Currently, WVDEP's practice regarding the regulation of non-continuous discharges from on-bench outlets is to test the outlets sporadically, sometimes only once or twice per month or less. The frequency of testing is to be expected; after all, non-continuous discharges do not, as their name implies, provide a continuous discharge from which daily samples may be drawn. Depending upon precipitation and other factors, an on-bench outlet may only produce discharge a couple of times per month. The problem for coal operators arises from DEP's imposition of monthly average limits on discharges from on-bench outlets. In the event that random sampling reveals a violation of the monthly average limit, the operator would be penalized for thirty separate violations, as though the outlet had been discharging continuously for the entire month at that level.
From a practical standpoint, it makes no sense to impose a limit, which is intended to reflect acceptable pollutant levels over extended periods, e.g. over a month, where the discharge being regulated only occurs non-continuously. There is significant potential that an unrepresentative sample may subject a permit holder to thirty days of violation when there was only one violation, when the flow provided enough volume to measure, on the day when the sample was taken. Daily limits are a more accurate and fair manner of measurement for WVDEP to regulate non-continuous discharges in coal NPDES permits. These daily limits are sufficient to protect water quality and are consistent with the inclusion of only maximum effluent limits in non-coal NPDES permits for non-continuous discharges. Accordingly, all proposed monthly average limits should be deleted from permits that relate to on-bench outlets with non-continuous discharges.
Setting aside questions of pragmatism and common sense, the legal foundation for this practice is also questionable. The state Administrative Procedures Act (“APA”) requires the Environmental Quality Board to reverse, vacate, or modify any DEP action, which is arbitrary or capricious. Imposing monthly average limits on discharges that flow non-continuously in response to precipitation is inherently arbitrary. Moreover, state and federal NPDES regulations require that only continuous discharges have both daily maximum and average monthly limits. See 40 CFR 122.45(d); 47 CSR 30-7.3. Fourth Circuit case law also supports this position. In Chesapeake Bay Foundation, Inc. v. Gwaltney of Smithfield, Ltd., the Court held that EPA regulations provide for monthly average permit limits only for pollutants that are discharged continuously. With non-continuous discharges, the rules do not require or even mention the concept of permit parameters stated as “monthly averages” as it is described in the continuous flow subsection. Thus, there is no legal authority for imposing monthly average limits on discharges that flow non-continuously in response to precipitation.
Given the lack of authority to impose monthly average limits on non-continuous discharges, WVDEP should modify its rules to halt this unfair practice, or the legislature could step in and provide clarification.