W. Va. Code R. § 47-10-5

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

Section 47-10-5 - Conditions Applicable to All Permits

The following conditions apply to all permits. All conditions shall be incorporated into the permits either expressly or by reference. If incorporated by reference, a specific citation to these rules must be given in the permit.

5.1. Duty to comply:

5.1.a. The permittee must comply with all conditions of this permit. Permit noncompliance constitutes a violation of the CWA and State Act and is grounds for enforcement action, for permit modification, revocation and reissuance, suspension or revocation, or for denial of a permit renewal application.

5.1.b. The permittee shall comply with all effluent standards or prohibitions established under '307(a) of the CWA for toxic pollutants within the time provided in the regulations that establish these standards or prohibitions, even if the permit has not yet been modified to incorporate the requirement.

5.2. Duty to reapply. -- If the permittee wishes to continue an activity regulated by this permit after the expiration date of this permit, the permittee must apply for a new permit at least one hundred eighty (180) days prior to expiration of the permit.

5.3. Need to halt or reduce activity not a defense. -- It shall not be a defense for a permittee in an enforcement action that it would have been necessary to halt or reduce the permitted activity in order to maintain compliance with the conditions of this permit.

5.4. Duty to mitigate. -- The permittee shall take all reasonable steps to minimize or prevent any discharge in violation of this permit that has a reasonable likelihood of adversely affecting human health or the environment.

5.5. Proper operation and maintenance. -- The permittee shall at all times properly operate and maintain all facilities and systems of treatment and control (and related appurtenances) that are installed or used by the permittee to achieve compliance with the conditions of this permit. Proper operation and maintenance also includes adequate laboratory controls and appropriate quality assurance procedures. Unless otherwise required by Federal or State law, this provision requires the operation of back-up auxiliary facilities or similar systems that are installed by the permittee only when the operation is necessary to achieve compliance with the conditions of the permit. For domestic waste treatment facilities, waste treatment operators as classified by the rules promulgated by the State Bureau for Public Health pursuant to W. Va. Code '16-1-1, et seq. will be required, except that in circumstances where the domestic waste treatment facility is receiving any type of industrial waste, the Director may require a more highly skilled operator.

5.6. Permit actions. -- This permit may be modified, revoked and reissued, suspended, or revoked for cause. The filing of a request by the permittee for a permit modification, revocation and reissuance, or revocation or a notification of planned changes or anticipated noncompliance does not stay any permit condition.

5.7. Property rights. -- This permit does not convey any property rights of any sort or any exclusive privilege.

5.8. Duty to provide information. -- The permittee shall furnish to the Director, within a reasonable specified time, any information that the Director may request to determine whether cause exists for modifying, revoking and reissuing, suspending or revoking this permit, or to determine compliance with this permit. The permittee shall also furnish to the Director, upon request, copies of records required to be kept by this permit.

5.9. Inspection and entry. -- The permittee shall allow the Director or the Director's authorized representative, upon presentation of credentials and other documents as may be required by law, to:

5.9.a. Enter upon the permittee's premises where an effluent source or activity is located or where records must be kept under the conditions of this permit;

5.9.b. Have access to and copy at reasonable times any records that must be kept under the conditions of this permit;

5.9.c. Inspect at reasonable times any facilities, equipment (including monitoring and control equipment), practices, or operations regulated or required under this permit; and

5.9.d. Sample or monitor at reasonable times for the purpose of assuring permit compliance or as otherwise authorized by the State Act, any substances or parameters at any location.

5.10. Monitoring and records:

5.10.a. Monitoring must be conducted according to test procedures approved under 40 C.F.R. '136 as in effect April 25, 2007, unless other test procedures have been specified in the permit.

5.10.b. Samples and measurements taken for the purpose of monitoring shall be representative of the monitored activity.

5.10.c. The permittee shall retain records of all monitoring information, including all calibration and maintenance records and all original chart recordings for continuous monitoring instrumentation, copies of all reports required by the permit, and records of all data used to complete the application for this permit for a period of at least three (3) years from the date of the sample, measurement, report or application. This period may be extended by request of the Director at any time.

5.10.d. Records of monitoring information shall include:

5.10.d.1. The date, exact place, and time of sampling or measurements;

5.10.d.2. The individual(s) who performed the sampling or measurements;

5.10.d.3. The date(s) analyses were performed;

5.10.d.4. The individual(s) who performed the analyses; if a commercial laboratory is used, the name and address of the laboratory;

5.10.d.5. The analytical techniques or methods used; and

5.10.d.6. The results of such analyses.

5.10.e. Monitoring results shall be reported on DMRs and at the intervals specified elsewhere in the permit.

5.10.f. If the permittee monitors any pollutant at any monitoring point specified in the permit more frequently than required by the permit, using approved test procedures or as specified in the permit, the results of this monitoring shall be included in the calculation and reporting of the data submitted in the DMR.

