W. Va. Code R. § 46-2-13

Current through Register Vol. XLI, No. 50, December 13, 2024

Section 46-2-13 - Special NPDES Programs

13.1. Concentrated Animal Feeding Operations

a. Permit requirement. Concentrated animal feeding operations are point sources subject to the NPDES permit program.

b. Definitions:

1. "Animal Feeding Operation" means a lot or facility (other than an aquatic animal production facility) where the following conditions are met:

i. Animals (other than aquatic animals) have been, are, or will be stabled or confined and fed or maintained for a total of forty-five (45) days or more in a twelve (12) month period, and

ii. Crops, vegetation forage growth, or post-harvest residues are not sustained in the normal growing season over any portion of the lot or facility.

2. Two (2) or more animal feeding operations under common ownership are considered, for the purposes of these regulations, to be a single animal feeding operation if they adjoin each other or if they use a common area or system for the disposal of wastes.

3. "Concentrated Animal Feeding Operation" means an "animal feeding operation" which meets the criteria in Appendix B, or which the Chief designates under 13.1.c of this section.

c. Case-by-case designation of concentrated animal feeding operations:

1. The Chief may designate any animal feeding operation as a concentrated animal feeding operation upon determining that it is a significant contributor of pollution to the waters of the State. In making this designation, the Chief shall consider the following factors:

i. The size of the animal feeding operation and the amount of wastes reaching waters of the State;

ii. The The location of the animal feeding operation relative to waters of the State;

iii. The means of conveyance of animal wastes and process wastewaters into waters of the State;

iv. The slope, vegetation, rainfall, and other factors affecting the likelihood or frequency of discharge of animal wastes and process wastewaters into waters of the State; and

v. Other relevant factors.

2. No animal feeding operation with less than the numbers of animals set forth in Appendix B shall be designated as a concentrated animal feeding operation unless:

i. Pollutants are discharged into the waters of the State through a man-made ditch, flushing system, or other similar man-made device; or

ii. Pollutants are discharged directly into the waters of the State which originate outside of the facility and pass over, across, or through the facility or otherwise come into direct contact with the animals confined in the operation.

3. A permit application shall not be required from a concentrated animal feeding operation designated under this paragraph until the Chief has conducted an on-site inspection of the operation and determined that the operation should and could be regulated under the permit program.

13.2. Concentrated aquatic animal production facilities.

a. Permit requirement. Concentrated aquatic animal production facilities, as defined in this section, are point sources subject to the permit program.

b. Definition. "Concentrated aquatic animal production facility" means a hatchery, fish farm, or other facility which meets the criteria in Appendix C, or which the Chief designates under paragraph 13.2.c of this section.

c. Case-by-case designation of concentrated aquatic animal production facilities:

1. The Chief may designate any warm or cold water aquatic animal production facility as a concentrated aquatic animal production facility upon determining that it is a significant contributor of pollution to the waters of the State. In making this designation the Chief shall consider the following factors:

i. The location and quality of the receiving waters of the State;

ii. The holding, feeding, and production capacities of the facility;

iii. The quantity and nature of the pollutants reaching waters of the State; and

iv. The slope, vegetation, rainfall, and other factors affecting the likelihood or frequency of discharge of animal wastes and process wastewaters into waters of the state; and

v. Other relevant factors.

d. A permit application shall not be required from a concentrated aquatic animal production facility designated under this paragraph until the Chief has conducted on-site inspection of the facility and has determined that the facility should and could be regulated under the permit program.

13.3. Aquaculture projects.

a. Permit requirements. Discharges into aquaculture projects, as defined in this section, are subject to the permit program through Section 318 of CWA.

b. Definitions:

1. "Aquaculture Project" means a defined managed water area which uses discharges of pollutants into that designated area for the maintenance or production of harvestable freshwater plants or animals.

2. "Designated Project Area" means the portions of the waters of the State within which the permittee or permit applicant plans to confine the cultivated species, using a method or plan or operation (including, but not limited to, physical confinement) which, on the basis of reliable scientific evidence, is expected to ensure that specific individual organisms comprising an aquaculture crop will enjoy increased growth attributable to the discharge of pollutants, and be harvested within a defined geographic area.

13.4. Separate storm sewers.

a. Permit requirement. Separate storm sewers, as defined in this section, are point sources subject to the permit program. Separate storm sewers may be permitted either individually or under a general permit. A permit for discharges into the waters of the State from a separate storm sewer covers all conveyances which are a part of that separate storm sewer system, even though there may be several owners or operators of these conveyances. However, discharges into separate storm sewers from point sources which are not part of the separate storm sewer systems may also require a permit.

b. Definition:

1. "Separate Storm Sewer" means a conveyance or system of conveyances (including pipes, conduits, ditches, and channels) primarily used for collecting and conveying storm water runoff and which is either:

i. Located in an urbanized area as designed by the U. S. Bureau of the Census according to the criteria in 39 FR 15202 (May 1, 1974); or

ii. Not located in an urbanized area but designated under paragraph 13.4.c of this section.

