The purpose of this chapter is to establish a state individual permit program, applicable to the discharge of pollutants and other wastes and materials to the surface waters of the state, operating under state law as a part of the National Pollutant Discharge Elimination System (NPDES) created by section 402 of the Federal Water Pollution Control Act (FWPCA). Permits issued under this chapter are designed to satisfy the requirements for discharge permits under both section 402(b) of the FWPCA and chapter 90.48 RCW.

No pollutants shall be discharged to any surface water of the state from a point source, except as authorized by an individual permit issued pursuant to this chapter or as authorized by a general permit issued pursuant to chapter 173-226 WAC.

For purposes of this chapter, the following definitions shall be applicable:

(1) "Administrator" means the administrator of the United States Environmental Protection Agency.

(2) "Combined waste treatment facility" means any publicly owned waste treatment facility in which the maximum monthly average influent from any one industrial category, or categories producing similar wastes, constitutes over eighty-five percent of the design load for biochemical oxygen demand or suspended solids. Each single industrial category must contribute a minimum of ten percent of the applicable load.

(3) "Department" means department of ecology.

(4) "Director" means the director of the department of ecology or his/her authorized representative.

(5) "Discharge of pollutant" and the term "discharge of pollutants" each means (a) any addition of any pollutant or combination of pollutants to surface waters of the state from any point source, (b) any addition of any pollutant or combination of pollutants to the waters of the contiguous zone or the ocean from any point source, other than a vessel or other floating craft which is being used as a means of transportation.

(6) "Discharger" means owner or operator of any facility or activity subject to regulation under the NPDES program.

(7) "Domestic wastewater" means water carrying human wastes, including kitchen, bath, and laundry wastes from residences, buildings, industrial establishments or other places, together with such groundwater infiltration or surface waters as may be present.

(8) "Domestic wastewater facility" means all structures, equipment, or processes required to collect, carry away, treat, reclaim or dispose of domestic wastewater together with such industrial waste as may be present. This term applies only to facilities discharging to surface water.

(9) "Effluent limitation" means any restriction established by the state or administrator on quantities, rates, and concentrations of chemical, physical, biological, and other constituents which are discharged from point sources into surface waters of the state.

(10) "FWPCA" means the Federal Water Pollution Control Act as amended, 33 U.S.C. 1251 et seq.

(11) "General permit" means a permit which covers multiple dischargers of a point source category within a designated geographical area, in lieu of individual permits being issued to each discharger.

(12) "Individual permit" means a permit for a single point source or a single facility.

(13) "Major discharger" means any discharger classified as such by the administrator in conjunction with the director and published in the annual state-EPA agreement.

(14) "Minor discharger" means any discharger not designated as major or covered under a general permit.

(15) "NPDES" means the National Pollutant Discharge Elimination System.

(16) "Permit" means an authorization, license, or equivalent control document issued by the director to implement this chapter.

(17) "Person" includes any political subdivision, local, state, or federal government agency, municipality, industry, public or private corporation, partnership, association, firm, individual, or any other entity whatsoever.

(18) "Point source" means any discernible, confined and discrete conveyance, including but not limited to any pipe, ditch, channel, tunnel, conduit, well, discrete fissure, container, rolling stock, concentrated animal feeding operation, or vessel or other floating craft, from which pollutants are or may be discharged. This term does not include return flows from irrigated agriculture.

(19) "Pollutant" means dredged spoil, solid waste, incinerator residue, sewage, garbage, sewage sludge, munitions, chemical wastes, biological materials, radioactive materials, heat, wrecked or discarded equipment, rock, sand, cellar dirt and industrial, municipal and agricultural waste discharged into water. This term does not include sewage from vessels within the meaning of section 312 of the FWPCA nor does it include dredged or fill material discharged in accordance with a permit issued under section 404 of the FWPCA.

(20) "Regional administrator" means the regional administrator of Region X of the Environmental Protection Agency (EPA) or his/her authorized representative.

(21) "Surface waters of the state" means all waters defined as "waters of the United States" in 40 C.F.R. 122.2 that are within the boundaries of the state of Washington. This includes lakes, rivers, ponds, streams, inland waters, wetlands, ocean, bays, estuaries, sounds, and inlets.

(22) "Water quality standards" means the state of Washington's water quality standards for surface waters of the state, which are codified in chapter 173-201 WAC.

(1) Any person presently discharging pollutants to surface waters of the state must file an application with the department on a form prescribed by the department. For the purpose of satisfying the requirements of this subsection, any completed application filed with the Environmental Protection Agency prior to the approval by the administrator under section 402(b) of the FWPCA of this state permit program shall constitute a filing with the department.

