Permit Quality Review
United States Virgin Islands
U.S. Environmental Protection Agency
Region 2, New York
Final Report
August 4,2014
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Table of Contents
I. PQR Background 3
II. State Program Background 4
A. Program Structure 4
B. Universe and Permit Issuance 4
III. Core Review Findings 5
A. Basic Facility Information and Permit Application 5
B. Monitoring and Reporting 8
C. Special and Standard Conditions 8
D. Administrative Process 9
E. Administrative Record 10
IV. Core Topic Areas 11
A. Nutrients 11
B. Pesticide General Permits 13
C. Pretreatment 14
D. Stormwater 16
IV. Special Focus Area Findings 17
A. Coral Reefs 17
B. Municipal Separate Storm Sewer Systems 19
C. Rum Distilleries 20
V. Action Items 22
Appendix A - Permits Reviewed 30
Appendix B - Action Items 31
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I. PQR Background
National Pollutant Discharge Elimination System (NPDES) Permit Quality Reviews (PQRs) are
an evaluation of a select set of NPDES permits to determine whether permits are developed in a
manner consistent with applicable requirements established in the Clean Water Act (CWA) and
NPDES regulations. Through this review mechanism, the EPA promotes national consistency,
and identifies successes in implementation of the NPDES program and opportunities for
improvement in the development of NPDES permits.
The EPA Region 2 staff conducted a review of the U.S. Virgin Islands Territorial Pollutant
Discharge Elimination System (TPDES) permitting program which included desktop permit
reviews and an on-site visit to the U.S. Virgin Islands Department of Planning and Natural
Resources (USVIDPNR) office in St. Thomas on March 18-19, 2013 and the St. Croix office on
March 20, 2013.
The 2013 U.S. Virgin Islands (US VI) PQR consisted of two components: permit reviews and
special focus area reviews. The permit reviews focused on core permit quality and included a
review of the permit application, permit, fact sheet, and any correspondence, reports, or
documents in the administrative record that provide the basis for the development of the permit
conditions.
The core permit review involved the evaluation of selected permits and supporting materials.
Reviewers completed the core review by examining selected permits and supporting
documentation, assessing these materials using standardized PQR checklist tools, and talking
with USVI DPNR staff about the permit development process. The core review focused on the
Central Tenets1 of the NPDES permitting program to evaluate the USVI TPDES program. In
addition, discussions between the EPA and territorial staff addressed a range of topics including
program status, the permitting process, responsibilities, organization, and staffing. The purpose
of core topic area permit reviews is to evaluate specific issues or types of permits in all states and
territories. The core topics reviewed in the USVI TPDES program were: nutrients, pretreatment
program, pesticide general permit, and storm water.
Special focus area reviews target regionally-specific permit types or particular aspects of
permits. The special focus areas selected by the EPA Region 2 included coral reefs, municipal
separate storm sewer systems (MS4s), and rum distilleries. These reviews provide important
information to USVI DPNR, EPA Region 2, EPA HQs, and the public on specific program areas.
It was infeasible to review all of the TPDES permit issued by the USVI. Instead, a small
selection of permits was reviewed to provide a snapshot of the USVI TPDES program. A total of
16 permits were reviewed as part of the 2013 USVI PQR. Eleven permits were reviewed for the
1 Central Tenets of the National Pollutant Discharge Elimination System (NPDES) Permitting Program.
http://www.epa.gov/npdes/pubs/tenets.pdf
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core review - of these eleven, four permits were reviewed for special focus areas. Permits were
selected based on issuance date and the review categories that they fulfilled (Appendix A).
II. State Program Background
A. Program Structure
The USVIDPNR, Division of Environmental Protection (DEP) manages the TPDES program.
DEP is organized into multiple groups that are responsible for specific program areas such as
solid waste, air quality management, air pollution control, water quality management, and water
pollution control. The water pollution control group within DEP is responsible for the TPDES
program. USVI DPNR has one office in Frederiksted, St. Croix and one office at Cyril D. King
Airport, St. Thomas. As of June 2013, USVI DPNR had one TPDES permit writer in the St.
Croix office and one permit writer in the St. Thomas office. In St. Thomas, there was a lapse
from February 2013 to June 2013 when there was no staff permit writer. The responsibilities of
the permit writer for each geographic jurisdiction include drafting municipal and industrial
TPDES permits, conducting site visits, responding to public comments, and administrative tasks.
Typically, the permit writer on St. Thomas handles the permits for facilities on St. Thomas and
St. John and the permit writer in St. Croix is responsible for all St. Croix facilities. However,
depending on workload, staffing and expertise, a permit writer may administer a permit on a
different island.
The conditions in a permit are developed solely by the permit writer. Training for permit writers
includes attending the EPA's five-day NPDES Permit Writer's Course and reviewing the EPA's
2010 NPDES Permit Writer's Manual2 and the USVI DPNR draft Standards of Procedure
(SOPs). The SOPs have never been formally finalized but are regularly updated. USVI DPNR
does not use a permit or fact sheet template to develop permits but does include a sample permit
and fact sheet in the draft SOPs.
USVI DPNR typically provides the permittee and EPA Region 2 with a pre-public notice draft of
the permit and many comments are resolved during this period. When the public notice draft of
the permit is ready, the permittee is responsible for arranging the notice in local newspapers and
the files are available at the USVI DPNR office for the public to review.
The TPDES administrative records and enforcement records are maintained as one file in the
USVI DPNR office on the same island as the facility. Some TPDES files (e.g. draft permits, fact
sheets, correspondence, etc) are maintained electronically rather than in hard copy. USVI DPNR
does not have a policy for which documents should be maintained in hard copy or electronic
copy but whenever possible, documents are maintained electronically.
B. Universe and Permit Issuance
As of April 2013, USVI DPNR is responsible for administering approximately 69 individual
permits, including eight major permits (two publicly owned treatment works (POTWs) and six
2 U.S. Environmental Protection Agency NPDES Permit Writer's Manual. 2010.
http ://cfpub .epa. gov/npdes/writermanual. cfm
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non-POTWs). US VIDPNR also administers general permits for storm water runoff from
construction sites and industrial activity, as well as point source discharges of pesticides. As of
April 2013, USVI DPNR had seven backlogged permits meaning that the TPDES program was
89.9% current.
USVI DPNR permit processing procedures occur entirely within DEP. When issued, many
permits include the date by which the USVI DPNR must receive the permit renewal application.
Individual permit applicants submit the EPA standard forms directly to the permit writers. When
received, applications and other correspondence are stamped by the permit writer and included in
the administrative file. Whenever possible, USVI DPNR requests that both physical and
electronic copies of applications or reports be submitted. If an application is deemed incomplete,
the permit writer works closely with the permittee to ensure completeness. Typically, requests to
resolve incomplete applications for minor permits are handled informally. However, permittees
that submit incomplete applications for major permits are sent an official email or letter
requesting that the missing information be provided.
III. Core Review Findings
A. Basic Facility Information and Permit Application
1. Facility Information
Basic facility information is necessary to properly establish permit conditions. For example,
information regarding facility type, location, processes and other factors is required by NPDES
permit application regulations (40 CFR 122.21) because it is essential for developing technically
sound, complete, clear and enforceable permits. Similarly, fact sheets must include a description
of the type of facility or activity subject to a draft permit.
All final permits that were reviewed for the core review included permit issuance dates, effective
dates and expiration dates, authorized signatures, and specific authorization-to-discharge
information. However, one permit was issued (signed and dated) after the effective date of the
permit.
2. Technology-Based Effluent Limitations
NPDES regulations at 40 CFR 125.3(a) require that permitting authorities develop technology-
based requirements where applicable. Permits, fact sheets, and other supporting documentation
for POTWs and non-POTWs were reviewed to assess whether technology-based effluent
limitations (TBELs) represent the minimum level of control that must be imposed in a permit.
TBELs for POTWs
POTWs must meet secondary or equivalent to secondary standards (including limits for BODs,
TSS, pH, and percent removal) and must contain numeric limits for all of these parameters (or
authorized alternatives) in accordance with the secondary treatment regulations at 40 CFR Part
133. A total of three POTW permits were reviewed as part of the USVI 2013 PQR, two major
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permits and one minor permit. None of the POTW permits that were reviewed had fact sheets or
a statement of basis.
The EPA found that the permits did not provide a description of wastewater treatment processes
or a discussion of the basis of the TBELs. As there was no fact sheet or statement of basis
available, the EPA was unable to determine the basis of the permit conditions. The permits did
consistently apply secondary treatment standards, although these standards were not always
established correctly. Of the three POTW permits reviewed, none specified that the effluent
limitation for BOD5 has a 30-day averaging period, two lacked a location for influent
monitoring, and in one permit it was unclear if both short- and long-term effluent limitations
were established for BOD5 and TSS.
