Current through Register Vol. XLI, No. 24, June 14, 2024
Section 47-30-6 - Establishing WV/NPDES Permit Conditions6.1. General. In addition to conditions required in all WV/NPDES permits, the Secretary shall establish conditions in WV/NPDES permits as required on a case-by-case basis to provide for and assure compliance with all applicable requirements of the CWA, Article 11, and section 6 of this rule.6.1.a. 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 it is any requirement that takes effect prior to final administrative disposition and is also any requirement that takes effect prior to the modification or reissuance of a permit. Subdivision 10.2.b. of this rule provides a means for reopening a WV/NPDES permit proceeding at the discretion of the Secretary where new requirements become effective during the permitting process. An applicable requirement is also any requirement that takes effect prior to a modification or reissuance of a permit.6.2. Effluent Limitations. Each WV/NPDES permit shall include conditions meeting the following requirements when applicable:6.2.a. Technology based effluent limitations and standards for existing sources based on effluent limitation guidelines and standards under CWA Section 301 or new source performance standards promulgated under CWA Section 306, or case-by-case effluent limitations determined under CWA Section 402(a)(1) (Best Professional Judgment or BPJ), or a combination of the two in accordance with 40 C.F.R. Part 125. For new sources or new discharges, these technology-based limitations and standards are subject to the provisions of section 12 of this rule (Protection Period).6.2.b. Other Effluent Limitations and Standards under CWA Sections 301, 302, 303, 307, and 318. If any applicable toxic effluent standard or prohibition (including any schedule of compliance specified in such effluent standard or prohibition) is promulgated under CWA Section 307(a) for a toxic pollutant and that standard or prohibition is more stringent than any limitation on the pollutant in the permit, the Secretary shall institute proceedings under this rule to modify or reissue the permit to conform to the toxic effluent standard or prohibition.6.2.c. Water Quality Standards. Any more stringent requirements necessary to achieve water quality standards established pursuant to CWA or Article 11 or rules promulgated thereunder, including requirements of other affected states. Nothing in this subdivision precludes the application of Real Time Water Quality Control in achieving water quality standards. In the permit review and planning process, or upon the request of a permit applicant or permittee, the Secretary 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 Water Quality Control, the Secretary may require a permit applicant or permittee to submit such information as deemed necessary.6.2.d. Effluent Limitations for Coal Remining Operations.6.2.d.1. An operator shall be eligible for the effluent limitations under this subdivision if the operator has not caused or contributed to the pollutional discharges associated with the coal remining operation.6.2.d.2. Technology-based effluent limitations. In the case of coal remining operations, the Secretary shall include the provisions of 40 CFR Part 434, Subpart G in a WV/NPDES permit to satisfy the requirements of subdivision 6.2.a.6.2.d.3. Water quality-based effluent limitations. In the case of coal remining operations, where water quality standards under 47 C.S.R. 2 require more stringent limitations than those established under paragraph 6.2.d.2. or address parameters not included in 40 C.F.R. Part 434, Subpart G, the Secretary may grant a remining variance for any parameter of concern. A remining variance shall apply the best available technology economically achievable on a case-by-case basis, using best professional judgment, and shall not be issued unless the applicant demonstrates that the remining operation will result in the potential for improved in-stream water quality as a result of the remining operation. The variance shall be issued in accordance with the Secretary's procedural rule at 47 C.S.R. 6.6.2.e. Reopener Clause. Any WV/NPDES permit issued shall include effluent limitations to meet the requirements of CWA Sections 301(b)(2)(A), 301(b)(2)(C), 301(b)(2)(D), 301(b)(2)(E), and 301(b)(2)(F), whether or not applicable effluent limitations guidelines have been promulgated or approved. These permits shall also include a reopener condition (see subsection 5.16. of this rule) stating that, if an applicable standard or limitation is promulgated under CWA Sections 301(b)(2)(C), 301(b)(2)(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 limited in the permit, the permit may be modified or revoked and reissued to conform to that effluent standard or limitation.6.2.f. Water Quality Management Plans. Any requirements necessary to ensure consistency with the requirements of a water quality management plan approved by EPA under CWA Section 208(b).6.2.g. Alternate Limits that incorporate alternate effluent limitations or standards where warranted by "fundamentally different factors" under 40 C.F.R. Part 125, Subpart D (see subdivision 4.5.f. of this rule).6.2.h. Toxic pollutants limitations established under subdivisions 6.2.a., 6.2.b., or 6.2.c. of this rule to control pollutants meeting the criteria listed in paragraph 6.2.h.1. of this rule. Limitations will be established in accordance with paragraph 6.2.h.2. of this rule. An explanation of the development of these limitations shall be included in the fact sheet, if required. 6.2.h.1. Limitations must control all toxic pollutants that:6.2.h.1.A. The Secretary determines, based on information reported in a permit application under paragraphs 4.5.b.1. and 4.5.a.17. of this rule or in a notification under paragraph 5.13.d.4. of this rule or on other information 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; or6.2.h.1.B. The discharger does or may use or manufacture as an intermediate, final product or by-product.6.2.h.2. The requirement that the limitations control the pollutants meeting the criteria of paragraph 6.2.h.1. of this rule will be satisfied by: 6.2.h.2.A. Limitations on those pollutants; or6.2.h.2.B. Limitations on other pollutants that, in the judgment of the Secretary, will provide the necessary treatment of the pollutants.6.2.i. Notification Level. A "notification level" that exceeds the notification level of paragraph 5.13.d.4. of this rule, upon a petition from the permittee or on the Secretary'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.6.2.j. Immediate Reporting. Pollutants for which the permittee must report violations of maximum daily discharge limitations under subparagraph 5.13.d.2.C. of this rule shall be listed in the permit. This list shall include any toxic pollutant or hazardous substance, or a pollutant specifically identified as the method to control a toxic