(2) Any person proposing to commence a discharge of pollutants to surface waters of the state must file an application with the department on a form prescribed by the department, (a) no less than one hundred eighty days in advance of the date on which it is desired to commence the discharge of pollutants, or (b) in sufficient time prior to commencement of the discharge of pollutants to insure compliance with the requirements of section 306 of the FWPCA and any other applicable water quality standards or effluent standards and limitations.

(3) The applicant must pay any applicable fees required pursuant to RCW 90.48.610.

(4) The requirement for permit application will be satisfied if the discharger files:

(a) A complete application form which is appropriate for the type, category, or size of discharge per 40 C.F.R. 122.21; or

(b) A complete request for coverage under a general permit; and

(c) Any additional information required by the department pertaining to pollutant discharge.

(5) The application form shall bear a certification of correctness to be signed:

(a) In the case of corporations, by a responsible corporate officer.

(b) In the case of a partnership, by a general partner.

(c) In the case of sole proprietorship, by the proprietor.

(d) In the case of a municipal, state, or other public facility, by either a principal executive officer or ranking elected official.

(6) Applications for permits for domestic wastewater facilities that are either owned or operated by, or under contract to, a public entity shall be submitted by the public entity.

(7) No discharge of pollutants into the surface waters of the state is authorized until such time as a permit has been issued consistent with the terms and conditions of this chapter.

(1) Public notice of every draft permit determination regarding an individual permit shall be circulated in a manner designed to inform interested and potentially affected persons of the proposed discharge and of the proposed determination to issue or deny a permit for the proposed discharge, as follows:

(a) Notice shall be circulated within the geographical area of the proposed discharge; such circulation may include any or all of the following, as directed by the department:

(i) Posting by the applicant for a period of thirty days in the post office, public library, and public places of the municipality nearest the premises of the applicant in which the effluent source is located;

(ii) Posting by the applicant for a period of thirty days near the entrance of the applicant's premises and nearby places;

(iii) Publishing by the applicant, at his own cost within such time as the director shall prescribe, through a notice form provided by the department, in major local newspapers of general circulation serving the area in which the discharge occurs: Provided, That if an applicant fails to publish notice within thirty days of the time prescribed by the director, the department may publish the notice and bill the applicant for the cost of publication;

(iv) Publishing by the applicant of paid advertisements;

(v) Publishing by the department of news releases or newsletter articles.

(b) Notice shall be mailed to any person upon request; and

(c) The department shall add the name of any person upon request to a mailing list to receive copies of notices within the state or within a certain geographical area.

(2) The department shall provide a period of not less than thirty days following the date of the public notice during which time interested persons may submit their written views on a draft permit determination. All written comments submitted during the thirty-day comment period shall be retained by the department and considered in the formulation of its final determination with respect to the application. The period for comment may be extended at the discretion of the department.

(3) The department shall prepare the contents of the public notice, which shall, at a minimum, summarize the following:

(a) Name, address, phone number of agency issuing the public notice;

(b) Name and address of each applicant, and if different, of the facility or activity to be regulated;

(c) Each applicant's activities or operations which result in a discharge (e.g., municipal waste treatment, steel manufacturing, drainage from mining activities);

(d) Name of waterway to which each discharge is made and the location of each discharge on the waterway, indicating whether such discharge is a new or an existing discharge;

(e) The tentative determination to issue or deny a permit for the discharge;

(f) The procedures for the formulation of final determinations, including the thirty-day comment period required by subsection (2) of this section and any other means by which interested persons may comment upon those determinations; and

(g) Address and phone number of state premises at which interested persons may obtain further information.

(4) The department shall provide copies of permit applications, draft permit determinations, and final permits.

(5) The department shall notify the applicant and persons who have submitted written comments or requested notice of the final permit decision. This notification shall include response to comments received and reference to the procedures for contesting the decision.

(1) The department shall prepare a fact sheet for every draft permit determination. Such fact sheets shall, at a minimum, summarize the following:

(a) The type of facility or activity which is the subject of the application;

(b) The location of the discharge in the form of a sketch or detailed description;

(c) The type and quantity of the discharge, including at least the following:

(i) The rate or frequency of the proposed discharge;

(ii) For thermal discharges, the average summer and winter temperatures; and

(iii) The average discharge in pounds per day, or other appropriate units, of any pollutants which are present in significant quantities or which are subject to limitations or prohibition under RCW 90.48.010, 90.52.040, 90.54.020 and sections 301, 302, 306, or 307 of the FWPCA and regulations published thereunder;

(d) The conditions in the proposed permit;

