Title 47 W. Va. C.S.R.

Water Resources, Division Of Water And Waste Management Water Resources, Division Of Water And Waste Management

Series 01 Administrative Proceedings And Civil Penalty Assessment

W. Va. Code R. § 47-1-1 General

1.1. Scope. -- This rule establishes a procedure for the resolution of enforcement actions and the assessment of civil penalties in lieu of the institution of a civil action as provided in W. Va. Code § 22-11-22.

1.2. Authority. -- W. Va. Code §22-11-22(b).

1.3. Filing Date. -- April 16, 2002.

1.4. Effective Date. -- May 1, 2002.

1.5. Nothing in this rule shall be construed as limiting or altering the authority of the Secretary to enforce the provisions of the Water Pollution Control Act [Act] as set forth therein. This enforcement provision is in addition to any and all other enforcement provisions set forth in the Act.

W. Va. Code R. § 47-1-2 Definitions

2.1. This Rule hereby incorporates by reference the definitions of all terms as contained in the Water Pollution Control Act W. Va. Code § 22-11-1 et seq. and 47 CSR 10. In addition, for the purpose of this Rule, the following definitions apply:

2.2. “Administrative Proceedings” means those proceedings undertaken, pursuant to this Rule, by the Secretary upon his decision to attempt to resolve alleged violations of the Water Pollution Control Act and its rules.

2.3. “Base Penalty” means that amount assessed for a violation of the Act or its rules based solely upon the extent of the deviation from the Act and the potential for harm to the public or the environment resulting from the violation.

2.4. “Responsible Party” may be a permittee or any person alleged to have violated the Act or its Rules.

2.5. “Toxicity,” means the degree to which any substance is potentially harmful to human health or the environment.

2.6. “Secretary” means the Secretary of the Department of Environmental Protection.

W. Va. Code R. § 47-1-3 Applicability of the Rule

3.1. Upon discovery of a violation, through whatever means, of the Water Pollution Control Act or the rules promulgated pursuant thereto, the Secretary may, at his discretion, choose to institute administrative proceedings pursuant to the Act and this rule to resolve the alleged violation.

3.2. Not a Waiver. -- Nothing in this rule shall be construed as limiting the ability of the Secretary to pursue a civil action for any violation of the Act or its rules should the agency and the responsible party be unable to reach settlement of the alleged violations pursuant to the procedures set forth in this Rule. The Secretary is under no requirement to institute administrative proceedings prior to taking any other lawful action pursuant to the Act or its rules.

W. Va. Code R. § 47-1-4 Notice

4.1. The Secretary shall notify any responsible party of his decision to institute administrative proceedings pursuant to the Act and this Rule.

4.2. Notice of the Secretary’s decision to commence an administrative proceeding in an attempt to resolve an alleged violation of the Act or its rules shall be by certified mail to the responsible party.

4.3. Notice shall include a proposed Consent Order initially containing, at a minimum, findings of fact and conclusions of law outlining the alleged violations, any remedial work to be performed, and a proposed civil penalty assessment which shall be based upon the procedure set forth in this Rule.

4.4. The responsible party shall respond to the Secretary’s Notice within ten days of receipt thereof indicating whether it shall participate or refuses to participate in the administrative proceeding. Failure to timely respond shall be considered refusal to participate in the process.

W. Va. Code R. § 47-1-5 Administrative Proceedings

5.1. Should the responsible party agree to participate in an administrative proceeding, the parties shall set a meeting to be held within thirty days of the initial Notice if possible.

5.2. The administrative proceeding may consist of multiple meetings amongst the parties and may continue until a satisfactory resolution of the alleged violation is agreed to.

5.3. If agreed to, resolution of the alleged violations contained in the Notice shall be by Consent Decree entered into by the responsible party and the Secretary.

5.4. The administrative proceeding may be terminated at any time and for any reason by any party involved in the proceeding.

W. Va. Code R. § 47-1-6 Civil Penalty Assessment

6.1. Determination of Base Penalty.

6.1.a. Potential for harm to human health and the environment. --

6.1.a.1. The potential for harm to human health or the environment from a violation may be determined by the likelihood and degree of exposure of persons or the environment to pollution, or the degree of adverse effect of noncompliance on statutory or regulatory purposes or procedures for implementing the regulatory program.

6.1.a.2. Emphasis shall be placed on the potential harm posed by a violation rather than the actual harm which occurred. There need not be any showing of actual harm to human health or the environment to support a finding of potential harm.

6.1.a.3. The Secretary shall determine whether the potential for harm was either major, moderate or minor dependent upon factors to be considered on a case-by case analysis.

6.1.b. Extent of Deviation from Requirements. --

6.1.b.1. The extent of deviation from the statutory or regulatory requirements may be determined by the degree to which the requirement is violated.

6.1.b.2. The Secretary shall determine whether the extent of deviation from the statutory or regulatory requirement was either major, moderate or minor dependent upon factors to be considered on a case-by-case analysis.

6.1.c. Factors which may be considered in determining potential for harm to human health and the environment and the extent of deviation from a regulatory requirement may include, but are not limited to, amount of pollutants released, toxicity of the pollutant, sensitivity of the environment potentially effected, length of time of violation, actual human and environmental exposure and resultant effects upon human health and the environment, and degree of non-compliance.

6.1.d. Civil Penalty Matrix. -- Each of the above factors - potential for harm and extent of deviation from a requirement - forms one of the axes of a civil penalty matrix from which the base penalty is calculated. The matrix shall have nine cells each containing a penalty range. The selection of the exact penalty amount is within the discretion of the Secretary. The reasons for the violation, the intent of the responsible party, or other factors are not considered. The complete matrix is illustrated in Appendix A.

6.2. Penalty Adjustment Factors. --

6.2.a. The base penalty may be adjusted at the discretion of the Secretary after consideration of factors presented by the responsible party or his staff. Said adjustment may raise or lower the base civil penalty.

6.2.b. The Secretary may consider the following factors in determining whether an adjustment in the base civil penalty assessment is justified;

6.2.b.1. Degree of or absence of willfulness and/or negligence.

6.2.b.2. Good faith efforts by the permittee both before and after an alleged violation to comply.

6.2.b.3. Cooperation with the Secretary.

6.2.b.4. Previous compliance/non-compliance history.

6.2.b.5. Ability to pay a civil penalty.

6.2.b.6. Economic benefits derived by the responsible party.

6.2.b.7. The public interest.

6.2.b.8. Loss of enjoyment of the environment due to the violation.

6.2.b.9. Staff investigative costs.

6.2.b.10. Other factors deemed relevant by the Secretary which may be present on a case-by-case analysis.

6.3. In cases of an ongoing or continuing violation, each day of violation is one distinct violation for which a calculation must be made.

W. Va. Code R. § 47-1-7 Entry of Consent Decree

7.1. Prior to a responsible party and the Secretary signing any Consent Decree resolving an alleged violation of the Act or its rules pursuant to this rule, said Consent Decree shall be subject to the public notice and comment requirements set forth in 47 Code of State Rules, Series 10, Section 16.2.c.

7.2. The Secretary, based upon the public comments, may determine to either modify the Consent Decree based upon the public comments or execute the Consent Decree as proposed.

7.3. Should the Secretary modify the Consent Decree as a result of public comments, the responsible party may reject the proposed modifications and thereby may reject the modified Consent Decree.

7.4. In as much as this Rule may be used by multiple divisions within the Department, the Secretary shall direct the proceeds collected pursuant to this rule to appropriate funds within the Department of Environmental Protection for uses related to permitting, inspection, environmental remediation or any other activity deemed appropriate by the Secretary.

