Current through Register Vol. XLI, No. 40, October 4, 2024
Section 47-30-8 - Modification, Reissuance, Suspension, Release, and Revocation of Permits8.1. General. 8.1.a. WV/NPDES permits may be modified, reissued, suspended, released or revoked either at the request of any interested person (including the permittee) or upon the Secretary's initiative. However, permits may be modified, reissued, suspended, released or revoked only for the reasons specified in section 8 of this rule. All requests shall be submitted to the Secretary in writing and shall contain facts or reasons supporting the request. The Secretary may require additional information that may require submission of an updated permit application.8.1.b. If the Secretary decides the request is not justified, he or she shall send the requester a brief written response giving a reason for the decision. Denials of requests for modification, suspension, release or revocation are not subject to public notice, comment or hearings.8.2. Modifications.8.2.a. General. All requests for modification shall be submitted in writing to the Secretary, citing facts or reasons supporting the request for modification and indicating under which section of this rule the request is made. The Secretary may request additional information and may require the submission of an updated permit application. When a permit modification is requested, only the conditions subject to modification are reopened. All other conditions of the permit shall remain in effect for the duration of the permit.8.2.b. If the Secretary tentatively decides to modify a permit and the modification is made under paragraph 8.2.c.2. of this rule, he or she shall prepare a draft permit under subsection 10.1. of this rule, follow the public notice procedures in subsection 10.2. of this rule, and follow the procedural requirements in W. Va. Code § 22-11-12. The draft permit shall fulfill the requirement of notice under W. Va. Code § 22-11-12. When a draft permit is prepared for the modification, only those conditions to be modified shall be reopened when a new draft permit is prepared.8.2.c. Causes for Modification. 8.2.c.1. Minor Modifications. Upon the consent of the permittee, the Secretary may modify a permit to make the corrections or allowances for changes in the permitted activity listed in subparagraphs 8.2.c.1.A .through 8.2.c.1.J. of this rule without preparing a draft permit under subsection 10.1. of this rule or following the procedures of sections 10 or 11 of this rule or the procedures in W. Va. Code § 22-11-12. Minor modifications may: 8.2.c.1.A. Correct typographical errors;8.2.c.1.B. Require more or less frequent monitoring or reporting by the permittee;8.2.c.1.C. Change an interim compliance date in a schedule of compliance: Provided, That the new date is not more than one hundred twenty (120) days after the date specified in the existing permit and does not interfere with attainment of the final compliance date requirement;8.2.c.1.D. Allow for a change in ownership or operational control of a facility where the Secretary determines that no other change in the permit is necessary: Provided, That any forms prescribed by the Secretary, including a written agreement containing a specific date for transfer of permit responsibility, coverage, and liability between the current and new permittees have been submitted to the Secretary;8.2.c.1.E. Change the construction schedule for a discharger that is a new source. No such change shall affect a discharger's obligation to have all pollution control equipment installed and in operation prior to discharge;8.2.c.1.F. Delete a point source outfall when the discharge from that outfall is terminated and does not result in discharge of pollutants from other outfalls except in accordance with permit limits;8.2.c.1.G. Allow disposal system equipment substitution when the substituted equipment would not alter the degree of treatment required by the permit;8.2.c.1.H. Allow rerouting of discharging lines when the rerouted line would not discharge to a different receiving stream and would not require new or different permit conditions;8.2.c.1.I. Allow relocation of elements of treatment facilities or disposal systems, due to topography or equipment failures; or8.2.c.2. Major Modifications. The following are causes for major modification, but not reissuance of a permit, unless the permittee requests or agrees, and require the preparation of a draft permit under subsection 10.1. of this rule and the public notice procedures of subsection 10.2. of this rule. If the permittee requests or agrees, then the following causes can be reason for a permit reissuance that will open the entire permit for comment and change: 8.2.c.2.A. Alterations. There are material and substantial alterations or additions to the permitted facility or activity that occurred after permit issuance that justify the application of permit conditions that are different or absent in the existing permit. Note: Certain reconstruction activities may cause the new source provisions of 40 C.F.R. Section 122.29 and Part 434 to be applicable. See also subsection 2.31 and section 12 of this rule.