(e) The legal and technical grounds for the draft permit determination, including an explanation of how conditions meet both the technology-based and water quality-based requirements of the FWPCA and chapters 90.48, 90.52, and 90.54 RCW;

(f) The effluent standards and limitations applied to the proposed discharge;

(g) The applicable water quality standards, including identification of the uses for which receiving waters have been classified;

(h) How the draft permit addresses use or disposal of residual solids generated by wastewater treatment; and

(i) The procedures for the formulation of final determinations (in more detailed form than that given in the public notice) including:

(i) The thirty-day comment period required by WAC 173-220-050(2);

(ii) Procedures for requesting a public hearing and the nature thereof; and

(iii) Any other procedures by which the public may participate in the formulation of the final determinations.

(2) The department shall send a fact sheet to the applicant and, upon request, to any other person.

(3) The department shall add the name of any person upon request to a mailing list to receive copies of fact sheets.

The department shall notify other appropriate government agencies of each draft permit determination and shall provide such agencies an opportunity to submit their written views and recommendations. Such notification shall include the following:

(1) Unless the regional administrator has agreed to waive review, transmission of an application, fact sheet, and draft permit to the regional administrator for comment or objection within thirty days, or a longer period if requested up to a maximum of ninety days.

(2) At the time of issuance of public notice pursuant to WAC 173-220-050, transmission of the public notice to any other states whose waters may be affected by the issuance of a permit. Each affected state shall be afforded an opportunity to submit written recommendations to the department and to the regional administrator which the department may incorporate into the permit if issued. Should the department fail to incorporate any written recommendations thus received, it shall provide to the affected state or states (and to the regional administrator) a written explanation of its reasons for failing to accept any of the written recommendations.

(3) Unless waived by the respective agency, the public notice shall be sent to the appropriate district engineer of the Army Corps of Engineers, the United States Fish and Wildlife Service, the National Marine Fisheries Service, the state departments of fisheries, natural resources, wildlife, and social and health services, the archaeology and historic preservation office, the agency responsible for the preparation of an approved plan pursuant to section 208(b) of the FWPCA, applicable Indian tribes and any other applicable government agencies.

(4) A copy of any written agreement between the department and an agency identified in subsection (3) of this section which waives the receipt of public notices shall be forwarded to the regional administrator and shall be made available to the public for inspection and copying.

(5) Copies of public notices shall be mailed to any other federal, state, or local agency, Indian tribe or any affected country, upon request. Such agencies shall have an opportunity to respond, comment, or request a public hearing pursuant to WAC 173-220-090.

(1) In accordance with chapter 42.17 RCW, the department shall make records relating to NPDES permits available to the public for inspection and copying.

(2) The department shall protect any information (other than information on the effluent) contained in its NPDES permit records as confidential upon a showing by any person that such information, if made public, would divulge methods or processes entitled to protection as trade secrets of such person.

(3) Any information accorded confidential status, whether or not contained in an application form, shall be disclosed, upon request, to the regional administrator.

(4) The department shall provide facilities for the inspection of information relating to NPDES permits and shall insure that employees honor requests for such inspection promptly without undue requirements or restrictions. The department shall either (a) insure that a machine or device for the copying of papers and documents is available for a reasonable fee, or (b) otherwise provide for or coordinate with copying facilities or services such that requests for copies of nonconfidential documents may be honored promptly.

The applicant, any affected state, any affected interstate agency, any affected country, the regional administrator, or any interested agency or person may request a public hearing with respect to a draft permit determination. Any such request for a public hearing shall be filed within the thirty-day period prescribed in WAC 173-220-050(2) and shall indicate the interest of the party filing such request and the reasons why a hearing is warranted. The department shall hold a hearing if it determines there is a significant public interest. Instances of doubt will be resolved in favor of holding the hearing. Any hearing brought pursuant to this subsection shall be held at a time and place deemed appropriate by the department.

(1) The department shall circulate public notice of any hearing held pursuant to WAC 173-220-090 at least as widely as was the notice pursuant to WAC 173-220-050. Procedures for the circulation of public notice for hearings held under WAC 173-220-090 shall include at least the following:

(a) Notice shall be published in at least one major local newspaper of general circulation within the geographical area of the discharge;

(b) Notice shall be sent to all persons and government agencies who received a copy of the notice pursuant to WAC 173-220-050 or the fact sheet;

(c) Notice shall be mailed to any person upon request; and

(d) Notice shall be effected pursuant to (a) and (c) of this subsection at least thirty days in advance of the hearing.