TBELs for Non-POTW Dischargers
Permits issued to non-POTWs must require compliance with a level of treatment performance
equivalent to Best Available Technology Economically Achievable (BAT) or Best Conventional
Pollutant Control Technology (BCT) for existing sources, and consistent with New Source
Performance Standards for new sources. Where federal effluent limitations guidelines (ELGs)
have been developed for a category of dischargers, the TBELs in a permit must be based on the
application of these guidelines. If ELGs are not available, a permit must include requirements at
least as stringent as BAT/BCT developed on a case-by-case basis using best professional
judgment (BPJ) in accordance with the criteria outlined at 40 CFR 125.3(d).
A total of eight non-POTW permits were reviewed as part of the core review (five major and
three minor permits) and only four of the major permits had a fact sheet or statement of basis.
None of the minor permits had a fact sheet or statement of basis. Documentation of the
calculations used to develop the effluent limitations based on ELGs was not included in any of
the permit records reviewed. Three of the four available fact sheets did not satisfactorily explain
the facility categorization and determination of applicable ELGs. It was difficult to determine if
US VIDPNR evaluated whether ELGs were applicable to these facilities.
The administrative records typically lack documentation of development of TBELs and it was
unclear how the final effluent limitations were developed. Documentation did not include a
discussion of the applicability of ELGs or illustration of calculations used to develop the TBELs.
In many cases, it was difficult to discern if final effluent limitations were technology- or water
quality-based effluent limitations. Four of the eight final non-POTW permits reviewed did not
establish both short- and long-term limitations as required by 40 CFR 122.45(d).
3. Water Quality-Based Effluent Limitations
The NPDES regulations at 40 CFR 122.44(d) require permits to include any requirements in
addition to or more stringent than technology-based requirements where necessary to achieve
territorial water quality standards, including narrative criteria for water quality. To establish
water quality-based effluent limits (WQBELs), the permitting authority must evaluate the
proposed discharge and determine whether technology-based requirements are sufficiently
stringent, and whether any pollutants or pollutant parameters could cause or contribute to an
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excursion above any applicable water quality standard. A total of 11 permits were evaluated for
their WQBELs - 3 POTWs and 8 non-POTWs.
The 2013 US VIPQR assessed the process that US VIDPNR permit writers use to implement
these requirements. Specifically, the PQR reviewers looked at permits, fact sheets (when
available) and any other documentation in the administrative record to evaluate how permit
writers:
• determined the appropriate water quality standards applicable to receiving waters;
• evaluated and characterized the effluent and receiving water including identifying
pollutants of concern;
• determined critical conditions;
• incorporated information on ambient pollutant concentrations;
• assessed any dilution considerations; and
• determined whether limits were necessary for pollutants of concern and, where necessary,
calculated such limits or other permit conditions.
For impaired waters, the PQR assessed whether and how permit writers developed limits
consistent with the assumptions of applicable EPA-approved total maximum daily loads
(TMDLs).
Permits and fact sheets, when available, did not discuss impairment status or identify if a TMDL
has been developed for the receiving water body. The on-site interview with USVI DPNR staff
revealed that there is limited, if any, consideration of the impairment status of the receiving
water when developing the permit.
The administrative record did not provide a discussion of the reasonable potential analysis for
pollutants present in the effluent. The administrative record also did not include a discussion of
the reasonable potential for whole effluent toxicity (WET) or the basis of establishing, or not
establishing, WET limitations in the permit.
The EPA was unable to recreate how effluent limitations were developed based on the content of
the fact sheet and supporting record. In addition, we found that many permits did not establish
effluent limitations consistent with the requirements of 40 CFR 122.45(d) which states that, for
continuous dischargers, all permit effluent limitations shall, unless impracticable, be stated as
maximum daily and average monthly limitations for all dischargers other than POTWs. For
POTWs, 40 CFR 122.45(d) states that average weekly and average monthly discharge limits
must be established. As explained in the EPA's Technical Support Document3, EPA considers
3 Technical Support Document for Water Quality-based Toxics Control.
http ://water. epa.gov/scitech/datait/models/upload/2002_ 10_25_npdes_pubs_owm0264.pdf
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the 7-day average limit for POTWs to be impracticable for the purpose of controlling the
discharge of toxics and therefore, requires a maximum daily limit for toxics.
Another finding of the core review was that only one of the three POTW permits correctly
established pathogen limitations for enterococci as required by 40 CFR 131.41 and USVIWQS
at 12 VIRR 184.
Three of the eight permits reviewed for the core review included mixing zones. The EPA was
unable to determine if the effluent limitations in the permit apply at end-of-pipe or at the edge of
the mixing zone. Additionally, it is unclear how the size of the mixing zone is determined. USVI
Water Quality Standards (WQS) at 12 VIRR 184 allows for thermal mixing zones and provides a
standard equation to calculate the appropriate size but provides no additional guidance for
mixing zones for other parameters. However, USVI DPNR establishes mixing zones for other
parameters besides temperature. The administrative record provided no discussion of the
development or basis for the mixing zone or effluent limitations.
B. Monitoring and Reporting
NPDES regulations at 40 CFR 122.41(j) require facilities discharging pollutants to waters of the
US to periodically evaluate compliance with the effluent limitations established in their permits
and provide the results to the permitting authority. Monitoring and reporting conditions require
the permittee to conduct routine or episodic self-monitoring of permitted discharges and where
applicable, internal processes, and report the analytical results to the permitting authority with
information necessary to evaluate discharge characteristics and compliance status.
Specifically, 40 CFR 122.44(i) requires that NPDES permits establish, at minimum, annual
monitoring for all limited parameters sufficient to assure compliance with permit limitations,
including specific requirements for the types of information to be provided and the methods for
the collection and analysis of such samples. In addition, 40 CFR 122.48 requires that permits
specify the type, intervals, and frequency of monitoring sufficient to yield data which are
representative of the monitored activity. The regulations at 40 CFR 122.44(i) also require
reporting of monitoring results, developed on a case-by-case basis, with a frequency dependent
on the nature and effect of the discharge.
The TPDES program seems to require the appropriate monitoring requirements based on the
facility type, type of the discharge, and corresponding limit basis. However, of the eleven
permits reviewed for the core review, ten did not clearly identify the location of the outfalls or
receiving waters. When coordinates are provided, it is unclear if the coordinates represent the
location of the receiving water or the outfall location. In many cases, no coordinates were
provided at all. The locations of internal or external monitoring locations were also not
consistently identified in the permits.
C. Special and Standard Conditions
Federal regulations at 40 CFR 122.41 require that all NPDES permits, including NPDES general
permits, contain an enumerated list of "standard" permit conditions. Further, the regulations at 40
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CFR 122.42 require thatNPDES permits for certain categories of dischargers must contain
additional standard conditions. Permitting authorities must include these conditions in NPDES
permits and may not alter or omit any standard condition, unless such alteration or omission
results in a requirement more stringent than required by the federal regulations.
In addition to standard permit conditions, the permit may also contain additional requirements
that are unique to a particular permittee or discharger. These case-specific requirements are
generally referred to as "special conditions". Special conditions might include requirements such
as: additional monitoring or special studies (e.g., pollutant management plans), best management
practices [see 40 CFR 122.44(k)], or permit compliance schedules [see 40 CFR 122.47], Where a
permit contains special conditions, such conditions must be consistent with applicable
regulations.
All of the permits reviewed as part of the core review included a standard section (Part II) that
includes all of the general conditions found at 40 CFR 122.41. However, Part II also includes the
additional standard conditions for non-POTWs, as required by 40 CFR 122.42(a), but does not
include the additional conditions for POTWs, as required by 40 CFR 122.42(b). Therefore, the
POTW permits do not include all applicable standard conditions.
D. Administrative Process
The administrative process includes documenting the basis of all permit decisions (40 CFR 124.5
and 40 CFR 124.6), coordinating the EPA and state review of the draft (or proposed) permit (40
CFR 123.44), providing public notice (40 CFR 124.10), conducting hearings if appropriate (40
CFR 124.11 and 40 CFR 124.12), responding to public comments (40 CFR 124.17), and
modifying a permit (if necessary) after issuance (40 CFR 124.5). The EPA discussed each
element of the administrative process with USVIDPNR, and reviewed materials from the
administrative process as they relate to the core permit review.
USVI DPNR distributes a pre-public notice draft of the permit to the permittee and to the EPA
for review. Often, the permittee's and the EPA's comments are resolved during this phase.
Afterward, the draft permit is public noticed and the 30-day public comment period begins. As
the permittee and EPA have the opportunity to review a pre-public notice draft of the permit,
USVI DPNR rarely, if ever, receives comments on a draft permit during the comment period.
However, the EPA is often not provided with a proposed permit to review before final issuance,
as required by 40 CFR 122.2.
