W. Va. Code R. § 47-10-4

Current through Register Vol. XLI, No. 21, May 23, 2024

Section 47-10-4 - Application for Permits

4.1. Duty to apply.

4.1.a. Any person who discharges or proposes to discharge pollutants and who does not have an effective permit, except persons covered by general permits and persons excluded under subsection 3.2 above, shall submit a complete application in the manner and on a form prescribed by the Director, in accordance with the following paragraphs, and accompanied by the filing fee as prescribed in 47CSR26.

4.1.b. When a facility or activity is owned by one person but is operated by another, the application should be submitted by the operator. The Director may require documentation of the permit responsibility and liability of the owner and operator and may propose and issue the permit to either the owner or the operator or both, but only after notice to both the owner and operator; or, the Director may deny the permit until the responsible party or parties apply for the permit.

4.2. Completeness.

4.2.a. For the purposes of this section, the term "Director" includes the Director's authorized representative except in subdivision 4.2.f below.

4.2.b. The Director shall not begin the processing of a permit before receiving a complete application.

4.2.c. The Director shall review every application for completeness in not more than ninety (90) days. Upon completing the review, the Director shall notify the applicant in writing whether the application is complete. If the application is incomplete, the Director shall list the information necessary to make the application complete. When the application is for an existing source, the Director shall specify in the request for supplemental information a date for submitting the necessary information. The Director shall notify the applicant that the application is complete upon receiving this information.

4.2.d. If an applicant fails or refuses to submit the requested supplemental information, the permit application may be denied and appropriate enforcement action may be taken under the applicable provisions of the State Act.

4.2.e. The application shall be considered complete on the date on which the Director notifies the applicant to that effect as provided in subdivision 4.2.c of this rule.

4.2.f. The Director shall have not more than ninety (90) days to act upon the completed application unless EPA has filed a written objection; however, this limitation may be extended by the period of time granted by the Director under paragraph 12.1.b.1 and subdivision 12.4.a of this rule.

4.2.g. For a period of one (1) year after the effective date of this rule, the time period for completeness under subdivision 4.2.c above and the time period for acting upon a completed application under subdivision 4.2.f above may be extended by the Director when necessary, but in no case shall the combined time periods under these provisions exceed two hundred forty (240) days.

4.3. Time to apply. -- Any person proposing a new discharge shall submit an application at least one hundred eighty (180) days prior to commencing construction of the facility, unless permission for a shorter time period has been granted by the Director. Any person with an existing permit shall submit a new application at least one hundred eighty (180) days before the expiration date of the existing permit, unless permission for a shorter time period has been granted by the Director. Any person proposing to abandon a facility under W. Va. Code '22-11-8(b)(6) shall apply for and obtain a permit as required by that section at least one hundred eighty (180) days prior to abandonment.

4.4. Information required from applicant(s).

4.4.a. All applicants shall provide the Director a complete application in the manner and on a form prescribed by the Director. The form may require information in addition to that specified in this section.

4.4.a.1. The activities conducted by the applicant that require it to obtain permits.

4.4.a.2. The name, mailing address, and location of the facility for which the application is submitted.

4.4.a.3. Up to four (4) Standard Industrial Classification (SIC) codes that best reflect the principal products or services provided by the facility.

4.4.a.4. The operator's name, address, telephone number, ownership status (including the name and address of the owner if different), and status as Federal, State, private, public or other entity.

4.4.a.5. Other relevant permits as defined in 40 C.F.R. '122.21(f)(6).

4.4.a.6. A topographic map (or other map drawing if a topographic map is unavailable) drawn to a reasonable scale and extending at least one (1) mile beyond the site, depicting the facility and each of its intake and discharge structures; each of its hazardous waste treatment, storage, or disposal facilities; each well where fluids from the facility are injected underground; and those wells, springs, other surface water bodies, and drinking water wells listed in public records or otherwise known to the applicant in the map area.

4.4.a.7. A brief description of the nature of the business.

4.4.b. Existing sewage, manufacturing, commercial, mining and silvicultural dischargers shall also provide the following information to the Director, using application forms provided by the Director:

4.4.b.1. Outlet location. -- The latitude and longitude to the nearest second and the name and alphanumeric designation of the immediate receiving stream or river mile point where applicable.