(2) The contents of public notice of any hearing held in pursuant to WAC 173-220-090 shall include at least the following:

(a) Name, address, and phone number of agency holding the public hearing;

(b) A reference to the public notice issued pursuant to WAC 173-220-050, including identification number and date of issuance;

(c) The time and location for the hearing;

(d) The purpose of the hearing;

(e) Address and phone number of premises at which interested persons may obtain information;

(f) The nature of the hearing;

(g) The issues raised by the persons requesting the hearing, and any other appropriate issues which may be of interest to the public;

(h) The name and address of each applicant whose proposed discharge will be considered at the hearing;

(i) The name of waterway to which each discharge is made and the location of each discharge on the waterway.

The department will prepare tentative staff determinations with respect to a permit application in advance of public notice of the proposed issuance or denial of a permit. Such tentative determinations shall include at least the following:

(1) A proposed determination to issue or deny a permit for the discharge described in the application; and

(2) If the determination is to issue the permit, the following shall be included in a draft permit:

(a) Proposed effluent limitations for those pollutants proposed to be limited;

(b) A proposed schedule of compliance, including interim dates and requirements, for meeting the proposed effluent limitations; and

(c) A brief description of any other proposed special conditions which will have a significant impact upon the discharge described in the application.

No permit issued by the department shall authorize any person to:

(1) Discharge any radiological, chemical or biological warfare agent or high-level radioactive waste into surface waters of the state;

(2) Discharge any pollutants which the secretary of the army acting through the chief, corps of engineers, finds would substantially impair anchorage and navigation;

(3) Discharge any pollutant to which the regional administrator, not having waived his/her right to object pursuant to section 402(e) of the FWPCA, has objected in writing pursuant to section 402(d) of the FWPCA;

(4) Discharge from a point source any pollutant which is in conflict with the plan or amendment thereto approved pursuant to section 208(b) of the FWPCA;

(5) Discharge any pollutant subject to a toxic pollutant discharge prohibition under section 307 of FWPCA.

(1) Any permit issued by the department shall apply and insure compliance with all of the following, whenever applicable:

(a) All known, available, and reasonable methods of treatment required under RCW 90.52.040, 90.54.020 (3)(b), and 90.48.520; including effluent limitations established under sections 301, 302, 306, and 307 of the FWPCA. The effluent limitations shall not be less stringent than those based upon the treatment facility design efficiency contained in approved engineering plans and reports or approved revisions thereto. The effluent limitations shall reflect any seasonal variation in industrial loading. Modifications to technology-based effluent limitations for specific discharge categories are as follows:

(i) For combined waste treatment facilities, the effluent limitations for biochemical oxygen demand or suspended solids may be adjusted upwards to a maximum allowed by applying effluent limitations pursuant to sections 301 (b)(1)(B) of the FWPCA to the domestic portion of the influent and effluent limitations pursuant to sections 301 (b)(1)(A)(i), 301 (b)(2)(A), and 301 (b)(2)(E) of the FWPCA or standards of performance pursuant to section 306 of the FWPCA to the industrial portion of the influent: Provided, That the following additional condition is met:

Fecal coliform levels shall not exceed a monthly geometric mean of 200 organisms per 100 ml with a maximum weekly geometric mean of 400 organisms per 100 ml;

(ii) For municipal water treatment plants located on the Chehalis, Columbia, Cowlitz, Lewis, or Skagit river, the effluent limitations shall be adjusted, in accordance with RCW 90.54.020 (3)(b), to reflect credit for substances removed from the plant intake water if:

(A) The municipality demonstrates that the intake water is drawn from the same body of water into which the discharge is made; and

(B) The municipality demonstrates that no violation of receiving water quality standards or appreciable environmental degradation will result.

(b) Any more stringent limitation, including those necessary to:

(i) Meet water quality standards, treatment standards or schedules of compliance established pursuant to any state law or regulation under authority preserved to the state by section 510 of the FWPCA; or

(ii) Meet any federal law or regulation other than the FWPCA or regulations thereunder; or

(iii) Implement any applicable water quality standards; such limitations to include any legally applicable requirements necessary to implement total maximum daily loads established pursuant to section 303(d) and incorporated in the continuing planning process approved under section 303(e) of the FWPCA and any regulations and guidelines issued pursuant thereto;

(iv) Prevent or control pollutant discharges from plant site runoff, spillage or leaks, sludge or waste disposal, or materials handling or storage; and

(v) Meet the permit by rule provisions of the state dangerous waste regulation, WAC 173-303-802 (4) or (5).