APPENDIX A

CIVIL PENALTY MATRIX

Extent of Deviation from Requirement MAJOR MODERATE MINOR Potential for Harm to MAJOR $8,000 to $10,000 $6,000 to $8,000 $5,000 to $6,000 Human Health or the MODERATE $4,000 to $5,000 $3,000 to $4,000 $2,000 to $3,000 Environment MINOR $1,500 to $2,000 $1,000 to $1,500 Up to $1,000 47CSR1 47CSR1

Series 02 Requirements Governing Water Quality Standards

W. Va. Code R. § 47-2-1 General

1.1. Scope. -- This rule establishes requirements governing the discharge or deposit of sewage, industrial wastes, and other wastes into the waters of the state and establishes water quality standards for the waters of the State standing or flowing over the surface of the State. It is declared to be the public policy of the State of West Virginia to maintain reasonable standards of purity and quality of the water of the State consistent with (1) public health and public enjoyment thereof; (2) the propagation and protection of animal, bird, fish, and other aquatic and plant life; and (3) the expansion of employment opportunities, maintenance and expansion of agriculture, and the provision of a permanent foundation for healthy industrial development. (See, W. Va. Code § 22-11-2.)

1.2. Authority. -- W. Va. Code §§ 22-11-4(a)(16); 22-11-7b.

1.3. Filing Date. -- March 04, 2026.

1.4. Effective Date. – July 01, 2026.

W. Va. Code R. § 47-2-2 Definitions

The following definitions, in addition to those set forth in W. Va. Code § 22-11-3, shall apply to these rules unless otherwise specified herein, or unless the context in which used clearly requires a different meaning:

2.1. "Conventional treatment" is the treatment of water as approved by the West Virginia Department of Health to assure that the water is safe for human consumption.

2.2. Lakes

2.2.1. “Cool water lakes” are lentic water bodies that have a summer hydraulic residence time greater than 14 days, and are either managed by the West Virginia Division of Natural Resources for the support of cool water fish species or support cool water fish species, such as walleye and trout. “Cool water lakes” do not include those waters that receive stockings of trout, but that do not support year-round trout populations. (See, Appendix F for a representative list.)

2.2.2. “Warm water lakes” are lentic water bodies that have a summer hydraulic residence time greater than 14 days, and are either managed by the West Virginia Division of Natural Resources for the support of warm water fish species or support warm water fish species, such as bass and catfish.

2.3. "Cumulative" means a pollutant which increases in concentration in an organism by successive additions at different times or in different ways (bio-accumulation).

2.4. "Designated uses" are those uses specified in water quality standards for each water or segment whether or not the uses are being attained. (See, sections 6.2 - 6.6, herein)

2.5. "Dissolved metal" is that portion of metal which passes through a 0.45 micron filter.

2.6. "Existing uses" are those uses actually attained in a water on or after November 28, 1975, whether or not those uses are included in the water quality standards.

2.7. The "Federal Act" means the federal Clean Water Act (also known as the Federal Water Pollution Control Act) 33 U.S.C. §§ 1251 - 1387.

2.8. "High quality waters" are those waters whose quality is equal to or better than the minimum levels necessary to achieve the national water quality goal uses.

2.9. "Intermittent streams" are streams which have no flow during sustained periods of no precipitation and which do not support aquatic life whose life history requires residence in flowing waters for a continuous period of at least 6 months.

2.10. "Outstanding national resource waters" are those waters whose unique character, ecological or recreational value or pristine nature constitutes a valuable national or State resource.

2.11. "Natural" or "naturally occurring" values or "natural temperature" means, for all of the waters of the State:

2.11.1. Those water quality values which exist unaffected by, or unaffected as a consequence of, any water use by any person; and

2.11.2. Those water quality values which exist unaffected by the discharge, or direct or indirect deposit of, any solid, liquid or gaseous substance from any point source or non-point source.

2.12. "Non-point source" means any source other than a point source from which pollutants may reach the waters of the state.

2.13. "Persistent" means a pollutant and its transformation products which, under natural conditions, degrade slowly in an aquatic environment.

2.14. "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 or vessel or other floating craft from which pollutants are or may be discharged. This term does not include agricultural stormwater discharges and return flows from irrigated agriculture.

2.15. "Representative important species of aquatic life" means those species of aquatic life whose protection and propagation will assure the sustained presence of a balanced aquatic community. Such species are representative in the sense that maintenance of water quality criteria will assure both the natural completion of the species' life cycles and the overall protection and sustained propagation of the balanced aquatic community.

2.16. “Secretary” means the Secretary of the Department of Environmental Protection or such other person to whom the Secretary has delegated authority or duties pursuant to W. Va. Code §§ 22-1-6 or 22-1-8.

2.17. The "State Act" or "State Law" means the West Virginia Water Pollution Control Act, W. Va. Code § 22-11-1, et seq.

2.18. "Total recoverable" refers to the digestion procedure for certain heavy metals as referenced in 40 CFR 136, as amended May 18, 2012, Guidelines Establishing Test Procedures for the Analysis of Pollutants Under the Clean Water Act.

2.19. "Trout waters" are waters which sustain year-round trout populations. Excluded are those waters which receive annual stockings of trout but which do not support year-round trout populations.

2.20. "Variance" means a time-limited designated use and criterion for a specific pollutant(s) or water quality parameter that reflects the highest attainable condition during the term of the water quality standard variance.

2.21. "Water quality criteria" means levels of parameters or stream conditions that are required to be maintained by this rule. Criteria may be expressed as a constituent concentration, levels, or narrative statement representing a quality of water that supports a designated use or uses.

2.22. "Water quality standards" means the combination of water uses to be protected and the water quality criteria to be maintained by this rule.

2.23. "Wetlands" are those areas that are inundated or saturated by surface or groundwater at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions. Wetlands generally include swamps, marshes, bogs, and similar areas.

2.24. "Wet weather streams" are streams that flow only in direct response to precipitation or whose channels are at all times above the water table.

W. Va. Code R. § 47-2-3 Conditions Not Allowable In State Waters

3.1. Certain characteristics of sewage, industrial wastes, and other wastes cause pollution and are objectionable in all waters of the State. Therefore, the secretary does hereby proclaim that the following general conditions are not to be allowed in any of the waters of the State.

3.2. No sewage, industrial wastes or other wastes present in any of the waters of the State shall cause therein or materially contribute to any of the following conditions thereof:

3.2.1. Distinctly visible floating or settleable solids, suspended solids, scum, foam or oily slicks;

3.2.2. Deposits or sludge banks on the bottom;

3.2.3. Odors in the vicinity of the waters;

3.2.4. Taste or odor that would adversely affect the designated uses of the affected waters;

3.2.5. Materials in concentrations which are harmful, hazardous or toxic to man, animal or aquatic life;

3.2.6. Distinctly visible color;

3.2.7. Algae blooms or concentrations of bacteria which may impair or interfere with the designated uses of the affected waters;

3.2.8. Requiring an unreasonable degree of treatment for the production of potable water by modern water treatment processes as commonly employed; and

3.2.9. Any other condition, including radiological exposure, which adversely alters the integrity of the waters of the State, including wetlands; no significant adverse impact to the chemical, physical, hydrologic, or biological components of aquatic ecosystems shall be allowed.

W. Va. Code R. § 47-2-4 Antidegradation Policy

4.1. It is the policy of the State of West Virginia that the waters of the State shall be maintained and protected as follows:

4.1.1. Tier 1 Protection. Existing water uses and the level of water quality necessary to protect the existing uses shall be maintained and protected. Existing uses are those uses actually attained in a water on or after November 28, 1975, whether or not they are included as designated uses within these water quality standards.

4.1.2. Tier 2 Protection. The existing high quality waters of the State must be maintained at their existing high quality unless the secretary determines, after satisfaction of the intergovernmental coordination of the State’s continuing planning process as outlined in the Legislative Rule entitled “Antidegradation Implementation Procedures”, 60CSR5, and opportunity for public comment and hearing, that allowing lower water quality is necessary to accommodate important economic or social development in the area in which the waters are located. If limited degradation is allowed, it shall not result in injury or interference with existing stream water uses or in violation of State or federal water quality criteria that describe the base levels necessary to sustain the national water quality goal uses of protection and propagation of fish, shellfish and wildlife, and recreating in and on the water.

In addition, the secretary shall assure that all new and existing point sources shall achieve the highest established statutory and regulatory requirements applicable to them and shall assure the achievement of cost-effective and reasonable best management practices (BMPs) for non-point source control. If BMPs are demonstrated to be inadequate to reduce or minimize water quality impacts, the secretary may require that more appropriate BMPs be developed and applied.

