Current through Register Vol. XLI, No. 23, June 7, 2024
Section 47-30-5 - Conditions Applicable To All PermitsThe following conditions apply to all WV/NPDES permits. All conditions shall be incorporated into the WV/NPDES permits either expressly or by reference. If incorporated by reference, a specific citation to this rule must be given in the permit.
5.1. Duty to Comply; Penalties.5.1.a. The permittee must comply with all conditions of a WV/NPDES permit. Permit noncompliance constitutes a violation of the CWA and Article 11 and is grounds for enforcement action, WV/NPDES permit modification, suspension or revocation, or for denial of a WV/NPDES permit reissuance application.5.1.b. The permittee shall comply with all effluent standards or prohibitions established under CWA Section 307(a) 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.5.1.c. The Clean Water Act and Article 11 provide that any person who violates a permit condition implementing CWA Sections 301, 302, 306, 307, 308, 318 or 405 or any provision of a WV/NPDES permit or any rule or regulation promulgated under Article 11 is subject to a civil penalty not to exceed twenty-five thousand dollars ($25,000) per day of such violation. Any person who willfully or negligently violates permit conditions implementing CWA Sections 301, 302, 306, 307 or 308 or any provision of Article 11 or a WV/NPDES permit is subject to a fine of not less than two thousand five hundred dollars ($2,500) per day of violation nor more than twenty-five thousand dollars ($25,000) per day of violation or by imprisonment for not more than one (1) year or both.5.1.d. Any person who falsifies, tampers with or knowingly renders inaccurate any monitoring device or method required to be maintained under a WV/NPDES permit shall, upon conviction, be punished by a fine of not less than one thousand dollars ($1,000) nor more than ten thousand dollars ($10,000) per violation or by imprisonment for not more than six (6) months per violation or both.5.1.e. The Clean Water Act and Article 11 provide that any person who knowingly makes any false statement, representation or certification in any record or other document submitted or required to be maintained under the permit, including monitoring reports or reports of compliance or noncompliance, shall, upon conviction, be punished by a fine of not less than one thousand dollars ($1,000) nor more than ten thousand dollars ($10,000) per violation or by imprisonment for not more than six (6) months per violation or by both.5.1.f. Any activities covered under a WV/NPDES permit shall not lead to pollution of the groundwater of the State as a result of the disposal or discharge of such wastes covered herein. However, as provided by subdivision 3.4.a. of this rule, except for any toxic effluent standards and prohibitions imposed under CWA Section 307 for toxic pollutants injurious to human health, compliance with a permit during its term constitutes compliance for purposes of enforcement with CWA Sections 301, 302, 306, 307, 318, 403, and 405 and Article 11.5.1.g. Nothing in subsection 5.1. of this rule shall be construed to limit or prohibit any other authority the Secretary may have under Article 3 or Article 11 of Chapter 22 of the West Virginia Code or to relieve the permittee from any responsibilities, liabilities or penalties for not complying with 47 C.S.R. 2 and 47 C.S.R. 11.5.2. Duty to Reapply. If the permittee wishes to continue an activity regulated by the WV/NPDES permit after the expiration date of the permit, the permittee must apply for reissuance of the permit at least one hundred twenty (120) days prior to expiration of the permit.5.3. Duty to Halt or Reduce Activity Not a Defense. Upon reduction, loss or failure of the treatment facility, the permittee shall, to the extent necessary to maintain compliance with the WV/NPDES permit, control production or all discharges or both until the facility is restored or an alternative method of treatment is provided. This requirement applies, for example, when the primary source of power to the treatment facility fails or is reduced or lost. 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 the permit.5.4. Duty to Mitigate. The permittee shall take all reasonable steps to minimize, correct or prevent any discharge in violation of the WV/NPDES 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 the WV/NPDES permit. Proper operation and maintenance includes effective performance, adequate funding, adequate operator staffing and training, and adequate laboratory and process controls, including appropriate quality assurance procedures. This provision requires the operation of backup auxiliary facilities or similar systems only when necessary to achieve compliance with the conditions of the permit.5.6. Permit Actions. The WV/NPDES permit may be modified, reissued, suspended or revoked for cause (see section 8 of this rule). The filing of a request by the permittee for a permit modification, reissuance, termination or a