(c) Any more stringent legal applicable requirements necessary to comply with a plan approved pursuant to section 208(b) of the FWPCA; and

(d) Prior to promulgation by the administrator of applicable effluent standards and limitations pursuant to sections 301, 302, 306, and 307 of the FWPCA, such conditions as the department determines are necessary to carry out the provisions of the FWPCA.

(2) In any case where an issued permit applies the effluent standards and limitations described in subsection (1)(a) of this section, the department shall make a finding that any discharge authorized by the permit will not violate applicable water quality standards.

(3) In the application of effluent standards and limitations, water quality standards and other legally applicable requirements pursuant to subsections (1) and (2) of this section, each issued permit shall specify:

(a) For industrial wastewater facilities, average monthly and maximum daily quantitative mass and/or concentration limitations, or other such appropriate limitations for the level of pollutants and the authorized discharge;

(b) For domestic wastewater facilities, average weekly and monthly quantitative concentration and mass limitations, or other such appropriate limitations for the level of pollutants and the authorized discharge; and

(c) If a dilution zone is authorized within which water quality standards are modified, the dimensions of such dilution zone.

Permits authorized for issuance under chapter 173-220 WAC may be signed by the director or any person designated in WAC 173-06-030.

(1) The department shall establish schedules and permit conditions as follows to achieve compliance with applicable effluent standards and limitations, water quality standards, and other legally applicable requirements:

(a) With respect to any discharge which is found not to be in compliance with applicable effluent standards and limitations, applicable water quality standards, or other legally applicable requirements listed in WAC 173-220-130, the permittee shall be required to take specific steps to achieve compliance with the following:

Any legally applicable schedule of compliance contained in:

(i) Section 301 of FWPCA;

(ii) Applicable effluent standards and limitations;

(iii) Water quality standards; and

(iv) Applicable requirements listed in WAC 173-220-130, 173-220-150, and 173-220-210;

(b) Schedules of compliance, shall set forth the shortest, reasonable period of time, to achieve the specified requirements, such period to be consistent with the guidelines and requirements of the FWPCA.

(2) In any case where the period of time for compliance specified in subsection (1)(a) of this section exceeds one year, a schedule of compliance shall be specified in the permit which will set forth interim requirements and the dates for their achievement; however, in no event shall more than one year elapse between interim dates. If the time necessary for completion of the interim requirement (such as construction of a treatment facility) is more than one year and is not readily divided into stages of completion, interim dates shall be specified for the submission of reports of progress toward completion of the interim requirement.

(3) Either before or up to fourteen days following each interim date and the final date of compliance, the permittee shall provide the department with written notice of the permittee's compliance or noncompliance with the interim or final requirement.

(4) On the last day of the months of February, May, August, and November, the department shall transmit to the regional administrator a list of all instances in the previous ninety days of failure or refusal of a major permittee to comply with an interim or final requirement. Such list shall be available to the public for inspection and copying and shall contain at least the following information on each instance of noncompliance:

(a) Name and address of each noncomplying permittee;

(b) A short description of each instance of noncompliance (e.g., failure to submit preliminary plans, delay in commencement of construction of treatment facility, failure to notify department of compliance with an interim requirement, etc.)

(c) A short description of any actions or proposed actions by the permittee or the department to comply or enforce compliance with the interim or final requirement; and

(d) Any details which explain or mitigate an instance of noncompliance with an interim or final requirement.

(5) If a permittee fails or refuses to comply with an interim or final requirement in a permit, such noncompliance shall constitute a violation of the permit for which the department may modify or revoke the permit or take direct enforcement action.

(1) In addition to the requirements of WAC 173-220-130 and 173-220-140, each issued permit shall require that:

(a) All discharges authorized by the permit shall be consistent with the terms and conditions of the permit;

(b) Any facility expansions, production increases or process modifications which would result in new or increased discharges of pollutants causing effluent limitations in the permit to be exceeded must be reported to the department by submission of a new application or supplement thereto; or, if such discharge does not violate effluent limitations specified in the permit, by submission to the department of notice of such new or increased discharges of pollutants;

(c) Any discharge of any pollutant more frequent than or at a level in excess of that identified and authorized by the permit shall constitute a violation of the terms and conditions of the permit;

(d) The permit may be modified or revoked in whole or in part during its terms for cause including, but not limited to, the following:

(i) Violation of any term or condition of the permit;

(ii) Obtaining a permit by misrepresentation or failure to disclose fully all relevant facts;

(iii) A change in any condition that requires either a temporary or permanent reduction or elimination of the permitted discharge;

(iv) A determination that the permitted activity endangers human health or the environment, or contributes to water quality standards violations;

(v) Incorporation of an approved local pretreatment program into a municipality's permit;

(vi) Establishment of a toxic effluent standard or prohibition (including any schedule of compliance specified in such effluent standard or prohibition) under section 307(a) of the FWPCA for a toxic pollutant which is more stringent than any limitation upon such pollutant in the permit;

(vii) Failure or refusal of the permittee to allow entry as required in RCW 90.48.090; and

(viii) Nonpayment of permit fees assessed pursuant to RCW 90.48.610.