4.4.b.2. Line drawing. -- A line drawing of the water flow through the facility, with a water balance showing operations contributing wastewater to the effluent and treatment units. Similar processes, operations, or production areas may be indicated as a single unit, labeled to correspond to the more detailed identification under paragraph 4.4.b.3 of this rule. The water balance must show approximate average flows at intake and discharge points and between units, including treatment units. If a water balance cannot be determined, the applicant may provide instead a pictorial description of the nature and amount of any sources of water and any collection and treatment measures.

4.4.b.3. Average flows and treatment. -- A narrative identification of each type of process, operation, or production area that contributes wastewater to the effluent for each outlet, including process wastewater, cooling water, sewage, and storm water runoff (including material storage area runoff), the average flow that each wastewater contributes, and a description of the treatment, if any, each wastewater receives, including the ultimate disposal of any solid or fluid wastes other than by discharge. Process, operations or production areas may be described in general terms (for example, "dye-making reactor," "distillation tower"). For a privately owned treatment works, this information may include the identity of each user of the treatment works.

4.4.b.4. Intermittent flows. -- If any of the discharges described in paragraph 4.4.b.3 above are intermittent or seasonal, a description of the frequency, duration and flow rate of each discharge occurrence, except for storm water runoff, spillage or leaks.

4.4.b.5. Maximum production. -- If an effluent guideline promulgated under '304 of the CWA applies to the applicant and is expressed in terms of production (or other measure of operation), a reasonable measure of the applicant's actual production reported in the units used in the applicable effluent guideline. The reported measure must reflect the actual production of the facility as required by subdivision 7.2.a. below.

4.4.b.6. Improvements. -- If the applicant is subject to any present requirements or compliance schedules for construction, upgrading or operation of waste treatment equipment, an identification of the abatement project and a listing of the required and projected final compliance dates.

4.4.b.7. Effluent characteristics. -- Information on the discharge of pollutants is specified in this paragraph. When "quantitative data" for a pollutant is required, the applicant must collect a sample effluent and analyze it for the pollutant in accordance with analytical methods approved under 40 C.F.R. '122.21(g)(7) and 40 C.F.R. '136. When no analytical method is approved, the applicant may use any suitable method but must provide a description of the method. When an applicant has two (2) or more outlets with substantially identical effluents, the Director may allow the applicant to test only one (1) outlet and report that the quantitative data also applies to the substantially identical outlet. The requirements in subparagraphs 4.4.b.7.C and 4.4.b.7.D of this rule that an applicant must believe pollutants to be present does not apply to pollutants present in a discharge solely as the result of their presence in intake water; however, an applicant must report such pollutants as present. The Director may require that grab samples or composite samples be used for particular pollutants. An applicant is expected to "know or have reason to believe" that a pollutant is present in an effluent based on an evaluation of the expected use, production or storage of the pollutant or on any previous analyses for the pollutant. For example, any pesticide manufactured by a facility may be expected to be present in contaminated storm water runoff from the facility.

4.4.b.7.A. Every applicant must report quantitative data for every outlet for the following parameters relating to pollutants, unless the prescribed form indicates that such data is not necessary:

4.4.b.7.A.1. Biochemical oxygen demand (BOD);

4.4.b.7.A.2. Chemical oxygen demand;

4.4.b.7.A.3. Total organic carbon;

4.4.b.7.A.4. Total suspended solids;

4.4.b.7.A.5. Ammonia (as N);

4.4.b.7.A.6. Temperature (both winter and summer); and

4.4.b.7.A.7. pH.

4.4.b.7.B. At the applicant's request, the Director may waive the reporting requirements for particular point sources or for a particular industry category for one (1) or more of the pollutants listed in 4.4.b.7.A above, if the applicant has demonstrated that such a waiver is appropriate because information adequate to support issuance of a permit can be obtained with less stringent requirements.