During the review of an administrative record, the EPA determined that a non-POTW facility
failed to submit the appropriate renewal application 180 days before the expiration of the
previous permit. As the application was not submitted in a timely manner, the permit cannot be
administratively extended (40 CFR 122.6, 40 CFR 122.21). The permit is currently expired and
the facility is discharging without a permit. In this, and similar situations when an application is
submitted late, it is important that the TPDES permitting staff properly inform enforcement staff
so that any necessary action can be taken.
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The EPA had originally intended to include twelve permits within the core review. However,
upon reviewing the permit and administrative records, the EPA determined that one permit was
not within the EPA's regulatory universe. The TPDES program regulates waters of the US VI
which, as defined in 12 VIRR 184, includes wells, springs, irrigation and drainage systems, in
addition to harbors, streams, lakes, etc. Waters of the United States, as defined by the NPDES
regulations at 40 CFR 122.2, do not include discharges to groundwater or land. Therefore, any
TPDES permit that discharges solely to land or groundwater is not within the EPA's regulatory
universe. As this facility discharges solely to an irrigation system, it is not within the EPA's
universe and was, therefore, not reviewed as part of the 2013 US VIPQR.
E. Administrative Record
The administrative record is the foundation that supports the NPDES permit. If the EPA issues
the permit, the contents of the administrative record are prescribed by regulation, with 40 CFR
124.9 identifying the required content of the administrative record for a draft permit and 40 CFR
124.18 describing the requirements for final permits. Authorized state and territorial programs
should have equivalent documentation. The record should contain the necessary documentation
to justify permit conditions. At a minimum, the administrative record for a permit should contain
the permit application and supporting data, draft permit, fact sheet or statement of basis, all items
cited in the statement of basis or fact sheet including calculations used to derive the permit
limitations, meeting reports, correspondence between the applicant and regulatory personnel, all
other items supporting the file, final response to comments and, for new sources where the EPA
issues the permit, any Environmental Assessment, Environmental Impact Statement, or Finding
of No Significant Impact.
One pre-draft permit was reviewed as part of the core review; therefore, records documenting
public notice procedures, response to comments, and public hearing requests were not available.
For the ten finalized permits that were reviewed, the supporting record did not consistently
include documentation that public notice procedures were implemented accordingly (e.g., copy
of the public notice was not in the administrative file) or documentation of comments that had
been received during the public comments period. For example, seven administrative files did
not include a fact sheet, two did not include proof of public notice, one did not include a draft
permit, and one file did not include an application. Additionally, some documents vital to the
administrative record are filed in hard copy and others are filed electronically. There is no
notation in the hard copy files that some documents may be electronic.
In one instance, a facility with a flow greater than 1.0 MGD was listed as a minor facility in the
permit. The administrative record did not contain an EPA major/minor rating sheet to provide a
basis as to why the facility was classified as a minor.
1. Fact Sheet or Statement of Basis
Under 40 CFR 124.8 and 124.56 fact sheets are required for major NPDES permits, general
permits, permits that incorporate a variance or warrant an explanation of certain conditions, and
permits subject to widespread public interest. Of the seven major permits reviewed as part of the
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PQR, two had a fact sheet and two had a statement of basis. No minor permits reviewed had a
fact sheet or a statement of basis.
Fact sheets for POTWs and non-POTWs were either nonexistent or insufficient in providing an
adequate description of facility location and treatment processes. There is often no discussion of
the reasonable potential analysis, impairments, or pollutants of concern, description of facility
processes, a summary of an endangered species review, facility diagrams, anti-backsliding,
antidegradation, or other pertinent information.
The available fact sheets consistently lacked the following elements, a required by 40 CFR 124.8
and 124.56:
• general facility information (e.g., description of activity, detailed description of outfall
location, type and quantity of waste/pollutants discharged, etc),
• summary rationale of permit conditions (e.g., basis of draft permit conditions, etc)
• detailed rationale of permit conditions (e.g., explanation and calculations of effluent
limitations, specific explanations of toxic pollutant limitations, limits on internal waste
streams and indicator pollutants, etc)
• administrative requirements (e.g., description of the procedures for reaching a final
decision on the draft permit, contact person name and telephone number, etc).
While USVIDPNR indicated that best professional judgment is often used during permit
development, the administrative records do not provide a discussion of the analysis or decision-
making process. Many of the receiving waters are on the United States Virgin Islands Clean
Water Act Section 303(d) 2010 List of Impaired Waters but there is no discussion in the fact
sheet of the impairments or their impact on the effluent limits established in the draft permit. Of
the three available fact sheets, none included documentation of the most stringent applicable
effluent limitation (TBELs vs WQBELs) and must be included as the final effluent limitation.
Overall, the records reviewed did not provide transparency as to how effluent limitations were
developed and did not allow for a straightforward duplication of the development of the effluent
limitations.
IV. Core Topic Areas
A. Nutrients
For more than a decade, both nitrogen and phosphorus pollution has consistently ranked as one
of the top causes of degradation of surface waters in the United States. Since 1998, the EPA has
worked to reduce the levels and impacts of nutrient pollution and, as a key part in this effort, has
provided support to states and territories to encourage the development, adoption and
implementation of numeric nutrient criteria as part of their water quality standards (see the
EPA's National Strategy for the Development of Regional Nutrient Criteria). In a 2011 memo to
the EPA regions titled Working in Partnerships with States to Address Nitrogen and Phosphorus
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Pollution through use of a Framework for State Nutrient Reductions, the EPA announced a
framework for managing nitrogen and phosphorus pollution that in part relies on the use of
NPDES permits to reduce nutrient loading in targeted or priority watersheds. To assess how
nutrients are addressed in the TPDES permitting program in the USVI and implementation of
this framework, the EPA reviewed three of the eleven permits reviewed in the core permit review
(two POTWs and one non-POTW). The administrative records for these three permits did not
contain fact sheets or statements of basis.
1. Background
In the USVI water quality impacts from nutrient over-enrichment are addressed through
implementation of numeric total phosphorus criteria for all class waters. There are no criteria for
total nitrogen nor are there any nutrient criteria established for inland waters. Specifically, USVI
regulations at 12 VIRR 186-2, 186-3 and 186-4 provide numeric ambient water quality criteria
for total phosphorus to protect the designated uses for Class A, B and C waters, which include
marine and coastal waters. The criteria for each water class provide that phosphorus as total P
shall not exceed 50 ug/1 in any waters and shall apply at and beyond the boundary of the
applicable mixing zone.
2. Program Strengths
USVI DPNR seems to generally address total phosphorus for discharges to Class B waters in its
TPDES program.
3. Critical Findings
Based on our review, the EPA presents the following findings.
• All three permits discharge to Class B waters and are subject to the same water quality
criterion for total phosphorus.
• USVI DPNR established numeric limitations for total phosphorus in all three permits
reviewed based on the water quality criterion.
• One POTW permit established a numeric receiving water limitation at the edge of the mixing
zone. The limitation was consistent with the water quality criterion for total phosphorus. The
permit did not establish a total phosphorus effluent limitation.
• One POTW permit established a numeric total phosphorus effluent limitation. The limitation
was consistent with the water quality criterion for total phosphorus and expressed as criteria
end-of-pipe.
• The non-POTW permit established a numeric total phosphorus effluent limitation. The
limitation was expressed as a quarterly average and sample maximum that were higher than
the water quality criterion. Since there was no fact sheet available for review, it was not clear
whether a mixing zone has been authorized for this discharge.
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B. Pesticide General Permits
On October 31, 2011, the EPA issued a final NPDES Pesticide General Permit (PGP) for
Discharges From the Application of Pesticides to waters of the United States. This action was in
response to a 2009 decision by the U.S. Sixth Circuit Court of Appeals (National Cotton Council
of America v. EPA. 553 F.3d 927 (6th Cir., 2009)) in which the court vacated EPA's 2006 Final
Rule on Aquatic Pesticides and found that point source discharges of biological pesticides, and
chemical pesticides that leave a residue, into waters of the US were pollutants under the Clean
Water Act. The federal PGP applies where the EPA is the permitting authority. Approximately
40 delegated NPDES authorities, including the Virgin Islands, have issued their own pesticide
general permits since November 2011.
1. Background
On January 7, 2009, the Sixth Circuit vacated the EPA's 2006 NPDES Pesticides Rule under a
plain language reading of the CWA. National Cotton Council of America v. EPA. 553 F.3d 927
(6th Cir., 2009). The Court held that the CWA unambiguously includes "biological pesticides"
and "chemical pesticides" with residuals within its definition of "pollutant." In response to this
decision, on April 9, 2009, the EPA requested a two-year stay of the mandate to provide the
Agency time to develop general permits, to assist NPDES-authorized states to develop their
NPDES permits, and to provide outreach and education to the regulated community. On June 8,
2009, the Sixth Circuit granted the EPA the two-year stay of the mandate. On March 28, 2011,
the U.S. Court of Appeals for the Sixth Circuit granted the EPA's request for an extension to
allow more time for pesticide operators to obtain permits for pesticide discharges into U.S.
waters. The court's decision extended the deadline for when permits would be required from
April 9,2011 to October 31,2011.
