W. Va. Code R. § 47-10-6

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

Section 47-10-6 - Establishing Permit Conditions

6.1. In addition to conditions required in all permits, the Director shall establish conditions in permits as required on a case-by-case basis to provide for and assure compliance with all applicable requirements of the CWA and the State Act and regulations. An applicable requirement is a State or Federal or interstate compact, statutory or regulatory requirement that takes effect prior to final administrative disposition of a permit, or any requirement that takes effect prior to the modification or revocation and reissuance of a permit.

6.2. In the permit review and planning process, or upon the request of a permit applicant or permittee, the Director may utilize Real Time Water Quality Control on a case-by-case basis when establishing permit conditions when the applicant demonstrates that the use of Real Time Water Quality Control will not violate water quality standards. In order to facilitate a determination or assessment of the applicability of Real Time Management Control, the Director may require a permit applicant or permittee to submit such information as deemed necessary.

6.3. Each permit shall include conditions meeting the following requirements when applicable:

6.3.a. Technology-based effluent limitations and standards based on effluent limitations and standards under '301 of the CWA, new source performance standards promulgated under '306 of the CWA, case-by-case effluent standards determined under '402(a)(1) of the CWA, or a combination of the two (2) in accordance with 40 C.F.R. '125.3(c). For new sources or new dischargers, these technology based limitations and standards are subject to the provisions of subsection 13.7 below (protection period).

6.3.b. Other effluent limitations and standards under ''301, 302, 303, 307, 318, and 405 of the CWA. If any applicable toxic effluent standard or prohibition (including any schedule of compliance specified in such effluent standard or prohibition) is promulgated under '307(a) of the CWA for a toxic pollutant and that standard or prohibition is more stringent than any limitation on the pollutant in the permit, the Director shall institute proceedings under these rules to modify or revoke and reissue the permit to conform to the toxic effluent standard or prohibition. The provisions of 40 C.F.R. '129 are hereby incorporated by reference.

6.3.c. For any discharger within a primary industry category (see Appendix A), the requirements of '307(a)(2) of the CWA as follows:

6.3.c.1. After June 30, 1981, any permit issued shall include effluent limitations and a compliance schedule to meet the requirements of ''301(b)(2)(A), (C), (D), (E) and (F) of the CWA, whether or not applicable effluent limitations guidelines have been promulgated or approved. These permits may include a condition stating that if an applicable standard or limitation is promulgated under ''301(b)(2)(C) and (D), 304(b)(2), and 307(a)(2) and that effluent standard or limitation is more stringent than any effluent limitation in the permit or controls a pollutant not listed in the permit, the permit shall be promptly modified or revoked and reissued to conform to that effluent standard or limitation.

6.3.d. Any more stringent requirements necessary to achieve water quality standards established pursuant to the CWA or the State Act and regulations, including requirements of other affected States. Nothing in this section precludes the application of Real Time Water Quality Control in achieving water quality standards.

6.3.e. Any requirements necessary to ensure consistency with the requirements of a Water Quality Management Plan approved by EPA under '208(b) of the CWA.

6.3.f. For toxic pollutants, limitations established under subdivisions 6.3.a, 6.3.b or 6.3.c above to control pollutants meeting the criteria listed in paragraph 6.3.f.1 below. Limitations will be established in accordance with paragraph 6.3.f.2. An explanation of the development of these limitations shall be included in the fact sheet, if any:

6.3.f.1. Limitations must control all toxic pollutants that:

6.3.f.1.A. The Director determines are or may be discharged at a level greater than the level that can be achieved by the technology-based treatment requirements appropriate to the permittee; or

6.3.f.1.B. The discharger does or may use or manufacture as an intermediate or final product or by-product.

6.3.f.2. The requirement that the limitations control the pollutants meeting the criteria of paragraph 6.3.f.1 above will be satisfied by:

6.3.f.2.A. Limitations on those pollutants; or

6.3.f.2.B. Limitations on other pollutants that, in the judgment of the Director, will provide the necessary treatment of the pollutants.

6.3.g. Notification level. -- A "Notification Level" that exceeds the notification level of subdivision 5.1.f above, upon a petition from the permittee or on the Director's initiative. This new notification level may not exceed the level that can be achieved by the technology-based treatment requirements appropriate to the permittee.