notification of planned changes or anticipated non-compliance does not stay any permit condition.5.7. Transfer. The WV/NPDES permit is not transferable to any person except after notice to the Secretary and by following one of the procedures listed in subdivision 3.5.c. of this rule.5.8. Property Rights. The WV/NPDES permit does not convey any property rights of any sort or any exclusive privilege.5.9. Duty to Provide Information. The permittee shall furnish to the Secretary, within a specified time, any information that the Secretary may request to determine whether cause exists for modifying, reissuing, suspending or revoking the WV/NPDES permit or to determine compliance with the permit. The permittee shall also furnish to the Secretary, upon request, copies of records required to be kept by the permit. 5.10. Inspection and Entry. The permittee shall allow the Secretary or the Secretary's authorized representative, upon the presentation of credentials and other documents as may be required by law, to: 5.10.a. Enter upon the permittee's premises where a regulated facility or activity is located or conducted or where records must be kept under the conditions of the WV/NPDES permit;5.10.b. Have access to and copy, at reasonable times, any records that must be kept under the conditions of the permit;5.10.c. Inspect, at reasonable times, any facilities, equipment (including monitoring and control equipment), practices or operations regulated or required under the permit; and5.10.d. Sample or monitor, at reasonable times, any substances or parameters at any location for the purposes of assuring permit compliance or as otherwise authorized by Article 11.5.11. Monitoring and Records.5.11.a. Monitoring must be conducted according to test procedures approved under 40 C.F.R. Part 136, unless other test procedures have been specified in the WV/NPDES permit.5.11.b. Samples and measurements taken for the purpose of monitoring shall be representative of the monitored activity.5.11.c. The permittee shall retain records of all monitoring information, including all calibration and maintenance records and all original chart recording for continuous monitoring instrumentation, copies of all reports required by the WV/NPDES permit, and records of all data used to complete the application for the 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 Secretary at any time.5.11.d. Records of monitoring information shall include: 5.11.d.1. The date, exact place, and time of sampling or measurements;5.11.d.2. The individual(s) who performed the sampling or measurements;5.11.d.3. The date(s) analyses were performed;5.11.d.4. The individual(s) who performed the analyses; if a commercial laboratory is used, the name and address of the laboratory;5.11.d.5. The analytical techniques or methods used; and5.11.d.6. The results of such analyses.5.11.d.7. This information need not be submitted to the Secretary, unless requested, but should be retained in accordance with subdivision 5.11.c. of this rule.5.11.e. Monitoring results shall be reported on DMRs and at the intervals specified in the permit. DMRs should be sent to the person designated in the permit so that they are received no later than twenty (20) days following the end of the reporting period.5.11.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 under 40 C.F.R. Part 136 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. Such increased frequency shall also be indicated.5.11.g. Calculations for all limitations that require averaging of measurements shall utilize an arithmetic mean, unless otherwise specified by the Secretary in the permit.5.12. Signatory Requirement. All applications, reports or information submitted to the Secretary shall be signed and certified as required in subsection 4.7. of this rule.5.13. Reporting Requirements. 5.13.a. Planned Changes. The permittee shall give notice to the Secretary as soon as possible but no later than thirty (30) days prior to any planned physical alterations or additions to the permitted facility or any planned changes in the method of operating the facility that may affect the nature of quantity of the discharge or qualify that facility for designation as a new source under subsection 2.32. of this rule.5.13.b. Anticipated Noncompliance. The permittee shall give advance notice to the Secretary of any planned changes in the permitted facility or activity that may result in noncompliance with permit requirements.5.13.c. Compliance Schedules. Reports of compliance or noncompliance with, or any progress reports on, interim and final requirements contained in any compliance schedule of the permit shall be submitted no later than fourteen (14) days following each schedule date.5.13.d. Immediate Reporting.5.13.d.1. The permittee shall report any noncompliance with the WV/NPDES permit or Article 11 that may endanger public health or the environment immediately, but not later than twenty-four (24) hours after becoming aware of the circumstances by using the Department of