As a result of the Court's decision to vacate the 2006 NPDES Pesticides Rule, NPDES permits
are required for discharges of biological pesticides and of chemical pesticides that leave a residue
to waters of the US. The EPA proposed a draft pesticide general permit on June 4, 2010 to cover
certain discharges resulting from pesticide applications. The EPA Regional offices and NPDES
authorities may issue additional general permits or individual permits if needed.
On November 1, 2012 the USVIDPNR issued its own TPDES General Permit for Point Source
Dischargers to Waters of the United States Virgin Islands from the Application of Pesticides
(Permit No. VIPGP0000). The general permit is effective from November 1, 2012 to October 31,
2017. A notice of draft permit was published in local newspapers in September 2012 for a thirty
day public comment period. Activities that are eligible for coverage under this permit are listed
in Part 1.1 and are the same as the activities eligible for coverage under the EPA permit.
For this PQR, Region 2 reviewed the USVI DPNR pesticide general permit (USVI PGP) with a
focus on verifying its consistency with NPDES program requirements. There are currently no
approved application packages for entities in the USVI covered by the USVI PGP. One notice of
intent (NOI) was submitted and the application was found to be deficient.
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2. Program Strengths
In general, the USVI PGP is equivalent to the federal requirements and USVIDPNR has been
timely in establishing its general permit for the regulated community.
The Virgin Islands Department of Health (VIDOH) submitted an NOI and application package
which included a Pollutant Minimization Plan (PMP). A deficiency letter was sent to VIDOH
because the PMP did not meet most of the requirements of the permit. The revised plan will
undergo review once it is submitted and discharges under this permit are not allowed until the
application package is approved. No additional NOIs are expected because no other applicator is
likely to exceed the threshold. However, USVI DPNR should consider conducting an outreach
campaign to ensure that any additional entities that may require permit coverage be informed of
the requirements.
3. Critical Findings
The USVI PGP is very similar to the EPA PGP. The two primary differences between the permit
are that the USVI PGP does not permit discharges from pesticide applications to waters
designated as USVI DPNR Class A waters, as defined in 12 VIRR 186) and the thresholds that
trigger the submittal of an NOI are significantly smaller than EPA's. The thresholds for the
USVI PGP are:
• Mosquito and Other Flying Insect Pest Control - Treatment with adulticide during a
calendar year over more than 640 acres
• Weed and Algae Pest Control - Treatment during a calendar year over more than either
10 linear miles or 40 acres of water
• Animal Pest Control - Annual treatment of more than 10 linear miles for 40 acres of
water
• Forest Canopy Pest Control - Annual treatment area of more than 640 acres
Technology-based effluent limits, water quality based effluent limits, monitoring requirements,
corrective actions and reporting requirements are the same as those in the EPA permit.
C. Pretreatment
The general pretreatment regulations (40 CFR 403) establish responsibilities of federal, state, and
local government, industry and the public to implement pretreatment standards to control
pollutants from industrial users which may cause pass through or interfere with POTW treatment
processes or which may contaminate sewage sludge.
1. Background
Since the USVI is not approved to administer the pretreatment program, it is administered by
EPA Region 2. The pretreatment review for the 2013 USVI PQR was conducted by EPA
Headquarters. The PQR analysis for pretreatment implementation was based on a review of three
POTW permits without pretreatment programs with design flows ranging from 0.004 MGD
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(million gallons per day) to 8 MGD. As identified by the Integrated Compliance Information
System (ICIS), there are no POTWs in the USVI that have approved pretreatment programs.
The goal of this pretreatment program review was to assess the status of the pretreatment
program in the USVI as well as assess specific language in POTW NPDES permits. With respect
to NPDES permits, focus was placed on the following regulatory requirements for pretreatment
activities and pretreatment programs:
• 40 CFR 122.42(b) (POTW requirements to notify Director of new pollutants or change in
discharge);
• 40 CFR 122.44(j) (Pretreatment Programs for POTWs);
• 40 CFR 403.8 (Pretreatment Program Requirements: Development and Implementation
by POTW);
• 40 CFR 403.9 (POTW Pretreatment Program and/or Authorization to revise Pretreatment
Standards: Submission for Approval);
• 40 CFR 403.12(i) (Annual POTW Reports); and
• 40 CFR 403.18 (Modification of POTW Pretreatment Program).
Since there are no approved pretreatment programs in the USVI, only 40 CFR 122.42(b) and
122.44(j) are applicable for the purpose of this PQR. However, the provisions at 40 CFR
122.44(j)(2) and 122.44(j)(3) are applicable only to POTWs where development of a
pretreatment program has been deemed necessary.
The USVI DPNR is not delegated to administer the pretreatment program. Form 2A of the
permit application for POTWs (EPA Form 3510-2A) requires the permittee to submit
information on each significant industrial user and categorical industrial user within its service
area that discharges to that POTW. There are seven publicly-owned treatment works in the
USVI. To date, the USVI DPNR has not notified the EPA that any of these POTWs have
identified any significant industrial users (SIUs) in their NPDES permit applications.
2. Program Strengths
The general conditions for all three POTW permits states that civil penalties will apply if any
pollutants are introduced that violate a pretreatment standard or toxic effluent standard.
Additionally, all three permits required the permittee to implement a Preventative Maintenance
Program for the wastewater treatment facility and collection system.
3. Critical Findings
EPA Region 2 relies on the USVI to identify when circumstances at a POTW have changed so as
to warrant the development of a pretreatment program. A procedure should be developed to
ensure that EPA Region 2 is made aware when changes at a facility may warrant the
development of a pretreatment program. Additionally, a procedure should be developed to ensure
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that EPA Region 2 is aware of any indirect industrial dischargers reported on a permit
application.
All POTW permits must also include the additional standard conditions for POTWs, as required
by 40 CFR 122.42(b) and discussed in Section III.B of this report. Additionally, none of the
permits reviewed for pretreatment had fact sheets. Fact sheets are required for all major permits
(40 CFR 124.8 and 124.56), as discussed in Section III.E.l of this report, and are vital to
documenting the rationale for permitting decisions, such as whether or not a pretreatment
program is required or not.
40 CFR 122.44(j)(l) states that POTWs must identify, in terms of character and volume of
pollutants, any Significant Industrial Users discharging into the POTW. The POTW permits
reviewed for pretreatment did not explicitly incorporate this provision, however, the POTW
Application Form 2A requires that the permittee submit the same information as requested in 40
CFR 122.44(j)(l). Therefore, the requirements at 40 CFR 122.44(j)(l) are met when the
permittee submits the permit application.
D. Stormwater
The NPDES program requires stormwater discharges from certain municipal separate storm
sewer systems (MS4s), industrial activities, and construction sites to be permitted. Generally, the
EPA and NPDES-authorized states and territories issue individual permits for medium and large
MS4s and general permits for smaller MS4s, industrial activities, and construction activities.
USVIDPNR is authorized to issue stormwater permits under the TPDES program.
1. Background
At this time, USVI DPNR has two general permits associated with the regulation of stormwater
discharges from construction activities and industrial facilities. Review of both of these permits
are included as part of the USVI 2013 PQR:
• Virgin Islands General Permit Authorization for Storm Water Discharges Associated with
Construction Activity (VIGSA0000)
• Virgin Islands Multi-Sector General Permit for Stormwater Discharges Associated with
Industrial Activity (VIMSGP)
USVI DPNR should consider posting their final general permits and any supporting documents
on their website for better accessibility of information to the public and permittees.
TPDES General Permit Authorization for Stormwater Discharges from Construction
Activity (Permit No. VIGSA0000)
On October 10, 2012, the EPA completed its review of the USVI DPNR's draft General Permit
for Stormwater Discharges from Construction Activity and transmitted comments on the draft
permit. The USVI DPNR Construction General Permit (CGP) was reviewed for completeness by
the EPA Region 2 permitting staff in the New York and Puerto Rico offices using the EPA 2008
NPDES General Permit for Stormwater Discharges from Construction Activities. The USVI
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CGP is nearly completely verbatim from the federal CGP and the previous USVI CGP. The EPA
review of the draft permit did not result in significant comments or concerns.
As of November 2013, 13 permittees have applied for coverage under the USVI CGP. The CGP
includes the federal requirements for the protection of endangered or threatened species, critical
habitat, and historic places. The permit also identifies threatened species that the USVI has
deemed locally important for protection. The permit was issued on November 29, 2012, and
expires on November 30, 2017.