5.10.g. Calculations for all limitations that require averaging of measurements shall utilize an arithmetic mean unless otherwise specified by the Director in the permit.

5.10.h. The permittee shall not knowingly render inaccurate any monitoring device required to be used under this permit.

5.11. Signatory requirement. -- All applications, reports or information submitted to the Director shall be signed and certified as required in subsection 4.6 of this rule.

5.12. Reporting requirements:

5.12.a. Planned changes. -- The permittee shall give notice to the Director of any planned physical alterations or additions to the permitted facility that may affect the nature or quantity of the discharge and of any planned changes in the method of operating the facility that may affect the nature of quantity of the discharge. Notice is required when:

5.12.a.1. The alteration or addition to a permitted facility may meet one (1) of the criteria for determining whether a facility is a new source pursuant to subdivision 13.7.b below; or

5.12.a.2. The alteration or addition could significantly change the nature or increase the quantity of pollutants discharged. This notification applies to pollutants that are subject neither to effluent limitations in the permit nor to the notification requirements of subdivision 5.12.f below.

5.12.b. Anticipated noncompliance. -- The permittee shall give advance notice to the Director of any planned changes in the permitted facility or activity that may result in noncompliance with permit requirements.

5.12.c. Transfers. -- This permit is not transferable to any person except after notice to the Director. The Director may require modification or revocation and reissuance of the permit to change the name of the permittee and incorporate such other requirements as may be necessary.

5.12.d. Compliance schedules. -- Reports of compliance or noncompliance or any progress reports on interim and final requirements contained in any compliance schedule of this permit shall be submitted no later than fourteen (14) days following each schedule date.

5.12.e. Immediate reporting:

5.12.e.1. The permittee shall report any noncompliance that may endanger public health or the environment immediately after becoming aware of the circumstances by using the Division of Water and Waste Management's Emergency Notification Number 1-800-642-3074. A written submission shall be provided within five (5) days of the time the permittee becomes aware of the circumstances. The written submission shall contain a description of the noncompliance and its cause; the period of noncompliance, including exact dates and times, and if the noncompliance has not been corrected, the anticipated time it is expected to continue; and steps taken or planned to reduce, eliminate and prevent recurrence of the noncompliance.

5.12.e.2. The following shall also be reported immediately:

5.12.e.2.A. Any unanticipated bypass that exceeds any effluent limitation in the permit;

5.12.e.2.B. Any upset that exceeds any effluent limitation in the permit; and

5.12.e.2.C. Any violation of a maximum daily discharge limitation for any of the pollutants listed by the Director in the permit shall be reported immediately. This list shall include any toxic pollutant or hazardous substance or any pollutant specifically identified as the method to control a toxic pollutant or hazardous substance.

5.12.e.3. The Director may waive the written report on a case-by-case basis if the oral report has been received in accordance with the above.

5.12.e.4. Compliance with the requirements of subdivision 5.12.f below shall not relieve a person of compliance with 47CSR11.

5.12.f. In addition to the above reporting requirements, all existing manufacturing, commercial, and silvicultural dischargers must notify the Director in writing as soon as they know or have reason to believe:

5.12.f.1. That any activity has occurred or will occur that would result in the discharge, on a routine or frequent basis, of any toxic pollutant that is not limited in the permit if that discharge will exceed the highest of the following "Notification Levels:"

5.12.f.1.A. One hundred micrograms per liter (100 Fg/1);

5.12.f.1.B. Two hundred micrograms per liter (200 Fg/1) for acrolein and acrylonitrile; five hundred micrograms per liter (500 Fg/1) for 2,4-dinitrophenol and for 2-methyl-4,6-dinitrophenol; and one milligram per liter (1 mg/1) for antimony;

5.12.f.1.C. Five (5) times the maximum concentration value reported for that pollutant in the permit application in accordance with paragraphs 4.4.b.7 or 4.4.b.9 above; and

5.12.f.1.D. The level established by the Director in accordance with paragraph 6.3.g.5 below.

5.12.f.2. That any activity has occurred or will occur that would result in any discharge (on a non-routine or infrequent basis) of a toxic pollutant that is not limited in the permit, if that discharge will exceed the highest of the following "Notification Levels:"

5.12.f.2.A. Five hundred micrograms per liter (500 Fg/1);

5.12.f.2.B. One milligram per liter (1 mg/1) for antimony;

5.12.f.2.C. Ten (10) times the maximum concentration value reported for that pollutant in the permit application in accordance with paragraph 4.4.b.7 above; or

5.12.f.2.D. The level established by the Director in accordance with paragraph 6.3.g.5 below.

5.12.f.3. That they have begun or expect to begin to use or manufacture as an intermediate or final product or by-product of any toxic pollutant that was not reported in the permit application under paragraph 4.4.b.9 above and that will result in the discharge on a routine or frequent basis of that toxic pollutant at levels that exceed five (5) times the detection limit for that pollutant under approved analytical procedure.