4.1.2.a. High quality waters are those waters meeting the definition at section 2.8 herein.

4.1.2.b. High quality waters may include, but are not limited to, the following:

4.1.2.b.1. Streams designated by the West Virginia Legislature under the West Virginia Natural Stream Preservation Act, pursuant to W. Va. Code § 22-13-5; and

4.1.2.b.2. Streams listed in West Virginia High Quality Streams, Sixth Edition, prepared by the Wildlife Resources Section of the Division of Natural Resources (2011).

4.1.2.b.3. Streams or stream segments which receive annual stockings of trout but which do not support year-round trout populations.

4.1.3. Tier 3 Protection. In all cases, waters which constitute an outstanding national resource shall be maintained and protected and improved where necessary. Outstanding national resource waters include, but are not limited to, all streams and rivers within the boundaries of Wilderness Areas designated by The Wilderness Act, 16 U.S.C. § 1131, et seq.; all Federally designated rivers under the “Wild and Scenic Rivers Act”, 16 U.S.C. § 1271, et seq.; all streams and other bodies of water in State Parks which are high quality waters or naturally reproducing trout streams; waters in National Parks and Forests which are high quality waters or naturally reproducing trout streams; waters designated under the “National Parks and Recreation Act of 1978”, 16 U.S.C. § 461, et seq.; and pursuant to the rule entitled “Antidegradation Implementation Procedures,” 60CSR5, those waters whose unique character, ecological or recreational value, or pristine nature constitutes a valuable national or state resource.

Additional waters may be nominated for inclusion in that category by any interested party or by the secretary on the secretary’s own initiative. To designate a nominated water as an outstanding national resource water, the secretary shall follow the public notice and hearing provisions as provided in the Procedural Rule Governing Site Specific Revisions to Water Quality Standards, 46CSR6.

4.1.4. All applicable requirements of section 316(a) of the Federal Act shall apply to modifications of the temperature water quality criteria provided for in these rules.

W. Va. Code R. § 47-2-5 Mixing Zones

5.1. In the permit review and planning process or upon the request of a permit applicant or permittee, the secretary may establish, on a case-by-case basis, an appropriate mixing zone.

5.2. The following guidelines and conditions are applicable to all mixing zones:

5.2.1. The secretary will assign, on a case-by-case basis, definable geometric limits for mixing zones for a discharge or a pollutant or pollutants within a discharge. Applicable limits shall include, but are not limited to, the linear distances from the point of discharge, surface area involvement, and volume of receiving water and shall take into account other nearby mixing zones. Mixing zones shall take into account the mixing conditions in the receiving stream (i.e.:, whether complete or incomplete mixing conditions exist). Mixing zones will not be allowed until applicable limits are assigned by the secretary in accordance with this section.

5.2.2. Concentrations of pollutants which exceed the acute criteria for protection of aquatic life set forth in Appendix E, Table 1 shall not exist at any point within an assigned mixing zone or in the discharge itself unless a zone of initial dilution is assigned. A zone of initial dilution may be assigned on a case-by-case basis at the discretion of the secretary. The zone of initial dilution is the area within the mixing zone where initial dilution of the effluent with the receiving water occurs, and where the concentration of the effluent will be its greatest in the water column. Where a zone of initial dilution is assigned by the secretary, the size of the zone shall be determined using one of the four alternatives outlined in section 4.3.3 of U.S. Environmental Protection Agency (EPA)’s Technical Support Document for Water Quality-based Toxics Control (EPA/505/2-90-001 PB91-127415, March 1991). Concentrations of pollutants shall not exceed the acute criteria at the edge of the assigned zone of initial dilution. Chronic criteria for the protection of aquatic life may be exceeded within the mixing zone but shall be met at the edge of the assigned mixing zone.

5.2.3. Concentrations of pollutants which exceed the criteria for the protection of human health set forth in Appendix E, Table 1 shall not be allowed at any point unless a mixing zone has been assigned by the secretary after consultation with the Commissioner of the West Virginia Department of Health. Human health criteria may be exceeded within an assigned mixing zone, but shall be met at the edge of the assigned mixing zone. Mixing zones for human health criteria shall be sized to prevent significant human health risks and shall be developed using reasonable assumptions about exposure pathways. In assessing the potential human health risks of establishing a mixing zone upstream from a drinking water intake, the secretary shall consider the cumulative effects of multiple discharges and mixing zones on the drinking water intake. No mixing zone for human health criteria shall be established on a stream which has a 7 day, 10 year return frequency of 5 cubic feet per second (cfs) or less.

5.2.4. Mixing zones, including zones of initial dilution, shall not interfere with fish spawning or nursery areas or fish migration routes; shall not overlap public water supply intakes or bathing areas; kill or preclude the free passage of fish or other aquatic life; nor harm any threatened or endangered species, as listed in the Federal Endangered Species Act, 15 U.S.C. § 1531, et seq.

5.2.5. The mixing zone shall not exceed 1/3 of the width of the receiving stream, and in no case shall the mixing zone exceed 1/2 of the cross-sectional area of the receiving stream.

5.2.6. In lakes and other surface impoundments, the volume of a mixing zone shall not affect in excess of 10% of the volume of that portion of the receiving waters available for mixing.

5.2.7. A mixing zone shall be limited to an area or volume which will not adversely alter the existing or designated uses of the receiving water, nor be so large as to adversely affect the integrity of the water.

5.2.8. Mixing zones shall not:

5.2.8.a. Be used for, or considered as, a substitute for technology-based requirements of the State or Federal Act and other applicable State and federal laws.

5.2.8.b. Extend downstream at any time a distance more than 5 times the width of the receiving watercourse at the point of discharge.

5.2.8.c. Cause or contribute to any of the conditions prohibited in section 3, herein.

5.2.8.d. Be granted where the instream waste concentration of a discharge is greater than 80%.

5.2.8.e. Overlap one another, except that the secretary may allow mixing zones for human health criteria to overlap, if the overlapping mixing zones comply with all guidelines and conditions of subsection 5.2 herein.

5.2.8.f. Overlap any 1/2 mile zone described in section 7.2.1.b herein.

5.2.9. In the case of thermal discharges, a successful demonstration conducted under section 316(a) of the Federal Act shall constitute compliance with all provisions of this section.

5.2.10. The secretary may waive the requirements of subdivision 5.2.5 and paragraph 5.2.8.b above if a discharger provides an acceptable demonstration of:

5.2.10.a. Information defining the actual boundaries of the mixing zone in question; and

5.2.10.b. Information and data proving no violation of subdivisions 5.2.4 and 5.2.7 above by the mixing zone in question.

5.2.11. Upon implementation of a mixing zone in a permit, the permittee shall provide documentation that demonstrates to the satisfaction of the secretary that the mixing zone is in compliance with the provisions outlined in subdivisions 5.2.2, 5.2.3, 5.2.5, and paragraph 5.2.8.b, herein.

5.2.12. In order to facilitate a determination or assessment of a mixing zone pursuant to this section, the secretary may require a permit applicant or permittee to submit such information as he or she deems necessary.

W. Va. Code R. § 47-2-6 Water Use Categories

6.1. This section establishes general Water Use Categories and Water Quality Standards for the waters of the State. Unless otherwise designated by this rule, at a minimum all waters of the State are designated for the Propagation and Maintenance of Fish and Other Aquatic Life (Category B) and for Water Contact Recreation (Category C) consistent with Federal Act goals. Incidental utilization for whatever purpose may or may not constitute a justification for assignment of a water use category to a particular stream segment.

6.1.1. Waste assimilation and transport are not recognized as designated uses. The classification of the waters must take into consideration the use and value of water for public water supplies, protection and propagation of fish, shellfish and wildlife, recreation in and on the water, agricultural, industrial, and other purposes, including navigation.

Subcategories of a use may be adopted and appropriate criteria set to reflect varying needs of such subcategories of uses, for example to differentiate between trout water and other waters.