2. Except as provided in paragraph 13.4.b.3 of this section, a conveyance or system of conveyances operated primarily for the purpose of collecting and conveying storm water runoff which is not located in an urbanized area and has not been designated by the Chief under paragraph 13.4.c of this section is not considered a point source and is not subject to the provisions of this series.

3. Conveyances which discharge process wastewater or storm water runoff contaminated by contact with wastes, raw materials, or pollutant-contaminated soil, from land or facilities used for industrial or commercial activities, into waters of the State or into separate storm sewers are point sources subject to the requirements of this series but are not separate storm sewers for purposes of this section. As used in this paragraph, "wastes" does not include sand, silt and gravel.

4. Whether a system of conveyances is or is not a separate storm sewer for purposes of this section shall have no bearing on whether the system is eligible for funding under Title II of CWA.

c. Case-by-case designation of separate storm sewers. The Chief may designate a storm sewer not located in an urbanized area as a separate storm sewer. This designation may be made to the extent allowed or required by EPA promulgated effluent guidelines for point sources in the separate storm sewer category; or when:

1. A Water Quality Management plan under Section 208 of CWA which contains requirements applicable to such point sources is approved; or

2. The Chief determines that a storm sewer is a significant contributor of pollution to the waters of the State. In making this determination the Chief shall consider the following factors:

i. The location of the discharge with respect to waters of the State;

ii. The size of the discharge;

iii. The quantity and nature of the pollutants reaching waters of the State; and

iv. Other relevant factors.

13.5. Silvicultural activities.

a. Permit requirement, Silvicultural point sources, as defined in this section, are point sources subject to the permit program.

b. Definitions:

1. "Silvicultural Point Source" means any discernible, confined, and discrete conveyance related to rock crushing, gravel washing, log sorting, or log storage facilities which are operated in connection with silvicultural activities and from which pollutants are discharged into waters of the State. The term does not include non-point source silvicultural activities such as nursery operations, site preparation, reforestation and subsequent cultural treatment, thinning, prescribed burning, pest and fire control, harvesting operations, surface" drainage, or road construction and maintenance from which there is natural runoff. However, some of these activities (such as stream crossing for roads) may involve point source discharges of dredged or fill material which may require a CWA Section 404 permit.

2. "Rock Crushing and Gravel Washing Facilities" means facilities which process crushed and broken stone, gravel, and riprap.

3. "Log Sorting and Log Storage Facilities" means facilities whose discharges result from the holding of unprocessed wood, for example, logs or roundwood with bark or after removal of bark held in self-contained bodies of water (mill ponds or log ponds) or stored on land where water is applied intentionally on the logs (wet decking) .

13.6. General permits.

a. Coverage. The Chief may issue a general permit in accordance with the following:

1. Area. The general permit shall be written to cover a category of discharges described in the permit under paragraph 13.6.a.2 of this section, except those covered by individual permits, within a geographic area. The area shall correspond to existing geographic or political boundaries, such as:

i. Designated planning areas under Sections 208 and 303 of CWA;

ii. Sewer districts or sewer authorities;

iii. City, County, or State political boundaries;

iv. State highway systems;

v. Standard metropolitan statistical areas as defined by the U.S. Office of Management and Budget;

vi. Any other appropriate division or combination of boundaries.

2. Sources. The general permit may be written to regulate, within the area described in paragraph 13.6.a.1 of this section, either:

i. Separate storm sewers; or

ii. A category of point sources other than separate storm sewers if the sources all:

A. Involve the same or substantially similar types of operations;

B. Discharge the same types of wastes;

C. Require the same effluent limitations or operating conditions;

D. Require the same or similar monitoring; and

E. In the opinion of the Chief, are more appropriately controlled under a general permit than under individual permits.

b. Administration:

1. In general. General permits may be modified, revoked and reissued, suspended, or revoked in accordance with the applicable requirements of Section 9 of this series.

2. Requiring an individual permit:

i. The Chief may require any person authorized by. a general permit to apply for and obtain an individual permit. Any interested person may petition the Chief to take action under this subparagraph. Cases where an individual permit may be required include the following:

A. The discharge(s) is a significant contributor of pollution as determined by the factors set forth in Section 13.4.c.2;

B. The discharger is not in compliance with the conditions of the general permit;

C. A change has occurred in the availability of demonstrated technology or practices for the control or abatement of pollutants applicable to the point source;

D. Effluent limitation guidelines are promulgated for point sources covered by the general permit;

E. A Water Quality Management Plan containing requirements applicable to such point sources is approved.

ii. The Chief may require any owner or operator authorized by a general permit to apply for an individual permit as provided in paragraph 13.6.b.2.i of this section, only if the owner or operator has been notified in writing that a permit application is required. This notice shall include a brief statement of the reasons for this decision, an application form, a statement setting a time for the owner or operator to file the application, and a statement that on the effective date of the individual permit the general permit as it applies to the individual permittee shall automatically terminate. The Chief may grant additional time upon request of the applicant.

iii. Any owner or operator authorized by a general permit may request to be excluded from the coverage of the general permit by applying for an individual permit. The owner or operator shall submit an application under Section 4, with reasons supporting the request, to the Chief no later than ninety (90) days after the general permit notice in accordance with Section 12.1.