4.4.b.7.C. Each applicant with processes in one (1) or more primary industry category (see Appendix A) contributing to a discharge must report quantitative data for the following pollutants in each outlet containing process wastewater:

4.4.b.7.C.1. The organic toxic pollutants in the fractions designated in Table I of Appendix C for the applicant's industrial category or categories; Provided, that testing and reporting for the base/neutral fraction in the Once-Through Cooling Water, Fly Ash, and Bottom Ash Transport Water process wastestreams of the Steam Electric Power Plant industrial category shall not apply. Table II of Appendix C lists the organic toxic pollutants in each fraction. The fractions result from the sample preparation required by the analytical procedure that uses gas chromatography/mass spectrometry. A determination that an applicant falls within a particular industrial category for the purposes of selecting fractions for testing is not conclusive as to the applicant's inclusion in that category for any other purposes.

4.4.b.7.C.2. The pollutants listed in Table III of Appendix C (the toxic metals, cyanide, and total phenols).

4.4.b.7.D. Reporting of quantitative data shall be as follows:

4.4.b.7.D.1. Each applicant must indicate whether it knows or has reason to believe that any of the pollutants in Table IV of Appendix C (certain conventional and nonconventional pollutants) is discharged from each outlet. If an applicable effluent limitations guideline either directly limits the pollutant or, by its express terms, indirectly limits the pollutant through limitations on an indicator or upon a specific request by the Director for certain Table IV pollutants at the issuance of the application, or at such later time as provided in paragraph 4.4.b.12 of this rule, the applicant must report quantitative data. For every pollutant discharged that is not so limited in an effluent limitations guideline or specifically requested by the Director, the applicant must either report quantitative data or briefly describe the reasons the pollutant is expected to be discharged.

4.4.b.7.D.2. Each applicant must indicate whether it knows or has reason to believe that any of the pollutants listed in Table II or Table III of Appendix C (the toxic pollutants and total phenols) for which quantitative data are not otherwise required under subparagraph 4.4.b.7.C above is discharged from each outfall. For every pollutant expected to be discharged in concentrations of ten parts per billion (10 ppb) or greater, the applicant must report quantitative data. Where acrolein, acrylonitrile, 2,4 dinitrophenol, or 2-methyl-4,6 dinitrophenol are expected to be discharged in concentrations of 100 ppb or greater, the applicant must report quantitative data. For every pollutant expected to be discharged in concentrations less than 10 ppb or, in the case of acrolein, acrylonitrile, 2, 4 dinitrophenol, and 2-methyl-4,6 dinitrophenol, in concentrations less than 100 ppb, the applicant must either submit quantitative data or briefly describe the reasons the pollutant is expected to be discharged. An applicant qualifying as a small business under paragraph 4.4.b.8 of this rule is not required to analyze for pollutants listed in Table II of Appendix C (the organic toxic pollutants).

4.4.b.7.E. Each applicant must indicate whether it knows or has reason to believe that any of the pollutants in Table V of Appendix C (certain hazardous substances and asbestos) are discharged from each outlet. For every pollutant expected to be discharged, the applicant must briefly describe the reasons the pollutant is expected to be discharged and report quantitative data it has for any pollutant.

4.4.b.7.F. Each applicant, except sewage facilities, must report qualitative data generated using a screening procedure not calibrated with analytical standards for 2, 3, 7, 8-tetrachlorodibenzo-p-dioxin (TCDD) if it:

4.4.b.7.F.1. Uses or manufactures 2, 4, 5-trichlorophenoxy acetic acid (2, 4.5-t); 2-(2,4,5-trichlorophenoxy) propanoic acid (Silvex,2,4,5,TP); 2-(2,4,5-trichlorophenoxy) ethyl 2, 2-dichloropropionate (Erbon); 0, 0-dimethyl 0-(2,4,5-trichlorophenyl) phosphorathiate (Ronnel); 2,4-5-trichlorophenol (TCP); or hexachlorophene (HCP); or

4.4.b.7.F.2. Knows or has reason to believe that TCDD is or may be present in an effluent.