6.1.2. At a minimum, uses are deemed attainable if they can be achieved by the imposition of effluent limits required under section 301(b) and section 306 of the Federal Act and use of cost-effective and reasonable best management practices for non-point source control. Seasonal uses may be adopted as an alternative to reclassifying a water or segment thereof to uses requiring less stringent water quality criteria. If seasonal uses are adopted, water quality criteria will be adjusted to reflect the seasonal uses; however, such criteria shall not preclude the attainment and maintenance of a more protective use in another season. A designated use which is not an existing use may be removed, or subcategories of a use may be established if it can be demonstrated that attaining the designated use is not feasible because:

6.1.2.a. Application of effluent limitations for existing sources more stringent than those required pursuant to section 301(b) and section 306 of the Federal Act in order to attain the existing designated use would result in substantial and widespread adverse economic and social impact; or

6.1.2.b. Naturally-occurring pollutant concentrations prevent the attainment of the use; or

6.1.2.c. Natural, ephemeral, intermittent or low flow conditions of water levels prevent the attainment of the use, unless these conditions may be compensated for by the discharge of sufficient volume of effluent discharges to enable uses to be met; or

6.1.2.d. Human-caused conditions or sources of pollution prevent the attainment of the use and cannot be remedied or would cause more environmental damage to correct than to leave in place; or

6.1.2.e. Dams, diversions or other types of hydrologic modifications preclude the attainment of the use, and it is not feasible to restore the water to its original condition or to operate such modification in a way that would result in the attainment of the use; or

6.1.2.f. Physical conditions related to the natural features of the water, such as the lack of a proper substrate, cover, flow, depth, pools, riffles, and the like, unrelated to water quality, preclude attainment of aquatic life protection uses.

6.1.3. The State shall take into consideration the quality of downstream waters and shall assure that its water quality standards provide for the attainment of the water quality standards of downstream waters.

6.1.4. In establishing a less restrictive use or uses, or subcategory of use or uses, and the water quality criteria based upon such uses, the secretary shall follow the requirements for revision of water quality standards as required by W. Va. Code § 22-11-7b and section 303 of the Federal Act and the regulations thereunder. Any revision of water quality standards shall be made with the concurrence of the U.S. EPA. The secretary and the applicant shall follow the Procedural Rule Governing Site Specific Revisions to Water Quality Standards, 46CSR6.

6.2. Category A -- Water Supply, Public. -- This category is used to describe waters which, after conventional treatment, are used for human consumption.

This category includes waters on which the following are located:

6.2.1. All community domestic water supply systems;

6.2.2. All non-community domestic water supply systems (i.e. hospitals, schools, etc.);

6.2.3. All private domestic water systems;

6.2.4. All other surface water intakes where the water is used for human consumption. (See, Appendix B for partial listing of Category A waters and paragraph 7.2.1.b, herein for additional requirements for Category A waters.) The manganese human health criterion shall only apply within the five-mile zone immediately upstream above a known public or private water supply used for human consumption.

6.2.5. Category A is a non-101(a)(2) use designation as defined by EPA Water Quality Standards 40 CFR 131.3(q) which can be considered for removal based on submitted documentation demonstrating surface waters are without the capacity or are of limited capacity to reliably and continually support the public water supply use.

6.2.5.a. A use and value demonstration to remove this use must supply sufficient information to support the conditions identified in sections 6.1.2.b. or 6.1.2.c. Key additional information to be included is confirmation that the public water supply is not an existing use (e.g., there is no evidence that the water body is used for this purpose); the nearby population uses an alternative drinking water supply; and the current supply is sufficient to accommodate reasonably anticipated future growth.

6.2.5.b. Although a use and value demonstration does not require an evaluation of factors affecting attainability, a use attainability analysis (UAA) as required for federally protected uses may be submitted for consideration to determine Category A removal.

6.2.5.c. Removal of Category A must still be protective of downstream uses consistent with CWA Section 303(c)(2)(a).

6.2.5.d. Any Category A use removal proposed in accordance with this subsection will be subject to a 45 day public comment period and a public hearing and submitted to EPA for approval. Upon U.S. EPA approval, the removal will become effective for permitting and compliance purposes and added to the Department’s Water Quality Standards website under Modifications to Water Quality Standards – Site Specific Criteria, and shall be promulgated as an emergency rule according to §29A-3-1 et seq. of this code.

6.3. Category B -- Propagation and maintenance of fish and other aquatic life. -- This category includes:

6.3.1. Category B1 -- Warm water fishery streams. -- Streams or stream segments which contain populations composed of all warm water aquatic life.

6.3.2. Category B2 -- Trout Waters. -- As defined in section 2.19 herein (See, Appendix A for a representative list.)

6.3.3. Category B3 -- Limited Aquatic Life. -- Surface waters with limited capacity to support the aquatic life that would be expected to be present in unimpaired waters described in 47CSR2 section 6.3 - Category B1, B2 or B4. This category is comprised of surface waters in which attainment of the aquatic life use is not feasible based on a use attainability analysis (UAA) in accordance with 46CSR6 section 4 and 40 CFR 131.10. Alternative water quality criteria for Category B3 will be established on a case by case basis only for the parameter(s) causing impairment and specifically addressed in the UAA. Alternative water quality criteria will not be established for any parameter(s) where existing water quality criteria are being met. Water quality criteria for any parameter(s) not addressed in the UAA will continue to be protective of Category B1, B2 or B4. Any water segment(s) assigned this category designation will be re-examined as part of the triennial review. If at any time these waters achieve full Category B1, B2 or B4 designated uses, these waters will be reclassified and will no longer be eligible for Category B3 use designation.

6.3.4. Category B4 -- Wetlands. -- As defined in section 2.23 herein; certain numeric stream criteria may not be appropriate for application to wetlands (See, Appendix E, Table 1).

6.4. Category C -- Water contact recreation. -- This category includes:

6.4.1. Category C1 -- Waters that support swimming, fishing, water skiing and certain types of pleasure boating such as sailing in very small craft and outboard motor boats. (See, Appendix D for a representative list.)

6.4.2. Category C2 -- Limited Water Contact Recreation. -- Surface waters with limited capacity to support water contact recreational activities as described in 47CSR2 section 6.4.1. - Category C1. This category is comprised of surface waters in which attainment of the recreational water resource use is not feasible based on a UAA in accordance with 46CSR6 section 4 and 40 CFR 131.10. Alternative water quality criteria for Category C2 will be established on a case by case basis only for the parameter(s) causing impairment and specifically addressed in the UAA. Alternative water quality criteria will not be established for any parameter(s) where existing water quality criteria are being met. Water quality criteria for parameters not addressed in the UAA will continue to be protective of Category C1. Any water segment(s) assigned this category designation will be re-examined as part of the triennial review. If at any time these waters achieve full Category C1 designated use, these waters will be reclassified and will no longer be eligible for a Category C2 use designation.

6.5. Category D. -- Agriculture and wildlife uses.

This category includes:

6.5.1. Category D1 -- Irrigation. -- All stream segments used for irrigation.

6.5.2. Category D2 -- Livestock watering. -- All stream segments used for livestock watering.

6.5.3. Category D3 -- Wildlife. -- All stream segments and wetlands used by wildlife.

6.6. Category E -- Water supply industrial, water transport, cooling and power. -- This category includes:

6.6.1. Category E1 -- Water Transport. -- All stream segments modified for water transport and having permanently maintained navigation aids for commercial and pleasure vessel activity, except those small craft included in Category C.

6.6.2. Category E2 -- Cooling Water. -- All stream segments having one or more users for industrial cooling.

6.6.3. Category E3 -- Power production. -- All stream segments extending from a point 500 feet upstream from the intake to a point 1/2 mile below the wastewater discharge point. (See, Appendix C for representative list.)

6.6.4. Category E4 -- Industrial. -- This category is used to describe all stream segments with one or more industrial users. It does not include water for cooling.

W. Va. Code R. § 47-2-7 West Virginia Waters

7.1. Major River Basins and their Alphanumeric System. All streams and their tributaries in West Virginia shall be individually identified using the stream codes developed by the Department and available on the Department’s website.