Environmental Protection's Emergency Notification Number 1-800-642-3074. A written submission shall be provided to the person designated in the permit 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; if the noncompliance has not been corrected, the anticipated time the noncompliance is expected to continue; and steps taken or planned to reduce, eliminate, and prevent reoccurrence of the noncompliance.5.13.d.2. The following shall also be reported immediately but not later than twenty-four (24) hours after: 5.13.d.2.A. Any unanticipated bypass (see subdivision 5.14.a. of this rule) that exceeds any effluent limitation in the permit;5.13.d.2.B. Any spill or accidental discharge (upset), as defined in subsection 5.15. of this rule, shall be reported by using the Department of Environmental Protection's Emergency Notification Number: 1-800-642-3074. The notification shall set forth the time and place of the spill or discharge, type and quantities of pollutants, any actions taken to stop or mitigate the spill or accidental discharge, and any other information as may be requested. A written verification of the notification shall be submitted upon request of the person designated in the permit; and5.13.d.2.C. Violation of a maximum daily discharge limitation for any of the pollutants that the Secretary has required in the permit to be reported immediately.5.13.d.3. The Secretary may waive the written report required by paragraph 5.13.d.2. of this rule on a case-by-case basis, if the oral report has been received in accordance with the above.5.13.d.4. Notification Levels. The permittee must notify the Secretary in writing as soon as it knows or has reason to believe:5.13.d.4.A. 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:" 5.13.d.4.A.1. One hundred micrograms per liter (100 [MICRO]g/l);5.13.d.4.A.2. Two hundred micrograms per liter (200 [MICRO]g/l) for acrolein and acrylonitrile; five hundred micrograms per liter (500 [MICRO]g/l) for 2,4-dinitrophenol and for 2-methyl-4, 6-dinitrophenol; and one milligram per liter (1 mg/l) for antimony;5.13.d.4.A.3. Five (5) times the maximum concentration value reported for that pollutant in the permit application in accordance with paragraph 4.5.b.1. of this rule; and5.13.d.4.A.4. The level established by the Secretary in accordance with subdivision 6.2.h. of this rule.5.13.d.4.B. That any activity has occurred or will occur that would result in any discharge, on a nonroutine 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:" 5.13.d.4.B.1. Five hundred micrograms per liter (500 [MICRO]g/l);5.13.d.4.B.2. One milligram per liter (1 mg/l) for antimony;5.13.d.4.B.3. Ten (10) times the maximum concentration value reported for that pollutant in the permit application in accordance with paragraph 4.5.b.1. of this rule; or5.13.d.4.B.4. The level established by the Secretary in accordance with subdivision 6.2.h. of this rule.5.13.d.4.C. That they have begun or expect to begin to use or manufacture, as an intermediate or final product or byproduct, any toxic pollutant that was not reported in the permit application under paragraph 4.5.a.17. of this rule.5.13.e. Other Noncompliance. The permittee shall report all instances of noncompliance not reported under subdivisions 5.11.e., 5.11.f., 5.11.g., 5.13.c., and 5.13.d. of these rules at the time monitoring reports are submitted. The reports shall contain the information listed in paragraph 5.13.d.1. of this rule.5.13.f. Net Limitations. If net limitations are established, then the permittee shall notify the Secretary if eligibility for such limitations has been altered or no longer exists.5.13.g. 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 Secretary, it shall promptly submit such facts or information.5.14. Bypass.5.14.a. Definitions. 5.14.a.1. "Bypass" means the intentional temporary diversion of waste streams from any portion of a treatment facility.5.14.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.5.14.b. Bypass Not Exceeding Limitations. The permittee may allow any bypass to occur, for reasons other than sediment control, that does not cause effluent limitations to be exceeded, but only if it is for essential maintenance to assure efficient operation. These bypasses are not subject to the provisions of subdivisions 5.14.c. and 5.14.d. of this rule.5.14.c. Notice. 5.14.c.1. Anticipated Bypass. If the permittee knows in advance of the need for a bypass, he or she shall submit prior written notice, if possible, at least ten (10) days before the date of the bypass.5.14.c.2. Unanticipated Bypass. If the permittee does not know in advance of the need for a bypass, notice shall be submitted as required in subdivision 5.13.d. of this rule.5.14.d. Prohibition of Bypass Exceeding Limitations. 5.14.d.1. Bypass exceeding limitations is permitted only under the following conditions, and the Secretary may take enforcement action against a permittee for bypass, unless: 5.14.d.1.A. Bypass exceeding limitations was unavoidable to prevent loss of life, personal injury or severe property damage;5.14.