3. Upon issuance of a general permit, the Chief shall cause to be published a notice of issuance as a Class I legal advertisement in a qualified daily or weekly newspaper within the geographical area affected by the subject of the permit, and by any other means reasonably calculated to give notice of issuance to the persons affected by it.

13.7. New sources and new discharges.

a. Definitions:

1. "Site", "new source", and "new discharger" are defined in Section 2.

2. "Source" means any building, structure, facility, or installation from which there is or may be a discharge of pollutants.

3. "Existing Source" means any source which is not a new source or a new discharger.

4. "Facilities or Equipment" means buildings, structures, process or production equipment or machinery which forms a permanent part of the new source and which will be used in its operation, if these facilities or equipment are of such value as to represent a substantial commitment to construct. It excludes facilities or equipment used in connection with feasibility, engineering, and design studies regarding the source or water pollution treatment for the source.

b. Criteria for new source determination.

1. Except as otherwise provided in an applicable new source performance standard, a source is a "new source" if it meets the definition of "new source" in Section 2, and

i. It is constructed at a site at which no other source is located; or

ii. It totally replaces the process or production equipment that causes the discharge of pollutants at an existing source; or

iii. Its processes are substantially independent of an existing source at the same site. In determining whether these processes are substantially independent, the Chief shall consider such factors as the extent to which the new facility is integrated with the existing plant; and the extent to which the new facility is engaged in the same general type of activity as the existing source.

2. A source meeting the requirements of paragraphs 13.7.b.1.i, 13.7.b.1.ii, or 13.7.b.1.iii of this section is a new source only if a new source performance standard is independently applicable to it. If there is no such independently applicable standard, the source is a new discharger. See Section 2.

3. Construction on a site at which an existing source is located results in a modification subject to Section 9 rather than a new source or a new discharger if the construction does not create a new building, structure, facility, or installation meeting the criteria of paragraphs 13.7.b.1.ii or 13.7.b.1.iii of this section but otherwise alters, replaces, or adds to existing process or production equipment.

4. Construction of a new source as defined under Section 2 has commenced if the owner or operator has:

i. Begun, or caused to begin as part of a continuous on-site construction program:

A. Any placement, assembly, or installation of facilities or equipment; or

B. Significant site preparation work including clearing, excavation or removal of existing buildings, structures, or facilities which is necessary for the placement, assembly, or installation of new source equipment; or

ii. Entered into a binding contractual obligation for the purchase of facilities or equipment which are intended to be used in its operation within a reasonable time-Options to purchase or contracts which can be terminated or modified without substantial loss, and contracts for feasibility engineering, and design studies do not constitute a contractual obligation under this paragraph.

c. Effect of compliance with new source performance standards:

1. Except as provided in paragraph 13.7.c.2 of this section, any new discharger, the construction of which commenced after October 18, 1972, or new source which meets the applicable promulgated new source performance standards before the commencement of discharge, may not be subject to any more stringent new source performance standards or to any more stringent technology-based standards under Section 301(b) (2) of CWA for the shortest of the following periods:

i. Ten years from the date that construction is completed;

ii. Ten years from the date the source begins to discharge process or other nonconstruction related wastewater; or

iii. The period of depreciation or amortization of the facility for the purposes of Section 167 or 169 (or both) of the Internal Revenue Code of 1954.

2. The protection from more stringent standards of performance afforded by paragraph 13.7.c.1 of this section does not apply to:

i. Additional or more stringent permit conditions which are not technology based; for example, conditions based on water quality standards, or toxic effluent standards or prohibitions under Section 307(a) of CWA; or

ii. Additional permit conditions controlling pollutants listed as toxic under Section 307(a) of the CWA and which are not controlled by new source performance standards. This includes permit conditions controlling pollutants other than those identified as toxic pollutants or hazardous substances when control of these pollutants has been specifically identified as the method to control the toxic pollutants or hazardous substances.

3. When a NPDES permit issued to a source with a "protection period" under paragraph 13.7.c.1 of this section will expire on or after the expiration of the protection period, such permit shall require the owner or operator of the source to comply with the requirements of Section 301 and any other applicable requirements of CWA immediately upon the expiration of the protection period. No additional period for achieving compliance with these requirements shall be allowed except when necessary to achieve compliance with requirements promulgated less than three (3) years before the expiration of the protection period.

4. The owner or operator of a new source, a new discharger which commenced discharge after August 13, 1979, or a recommencing discharger shall install and have in operating condition, and shall "start up" all pollution control equipment required to meet the conditions of its permit before beginning to discharge. Within the shortest feasible time (not to exceed ninety (90) days), the owner or operator must meet all permit conditions.

5. After the effective date of new source performance standards, it shall be unlawful for any owner or or a recommencing discharger shall install and have in operating condition, and shall "start up" all pollution control equipment required to meet the conditions of its permit before beginning to discharge, within the shortest feasible time (not to exceed ninety (90) days), the owner or operator must meet all permit conditions.

5. 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.

W. Va. Code R. § 46-2-13