4.4.b.8. Small business exemption. -- An applicant that qualifies as a small business under one (1) of the following criteria is exempt from the requirements of subparagraphs 4.4.b.7.C or 4.4.b.7.D of this rule to submit quantitative data for the pollutants listed in Table II of Appendix C (the organic toxic pollutants):

4.4.b.8.1. For coal mines, a probable total annual production of less than one hundred thousand (100,000) tons per year.

4.4.b.8.2. For all other applicants, gross total annual sales averaging less than one hundred thousand dollars ($100,000) per year.

4.4.b.9. Used or manufactured toxics. -- A listing of any toxic pollutant that the applicant uses or manufactures or expects that it will use or manufacture during the next five (5) years as an intermediate or final product or byproduct.

4.4.b.10. Biological toxicity tests. -- An identification of any biological toxicity tests that the applicant knows or has reason to believe have been made within the last three (3) years on any of the applicant's discharges or on a receiving water in relation to a discharge.

4.4.b.11. Contract analyses. -- If a contract laboratory or consulting firm performed any of the analyses required by paragraph 4.4.b.7 of this rule, the identity of each laboratory or firm and the analyses performed.

4.4.b.12. Additional information. -- In addition to the information reported on the application form, applicants shall provide to the Director, at his or her request, such other information as the Director may reasonably require to assess the discharges of the facility and to determine whether to issue a NPDES permit. The additional information may include additional quantitative data and bioassays to assess the relative toxicity to aquatic life of the discharges and requirements to determine the cause of the toxicity.

4.4.c. New and existing concentrated animal feeding operations and concentrated aquatic animal production facilities shall provide the following information to the Director, using the application form provided by the Director:

4.4.c.1. For concentrated animal feeding operations:

4.4.c.1.A. The name of the owner or operator;

4.4.c.1.B. The facility location and mailing addresses;

4.4.c.1.C. Latitude and longitude of the entrance to the production area;

4.4.c.1.D. A topographic map of the geographic area in which the CAFO is located, showing the specific location of the production area in lieu of the requirements of paragraph 4.4.a.6 of this rule;

4.4.c.1.E. Specific information about the number and type of animals at issue (i.e. beef cattle, broilers, layers, swine weighing fifty-five (55) pounds or more, swine weighing less than fifty-five (55) pounds, mature dairy cows, dairy heifers, veal calves, sheep and lambs, horses, ducks, turkeys, etc.) and whether such animals are in open confinement or housed under roof;

4.4.c.1.F. The type of containment and storage (i.e. anaerobic lagoon, roofed storage shed, storage ponds, under-floor pits, above-ground storage tanks, below-ground storage tanks, concrete pad, impervious soil pad, etc.) and its total capacity for manure, litter or process wastewater storage, measured in tons or gallons;

4.4.c.1.G. The total number of acres under control of the applicant available for land application of manure, litter or process wastewater;

4.4.c.1.H. The estimated amount of manure, litter, or process wastewater generated per year, measured in tons or gallons;

4.4.c.1.I. The estimated amount of manure, litter or process wastewater transferred to other persons per year, measured in tons or gallons; and

4.4.c.1.J. A nutrient management plan that, at a minimum, satisfies the requirements of subdivision 13.1.h below, including, for all CAFOs subject to 40 C.F.R. Part 412 Subpart C or D, the requirements of 40 C.F.R. '412.4(c), as applicable.

4.4.c.2. For concentrated aquatic animal production facilities:

4.4.c.2.A. The maximum daily and average monthly flow from each outlet;

4.4.c.2.B. The number of ponds, raceways, and similar structures;

4.4.c.2.C. The name of the receiving water and the source of intake water.

4.4.c.2.D. For each species of aquatic animal, the total yearly and maximum harvestable weight;

4.4.c.2.E. The calendar month of maximum feeding and the total mass of food fed during that month; and

4.4.c.2.F. Any other information the Director may reasonably require.

4.4.d. Variance requests by non-POTWs. -- A discharger that is not a publicly owned treatment works (POTW) may request a variance from otherwise applicable effluent limitations under any of the following statutory or regulatory provisions within the times specified herein:

4.4.d.1. Fundamentally different factors. -- A request for a variance based on the presence of "fundamentally different factors" from those on which the effluent limitations guideline was based shall be made by the close of the public comment period provided for in subsection 12.1 below. The request shall explain how the requirements of 40 C.F.R. Part 125, Subpart D have been met.