Virgin Islands Multi-Sector General Permit for Stormwater Discharges Associated with
Industrial Activity (VIMSGP)
On April 20, 2011, the EPA completed its review of the USVI DPNR's draft General Permit for
Stormwater Discharges Associated with Industrial Activity ("MSGP") and transmitted comments
on the draft permit. The USVI MSGP was reviewed by EPA Region 2 permitting and
compliance staff and the Office of Regional Counsel. Region 2 used EPA's 2008 Multi-Sector
General Permit for Stormwater Discharges Associated with Industrial Activity to review the
USVI MSGP for completeness. The USVI MSGP is nearly completely verbatim from the EPA
MSGP issued in 2008.
Six permittees have applied for coverage under the USVI MSGP. The MSGP includes the
federal requirements for the protection of endangered or threatened species, critical habitats, and
historic places. The permit also identifies species that the USVI has deemed locally important for
protection. The permit does not include any references to snow or de-icing as the climate of the
USVI does not deem it necessary. The permit was issued on December 1, 2012, and expires on
December 31, 2016. Based on our 2011 review of the draft USVI MSGP, the EPA had the
following findings:
• The EPA recommends that the USVI make NOIs under the USVI MSGP publicly
available and/or include language in the future USVI MSGP permit that requires the
permittee to make the NOI and SWMMP available to the public upon request.
• The USVI MSGP does not adequately address the ELG requirements for turbidity, as
described in 40 CFR Part 450. As the USVI MSGP was issued before the 40 CFR Part
450 regulations were adopted, USVI DPNR will need to address any requirements of
those provisions not adequately addressed in the current USVI MSGP when the permit is
renewed.
IV. Special Focus Area Findings
A. Coral Reefs
1. Background
Coral reefs are biodiverse areas that make up less than 1 percent of the marine environment but
help to support 25 percent of oceans' species. Coral reefs on the whole have been significantly
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degraded over the past 25 years. Parts of the Caribbean have experienced an 80% reduction in
coral cover due to massive coral bleaching and overfishing.
According to the National Oceanic and Atmospheric Administration Coral Reef Information
System, coral reefs are a major and conspicuous component of the shelf regions of the US VI.
Fringing and patch reefs, along with spur and groove formations, are typical along St. John and
St. Thomas. St Croix, however, has several large barrier reefs, some of which are associated with
well-developed lagoons. Several threatened and endangered species of coral thrive in the waters
of the US VI. Specifically, the staghorn coral, Acropora cervicornis, and elkhorn coral, Acropora
palmate, which are both listed as a threatened species by the federal government, are found in
USVI territorial waters.
Species indigenous to the USVI and species listed as threatened or endangered by the federal
government are protected by the USVI Endangered and Indigenous Species Act of 1990. The
USVI Endangered Species Act protects all indigenous species, including live and dead coral.
Specifically, 12 VIC 105(a) states that no person may take, sell, or transport any indigenous
species, including live and dead coral, unless that person holds a valid permit or license to do so.
Additionally, 12 VIC 105(b) states that no person may take, sell, or transport any specimen of a
species listed as endangered or threatened by the federal or territorial government.
Aside from their stunning beauty and rich marine life, coral reefs provide a wide variety of
ecosystem services, including: protection to coastal communities from storm surge, providing
habitat for fisheries, sequestering carbon, attraction for lucrative recreation and tourism, and
extraction of chemical compounds for medical uses.
Considering that one of the stated purposes of the CWA is to restore and maintain the chemical,
physical, and biological integrity of water resources, EPA Region 2 reviewed the USVI DPNR's
process for identifying the risk to threatened or endangered coral species as part of the 2013
USVI PQR.
2. Program Strengths
The USVI DPNR TPDES program, within the Division of Environmental Protection (DEP),
collaborates with USVI Division of Fish and Wildlife (F&W) on endangered species review for
each Notice of Intent for coverage under the USVI CGP or USVI MSGP. The F&W endangered
species review is for both locally protected and federally listed coral species. An official
memorandum or letter, from the Director of F&W to the Director of the DEP, details the results
of the endangered species review. If F&W determines that the discharge may negatively impact
indigenous, endangered or threatened coral species, F&W and DEP collaborate closely to
determine which pollutants in the discharge need additional effluent limitations and to identify
additional best management practices that will reduce negative impacts to coral species. The
additional effluent limitations or best management practices are incorporated into the TPDES
permit or Stormwater Pollution Prevention Plan.
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3. Critical Findings
USVIDPNR does not conduct endangered species reviews for individual permits or NOIs for
general permits other than the USVICGP and USVIMSGP. If a permit writer believes that
endangered species may be a concern, they may ask F&W to do a review but there is no official
policy requiring endangered species for review for individual permits. USVI DPNR should
consider conducting a cumulative impact analysis to identify the location of coral species that
may be impacted by TPDES discharges.
USVI DPNR's procedures for conducting endangered species reviews and responding to any
potential threats from TPDES discharges are not memorialized in USVI regulations or in the
draft SOPs.
4. Suggested Practices and Action Items
• USVI DPNR could benefit from having a written policy regarding when an endangered
species review is required for an individual permit.
• USVI DPNR could benefit from conducting an analysis of the location of listed coral
species in relation to TPDES permitted discharges and determine what the cumulative
impact may be.
B. Municipal Separate Storm Sewer Systems
Polluted stormwater runoff is commonly transported through Municipal Separate Storm Sewer
Systems (MS4s), from which it is often discharged untreated into local waterbodies. To prevent
harmful pollutants from being washed or dumped into an MS4, operators of MS4s must obtain
an NPDES permit and develop a stormwater management program. Phase 1, issued in 1990,
requires medium and large cities or certain counties with populations of 100,000 or more to
obtain NPDES permits for their stormwater discharges. Phase II, issued in 1999, requires
regulated small MS4s in urbanized areas, as well as small MS4s outside the urbanized area that
are designated by the permitting authority, to obtain NPDES permit coverage for their
stormwater discharges.
Generally, Phase 1 MS4s are covered by individual permits and Phase II MS4s are covered by a
general permit. Each regulated MS4 is required to develop and implement a stormwater
management program (SWMP) to reduce the contamination of stormwater runoff and prohibit
illicit discharges.
The United States Census Bureau defines an urbanized area as a municipality of 50,000 persons
or a municipality which contains 1,000 persons per square mile. As of the 2010 Census, there
are no urbanized areas, as defined by the Census Bureau, in the USVI. The federal regulations
for the stormwater program provide that the permitting authority may determine that a discharge
contributes "to a violation of a water quality standard or is a significant contributor to a violation
of pollutants to waters of the United States." Such a determination, using Residual Designation
Authority, would allow USVI DPNR to issue an MS4 permit and address any impairment caused
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by stormwater runoff from a specific source not covered by any of the Territory's current general
or individual stormwater permits.
1. Suggested Practices and Action Items
• USVIDPNR should evaluate their impaired waters listing to determine if there are waters
for which stormwater is a significant contributor to an exceedance of water quality
standards.
• USVI DPNR should review Residual Designation Authority at 40 CFR 122.26(a)(v).
• USVI DPNR should investigate all options to protect against stormwater impacts from
MS4s even if the "urbanized areas" definition is not met (e.g., encouraging and
promoting green infrastructure practices in new or re-development projects).
C. Rum Distilleries
1. Background
For the 2013 USVI PQR, Region 2 reviewed the permit and facility requirements for Cruzan
VIRIL Limited (formerly VI Rum) and Diageo USVI to specifically focus on potential permit
requirements related to waste streams from rum distillation facilities since this is a key industrial
sector for the U.S. Virgin Islands. Currently, Diageo USVI does not have a discharge
necessitating TPDES permit coverage but is expected to apply for coverage under the USVI
MSGP.
Cruzan Rum is a rum distillery on St. Croix. Funds received by the Government of the Virgin
Islands through the rebate of federal excise taxes levied on Cruzan's produced rum constitute a
significant portion of the Territory's general revenue. Cruzan Rum has historically discharged
untreated wastewater from fermentation and distillation processes through an ocean outfall to the
Caribbean Sea. Treatment to remove solids from fermentation commenced in 2001. Prior to the
installation of treatment, the discharge plume was visible for miles along the south coast of St.
Croix. The Caribbean Basin Economic Recovery Act, passed by Congress in 1983, provides an
exemption for this discharge from the Clean Water Act. The law provides an exemption for rum
distilleries from effluent limitations, national standards, and ocean discharge criteria, provided
that the Governor of the Territory certifies that the discharge will not interfere with the
attainment of water quality or protection of marine biota.
The Regional Administrator of EPA Region 2 and the Governor of the Virgin Islands entered
into a Memorandum of Understanding in August 2002 which established a funding mechanism
of up to $6 million for "study and potential implementation of wastewater treatment options" for
Cruzan Rum. As a result, the EPA agreed to allow the USVI to reissue the TPDES permit for VI
Rum (now Cruzan Rum) in August 2002, allowing a flow increase but without any increase in
solids discharges.
