfer through permit modification or to require that a new application be filed rather than agreeing to the transfer of the permit or his or her denial of the transfer request. If this notification is not received by the permittee and proposed new permittee within thirty (30) days after the Director's receipt of the permittee's notice under paragraphs 3.5.d.1 and 3.5.d.2 above, then the transfer is effective on the date specified in the agreement required by paragraph 3.5.d.2 of this rule.3.6. Prohibitions. -- No permit may be issued: 3.6.a. When the conditions of the permit do not provide for compliance with the applicable requirements of the CWA and State Act.3.6.b. By the Director where the Regional Administrator has objected to issuance of the permit.3.6.c. When, in the judgment of the Secretary of the U.S. Army Corps of Engineers, anchorage and navigation in or on any waters of the State would be substantially impaired by the discharge.3.6.d. For the discharge of any radiological, chemical, or biological warfare agent or high-level radioactive waste.3.6.e. For any discharge inconsistent with a plan or plan amendment approved under '208(b) of the CWA.3.6.f. 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. The owner or operator of a new source or new discharger proposing to discharge into a water segment that does not meet applicable water quality standards or is not expected to meet those standards even after the application of the effluent limitations required by ''301(b)(1)(A) and 301(b)(1)(B) of the CWA, and for which the State or interstate agency has performed a pollutant load allocation for the pollutants to be discharged, must demonstrate before the close of the public comment period that: 3.6.f.1. There are sufficient remaining pollutant load allocations to allow for the discharge; and3.6.f.2. The existing dischargers into that segment are subject to compliance schedules designed to bring the segment into compliance with applicable water quality standards.