7.1.1. J - James River Basin. All tributaries to the West Virginia - Virginia state line.

7.1.2. P - Potomac River Basin. All tributaries of the main stem of the Potomac River to the West Virginia - Maryland - Virginia state line to the confluence of the North Branch and the South Branch of the Potomac River and all tributaries arising in West Virginia excluding the major tributaries hereinafter designated:

7.1.2.a. S - Shenandoah River and all its tributaries arising in West Virginia to the West Virginia - Virginia state line.

7.1.2.b. PC - Cacapon River and all its tributaries.

7.1.2.c. PSB - South Branch and all its tributaries.

7.1.2.d. PNB - North Branch and all tributaries to the North Branch arising in West Virginia.

7.1.3. M - Monongahela River Basin. The Monongahela River Basin main stem and all its tributaries, excluding the following major tributaries which are designated as follows:

7.1.3.a. MC - Cheat River and all its tributaries.

7.1.3.b. MW - West Fork River and all its tributaries.

7.1.3.c. MT - Tygart River and all its tributaries except those listed below:

7.1.3.c.1. MTB - Buckhannon River and all its tributaries.

7.1.3.c.2. MTM - Middle Fork River and all its tributaries.

7.1.3.d. MY - Youghiogheny River and all its tributaries to the West Virginia - Maryland state line.

7.1.4. O Zone 1 - Ohio River - Main Stem. The main stem of the Ohio River from the Ohio - Pennsylvania - West Virginia state line to the Ohio - Kentucky - West Virginia state line.

7.1.5. O Zone 2 - Ohio River - Tributaries. All tributaries of the Ohio River excluding the following major tributaries:

7.1.5.a. LK - Little Kanawha River. The Little Kanawha River and all its tributaries excluding the following major tributary, designated as LKH – Hughes River and all its tributaries.

7.1.5.b. K - Kanawha River Zone 1. The main stem of the Kanawha River from mile point 0, at its confluence with the Ohio River, to mile point 72 near Diamond, West Virginia.

7.1.5.c. K - Kanawha River Zone 2. The main stem of the Kanawha River from mile point 72 near Diamond, West Virginia and all its tributaries from mile point 0 to the headwaters, excluding the following major tributaries which are designated as follows:

7.1.5.c.1. KP - Pocatalico River and all its tributaries.

7.1.5.c.2. KC - Coal River and all its tributaries.

7.1.5.c.3. KE - Elk River and all its tributaries.

7.1.5.c.4. KG - Gauley River. The Gauley River and all its tributaries excluding the following major tributaries which are designated as follows:

7.1.5.c.4.A. KG-19 - Meadow River and all its tributaries.

7.1.5.c.4.B. KG-34 - Cherry River and all its tributaries.

7.1.5.c.4.C. KGC - Cranberry River and all its tributaries.

7.1.5.c.4.D. KGW - Williams River and all its tributaries.

7.1.5.c.5. KN - New River. The New River from its confluence with the Gauley River to the Virginia - West Virginia state line and all tributaries excluding the following major tributaries which are designated as follows:

7.1.5.c.5.A. KNG - Greenbrier River and all its tributaries.

7.1.5.c.5.B. KNB - Bluestone River and all its tributaries.

7.1.5.c.5.C. KN-60 - East River and all its tributaries.

7.1.5.c.5.D. K(L)-81-(1) - Bluestone Lake.

7.1.5.d. OG - Guyandotte River. The Guyandotte River and all its tributaries, excluding the following major tributary, designated as OGM - Mud River and all its tributaries.

7.1.5.e. BS - Big Sandy River. The Big Sandy River to the Kentucky - Virginia - West Virginia state lines and all its tributaries arising in West Virginia, excluding the following major tributary, designated as BST - Tug Fork and all its tributaries.

7.2. Applicability of Water Quality Standards. The following shall apply at all times unless a specific exception is granted in this section:

7.2.1. Water Use Categories as described in section 6 herein.

7.2.1.a. Based on meeting those section 6 definitions, tributaries or stream segments may be classified for one or more Water Use Categories. When more than one use exists, they shall be protected by criteria for the use category requiring the most stringent protection.

7.2.1.b. Each segment extending upstream from the intake of a Water Supply, Public (Water Use Category A), for a distance of 1/2 mile or to the headwater, must be protected by prohibiting the discharge of any pollutants in excess of the concentrations designated for this Water Use Category in section 8 herein. In addition, within that 1/2 mile zone, the secretary may establish, for any discharge, effluent limitations for the protection of human health that require additional removal of pollutants than would otherwise be provided by this rule. (If a watershed is not significantly larger than this zone above the intake, the water supply section may include the entire upstream watershed to its headwaters.) The 1/2 mile zone described in this section shall not apply to the Ohio River main channel (between Brown’s Island and the left descending bank) between river mile points 61.0 and 63.5 and mile points 70 and 71. All mixing zone regulations found in section 5 of this rule will apply except for subdivision 5.2.8.f. Whether a mixing zone is appropriate and the proper size of such zone would need to be considered on a site-specific basis in accordance with the U.S. EPA approved West Virginia mixing zone regulations in section 5 above.

7.2.2. In the absence of any special application or contrary provision, water quality standards shall apply at all times when flows are equal to or greater than the minimum mean 7 consecutive day drought flow with a 10 year return frequency (7Q10). NOTE: With the exception of paragraph 7.2.3.e below, exceptions do not apply to trout waters nor to the requirements of section 3 herein.

7.2.3. Exceptions: Numeric water quality standards shall not apply: (See, section 7.2.4, herein, for site-specific revisions)

7.2.3.a. When the flow is less than 7Q10;

7.2.3.b. In wet weather streams (or intermittent stream, when they are dry or have no measurable flow), so long as the existing and designated uses of downstream waters are not adversely affected;

7.2.3.c. In any assigned zone of initial dilution of any mixing zone where a zone of initial dilution is required by subdivision 5.2.2 herein, or in any assigned mixing zone for human health criteria or aquatic life criteria for which a zone of initial dilution is not assigned or in zones of initial dilution and certain mixing zones, except that all requirements described in section 5 herein shall apply to all zones of initial dilution and all mixing zones;

7.2.3.d. Where, on the basis of natural conditions, the secretary has established a site-specific aquatic life water quality criterion that modifies a water quality criterion set out in Appendix E, Table 1 of this rule. Where a natural condition of a water is demonstrated to be of lower quality than a water quality criterion for the use classes and subclasses in section 6 of this rule, the secretary, in the secretary’s discretion, may establish a site-specific water quality criterion for aquatic life. This alternate criterion may only serve as the chronic criterion established for that parameter. This alternate criterion must be met at end of pipe. Where the secretary decides to establish a site-specific water quality criterion for aquatic life, the natural condition constitutes the applicable water quality criterion. A site-specific criterion for natural conditions may only be established through the legislative rulemaking process in accordance with W. Va. Code § 29A-3-1, et seq. and must satisfy the public participation requirements set forth at 40 CFR § 131.20 and 40 CFR Part 25. Site-specific criteria for natural conditions may be established only for aquatic life criteria. A public notice, hearing, and comment period are required before site-specific criteria for natural conditions are established.

Upon application or on the secretary’s own initiative, the secretary will determine whether a natural condition of a water should be approved as a site-specific water quality criterion. Before he or she approves a site-specific water quality criterion for a natural condition, the secretary must find that the natural condition will fully protect existing and designated uses and ensure the protection of aquatic life. If a natural condition of a water varies with time, the natural condition will be determined to be the actual natural condition of the water measured prior to or concurrent with discharge or operation. The secretary will, in the secretary’s discretion, determine a natural condition for one or more seasonal or shorter periods to reflect variable ambient conditions and require additional or continuing monitoring of natural conditions.