4.4.d.2. Nonconventional pollutants. -- A request for a variance from the best available technology (BAT) requirements of CWA '301(b)(2)(F) pollutants (commonly called "nonconventional pollutants") pursuant to '301(c) of the CWA because of the economic capability of the owner or operator, or pursuant to '301(g) of the CWA because of certain environmental considerations, when those requirements were based on effluent limitation guidelines, must be made by:

4.4.d.2.A. Submitting an initial request to the Regional Administrator and to the Director stating the name of discharger, the permit number, the outlet number(s), the applicable effluent guideline, and whether the discharger is requesting a CWA '301(c) or CWA '301(G) modification or both. This request must have been filed not later than:

4.4.d.2.A.1. September 25, 1978 for a pollutant that is controlled by a BAT effluent guideline promulgated before December 27, 1977; or

4.4.d.2.A.2. Two hundred seventy (270) days after promulgation of an applicable effluent limitation guideline for guidelines promulgated after December 28, 1977.

4.4.d.2.B. Submitting a completed request no later than the close of the public comment period provided for in subsection 12.1 of this rule, demonstrating that the applicable requirements of 40 C.F.R. '125 have been met.

4.4.d.2.C. Requests for variance from effluent limitations not based on effluent limitation guidelines need only comply with subparagraph 4.4.d.2.B of this rule and need not be preceded by an initial request under subparagraph 4.4.d.2.A.

4.4.d.3. Delay in construction of POTW. -- An extension under CWA '301(i)(2) of the statutory deadlines in ''301(b)(1)(A) or (B)(1)(C) based on delay in completion of a POTW into which the source is to discharge must have been requested on or before June 26, 1978 or one hundred eighty (180) days after the relevant POTW requested an extension under paragraph 4.4.e.1 below, whichever is later, but in no event may this date have been later than December 24, 1978. The request shall explain how the requirements of 40 C.F.R. Part 125, Subpart J have been met.

4.4.d.4. Innovative technology. -- An extension under CWA '301(k) from the statutory deadline of '301(b)(2)(A) for best available technology based on the use of innovative technology may be requested no later than the close of the public comment period provided for in subsection 12.1 of this rule for the discharger's initial permit requiring compliance with '301(b)(2)(A). The request shall demonstrate that the requirements of 40 C.F.R. '125 have been met.

4.4.d.5. Water quality related effluent limitations. -- A modification under CWA '302(b)(2) of the requirements of '302(a) for achieving water quality related effluent limitations may be requested no later than the close of the public comment period provided for in subsection 12.1 on the permit from which the modification is sought.

4.4.d.6. Thermal discharge. -- A variance under CWA '316(a) for the thermal component of any discharge must be filed with a timely application for a permit under this rule, except that if thermal effluent limitations are established under CWA '402(a)(1) or are based on water quality standards, the request for a variance may be filed by the close of the public comment period provided for in subsection 12.1 below. A copy of the request required by 40 C.F.R. Part 125, Subpart H shall be sent to the Director.

4.4.e. Variance requests by POTWs. -- A discharger that is a publicly owned treatment works (POTW) may request a variance from otherwise applicable effluent limitations under either of the following statutory provisions as specified herein:

4.4.e.1. Delay in construction. -- An extension under CWA '301(i)(1) of the statutory deadlines in CWA ''301(b)(1)(B) or (b)(1)(C) based on delay in the construction of the POTW must have been requested on or before June 26, 1978; or

4.4.e.2. Water quality based effluent limitation. -- A modification under CWA '302(b)(2) of the requirements under '302(a) for achieving water quality based effluent limitations shall be requested on the permit from which the modification is sought no later than the close of the public comment period provided for in subsection 12.1 of this rule.

