W. Va. Code R. § 47-30-12

Current through Register Vol. XLI, No. 40, October 4, 2024

Section 47-30-12 - New Sources

12.1. Definitions. For the purpose of section 12 of this rule:

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

12.1.b. "Facilities" or "Equipment" means buildings, structures or process or production equipment or machinery that form a permanent part of the new source and that 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.

12.2. Effect of Compliance with New Source Performance Standards.

12.2.a. Except as provided in subdivision 12.2.b. of this rule, any new source that meets the applicable new source performance standards promulgated 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 CWA Section 301(b)(2) for the shortest of the following periods:

12.2.a.1. Ten (10) years from the date that construction is completed;

12.2.a.2. Ten (10) years from the date the source begins to discharge process or other non-construction related wastewater; or

12.2.a.3. The period of depreciation or amortization of the facility for the purposes of Section 167 or Section 169 or both of the United States Internal Revenue Code of 1954.

12.2.b. The protection from more stringent standards of performance afforded by subdivision 12.2.c. of this rule does not apply to:

12.2.b.1. Additional or more stringent permit conditions that are not technology-based (for example, conditions based on water quality standards or toxic effluent standards or prohibitions under CWA Section 307(a));

12.2.b.2. Additional permit conditions controlling pollutants listed as toxic under CWA Section 307(a) or as hazardous substances under CWA Section 311 and that 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; or

12.2.b.3. Existing sources that modify their pollution control facilities and achieve performance standards but that are not new sources or otherwise do not meet the requirements of this section.

12.2.c. When a WV/NPDES permit is issued to a source with a "protection period" under subdivision 12.2.a. of this rule that 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 CWA Section 301 and any other applicable CWA requirements 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.

12.2.d. 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. Within the shortest feasible time, not to exceed thirty (30) days, the permittee must meet all permit conditions. These requirements do not apply if the owner or operator is issued a permit containing a compliance schedule under paragraph 6.2.n.2. of this rule.

12.2.e. 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.

12.3. Criteria for New Source Determination.

12.3.a. A preparation plant or associated area, except as otherwise provided, is a "new source" if it meets the definition of "new source" in section 2 of this rule, and:

12.3.a.1. It is constructed at a site at which no other source is located;

12.3.a.2. It totally replaces the process or production equipment that causes the discharge of pollutants at an existing source; or

12.3.a.3. Its processes are substantially independent of an existing source at the same site. In determining whether these processes are substantially independent, the Secretary 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.

12.3.b. A source meeting the requirements of paragraph 12.3.a.3. of this rule is a new source only if a new source performance standard is independently applicable to it.

12.3.c. Construction on a site at which an existing source is located results in a modification subject to paragraph 8.2.c.2. of this rule, rather than in a new source, if the construction does not create a new building, structure, facility or installation meeting the criteria of paragraphs 12.3.a.2. or 12.3.a.3. of this rule but otherwise alters, replaces or adds to existing process or production equipment.

12.3.d. Construction of a new source as defined in section 2 of this rule has commenced if the owner or operator has:

12.3.d.1. Begun or caused to begin as part of continuous on-site construction program:

12.3.d.1.A. Any placement, assembly, or installation of facilities or equipment; or

12.3.d.1.B. Significant site preparation work including clearing, excavation or removal of existing buildings, structures or facilities that is necessary for the placement, assembly or installation of new source facilities or equipment; or

12.3.d.2. 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 that can be terminated or modified without a substantial loss and contracts for feasibility engineering and design studies do not constitute such a contractual obligation.

12.4. Modification of NPDES Permits for New Sources. Any new source classified as such under previous EPA regulations may, notwithstanding section 8 of this rule, apply to have its WV/NPDES permit modified to incorporate the revised new source performance standards.

W. Va. Code R. § 47-30-12