An application for a site-specific criterion to be established on the basis of natural conditions shall be filed with the secretary and shall include the following information:

7.2.3.d.1. A United States Geological Survey (USGS) 7.5 minute map showing the stream segment affected and showing all existing discharge points and proposed discharge point;

7.2.3.d.2. The alphanumeric code of the affected stream, if known;

7.2.3.d.3. Water quality data for the stream or stream segment. Where adequate data is unavailable, the secretary may require additional studies;

7.2.3.d.4. General land uses (e.g. mining, agricultural, recreational, residential, commercial, industrial, etc.) as well as specific land uses adjacent to the waters for the affected segment or stream;

7.2.3.d.5. The existing and designated uses of the receiving waters into which the segment in question discharges and the location where those downstream uses begin to occur;

7.2.3.d.6. General physical characteristics of the stream segment, including, but not limited to width, depth, bottom composition, and slope;

7.2.3.d.7. Conclusive information and data of the source of the natural condition that causes the stream to exceed the water quality standard for the criterion at issue;

7.2.3.d.8. The average flow rate in the segment and the amount of flow at a designated control point and a statement regarding whether the flow of the stream is ephemeral, intermittent or perennial;

7.2.3.d.9. An assessment of aquatic life in the stream or stream segment in question and in the adjacent upstream and downstream segments; and

7.2.3.d.10. Any additional information or data that the secretary deems necessary to make a decision on the application.

7.2.3.e. For the upper Blackwater River from the mouth of Yellow Creek to a point 5.1 miles upstream, when flow is less than 7Q10. Naturally occurring values for Dissolved Oxygen as established by data collected by the dischargers within this reach and reviewed and approved by the secretary shall be the applicable criteria.

7.2.4. Site-specific applicability of water use categories and water quality criteria - State-wide water quality standards shall apply except where site-specific numeric criteria, variances or use removals have been approved following application and hearing, as provided in 46CSR6 and sections 8.4 and 8.5 below. The following are approved site-specific criteria, variances, and use reclassifications:

7.2.4.a. Potomac River

7.2.4.a.1. A site-specific numeric criterion for aluminum, not to exceed 500 micrograms per liter (µg/l), shall apply to the section of Opequon Creek from Turkey Run to the Potomac River.

7.2.4.b. Monongahela River - Flow in the main stem of the Monongahela River, as regulated by the Tygart and Stonewall Jackson Reservoirs, operated by the U.S. Army Corps of Engineers, is based on a minimum flow of 425 cubic feet per second (cfs) at Lock and Dam No. 8, river mile point 90.8. This exception does not apply to tributaries of the Monongahela River.

7.2.4.c. Cheat River

7.2.4.c.1. In the unnamed tributary of Daugherty Run, approximately 1 mile upstream of Daugherty Run’s confluence with the Cheat River, a site-specific numeric criterion for iron of 3.5 milligrams per liter (mg/l) shall apply, and the following frequency and duration requirements shall apply to the chronic numeric criterion for selenium (5 µg/l): the four-day average concentration shall not be exceeded more than 3 times every 3 years (36 months), on average. Further, the following site-specific numeric criteria shall apply to Fly Ash Run of Daugherty Run: acute numeric criterion for aluminum: 888.5 µg/l and manganese: 5 mg/l. For both the unnamed tributary of Daugherty Run, approximately 1 mile upstream of Daugherty Run’s confluence with the Cheat River, and Fly Ash Run, Water Use Category A shall not apply.

7.2.4.c.2. A variance pursuant 46CSR6, based on human-caused conditions which prohibit the full attainment of any designated use and cannot be immediately remedied, shall apply to the Division of Land Restoration’s Office of Special Reclamation’s discharges into Martin Creek of Preston County and its tributaries, including Glade Run, Fickey Run, and their unnamed tributaries. This WQS variance is for the dissolved aluminum, total iron and pH criterion, expressed as dissolved aluminum 750 µg/l, iron, 1,500 µg/l and pH 6.0 to 9.0, and the associated Category A - Water supply public, Category B - Propagation and maintenance of fish and other aquatic life, Category C - Water contact recreation, and only applies to the specified discharger and waterbody/waterbody segment in this WQS. The following existing conditions will serve as instream interim criteria while this variance is in place based on current pollution control technologies installed: pH range of 5.0-9.0, 8,000 μg/l total iron, and 10,000 μg/l dissolved aluminum. Alternative restoration measures, as described in the variance application submitted by the Division of Land Restoration’s Office of Special Reclamation, shall be used to achieve significant improvements to existing conditions in these waters during the variance period. This variance shall remain in effect until action by the secretary to revise the variance or until July 1, 2045, whichever comes first. The state shall reevaluate the highest attainable condition of this WQS variance, using all existing and readily available information, every 5 years and will submit the results of the reevaluation to U.S. EPA within 30 days of completion of the reevaluation. If the state does not complete a reevaluation at the frequency specified in this rule, or does not submit to U.S. EPA the results of the reevaluation within 30 days of completion of the reevaluation, the WQS variance will no longer be the applicable water quality standard until the state completes and submits the reevaluation to the U.S. EPA. The state intends to obtain public input on the reevaluation by obtaining public comment through the public process on a draft NPDES permit at each permit renewal. The underlying designated use and associated criteria remain applicable for all other CWA purposes, and all other uses and associated criteria not specified in this WQS remain applicable for all CWA purposes.

7.2.4.d. Tygart River -

7.2.4.d.1. A variance pursuant to 46CSR6, based on human-caused conditions which prohibit the full attainment of any designated use and cannot be immediately remedied, shall apply to the Division of Land Restoration’s Office of Special Reclamation’s discharges into Maple Run, Left Fork Little Sandy Creek, and their unnamed tributaries. This WQS variance is for the dissolved aluminum and total iron criterion, expressed as dissolved aluminum 750 µg/l, and total iron 1,500 µg/l and the associated Category A - Water supply public and Category B - Propagation and maintenance of fish and other aquatic life uses and only applies to the specified discharger and waterbody/waterbody segment in this WQS. The following existing conditions will serve as instream interim criteria while this variance is in place based on current pollution control technologies installed: For Maple Run, 5,000 μg/l total iron and 6,000 μg/l dissolved aluminum; for Left Fork Little Sandy Creek, 12,000 μg/l total iron, and 7,000 μg/l dissolved aluminum. Alternative restoration measures, as described in the variance application submitted by the Division of Land Restoration’s Office of Special Reclamation, shall be used to achieve significant improvements to existing conditions in these waters during the variance period. This variance shall remain in effect until action by the secretary to revise the variance or until July 1, 2045, whichever comes first. The state shall reevaluate the highest attainable condition of this WQS variance, using all existing and readily available information, every 5 years and will submit the results of the reevaluation to U.S. EPA within 30 days of completion of the reevaluation. If the state does not complete a reevaluation at the frequency specified in this rule, or does not submit to U.S. EPA the results of the reevaluation within 30 days of completion of the reevaluation, the WQS variance will no longer be the applicable water quality standard until the state completes and submits the reevaluation to the U.S. EPA. The state intends to obtain public input on the reevaluation by obtaining public comment through the public process on a draft NPDES permit at each permit renewal. The underlying designated use and associated criteria remain applicable for all other CWA purposes, and all other uses and associated criteria not specified in this WQS remain applicable for all CWA purposes.

7.2.4.e. Ohio River Tributaries -

7.2.4.e.1. Site-specific numeric criteria shall apply to the stretch of Conners Run (0-77-A), a tributary of Fish Creek, from its mouth to the discharge from Conner Run impoundment, which shall not have the Water Use Category A and may contain selenium not to exceed 62 µg/l and iron not to exceed 3.5 mg/1 as a monthly average and 7 mg/1 as a daily maximum.

7.2.4.f. Kanawha River Zone 1 - Main Stem

7.2.4.f.1. For the Kanawha River main stem, Zone 1, the minimum flow shall be 1,960 cfs at the Charleston gauge.

7.2.4.g. Kanawha River Zone 2 and Tributaries.

7.2.4.g.1. For the main stem of the Kanawha River only, the minimum flow shall be 1,896 cfs at mile point 72.

7.2.4.g.2. The stretch between the mouth of Little Scary Creek (K-31) and the Little Scary impoundment shall not have Water Use Category A. The following site-specific numeric criteria shall apply to that section: selenium not to exceed 62 µg/1 and copper not to exceed 105 µg/1 as a daily maximum or 49 µg/1 as a four-day average.