4.4.f. Expedited variance procedures and time extensions:

4.4.f.1. Notwithstanding the time requirements in subdivisions 4.4.d and 4.4.e above, the Director may notify a permit applicant before a draft permit is issued that the draft permit will likely contain limitations that are eligible for variance. In the notice, as a condition of consideration of any potential variance request, the Director may require the applicant to submit a request explaining how the requirements of 40 C.F.R. '125 applicable to the variance have been met. The Director may also require the request's submission within a specified reasonable time after receipt of the notice. The notice may be sent before the permit application has been submitted. The draft or final permit may contain the alternative limitations that may become effective upon final grant of the variance.

4.4.f.2. A discharger who cannot file a complete request required under subparagraphs 4.4.d.2.B or 4.4.d.2.C of this rule may request an extension. The extension may be granted or denied at the discretion of the Director. Extensions shall be no more than six (6) months in duration.

4.5. Record keeping. -- The applicant shall keep records of all data used to complete permit applications and any supplemental information submitted for a period of at least three (3) years from the date the application is signed.

4.6. Signatories to permit applications and reports.

4.6.a. Applications. -- All permit applications shall be signed as follows:

4.6.a.1. For a corporation: by a responsible corporate officer. For the purpose of this section, a responsible corporate officer means:

4.6.a.1.A. A president, secretary, treasurer or vice-president of the corporation in charge of a principle business function or any other person who performs similar policy or decision making functions for the corporation; or

4.6.a.1.B. The manager of one (1) or more manufacturing, production, or operating facilities employing more than two hundred fifty (250) persons or having gross annual sales or expenditures exceeding twenty-five million dollars ($25,000,000), if authority to sign documents has been assigned or delegated to the manager in accordance with corporate procedures.

NOTE: The Director does not require specific assignments or delegations of authority to responsible corporate officers identified in subparagraph 4.6.a.1.A. The Director will presume that these responsible corporate officers have the requisite authority to sign permit applications unless the corporation has notified the Director to the contrary. Corporate procedures governing authority to sign permit applications may provide for assignment or delegation to applicable corporate positions under subparagraph 4.6.a.1.B rather than to specific individuals.

4.6.a.2. For a partnership or sole proprietorship: by a general partner or the proprietor respectively; or

4.6.a.3. For a municipality, State, Federal or other public agency: by either a principal executive officer or ranking elected official. For purposes of this section, a principal executive officer of a Federal agency includes:

4.6.a.3.A. The chief executive officer of the agency; or

4.6.a.3.B. A senior executive officer having responsibility for the overall operations of a principal geographic unit of the agency (e.g., Regional Administrator of EPA.)

4.6.b. Reports. -- All reports required by permits and other information requested by the Director shall be signed by a person described in subdivision 4.6.a or by a duly authorized representative of that person. A person is a duly authorized representative only if:

4.6.b.1. The authorization is made in writing by a person described in subdivision 4.6.a above;

4.6.b.2. The authorization specifies either an individual or a position having responsibility for the overall operation of the regulated facility or activity, such as the position of plant manager, operator of a well or a well field, superintendent or position of equivalent responsibility, or an individual or position having overall responsibility for environmental matters for the company. A duly authorized representative may thus be either a named individual or any individual occupying a named position; and

4.6.b.3. The written authorization is submitted to the Director.

4.6.c. Changes to authorization. -- If an authorization under subdivision 4.6.b above is no longer accurate because a different individual or position has responsibility for the overall operation of the facility, a new authorization satisfying the requirements of subdivision 4.6.b must be submitted to the Director prior to or together with any reports, information, or applications to be signed by an authorized representative.

4.6.d. Certification. -- Any person signing a document under subdivisions 4.6.a or 4.6.b of this rule shall make the following certification:

"I certify under penalty of law that this document and all attachments were prepared under my direction or supervision in accordance with a system designed to assure that qualified personnel properly gather and evaluate the information submitted. Based on my inquiry of the person or persons who manage the system, or those persons directly responsible for gathering the information, the information submitted is, to the best of my knowledge and belief, true, accurate, and complete. I am aware that there are significant penalties for submitting false information, including the possibility of fine and imprisonment for knowing violations."

4.7. Filing fee. -- For all NPDES permits, the filing fees required by 47CSR26 shall apply as though fully set forth herein.

W. Va. Code R. § 47-10-4