6.3.h. Monitoring requirements. -- In addition to the requirements set out in subsection 5.10 above, the following monitoring requirements:

6.3.h.1. To assure compliance with permit limitations, requirements to monitor:

6.3.h.1.A. The mass (or other measurement specified in the permit) for each pollutant limited in the permit;

6.3.h.1.B. The volume of effluent discharged from each outlet;

6.3.h.1.C. Other measurements as appropriate, including pollutants in internal waste streams under subsection 7.9 below; pollutants in intake water for net limitations under subsection 7.8 below; frequency, rate of discharge, etc., for noncontinuous dischargers under subsection 7.5 below; and pollutants subject to notification requirements under subdivision 5.12.f above; and

6.3.h.1.D. According to test procedures approved by 40 C.F.R. '136 for the analyses of pollutants having approved methods under that section, and according to a test procedure specified in the permit for pollutants with no approved methods.

6.3.h.2. Requirements to report monitoring results with a frequency dependent on the nature and effect of the discharge, but in no case less than once a year.

6.3.h.3. When appropriate and as determined by the Director, requirements concerning the proper use, maintenance, and installation of monitoring equipment or methods, including biological monitoring methods.

6.3.i. Best management practices to control or abate the discharge of pollutants when:

6.3.i.1. Authorized under '304(e) of the CWA for the control of toxic pollutants and hazardous substances from ancillary activities;

6.3.i.2. Numeric effluent limitations are infeasible; or

6.3.i.3. The practices are reasonably necessary to achieve effluent limitations and standards or to carry out the purposes and intent of the CWA.

6.3.j. Reissued permits.

6.3.j.1. Except as provided in paragraph 6.3.j.2 of this rule, when a permit is renewed or reissued, interim limitations, standards or conditions must be at least as stringent as the final limitations, standards or conditions in the previous permit, unless the circumstances on which the previous permit was based have materially and substantially changed since the time the permit was issued and would constitute cause for permit modification or revocation and reissuance.

6.3.j.2. When effluent limitations were imposed under '402(a)(1) of the CWA in a previously issued permit and these limitations are more stringent than the subsequently promulgated effluent guidelines, this paragraph shall apply unless:

6.3.j.2.A. The discharger has installed the treatment facilities required to meet the effluent limitations in the previous permit and has properly operated and maintained the facilities, but has nevertheless been unable to achieve the previous effluent limitations. In this case the limitations in the reissued permit may reflect the level of pollutant control actually achieved, but shall not be less stringent than required by the subsequently promulgated guidelines;

6.3.j.2.B. The subsequently promulgated effluent guidelines are based on best conventional pollutant control technology pursuant to '301(b)(2)(E) of the CWA;

6.3.j.2.C. The circumstances on which the previous permit was based have materially and substantially changed since the time the permit was issued and would constitute cause for permit modification or revocation and reissuance; or

6.3.j.2.D. There is increased production at the facility that results in significant reduction in treatment efficiency, in which case the permit limitations will be adjusted to reflect any decreased efficiency resulting from increased production and raw waste loads, but in no event shall permit limitations be less stringent than those required by subsequently promulgated standards and limitations.

6.3.k. Privately owned treatment works. -- For a privately owned treatment works, any conditions expressly applicable to any user, as a limited co-permittee, that may be necessary in the permit issued to the treatment works to ensure compliance with applicable requirements of the CWA and the State Act. Alternatively, the Director may issue separate permits to the treatment works and to its users or may require a separate permit application from any user. The Director's decision to issue a permit with no conditions applicable to any user, to impose conditions on one (1) or more users, to issue separate permits, or to require separate applications, and the basis for that decision shall be stated in the fact sheet for the draft permit for the treatment works, if any.

6.3.l. Grants. -- Any conditions imposed in grants made by the Administrator to POTWs under ''201 and 204 of the CWA that are reasonably necessary for the achievement of effluent limitations under '301 of the CWA.

6.3.m. Sewage sludge. -- Requirements under '405 of the CWA governing the disposal of sewage sludge from publicly owned treatment works, in accordance with any applicable rules.

6.3.n. Navigation. -- Any conditions that the Secretary of the U.S. Army Corps of Engineers considers necessary to ensure that navigation and anchorage will not be substantially impaired.

6.3.o. Any alternative effluent limitations or standards may be incorporated where warranted by "fundamentally different factors," pursuant to 40 C.F.R. '125.30, et seq.

W. Va. Code R. § 47-10-6