(e) The permittee shall allow the department or its authorized representative upon the presentation of credentials and at reasonable times:

(i) To enter upon permittee's premises in which an effluent source is located or in which any records are required to be kept under terms and conditions of the permit, subject to any access restrictions due to the nature of the project;

(ii) To have access to, and copy at reasonable cost, any records required to be kept under terms and conditions of the permit;

(iii) To inspect any monitoring equipment or method required in the permit; and

(iv) To sample any discharge of pollutants.

(f) If the permit is for a discharge from a publicly owned treatment works, the permittee shall provide notice to the department of the following:

(i) Any new introduction of pollutants into such treatment works from a source which would be a new source as defined in section 306 of the FWPCA if such source were discharging pollutants;

(ii) Except as to such categories and classes of point sources or discharges specified by the department, any new introduction of pollutants into such treatment works from a source which would be subject to section 301 of the FWPCA if such source were discharging pollutants;

(iii) Any substantial change in volume or character of pollutants being introduced into such treatment works by a source existing at the time of issuance of the permit.

Such notice shall include information on:

(A) The quality and quantity of effluent to be introduced into such treatment works; and

(B) Any anticipated impact of such change in the quantity or quality of effluent to be discharged from such publicly owned treatment works.

(g) The permittee shall at all times properly operate and maintain any facilities or systems of control installed by the permittee to achieve compliance with the terms and conditions of the permit. Where design criteria have been established, the permittee shall not allow flows or waste loadings to exceed approved design criteria, or approved revisions thereto.

(2) Every permit shall be conditioned to insure that any industrial user of any publicly owned treatment works will comply with sections 204(b), 307, and 308 of the FWPCA.

(3) When deemed necessary by the department, any publicly owned treatment works shall be required to develop a full or partial local pretreatment program as specified in 40 C.F.R. Part 403. Permit conditions for a municipality which has received full local pretreatment program approval shall include:

(a) Granting of authority to issue permits under chapter 173-208 WAC;

(b) A requirement to develop, adopt, and enforce a program that is at least as stringent as the department's program under chapter 173-216 WAC; and

(c) A requirement to report to the department at a specified frequency on the status of its implementation.

(4) Permits for domestic wastewater facilities shall be issued only to a public entity, except in the following circumstances:

(a) Facilities existing or approved for construction with private operation on or before the effective date of this chapter, until such time as the facility is expanded; or

(b) Facilities that serve a single nonresidential, industrial, or commercial establishment. Commercial/industrial complexes serving multiple owners or tenants and multiple residential dwelling facilities such as mobile home parks, apartments, and condominiums are not considered single commercial establishments for the purpose of the preceding sentence.

(5) For facilities that are owned by nonpublic entities and under contract to a public entity, the permit shall be issued to the public entity.

Immediately following issuance, the department shall transmit a copy of every issued permit along with any and all terms, conditions, requirements, or documents which are a part of such permit or which affect the authorization by the permit of the discharge of pollutants to the regional administrator.

Discharges of pollutants or other wastes that require permits from the department under RCW 90.48.160, which are not satisfied through permits issued under this chapter, shall be subject to the permit requirements of RCW 90.48.160, et seq. Except where permits under RCW 90.48.160 are issued by a municipal corporation pursuant to chapter 173-208 WAC, permit requirements under this chapter and permit requirements under RCW 90.48.160 shall be contained in a single permit document.

(1) Permits shall be issued for fixed terms not exceeding five years.

(2) Any permittee shall make application for replacement to an existing permit or continuation of a discharge beyond the expiration date of his/her permit by filing with the department an application for replacement of the permit at least one hundred eighty days prior to its expiration.

(3) The scope and manner of any review of an application for replacement of a permit by the department shall be sufficiently detailed as to insure the following:

(a) That the permittee is in substantial compliance with all of the terms, conditions, requirements and schedules of compliance of the expired permit;

(b) That the department has up-to-date information on the permittee's production levels; permittee's waste treatment practices; nature, content and frequencies of permittee's discharge; either pursuant to the submission of new forms and applications or pursuant to monitoring records and reports resubmitted to the department by the permittee; and

(c) That the discharge is consistent with applicable effluent standards and limitations, water quality standards, and other legally applicable requirements listed in WAC 173-220-130.