7.2.4.h. New River -

7.2.4.h.1. In Marr Branch, a tributary of the New River, a site-specific dissolved zinc criteria defined by the equation CMC=CCC=e0.8541*ln(hardness)+1.151 x CF shall apply for both chronic and acute exposures

7.2.4.i. Guyandotte River -

7.2.4.i.1. Pats Branch from its confluence with the Guyandotte River to a point 1,000 feet upstream shall not have Water Use Category A and Category D1 designation.

7.2.4.i.2. In Dingess Run and its tributaries Ethel Hollow, Bandmill Hollow, Camp Branch, Georges Creek, Pine Fork of Ethel Hollow, Freeze Fork, UNT of Dingess Run RM 4.82, UNT of Dingess Run RM 6.78, and Fort Branch, a site-specific selenium criterion shall apply wherein fish whole-body concentrations shall not exceed 9.5 micrograms per gram (µg/g) based on chronic exposures.

W. Va. Code R. § 47-2-8 Specific Water Quality Criteria

8.1. Charts of specific water quality criteria are included in Appendix E, Table 1.

8.1.1. Specific state (i.e. total, total recoverable, dissolved, valence, etc.) of any parameter to be analyzed shall follow 40 CFR 136, Guidelines Establishing Test Procedures for Analysis of Pollutants Under the Clean Water Act, as amended, June 15, 1990 and May 18, 2012, 47CSR10, and “National Pollutant Discharge Elimination System (NPDES) Program.”

8.1.2. Compliance with aquatic life water quality criteria expressed as dissolved metal shall be determined based on dissolved metals concentrations.

8.1.2.a. The aquatic life criteria for all metals listed in Appendix E, Table 2 shall be converted to a dissolved concentration by multiplying each numerical value or criterion equation from Appendix E, Table 1 by the appropriate conversion factor (CF) from Appendix E, Table 2.

8.1.2.b. Permit limits based on dissolved metal water quality criteria shall be prepared in accordance with the U.S. EPA document "The Metals Translator: Guidance For Calculating A Total Recoverable Permit Limit From A Dissolved Criterion, EPA 823-B-96-007 June 1996.

8.1.2.c. NPDES permit applicants may petition the secretary to develop a site-specific translator consistent with the provisions in this section. The secretary may, on a case-by-case basis, require an applicant applying for a translator to conduct appropriate sediment monitoring through SEM/AVS ratio, bioassay or other approved methods to evaluate effluent limits that prevent toxicity to aquatic life.

8.1.3. An "X" or numerical value in the use columns of Appendix E, Table 1 shall represent the applicable criteria.

8.1.4. Charts of water quality criteria in Appendix E, Table 1 shall be applied in accordance with major stream and use applications, sections 6 and 7, herein.

8.2. Criteria for Toxicants

8.2.1. Toxicants which are carcinogenic have human health criteria (Water Use Categories A and C) based upon an estimated risk level of one additional cancer case per one million persons (10-6) and are indicated in Appendix E, Table 1 with an endnote (b).

8.2.2. The critical design flow for human health criteria effluent limits shall be the long-term harmonic mean flow.

8.2.3. The components and other aspects of the human health criteria based on U.S. EPA’s 2015 national recommended human health criteria were developed using available data, which in some cases may have been limited. The bioaccumulation factors, relative source contributions, and other relevant factors used in development of the human health criteria may be evaluated on a case-by-case basis as part of the NPDES permitting process or by petition to the secretary. Site-specific permit limits based on revisions to the human health criteria made in accordance with this paragraph are subject to a 45 day public comment period and are subject to U.S. EPA review under CWA 303(c) but are not subject to review in accordance with the rule-making procedures of the West Virginia Administrative Procedures Act.

8.3. Criteria for Nutrients

8.3.1. Lakes

8.3.1.a. This subsection establishes nutrient criteria designed to protect Water Use Categories B and C. The following cool water nutrient criteria shall apply to cool water lakes. (See, Appendix F for a representative list.) The following warm water nutrient criteria shall apply to all other lakes with a summer residence time greater than 14 days.

8.3.1.b. Total phosphorus shall not exceed 40 µg/l for warm water lakes and 30 µg/l for cool water lakes based on an average of four or more samples collected during the period May 1 to October 31. Chlorophyll-a shall not exceed 20 µg/l for warm water lakes and 10 µg/l for cool water lakes based on an average of four or more samples collected during the period May 1 to October 31. In lieu of total phosphorus and/or chlorophyll-a sampling, impairment may be evidenced at any time by noncompliance with subsection 3.2 above, as determined by the secretary.

8.4. Variances from Specific Water Quality Criteria. A variance from numeric criteria may be granted to a discharger if it can be demonstrated that the conditions outlined in paragraphs 6.1.2.a through 6.1.2.f herein limit the attainment of one or more specific water quality criteria. Variances shall apply only to the discharger to whom they are granted and shall be reviewed by the secretary at least every 5 years. In granting a variance, the secretary shall follow the requirements for revision of water quality standards in 46CSR6.

8.5. Site-specific numeric criteria. The secretary may establish numeric criteria different from those set forth in Appendix E, Table 1 for a stream or stream segment upon a demonstration that existing numeric criteria are either over-protective or under-protective of the aquatic life residing in the stream or stream segment. A site-specific numeric criterion will be established only where the numeric criterion will be fully protective of the aquatic life and the existing and designated uses in the stream or stream segment. In adopting site-specific numeric criteria, the requirements for revision of water quality standards set forth in 46CSR6 shall be followed, unless developed pursuant to subdivision 8.5.1. herein.

8.5.1. A site-specific numeric copper criterion may be established as part of the NPDES permitting process using a Biotic Ligand Model analysis pursuant to the procedures described in U.S. EPA’s “Aquatic Life Ambient Freshwater Quality Criteria – Copper” (February 2007). All criteria derived in this manner will be subject to a 45 day public comment period and a public hearing. Upon approval by the secretary, each criterion will be subject to U.S. EPA approval. Upon U.S. EPA approval, the criterion will become effective for compliance purposes and added to the Department’s Water Quality Standards website under Modifications to Water Quality Standards - Site Specific Criteria. Additionally, each site-specific criterion will be added to 47CSR2 at the next rule revision.

W. Va. Code R. § 47-2-9 Establishment Of Safe Concentration Values

When a specific water quality standard has not been established by this rule and there is a discharge or proposed discharge into waters of the State, the use of which has been designated a Category B1, B2, B3 or B4, such discharge may be regulated by the secretary where necessary to protect State waters through establishment of a safe concentration value as follows:

9.1. Establishment of a safe concentration value shall be based upon data obtained from relevant aquatic field studies, standard bioassay test data which exists in substantial available scientific literature, or data obtained from specific tests utilizing one or more representative important species of aquatic life designated on a case-by-case basis by the secretary and conducted in a water environment which is equal to or closely approximates that of the natural quality of the receiving waters.

9.2. In those cases where it has been determined that there is insufficient available data to establish a safe concentration value for a pollutant, the safe concentration value shall be determined by applying the appropriate application factor as set forth below to the 96-hour LC 50 value. Except where the secretary determines, based upon substantial available scientific data, that an alternate application factor exists for a pollutant, the following appropriate application factors shall be used in the determination of safe concentration values:

9.2.1. Concentrations of pollutants or combinations of pollutants that are not persistent and not cumulative shall not exceed 0.10 (1/10) of the 96-hour LC 50.

9.2.2. Concentrations of pollutants or combinations of pollutants that are persistent or cumulative shall not exceed 0.01 (1/100) of the 96-hour LC 50.

9.3. Persons seeking issuance of a permit pursuant to this rule authorizing the discharge of a pollutant for which a safe concentration value is to be established using special bioassay tests pursuant to subsection 9.1 shall perform such testing as approved by the secretary and shall submit all of the following in writing to the secretary:

9.3.1. A plan proposing the bioassay testing to be performed.

9.3.2. Such periodic progress reports of the testing as may be required by the secretary.

9.3.3. A report of the completed results of such testing including, but not limited to, all data obtained during the course of testing and all calculations made in the recording, collection, interpretation, and evaluation of such data.