8.2.c.2.B. Information. The Secretary has received new information. Permits may be modified during their terms for this cause only if the information was not available at the time of permit issuance (other than revised regulations, guidance or test methods) and would have justified the application of different permit conditions at the time of issuance. This cause shall include any information indicating that cumulative effects on the environment are unacceptable.8.2.c.2.C. New Rules or Judicial Decision. The standards or rules on which the permit was based have been changed by promulgation of amended standards or rules or by judicial decision after the permit was issued. Permits may be modified during their terms for this cause only as follows: 8.2.c.2.C.1. For promulgation of amended standards or rules, when: 8.2.c.2.C.1.(a). The permit condition to be modified was based on a promulgated effluent limitation guideline or water quality standard;8.2.c.2.C.1.(b). The EPA or State has revised, withdrawn, or modified that portion of the effluent limitation guideline or water quality standard on which the permit condition was based; and8.2.c.2.C.1.(c). If a modification request is made by the permittee, such request is within ninety (90) days of Federal Register or State Register notice of the action on which the request is based, unless the effluent limitations guidelines allow for a different time period.8.2.c.2.C.2. For judicial decisions, when a court of competent jurisdiction has remanded and stayed State or federal promulgated rules or if the remand and stay concern that portion of the rules on which the permit condition was based and if the permittee is requesting the change, and the request is filed by the permittee within ninety (90) days of judicial remand.8.2.c.2.D. Compliance Schedules. The Secretary determines good cause exists for modification of a compliance schedule, such as an act of God, strike, flood, materials shortage or other events over which the permittee has little or no control and for which there is no reasonably available remedy. However, in no case shall a compliance schedule be modified to extend beyond an applicable CWA statutory deadline: July 1, 1984 for technology-based effluent limits under CWA Section 301(b)(1)(B) or July 1, 1977 for water quality based effluent limits under CWA Section 301(b)(1)(C).8.2.c.2.E. Variances. When the permittee has filed a timely request for a variance under CWA Sections 301(c), 301(g), 301(h), 301(i), 301(k), 302(b)(2) or 316(a) or for "fundamentally different factors" under paragraph 4.5.f.1. of this rule.8.2.c.2.F. Toxics. When required to incorporate an applicable CWA Section 307(a) toxic effluent standard or prohibition.8.2.c.2.G. Reopener. When required by the "reopener" conditions in a permit, which are established in the permit under subdivision 6.2.d. of this rule.8.2.c.2.H. Net Limitations. Upon request of a permittee who qualifies for effluent limitations on a net basis or when a discharger is no longer eligible for net limitations as provided in subsection 7.7 of this rule.8.2.c.2.I. Nonlimited Pollutants. When the level of discharge of any pollutant that is not limited in the permit exceeds the level that can be achieved by the technology-based treatment requirements appropriate to the permittee.8.2.c.2.J. Use or Manufacture of Toxics. When the permittee begins or expects to begin to use or manufacture as an intermediate, final product or by-product any toxic pollutant that was not reported in the permit application.8.2.c.2.K. Notification Levels. To establish a "notification level" as provided in paragraph 5.13.d.4. of this rule.8.2.c.2.L. Failure to Notify Affected State. Upon failure of the Secretary to notify another state, as required by subdivision 10.2.d. of this rule, whose waters may be affected by a discharge from this State and different permit conditions are required to comply with the other state's water quality standards.8.2.c.2.M. Correction of Mistakes. To correct technical mistakes, such as errors in calculation or mistaken interpretations of law made in determining permit conditions.8.2.c.2.N. Unable to Meet BPJ Limits. When the discharger has installed the treatment technology considered by the permit writer in setting effluent limitations imposed under CWA Section 402(a)(1) and has properly operated and maintained the facilities, but nevertheless has been unable to achieve those effluent limitations. In this case, the limitations in the modified permit may reflect the level of pollutant control actually achieved but shall not be less stringent than required by a subsequently promulgated effluent guideline.8.2.c.2.O. BPJ Limits Too Costly. When the permittee's effluent limitations were imposed under CWA Section 402(a)(1) and the permittee demonstrates operation and maintenance costs that are totally disproportionate from the operation and maintenance costs considered in the development of a subsequently promulgated effluent limitations guideline, but in no case may the limitation be less stringent than the subsequent guideline.8.3. Reissuance. 8.3.a. General. 8.3.a.1. The Secretary may reissue WV/NPDES permits prior to their expiration date for any cause specified in subsection 8.3. of this rule. When a permit is to be reissued, the entire permit is reopened, and the Secretary shall require submission of a permit reissuance application.8.3.a.2. During any reissuance proceeding, the permittee shall comply with all conditions of the existing permit until a new final permit is issued. Reissuance requires a draft permit under subsection 10.1. of this rule and the public notice procedures of subsection 10.2. of this rule. Processing of a reissuance application does not exempt the permittee from compliance with any permit term or condition.8.3.b. Reissuance Based on Permittee Request or Agreement. The following are causes for reissuance of a permit when the permittee requests or agrees: 8.3.b.1. All causes for modification listed under paragraph 8.2.c.2. of this rule.8.3.b.2. The WV/NPDES permit will expire within eighteen (18) months, and the permittee has submitted an application for reissuance that is approvable.8.3.c. Reissuance without Permittee Request or Agreement. The following are causes for reissuance of a permit: 8.3.c.1. Cause exists for suspension, release or revocation of the WV/NPDES permit under subsection 8.4. of this rule, and the Secretary determines reissuance is appropriate;8.3.c.2. Conditions exist that allow reopening and reissuance of the permit under subsection 5.16. of this rule.8.4. Suspension, Release and Revocation of Permits. Permits may be suspended, released or revoked in whole or in part. The following may be causes for revocation or suspension of a permit during its term or for denying a permit reissuance application:8.4.a. Noncompliance by the permittee with any condition of the WV/NPDES permit or Article 11;8.4.b. The permittee's failure in the application or during the permit issuance process to disclose fully all relevant facts, or the permittee's misrepresentation of any relevant facts at any time;8.4.c. A determination that the permitted activity endangers human health or the environment and can only be regulated to acceptable levels by permit modification or revocation;8.4.d. A change in any condition that requires either a temporary or a permanent reduction or elimination of any discharge controlled by the permit as defined in 47 C.S.R. 10 § 2.42 (for example, plant closure or termination of discharge by connection to a POTW); or8.4.e. Revocation of a permit issued under WVSMRCA.