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In 2003, the EPA concluded that there is a potential for negative impacts from the Cruzan Rum
discharge on the coastal environment, based on the results of a 2002 ambient survey. A prior
EPA report identified general concerns regarding solids discharges and shading from the plume.
In a July 30, 2004 letter, the EPA stated that its monitoring results "offer adequate evidence that
the discharge does not meet the requirements necessary to retain the Caribbean Basin Economic
Recovery Act exemption." At the conclusion of the MOU treatability study period and after
numerous discussions between the EPA and USVIDPNR, the USVI agreed to reissue the
Cruzan Rum TPDES permit in 2008 with a requirement that Cruzan design and construct a
treatment facility for the rum distillery effluent within three and a half years of the effective date
of the permit.
Cruzan Rum is currently discharging under the terms of the permit issued by USVI DPNR on
February 22, 2008. In accordance with the permit, Cruzan Rum has chosen a treatment option
which will eliminate the discharge of effluent to the Caribbean Sea. The option includes direct
feed of the effluent to an on-site evaporator for concentrations of solids. Water condensate will
be reused in the distillery and solids will be sold to an animal feed supplier. On December 18,
2009, the Governor announced that the USVI Public Finance Authority successfully closed on
$39 million of revenue bonds "that were sold to provide funds to construct wastewater facilities
to address long-standing effluent disposal issues at the Cruzan VIRIL, Ltd. rum distillery."
Cruzan Rum broke ground on the new treatment facility on April 16, 2010, substantively
meeting its permit obligation. EPA Region 2 staff visited the facility during the first week of
February 2011, and confirmed that the permittee is on track to meet its construction completion
milestones. Construction was completed by the end of October. Cruzan is currently engaged in
plant startup and commissioning of new equipment. For the 2013 USVI PQR, the EPA reviewed
a preliminary draft TPDES permit which includes a schedule for gradually decreasing the
shutdown periods of the new system, during which the facility would be discharging. This has
the effect of increasing the period of time where the discharge has been eliminated, to the goal of
complete elimination of the discharge by the end of the permit term.
The Diageo Company has constructed a rum distillery, also on the southern shore of St. Croix,
producing rum under several brands, including Captain Morgan. This facility was also designed
with a zero discharge treatment system. The two facilities differ in that Diageo has utilized an
anaerobic treatment system, capturing biogas for utilization in electric generation. This creates a
byproduct of pellets which the company plans to use as landfill cover. This byproduct differs
from the slurry produced by Cruzan, in that it contains fewer nutrients that can be used as
fertilizer or feed, and is in the form of dry pellets as opposed to wet slurry.
2. Program Strengths
The previous TPDES permit for the Cruzan Rum facility included a well written compliance
schedule which kept the permittee on track for selecting, designing, and installing a treatment
technology. The installation of waste treatment at Cruzan Rum represents significant progress,
because the technology chosen not only mitigates the discharge, but will eventually eliminate the
discharge of distillery waste. The sustainable design also includes recycling water back into the
process and production of a byproduct that can be recycled as fertilizer or feedstock. Similarly,
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Diageo chose a sustainable design that does not have a significant discharge, utilizes biogas,
recycles water back into the production process, and creates a byproduct that could potentially be
reused.
3. Critical Findings
The draft Cruzan Rum permit includes some documentation of the rationale for permit limits
within the document. However, there was no fact sheet documenting the assumptions, rationale,
and regulatory justification for permit conditions. In particular, there is no analysis of reasonable
potential to cause or contribute to a violation of water quality standards. The record also lacks
detail about the production process and treatment system, receiving water, and a map showing
the facility location. The EPA did not review a permit for Diageo as there is no process discharge
and they intend to apply for the required coverage under the VIMSGP.
4. Suggested Practices and Action Items
• A fact sheet must be developed for the Cruzan Rum permit to document and explain the
basis for permit limitations and conditions.
• The fact sheet for the Cruzan Rum permit should include documentation of a narrative or
numeric analysis of reasonable potential to cause or contribute to an exceedance of water
quality standards for the periods when the treatment system is shut down and the facility
is discharging.
• The compliance schedule included in the Cruzan Rum permit must be enforceable,
require that the discharge be eliminated by the end of the permit term, and conform to the
EPA's regulatory requirements for compliance schedules at 40 CFR 122.47.
• US VIDPNR must ensure that the Diageo facility obtains TPDES permit coverage for
any discharges of storm water from the facility.
V. Action Items
This section provides a summary of the main findings of the 2013 USVIPQR and describes the
action items that were developed as part of the PQR to improve USVI DPNR's TPDES
permitting program. The action items will serve as the basis for ongoing discussion between the
EPA and USVI DPNR. These discussions will focus on developing strategies to address each
action item to eliminate program deficiencies and improve program performance.
The action items are divided into three categories to identify the priority that should be placed on
each item and to facilitate discussions between the EPA and USVI DPNR.
• Critical Findings (Category 1) - Most Significant: action items will address a current
deficiency or noncompliance with a federal regulation.
• Recommended Actions (Category 2) - Recommended: action items will address a
current deficiency with the EPA guidance or policy.
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• Suggested Practices (Category 3) - Suggested: proposed action items are listed as
recommendations to increase the effectiveness of USVI DPNR's TPDES permit program.
Action items based on critical findings and recommended actions should be used to augment the
list of "follow up actions" currently established as indicator performance measures and tracked
under the EPA's Strategic Plan Water Quality Goals.
A. Basic Facility Information and Permit Application
USVI DPNR TPDES permits generally contain appropriate permit issuance, effective and
expiration dates, authorized signature, and contained specific authorization-to-discharge
information. However, in one instance, the issuance date of a permit was after the effective date.
The following is an action item to help USVI DPNR strengthen its TPDES permit program:
• USVI DPNR must issue (sign and date) a permit prior to the effective date of the permit.
(Category 2)
B. Technology-Based Effluent Limitations
USVI DPNR's TPDES permits do not consistently establish short- and long-term average
effluent limitations. While secondary treatment standards are consistently addressed in POTW
permits, these standards are not always established correctly (e.g., no influent monitoring for
BOD5). Due to the lack of detail in the administrative record, there was often no documentation
of the calculations used to develop effluent limitations based on ELGs or a discussion of the
applicability of ELGs. In some files, it was unclear if USVI DPNR had applied ELGs.
Additionally, there was no discussion of the basis of the TBELs established in the permit. In
many cases, it was difficult to discern if final effluent limitations were technology- or water
quality-based.
The following are action items to help USVI DPNR strengthen its TPDES permit program:
• USVI DPNR must establish short- and long-term effluent limitations in order to be
consistent with EPA regulations at 40 CFR 122.45(d). (Category 1)
• USVI DPNR must establish, when applicable, secondary treatment standards at least as
stringent as the federal requirements in order to be in accordance with EPA regulations at
40 CFR 133.102 and 40 CFR 133.105. (Category 1)
• USVI DPNR must include a discussion of the calculations used to develop effluent
limitations based on ELGs, or a discussion of the applicability of ELGs, in the fact sheet
for major facilities in order to be in accordance with EPA regulations at 40 CFR 124.56.
(Category 1)
• USVI DPNR must include in the fact sheet a discussion of the basis for the TBELs
established in a major permit in order to be in accordance with EPA regulations at 40
CFR 124.56. (Category 1)
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• USVIDPNR should include a discussion of the calculations used to develop effluent
limitations based on ELGs, or a discussion of the applicability of ELGs, in the
administrative record for minor facilities as discussed in the EPA's 2010 NPDES Permit
Writer's Manual. (Category 2)
• USVI DPNR must include in the administrative record a discussion of the basis for the
TBELs established in a minor permit as discussed in the EPA's 2010 NPDES Permit
Writer's Manual. (Category 2)
C. Water Quality-Based Effluent Limitations
USVI DPNR's administrative record for permits does not include a discussion of the receiving
water impairments or identify if a TMDL has been developed for the receiving water body. The
fact sheets and administrative record did not provide a discussion of the reasonable potential
analysis for pollutant present in the effluent or for WET. Many of the TPDES permits reviewed
did not establish maximum daily and average monthly limitations for continuous dischargers as
required by 40 CFR 122.45(d). Effluent limitations for enterococci are also not consistently
established in TPDES permits. Additionally, the permits and administrative records for facilities
with mixing zones do not provide sufficient information regarding the development of the
mixing zone and do not clearly indicate where the effluent limitation must be met (e.g., at end-
of-pipe or at the edge of the mixing zone).