(4) The notice and public participation procedures specified in WAC 173-220-050 through 173-220-100 are applicable to each draft replacement permit.

(5) When a permittee has made timely and sufficient application for the renewal of a permit, an expiring permit remains in effect and enforceable until the application has been denied or a replacement permit has been issued by the department.

(6) Notwithstanding any other provision in this chapter, any point source, the construction of which is commenced after the date of enactment of the Federal Water Pollution Control Act amendments of 1972 and which is so constructed as to meet all applicable standards of performance, shall not be subject insofar as the FWPCA is concerned to any more stringent standard of performance during a ten year period beginning on the date of completion of such construction or during the period of depreciation or amortization of such facility for the purposes of section 167 or 169 (or both) of the Internal Revenue Code of 1954, whichever period ends first.

(1) Any permit issued under this chapter can be modified or revoked in whole or in part by the department for cause including, but not limited to, the causes listed in WAC 173-220-150 (1)(d) or when remanded to the department for modification by the pollution control hearings board.

(2) The department may, upon request of the permittee, modify a schedule of compliance or an operating condition in an issued permit if it determines good and valid cause exists for such revision (such as an act of God, strike, flood, materials shortage, or other event over which the permittee has little or no control and for which there is no other reasonably available remedy).

(3) The department shall modify or revoke permits only after public notice and opportunity for public hearing as provided in this chapter in those instances where changes are proposed which lessen the stringency of effluent limitations. In all other instances, the form of public notice and public participation, if any, shall be determined by the department on a case-by-case basis according to the significance of the proposed action.

(1) A permit is automatically transferred to a new discharger if:

(a) A written agreement between the old and new discharger containing a specific date for transfer of permit responsibility, coverage, and liability is submitted to the director; and

(b) The director does not notify the old and new discharger of his/her intent to modify, or revoke and reissue the permit. If this notice is not given, the transfer is effective on the date specified in the agreement mentioned in (a) of this subsection.

(2) Unless a permit is automatically transferred according to subsection (1) of this section, a permit may be transferred only if modified or revoked and reissued to identify the new permittee and incorporate such other requirements as may be necessary.

(1) Monitoring.

(a) Any discharge authorized by a permit may be subject to such monitoring requirements as may be reasonably required by the department, including the installation, use, and maintenance of monitoring equipment or methods (including, where appropriate, biological monitoring methods). These monitoring requirements would normally include:

(i) Flow (in gallons per day);

(ii) Pollutants (either directly or indirectly through the use of accepted correlation coefficients or equivalent measurements) which are subject to reduction or elimination under the terms and conditions of the permit;

(iii) Pollutants which the department finds could have a significant impact on the quality of surface waters; and

(iv) Pollutants specified by the administrator, in regulations issued pursuant to the FWPCA, as subject to monitoring.

(b) Each effluent flow or pollutant required to be monitored pursuant to (a) of this subsection shall be monitored at intervals sufficiently frequent to yield data which reasonably characterizes the nature of the discharge of the monitored effluent flow or pollutant.

Variable effluent flows and pollutant levels may be monitored at more frequent intervals than relatively constant effluent flows and pollutant levels which may be monitored at less frequent intervals.

(c) Monitoring of intake water, influent to treatment facilities, internal waste streams, and/or receiving waters may be required when determined necessary by the department to verify compliance with net discharge limitations or removal requirements, to verify that proper waste treatment or control practices are being maintained, or to determine the effects of the discharge on the surface waters of the state.

(2) Recording of monitoring activities and results. Any permit which requires monitoring of the authorized discharge shall require that:

(a) The permittee shall maintain records of all information resulting from any monitoring activities required of him in his permit;

(b) Any records of monitoring activities and results shall include for all samples:

(i) The date, exact place, and time of sampling;

(ii) The dates analyses were performed;

(iii) Who performed the analyses;

(iv) The analytical techniques/methods used; and

(v) The results of such analyses; and

(c) The permittee shall be required to retain for a minimum of three years any records of monitoring activities and results including all original strip chart recording for continuous monitoring instrumentation and calibration and maintenance records. This period of retention shall be extended during the course of any unresolved litigation regarding the discharge of pollutants by the permittee or when requested by the department or regional administrator.

(3) Reporting of monitoring results.

(a) The permittee shall periodically report (at a frequency of not less than once per year) on the proper reporting form, the monitoring results obtained pursuant to monitoring requirements in a permit. In addition to the required reporting form, the department at its discretion may require submission of such other results as it determines to be necessary.