5.12.f.4. That they have begun or expect to begin to use or manufacture as an intermediate or final product or by-product of any toxic pollutant that was not reported in the permit application under paragraph 4.4.b.9 above and that will result in the discharge on a non-routine or infrequent basis of that toxic pollutant at levels that exceed ten (10) times the detection limit for that pollutant under approved analytical procedure.

5.12.g. Other noncompliance. The permittee shall report all instances of noncompliance not reported under the above paragraphs at the time monitoring reports are submitted. The reports shall contain the information listed in paragraph 5.12.e.1 of this rule.

5.12.h. Other information. -- Where the permittee becomes aware that it failed to submit any relevant facts in a permit application or submitted incorrect information in a permit application or in any report to the Director, it shall promptly submit such facts or information.

5.13. Bypass:

5.13.a. Definitions:

5.13.a.1. "Bypass" means the intentional diversion of waste streams from any portion of a treatment facility.

5.13.a.2. "Severe Property Damage" means substantial physical damage to property, damage to the treatment facilities that causes them to become inoperable, or substantial and permanent loss of natural resources that can reasonably be expected to occur in the absence of a bypass. Severe property damage does not mean economic loss caused by delays in production.

5.13.b. Bypass not exceeding limitations. -- The permittee may allow any bypass to occur that does not cause effluent limitations to be exceeded, but only if it also is for essential maintenance to assure efficient operation. These bypasses are not subject to the provisions of subdivisions 5.13.c and 5.13.d of this rule.

5.13.c. Notice:

5.13.c.1. If the permittee knows in advance of the need for a bypass, it shall submit prior notice, if possible at least ten (10) days before the date of the bypass; and

5.13.c.2. If the permittee does not know in advance of the need for a bypass, notice shall be submitted as required in paragraph 5.12.e.2 of this rule.

5.13.d. Prohibition of bypass:

5.13.d.1. Bypass is permitted only under the following conditions, and the Director may take enforcement action against a permittee for bypass, unless:

5.13.d.1.A. Bypass was unavoidable to prevent loss of life, personal injury, or severe property damage;

5.13.d.1.B. There were no feasible alternatives to the bypass, such as the use of auxiliary treatment facilities, retention of untreated wastes, or maintenance during normal periods of equipment downtime. This condition is not satisfied if adequate backup equipment should have been installed in the exercise of reasonable engineering judgment to prevent a bypass that occurred during normal periods of equipment downtime or preventive maintenance; and

5.13.d.1.C. The permittee submitted notices as required under subdivision 5.13.c above.

5.13.d.2. The Director may approve an anticipated bypass after considering its adverse effects if the Director determines that it will meet the three (3) conditions listed above in paragraph 5.13.d.1 above.

5.14. Upset.

5.14.a. Definition. -- "Upset" means an exceptional incident in which there is unintentional and temporary noncompliance with technology-based permit effluent limitations because of factors beyond the reasonable control of the permittee. An upset does not include noncompliance to the extent caused by operational error, improperly designed treatment facilities, inadequate treatment facilities, lack of preventive maintenance, or careless or improper operation.

5.14.b. Effect of an upset. -- An upset constitutes an affirmative defense to an action brought for noncompliance with such technology-based effluent limitations if the requirements of subdivision 5.14.c of this rule are met. No determination made during administrative review of claims that noncompliance was caused by upset and before an action for noncompliance is final administrative action subject to judicial review.

5.14.c. Conditions necessary for a demonstration of upset. -- A permittee who wishes to establish the affirmative defense of upset shall demonstrate, through properly signed, contemporaneous operating logs or other relevant evidence that:

5.14.c.1. An upset occurred and that the permittee can identify the cause(s) of the upset;

5.14.c.2. The permitted facility was being properly operated at the time of the upset;

5.14.c.3. The permittee submitted notice of the upset as required in paragraph 5.12.e.2 of this rule; and

5.14.c.4. The permittee complied with any remedial measures required by subsection 5.4 above.

5.14.d. Burden of proof. -- In any enforcement proceeding, the permittee seeking to establish the occurrence of an upset has the burden of proof.

5.15. Removed substances. -- Where removed substances are not otherwise covered by the terms and conditions of this permit or another existing permit issued by the Director, any solids, sludges, filter backwash or other pollutants removed in the course of treatment or control of wastewaters that are intended for disposal within the State shall be disposed of only in a manner and at a site subject to the approval by the Director. If such substances are intended for disposal outside the State or for reuse (i.e. as a material used for making another product, which in turn has another use), the permittee shall notify the Director in writing of the proposed disposal or use of such substances, the identify of the prospective disposer or users, and the intended place of disposal or use, as appropriate.

W. Va. Code R. § 47-10-5