The following are action items to help USVI DPNR strengthen its TPDES permit program:
• USVI DPNR must include in the fact sheet or administrative record a discussion of the
reasonable potential analysis for pollutants present in the effluent and for WET in order
to be in accordance EPA regulations with 40 CFR 124.56. (Category 1)
• USVI DPNR must establish maximum daily and average monthly effluent limitations for
all dischargers other than POTWs in order to be in accordance with EPA regulations at
40 CFR 122.45(d). (Category 1)
• USVI DPNR must establish, when applicable, effluent limitations for enterococci in
order to be in accordance with 12 VIRR 184 and EPA regulations at 40 CFR 131.41.
(Category 1)
• USVI DPNR must include a discussion of the development of mixing zones in the fact
sheet or administrative record in order to be accordance with EPA regulations at 40 CFR
124.56 and clearly identify where the effluent limitations apply in the permit. (Category
1)
• USVI DPNR should include a discussion of the receiving water impairments or identify
if a TMDL has been developed in the fact sheet or administrative record. (Category 2)
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D. Monitoring and Reporting
USVI DPNR's TPDES permits do not consistently provide the location of the receiving water,
outfall, or internal monitoring locations as required by 40 CFR 124.56.
The following action item will help USVI DPNR strengthen its TPDES permit program:
• USVI DPNR must clearly identify the location of the receiving water, outfall, and
internal monitoring locations for all TPDES permits in order to be consistent with EPA
regulations at 40 CFR 122.56. (Category 1)
E. Special and Standard Conditions
Standard conditions established at 40 CFR 122.41 were consistently included in TPDES permits.
However, the additional standard conditions specific to POTWs established at 40 CFR 122.42(a)
were not established in POTW permits.
The following action item will help USVI DPNR strengthen its TPDES permit program:
• USVI DPNR must establish the standard conditions applicable to specified categories of
NPDES permits in order to be in accordance with 40 CFR 122.42. (Category 1)
F. Administrative Process
The administrative record did not consistently include documentation that a proposed permit had
been provided to the EPA for review before the final issuance of the permit. Additionally, some
TPDES permits discharge into waters such as irrigation systems, which are not regulated by the
NPDES program.
The following are action items to help USVI DPNR strengthen its TPDES permit program:
• USVI DPNR must provide the EPA with a proposed permit, defined in 40 CFR 122.22,
for review before the issuance of the final permit in order to be in accordance with
federal regulations at 40 CFR 123.44. (Category 1)
• USVI DPNR must ensure that a permit is not administratively extended unless the
appropriate renewal application was received 180 days before the expiration date of the
previous permit in order to be in accordance with federal regulations at 40 CFR 122.6 and
122.21. (Category 1)
• USVI DPNR should identify in the Integrated Compliance Information System (ICIS)
permits that do not discharge to waters regulated by the federal NPDES program.
(Category 3)
G. Administrative Record
The administrative records reviewed did not consistently include a draft permit, fact sheet or
statement of basis, or documentation that the draft permit had been public noticed. While parts of
the administrative record may be stored electronically, the administrative record should contain a
reference to where the additional information could be located to support the permitting decision.
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When available, fact sheets did not meet the federal requirements at 40 CFR 124.8 and 124.56.
Fact sheets did not adequately describe the type of facility or activity which is subject to the
permit, the type and quantity of wastes or pollutants of concern, applicability of federal
technology-based standards, the receiving water quality, or the applicable TMDL and water
quality standards. Fact sheets also do not clearly provide documentation of the reasonable
potential analysis or a determination of calculated effluent limitations (both technology- and
water quality-based). The administrative record did not contain sufficient information to support
the basis of the draft permit conditions including references to applicable statutory or regulatory
provisions or other appropriate supporting information.
In one instance, the reviewed permit was classified as a minor but had a design flow of more
than 1 MGD. The EPA was unable to determine why the facility was classified as a minor.
The following are action items to help USVIDPNR strengthen its TPDES permit program:
• USVI DPNR must create fact sheets, which include all information required by 40 CFR
124.56, for all major permits when they are developed in order to be in accordance with
federal regulations at 40 CFR 124.8. (Category 1)
• USVI DPNR must include in the administrative record a description of the permitted
facility or activity in the administrative record in order to be consistent with EPA
regulations at 40 CFR 124.8 and documentation of the public notice in accordance with
40 CFR 124.10. (Category 1).
• USVI DPNR should include all elements of the administrative record described in
Section 11.2.1 of the 2010 EPA Permit Writer's Manual. (Category 2)
• USVI DPNR should make improvements to its standard fact sheet and permits to include
a more robust discussion and documentation of the basis of permit conditions such as the
development of effluent limitations and mixing zones and to include a discussion of the
existing impairments in the receiving waterbody and the current status of TMDL
development. (Category 2)
• USVI DPNR should include the EPA major/minor discharger ranking sheet in the
administrative record. (Category 3)
• USVI DPNR should formalize guidance for filing hard copy and/or electronic files.
(Category 3)
H. Nutrients
At this time, there are no action items for the USVI TPDES program specific to nutrients.
I. Pesticide General Permit
In addition to continuing with the implementation of the PGP, action items to help the USVI
DPNR strengthen its TPDES permit program include the following:
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• USVIDPNR should follow up on the status of the VIDOH application and verify that no
unauthorized discharges are occurring (Category 3).
• USVI DPNR should conduct a targeted outreach campaign to ensure that entities that are
likely to be covered by the permit are aware of the requirements (Category 3).
J. Pretreatment
USVI DPNR is not delegated to administer a pretreatment program and there are no facilities
subject to pretreatment requirements in the USVI. Action items regarding pretreatment at this
time are:
• The USVI DPNR should consider undertaking its own evaluation of whether there are
any SIUs or CIUs within the territory. (Category 3)
• EPA Region 2 should develop a procedure to ensure notification when indirect industrial
discharges are reported on a permit application and when changes at a facility may
warrant pretreatment program development. (Category 3)
K. Stormwater
Action items to help the USVI DPNR strengthen its TPDES permit program include the
following:
• The EPA recommends that the USVI make NOIs under the USVI MSGP publicly
available and/or include language in the future USVI MSGP permit that requires the
permittee to make the NOI and SWMMP available to the public upon request. (Category
2)
• USVI DPNR must, at reissuance of the MSGP, address any requirements of 40 CFR Part
450 which are not adequately addressed in the current USVI MSGP, which was issued
before those provisions were adopted, in order to be consistent with federal regulations...
(Category 1)
• USVI DPNR should post all general permits and supporting documentation online to
increase transparency. (Category 3)
L. Coral Reefs
The following action items could leverage the USVI DPNR TPDES permit program to help
protect coral reefs:
• USVI DPNR could benefit from having a written policy regarding when an endangered
species review is required for an individual permit. (Category 3)
• USVI DPNR could benefit from conducting an analysis of the location of listed coral
species in relation to TPDES permitted discharges and determine what the cumulative
impact may be. (Category 3)
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M. Municipal Separate Storm Sewer Systems
At this time, the USVI does not have any municipalities which exceed the federal population size
trigger for permitting as a MS4 nor has the USVI designated any municipalities within the
territory as an MS4. USVI currently has 87 waterbodies listed on the 2012 303(d) List of
Impaired Waters. Sixteen of those water bodies are listed as a high or medium priority. Urban
runoff or storm sewers are listed as the source of the impairment for seven waterbodies on the
2012 303(d) List. Even though there are no municipalities that meet the population triggers for
when an MS4 permit is required at this time, the Territory should evaluate the seven listed
waterbodies that indicate storm water as a source of impairment and consider whether using
RDA is appropriate for the municipalities that encompass these waters.
Action items to help the USVI DPNR strengthen its TPDES permit program include:
• USVI DPNR should evaluate its impaired waters listing to determine if there are waters
for which municipal stormwater is a significant contributor to an exceedance of water
quality standards. (Category 3)
• USVI DPNR should review the Residual Designation Authority at 40 CFR 122.26(a)(v) .
(Category 3)
• USVI DPNR should investigate all options to protect against stormwater impacts from
MS4s even if the "urbanized areas" definition is not met (e.g., encouraging and
promoting green infrastructure practices in new or re-development projects). (Category 3)
N. Rum Distilleries
Action items to help the USVI DPNR strengthen its TPDES permit program include the
following:
• USVI DPNR must include in the administrative record for Cruzan Rum documentation of
a narrative or numeric analysis of reasonable potential to cause or contribute to an
exceedance of water quality standards for the periods when the treatment system is shut
down and the facility is discharging in order to be in accordance with federal regulations
at 40 CFR 124.8 and 124.56. (Category 1)
• USVI DPNR must ensure that all conditions or references to compliance schedules in
permits are consistent with the EPA regulations at 40 CFR 122.47. (Category 1)
• USVI DPNR must ensure that the Diageo facility obtains TPDES permit coverage for
any discharges of storm water from the facility in order to be in accordance with federal
regulations at 40 CFR 122.26. (Category 1)
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Appendix A - Permits Reviewed
TPDES No.