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; and5.14.d.1.C. The permittee submitted notices as required under subdivision 5.14.c. of this rule.5.14.e. Approval of Bypass Exceeding Limitations. The Secretary may approve an anticipated bypass exceeding limitations, after considering its adverse effects, if the Secretary determines that it will meet the three conditions listed in paragraph 5.14.d.1. of this rule.5.15. Upset.5.15.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.5.15.b. Effect of an Upset. An upset constitutes an affirmative defense to an action brought for noncompliance with such technology-based permit effluent limitations if the requirements of subdivision 5.15.c. of these rules 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.5.15.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: 5.15.c.1. An upset occurred and that the permittee can identify the cause(s) of the upset;5.15.c.2. The permitted facility was at the time being properly operated;5.15.c.3. The permittee submitted notice of the upset as required in subparagraph 5.13.d.2.B. of this rule; and5.15.c.4. The permittee complied with any remedial measures required under subsection 5.4. of this rule.5.15.d. Burden of Proof. In any enforcement proceeding, the permittee seeking to establish the occurrence of an upset has the burden of proof.5.16. Reopener Clause. In accordance with W. Va. Code § 22-11-20, the Secretary may reopen the WV/NPDES permit through modification or by reissuance to incorporate an applicable effluent standard or limitation under CWA Sections 301(b)(2)(C) and W. Va. Code § 22-11-11(b) (Water Quality Based Effluent Limitations and Standards), CWA Section 301(b)(2)(D) (Toxics), CWA Section 304(b)(2) (Best Available Treatment) and CWA Section 307(a)(2) (Toxics), which is promulgated or approved after the WV/NPDES permit is issued, if that effluent standard or limitation is more stringent than any effluent limitation in the permit or controls a pollutant not limited in the permit.5.17. Removed Substances. Where removed substances are not otherwise covered by the terms and conditions of the WV/NPDES permit or other existing permit issued by the Department, 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 Department. If such substances are intended for disposal outside the State or for reuse (that is, as a material used for making another product, which in turn has another use), the permittee shall notify the Department in writing of the proposed disposal or use of such substances, the identity of the prospective disposer or users, the intended place of disposal or use, as appropriate, and shall take reasonable measures to ensure that the use does not cause pollution of the waters of the State.5.18. New Sources. 5.18.a. The owner or operator of a new source or a recommencing discharger shall install, have in operating condition, and "start up" all pollution control equipment required to meet the conditions of the WV/NPDES permit before beginning to discharge.5.18.b. After the effective date of new source performance standards, it shall be unlawful for any owner or operator of any new source to operate the source in violation of those standards applicable to the source.5.18.c. Notwithstanding section 8 of this rule, any new source classified as such under previous EPA regulations may apply to have the WV/NPDES permit modified to incorporate the revised new source performance standards.5.18.d. When a WV/NPDES permit is issued to a new source, the protection period of subdivision 12.2.a. of this rule shall apply. After expiration of such protection period, the permittee must immediately comply with any more stringent technology-based limitations promulgated under CWA Section 301. If, however, the more stringent technology-based limitations are promulgated less than three (3) years before the expiration of the WV/NPDES permit, the permittee has three (3) years from the date of their promulgation to comply with the stricter limits.5.19. Definitions. When used in WV/NPDES permits, the definitions in section 2 of this rule shall apply and the following terms shall mean:5.19.a. "Daily Average Fecal Coliform Bacteria" means the geometric average of all samples collected during the month.5.19.b. "Measured Flow" means any method of liquid volume measurement, the accuracy of which has been previously demonstrated in engineering practice or for which a relationship to absolute volume has been obtained.5.19.c. "Composite Sample" means a combination of individual samples obtained at regular intervals over a time period. Either the volume of each individual sample is proportional to discharge flow rates or the sampling interval (for constant volume samples) is proportional to the flow rates over the time period used to produce the composite. The maximum time period between individual samples shall be two (2) hours.5.19.d. "Grab Sample" means an individual sample collected in less than fifteen (15) minutes.