pollutant or hazardous substance.6.2.k. Monitoring Requirements. In addition to the requirements of subsection 5.11. of this rule, all WV/NPDES permits shall specify: 6.2.k.1. Requirements concerning the proper use, maintenance, and installation, when appropriate, of monitoring equipment or methods (including biological monitoring methods);6.2.k.2. Required monitoring including type, intervals, and frequency sufficient to yield data that are representative of the monitored activity including, when appropriate, continuous monitoring;6.2.k.3. Applicable reporting requirements based upon the impact of the regulated activity and as specified in paragraph 6.2.k.4. of this rule. Reporting shall be no less frequent than specified in the paragraph 6.2.k.5. of this rule; and6.2.k.4. To assure compliance with permit limitations, requirements to monitor: 6.2.k.4.A. The volume of effluent discharged from each outlet; and6.2.k.4.B. Other measurements as appropriate, including pollutants in internal waste streams under subsection 7.8. of this rule; pollutants in intake water for net limitations under subsection 7.7. of this rule; frequency rate of discharge for noncontinuous dischargers under subsection 7.4. of this rule; and pollutants subject to notification requirements under paragraph 5.13.d.4. of this rule.6.2.k.5. 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.6.2.l. Best Management Practices to control or abate the discharge of pollutants when: 6.2.l.1. Authorized under CWA Section 304(e) for the control of toxic pollutants and hazardous substances from ancillary activities;6.2.l.2. Numeric effluent limitations are unfeasible; or6.2.l.3. The practices are reasonably necessary to achieve effluent limitations and standards or to carry out the purposes and intent of CWA.6.2.m. Reissued Permits. 6.2.m.1. When a permit is reissued, interim limitations, standards or conditions shall be set that are 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.6.2.m.2. When effluent limitations were imposed under CWA Section 402(a)(1) in a previously issued permit and these limitations are more stringent than the subsequently promulgated effluent guidelines, this paragraph shall apply unless: 6.2.m.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 effluent limitation guidelines);6.2.m.2.B. The subsequently promulgated effluent guidelines are based on best conventional pollutant control technology (CWA Section 301(b)(2)(E));6.2.m.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; or6.2.m.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 production and raw waste loads, but in no event shall permit limitations be less stringent than those required by subsequently promulgated standards and limitations.6.2.n. Navigation. Any conditions that the Secretary of the United States Army (Corps of Engineers) considers necessary to ensure that navigation and anchorage will not be substantially impaired.6.2.o. Schedules of Compliance. The permit may, when appropriate, specify a schedule of compliance leading to compliance with the CWA, Article 11, and rules promulgated thereunder.6.2.o.1. Any schedule of compliance shall require compliance as soon as possible, but in no case later than the applicable statutory deadline. In the case of permit conditions based on water quality standards established after July 1, 1977, a schedule of compliance may be used that shall assure that the discharge will not cause a violation of applicable water quality standards.6.2.o.2. The first WV/NPDES permit issued to a new source or a new discharger shall contain a schedule of compliance only when necessary to allow a reasonable opportunity to attain compliance with requirements issued or revised after commencement of construction but less than three (3) years before commencement of the relevant discharge. For recommencing dischargers, a schedule of compliance shall be available only when necessary to allow a reasonable opportunity to attain compliance with requirements issued or revised less than three (3) years before recommencement of discharge.6.2.o.3. Interim Dates. If a permit establishes a schedule of compliance that exceeds one (1) year from the date of permit issuance, the schedule shall set forth interim requirements (for example, actions, operations or milestone events) and the dates for their achievement, but the time between interim dates shall not exceed one (1) year.6.2.o.4. If the time necessary for completion of any interim requirement is more than one (1) year and is not readily divisible into stages for completion, the permit shall specify interim dates for the submission of reports of progress toward completion of the interim requirements and indicate a projected completion date.6.2.o.5. Alternative schedules of compliance. A permit applicant or permittee may cease conducting regulated activities rather than continue to operate and meet permit requirements as follows:6.2.o.5.A. If the permittee decides to cease conducting regulated activities at a given time within the term of a permit that has already been issued the permit may be modified to contain a new or additional schedule leading to timely cessation of activities or the permittee shall cease conducting permitted activities before noncompliance with any interim or final compliance schedule requirement already specified in the permit.6.2.o.6. If the decision to cease conducting regulated activities is made before issuance of a permit whose term will include the termination date, the permit shall contain a schedule leading to termination that will ensure timely compliance with applicable requirements for compliance not later than statutory deadline.6.2.o.7. If the permittee is undecided whether to cease conducting regulated activities, the Secretary may issue or modify a permit to contain two (2) schedules as follows: 6.2.o.7.A. Both schedules shall contain an identical interim deadline requiring a final decision on whether to cease conducting regulated activities no later than a date that ensures sufficient time to comply with applicable requirement in a timely manner if the decision is to continue conducting regulated activities;6.2.o.7.B. One (1) schedule shall lead to timely compliance with applicable requirements and compliance no later than the statutory deadline;6.2.o.7.C. The second schedule shall lead to cessation of regulated activities by a date that will ensure timely compliance with applicable requirements or compliance no later than the statutory deadline; and6.2.o.7.D. Each permit containing two (2) schedules shall include a requirement that, after the permittee has made a final decision under subparagraph 6.2.o.7.A., it shall follow the schedule leading to compliance if the decision is to cease conducting regulated activities.6.2.o.8. The applicant's or permittee's decision to cease conducting regulated activities shall be evidenced by a firm public commitment satisfactory to the Secretary.