(b) Monitoring reports shall be signed by:

(i) In the case of corporations, by a responsible corporate officer or his duly authorized representative, if such representative is responsible for the overall operation of the facility from which the discharge originates.

(ii) In the case of a partnership, by a general partner.

(iii) In the case of a sole proprietorship, by the proprietor.

(iv) In the case of a municipal, state or other public facility, by either a principal executive officer, ranking elected official, or other duly authorized employee.

(4) Use of registered or accredited laboratories:

(a) Except as established in (c) of this subsection, monitoring data submitted to the department in accordance with this chapter shall be prepared by a laboratory accredited under the provisions of chapter 173-50 WAC no later than indicated by the appropriate date below:

July 1, 1992, major dischargers;

July 1, 1993, all permittees with a permitted average flow rate greater than five million gallons per day.

These requirements are effective and binding on all permittees under the authority of rule, regardless of whether they have been included as conditions of a permit.

(b) Except as established in (c) of this subsection, monitoring data submitted to the department in accordance with this chapter shall be prepared by a laboratory registered or accredited under the provisions of chapter 173-50 WAC no later than July 1, 1994, for all NPDES permittees not covered under (a) of this subsection.

These requirements are effective and binding on all permittees under the authority of rule, regardless of whether they have been included as conditions of a permit.

(c) The following parameters need not be accredited or registered:

(i) Flow;

(ii) Temperature;

(iii) Settleable solids;

(iv) Conductivity, except that conductivity shall be accredited if the laboratory must otherwise be registered or accredited;

(v) pH, except that pH shall be accredited if the laboratory must otherwise be registered or accredited;

(vi) Turbidity, except that turbidity shall be accredited if the laboratory must otherwise be registered or accredited; and

(vii) Parameters which are used solely for internal process control.

Individual permits are subject to appeals as specified in chapter 43.21B RCW.

(1) The department, with the assistance of the attorney general, may sue in courts of competent jurisdiction to enjoin any threatened or continuing violations of any permits or conditions thereof without the necessity of a prior revocation of the permit;

(2) The department may enter any premises in which an effluent source is located or in which records are required to be kept under terms or conditions of a permit, and otherwise be able to investigate, inspect, or monitor any suspected violations of water quality standards, or effluent standards and limitations, or of permits or terms or conditions thereof;

(3) The department may assess or, with the assistance of the attorney general, sue to recover in court, such civil fines, penalties, and other civil relief as may be appropriate for the violation by any person of (a) any effluent standards and limitations or water quality standards, (b) any permit or term or condition thereof, (c) any filing requirements, (d) any duty to permit or carry out inspection, entry, or monitoring activities, or (e) any rules, regulations, or orders issued by the department.

(4) The department may request the prosecuting attorney to seek criminal sanctions for the violation by such persons of (a) any effluent standards and limitations or water quality standards, (b) any permit or term or condition thereof, (c) any filing requirements.

(5) The department, with the assistance of the prosecuting attorney, may seek criminal sanctions against any person who knowingly makes any false statement, representation, or certification in any form or any notice or report required by the terms and conditions of any issued permit or knowingly renders inaccurate any monitoring device or method required to be maintained by the department.

(1) The energy facility site evaluation council (EFSEC) shall be the state agency to receive applications for, issue, and modify permits for energy facilities subject to chapter 80.50 RCW. Processing of such applications shall be controlled by chapter 463-38 WAC. Application for issuance and modification of permits for all other energy facilities shall be the responsibility of the department.

(2) Monitoring, recording, and reporting activities required of operators of all energy facilities by the terms of a permit issued by EFSEC shall be supervised and enforced by the department.

(3) The department shall carry on an inspection program for the periodic inspection (to be performed not less than once every year) of discharges of pollutants from energy facilities authorized by a permit issued by EFSEC. Such inspections shall determine compliance or noncompliance with issued permits and, in particular, compliance or noncompliance with specific effluent limitations and schedules of compliance in such permits.

(4) The department shall carry on a surveillance program with respect to energy facility discharges for the random sampling and analysis of the discharge for the purpose of identifying occasional and continuing violations of permit conditions and the accuracy of information submitted by permittees in reporting forms.

(5) Enforcement activities regarding the NPDES program, including the levying of civil and criminal fines pertaining to all thermal power plants, whether the permit is issued by the department or EFSEC, shall be undertaken by the department, EFSEC, the attorney general, or the prosecuting attorney, as appropriate.

(6) Nothing in this section shall authorize the department to undertake enforcement or monitoring activities in a manner not consistent with the terms and conditions of any EFSEC-issued NPDES permit.