Permit Name
Topics for Review
VI0000019
Hovensa, L.L.C.
Core Review; Coral Reefs
VI0000051
Virgin Islands Water and Power Authority -
Estate Richmond
Core Review; Coral Reefs
VI0020036
Virgin Islands Waste Management Authority -
Anguilla Wastewater Treatment Facility
Core Review; Nutrients;
Pretreatment
VI0020044
Virgin Islands Waste Management Authority -
Red Point Wastewater Treatment Facility
Core Review; Pretreatment
VI0020052
Cruzan Viril, Ltd.
Core Review; Coral Reefs, Rum
Distilleries
VI0039829
BCM/CHI Frenchman's Reef, Inc.
Core Review
VI0040231
Grapetree Shores, Inc. - Divi Carina Bay Resort
Core Review; Nutrients
VI0040266
Virgin Islands Waste Management Authority -
George Simmonds Wastewater Treatment Plant
Core Review; Nutrients;
Pretreatment
VI0040291
Coral World VI, Inc
Core Review
VI0040746
Market Square East, Inc.
Core Review
VI0040479
Ritz Carlton Hotel
Core Review
VI0002003
Mangrove Lagoon Wastewater Treatment Facility
Core Review
VIGSA0033
Diageo USVI
Rum Distilleries
General Permits
VIGSA0000
Virgin Islands General Permit Authorization for Storm
Water Discharges Associated with Construction
Activity
Stormwater
VIG87000
Virgin Islands Pesticide General Permit (PGP) for Point
Source Discharges to Waters of the United States
Virgin Islands from the Application of Pesticides
Pesticides
VIR050000
Virgin Islands Multi-Sector General Permit for
Stormwater Discharges Associated with Industrial
Activity (VIMSGP)
Stormwater
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Appendix B - Action Items
I. Category 1 Action Items - Critical Findings
Topic Area
Action Item
Technology-Based
Effluent Limitations
USVIDPNR must establish short- and long-term effluent
limitations in order to be consistent with EPA regulations at
40 CFR 122.45(d).
USVI DPNR must establish, when applicable, secondary treatment
standards in order to be in accordance with EPA regulations at 40
CFR 133.102 and 40 CFR 133.105.
USVI DPNR must include a discussion of the calculations used to
develop effluent limitations based on ELGs, or a discussion of the
applicability of ELGs, in the fact sheet for major facilities in
order to be in accordance with EPA regulations at 40 CFR
I'M 56
USVI DPNR must include in the fact sheet a discussion of the basis
for the TBELs established in a major permit in order to be in
accordance with EPA regulations at 40 CFR 124.56.
Water Quality-Based
Effluent Limitations
USVI DPNR must include in the fact sheet or administrative record
a discussion of the reasonable potential analysis for pollutants
present in the effluent and for WET in order to be in accordance
EPA regulations with 40 CFR 124.56.
USVI DPNR must establish maximum daily and average monthly
effluent limitations for all dischargers other than POTWs in order
to be in accordance with EPA regulations at 40 CFR 122.45(d).
USVI DPNR must establish, when applicable, effluent limitations
for enterococci in order to be in accordance with 12 VIRR 184
and EPA regulations at 40 CFR 131.41.
USVI DPNR must include a discussion of the development of
mixing zones in the fact sheet or administrative record in order to
be accordance with EPA regulations at 40 CFR 124.56 and clearly
identify where the effluent limitations apply in the permit.
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Monitoring
and Reporting
US VIDPNR must clearly identify the location of the receiving
water, outfall, and internal monitoring locations for all TPDES
permits in order to be consistent with EPA regulations at 40 CFR
122.56.
Special and
Standard Conditions
USVI DPNR must establish the standard conditions applicable to
specified categories of NPDES permits in order to be in
accordance with 40 CFR 122.42.
Administrative Process
USVI DPNR must provide the EPA with a proposed permit,
defined in 40 CFR 122.22, for review before the issuance of the
final permit in order to be in accordance with federal regulations
at 40 CFR 123.44.
USVI DPNR must ensure that a permit is not administratively
extended unless the appropriate renewal application was received
180 days before the expiration date of the previous permit in order
to be in accordance with federal regulations at 40 CFR 122.6 and
122.21.
Administrative Record
USVI DPNR must create fact sheets, which include all information
required by 40 CFR 124.56, for all major permits when they are
developed in order to be in accordance with federal regulations at
40 CFR 124.8.
USVI DPNR must include in the administrative record a
description of the permitted facility or activity in the administrative
record in order to be consistent with EPA regulations at 40 CFR
124.8 and documentation of the public notice in accordance with
40 CFR 124.10.
Stormwater
USVI DPNR must, at reissuance of the MSGP, address any
requirements of 40 CFR Part 450 which are not adequately
addressed in the current USVI MSGP, which was issued before
those provisions were adopted, in order to be consistent with
federal regulations.
Rum Distilleries
USVI DPNR must include in the administrative record for Cruzan
Rum documentation of a narrative or numeric analysis of
reasonable potential to cause or contribute to an exceedance of
water quality standards for the periods when the treatment system
is shut down and the facility is discharging in order to be in
accordance with federal regulations at 40 CFR 124.8 and 124.56.
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Rum Distilleries (cont.)
US VIDPNR must ensure that all conditions or references to
compliance schedules in permits are consistent with the EPA
regulations at 40 CFR 122.47.
US VI DPNR must ensure that the Diageo facility obtains TPDES
permit coverage for any discharges of storm water from the facility
in order to be in accordance with federal regulations at 40 CFR
122.26.
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II. Category 2 Action Items - Recommended Actions
Topic Area
Action Item
Basic Facility
Information and Permit
Application
USVIDPNR must issue (sign and date) a permit prior to the
effective date of the permit.
Technology-Based
Effluent Limitations
USVI DPNR should include a discussion of the calculations used to
develop effluent limitations based on ELGs, or a discussion of the
applicability of ELGs, in the administrative record for minor
facilities as discussed in the EPA's 2010 NPDES Permit Writer's
Manual.
USVI DPNR must include in the administrative record a discussion
of the basis for the TBELs established in a minor permit as
discussed in the EPA's 2010 NPDES Permit Writer's Manual.
Water Quality-Based
Effluent Limitations
USVI DPNR should include a discussion of the receiving water
impairments or identify if a TMDL has been developed in the fact
sheet or administrative record.
Administrative Record
USVI DPNR should include all elements of the administrative
record described in Section 11.2.1 of the 2010 EPA Permit
Writer's Manual.
USVI DPNR should make improvements to its standard fact sheet
and permits to include a more robust discussion and documentation
of the basis of permit conditions such as the development of
effluent limitations and mixing zones and to include a discussion of
the existing impairments in the receiving waterbody and the current
status of TMDL development.
Stormwater
The EPA recommends that the USVI make NOIs under the USVI
MSGP publicly available and/or include language in the future
USVI MSGP permit that requires the permittee to make the NOI
and SWMMP available to the public upon request.
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III. Category 3 Action Items - Suggested Practices
Topic Area
Action Item
Administrative Process
USVIDPNR should identify in ICIS permits that do not
discharge to waters regulated by the federal NPDES program.
Administrative Record
USVI DPNR should include the EPA major/minor discharger
ranking sheet in the administrative record.
USVI DPNR should formalize guidance for filing hard copy and/or
electronic files.
Pesticide General Permit
USVI DPNR should follow up on the status of the VIDOH
application and verify that no unauthorized discharges are
occurring
USVI DPNR should conduct a targeted outreach campaign to
ensure that entities that are likely to be covered by the permit are
aware of the requirements
Pretreatment
The USVI DPNR should consider undertaking its own evaluation
of whether there are any SIUs or CIUs within the territory.
EPA Region 2 should develop a procedure to ensure notification
when indirect industrial discharges are reported on a permit
application and when changes at a facility may warrant
pretreatment program development.
Stormwater
USVI DPNR should post all general permits and supporting
documentation online to increase transparency.
Coral Reefs
USVI DPNR could benefit from having a written policy regarding
when an endangered species review is required for an individual
permit.
USVI DPNR could benefit from conducting an analysis of the
location of listed coral species in relation to TPDES permitted
discharges and determine what the cumulative impact may be.
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MS4s
USVIDPNR should evaluate its impaired waters listing to
determine if there are waters for which municipal stormwater is a
significant contributor to an exceedance of water quality standards.
USVI DPNR should review the Residual Designation Authority at
40 CFR 122.26(a)(v).
USVI DPNR should investigate all options to protect against
stormwater impacts from MS4s even if the "urbanized areas"
definition is not met (e.g., encouraging and promoting green
infrastructure practices in new or re-development projects).
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