9.4. Bioassay testing shall be conducted in accordance with test procedures outlined in 40 CFR § 136, as amended, or other methodologies approved by the secretary.

APPENDIX A

CATEGORY B-2 - TROUT WATERS

This list contains known trout waters and is not intended to exclude any waters which meet the definition in Section 2.19.

River Basin County Stream James River J Monroe South Fork Potts Creek P Jefferson Town Run P " Rocky Marsh Run P Berkeley Opequon Creek P " Tuscarora Creek (Above Martinsburg)

P " Middle Creek (Above Route 30 Bridge)

P " Mill Creek P " Hartland Run P " Mill Run P " Tillance Creek P Morgan Meadow Branch PS Jefferson Flowing Springs Run (Above Halltown)

PS " Cattail Run PS " Evitt's Run PS " Big Bullskin Run PS " Long Marsh Run PC Hampshire Cold Stream PC " Edwards Run and Impoundment PC " Dillons Run PC Hardy Lost River PC " Camp Branch PC " Lower Cove Run PC " Moores Run PC " North River (Above Rio)

PC " Waites Run PC " Trout Run PC " Trout Pond (Impoundment)

PC " Warden Lake (Impoundment)

PC " Rock Cliff Lake (Impoundment)

PSB Hampshire Mill Creek PSB " Mill Run PSB Hardy Dumpling Creek PSB Grant-Pendleton North Fork South Branch PSB Grant North Fork Lunice Creek PSB " South Fork Lunice Creek PSB " South Mill Creek (Above Hiser)

PSB " Spring Run PSB Pendleton Hawes Run (Impoundment)

PSB " Little Fork PSB " South Branch (Above North Fork)

PSB Pendleton Senena Creek PSB " Laurel Fork PSB " Big Run PNB Mineral North Fork Patterson Creek PNB " Fort Ashby (Impoundment)

PNB " New Creek PNB " New Creek Dam 14 (Impoundment)

PNB " Mill Creek (Above Markwood)

M Monongalia-Marion Whiteday Creek (Above Smithtown)

MC Monongalia Morgan Run MC " Coopers Rock (Impoundment)

MC " Blaney Hollow MC Preston Laurel Run MC " Elsey Run MC " Saltlick Creek MC " Buffalo Creek MC " Wolf Creek MC Tucker Clover Run MC " Elklick Run MC " Horseshoe Run MC " Maxwell Run MC " Red Creek MC " Slip Hill Mill Branch MC " Thomas Park (Impoundment)

MC " Blackwater River (Above Davis)

MC " Blackwater River (Below Davis)

MC Randolph Camp Five Run MC " Dry Fork (Above Otter Creek)

MC " Glady Fork MC " Laurel Fork MC " Gandy Creek (Above Whitmer)

MC " East Fork Glady Fork (Above C & P Compressor Station)

MC Randolph Shavers Fork (Above Little Black Fork)

MC " Three Spring Run MC " Spruce Knob Lake (Impoundment)

MW Harrison Dog Run (Pond)

MW Lewis Stonecoal MT Barbour Brushy Fork (Above Valley Furnace)

MT " Teter Creek Lake (Impoundment)

MT " Mill Run MT Taylor-Barbour Tygart Lake Tailwaters (Above Route 119 Bridge)

MT Preston Roaring Creek (Above Little Lick Branch)

MT Randolph Tygart River (Above Huttonsville)

MT " Elkwater Fork MT Randolph Big Run MTB Upshur-Randolph-Lewis Right Fork Buckhannon River MTB Upshur Buckhannon River (Above Beans Mill)

MTB Upshur French Creek MTB Upshur-Randolph Left Fork Right Fork MTN Upshur Right Fork Middle Fork River MTM Randolph Middle Fork River (Above Cassity)

MY Preston Rhine Creek Little Kanawha River LK Upshur Left Fork-Right Fork Little Kanawha River LK Upshur-Lewis Little Kanawha River (Above Wildcat)

Kanawha River KE Braxton Sutton Reservoir KE " Sutton Lake Tailwaters (Above Route 38/5 Bridge)

KE Webster Back Fork KE " Desert Fork KE " Fall Run KE " Laurel Fork KE " Left Fork Holly River KE " Sugar Creek KE " Elk River (Above Webster Springs)

KC Raleigh Stephens Lake (Impoundment)

KC " Marsh Fork (Above Sundial)

KG Nicholas Summersville Reservoir (Impoundment)

KG " Summersville Tailwaters (Above Collison Creek)

KG Nicholas Deer Creek KG Randolph-Webster Gauley River (Above Moust Coal Tipple)

KG Fayette Glade Creek KG Nicholas Hominy Creek KG " Anglins Creek KG Greenbrier Big Clear Creek KG " Little Clear Creek and Laurel Run KG " Meadow Creek KG Fayette Wolf Creek KG Nicholas Cherry River KG Greenbrier-Nicholas Laurel Creek KG " " North Fork Cherry River KG Greenbrier Summit Lake (Impoundment)

KG Greenbrier-Nicholas South Fork Cherry River Kanawha River KGC Pocahontas-Webster- Cranberry River Nicholas KGC Pocahontas South Fork Cranberry River KGW Pocahontas Tea Creek KGW Pocahontas-Webster Williams River (Above Dyer)

KN Raleigh Glade Creek KN Summers Meadow Creek KN Fayette Mill Creek KN " Laurel Creek (Above Cotton Hill)

KN Raleigh Pinch Creek KN Monroe Rich Creek KN " Turkey Creek KN Fayette Dunloup Creek (Downstream from Harvey Sewage Treatment Plant)

KN Mercer East River (Above Kelleysville)

KN " Pigeon Creek KN Monroe Laurel Creek KNG Monroe Kitchen Creek (Above Gap Mills)

KNG Greenbrier Culverson Creek KNG " Milligan Creek KNG Greenbrier-Monroe Second Creek (Rt. 219 Bridge to Nickell's Mill)

KNG Greenbrier North Fork Anthony Creek KNG " Spring Creek KNG " Anthony Creek (Above Big Draft)

KNG Pocahontas Watoga Lake KNG " Beaver Creek KNG " Knapp's Creek KNG " Hills Creek KNG " North Fork Deer Creek (Above Route 28/5)

KNG " Deer Creek KNG " Sitlington Creek KNG " Stoney Creek KNG " Swago Creek KNG " Buffalo Fork (Impoundment)

KNG " Seneca (Impoundment)

KNG " Greenbrier River (Above Hosterman)

KNG " West Fork-Greenbrier River (Above the impoundment at the tannery)

KNG " Little River-East Fork KNG " Little River-West Fork KNG " Five Mile Run KNG " Mullenax Run KNG " Abes Run KNB Mercer Marsh Fork KNB " Camp Creek OG Wyoming Pinnacle creek BST McDowell Dry Fork (Above Canebrake)

APPENDIX B

This list contains known waters used as public water supplies and is not intended to exclude any waters as described in Section 6.2, herein.

River Basin County Operating Company Source Shenandoah River S Jefferson Charlestown Water Shenandoah River P Jefferson 3-M Company Turkey Run P " Shepherdstown Water Potomac River P " Harpers Ferry Water Elk Run P Berkeley DuPont Potomac River Potomac River Works P " Berkeley County PSD Le Feure Spring P Opequon PSD Quarry Spring P " Hedgesville PSD Speck Spring P Morgan Paw Paw Water Potomac River PSB Hampshire Romney Water South Branch Potomac River PSB " Peterkin Conference Mill Run Center PSB Hardy Moorefield Municipal South Fork River Water PSB Pendleton U.S. Naval Radio Sta. South Fork River PSB " Circleville Water Inc. North Fork of South Branch, PSB Grant Mountain Top PSD Mill Creek, Impoundment PSB " Petersburg Municipal South Branch, Potomac Water River PNB Grant Island Creek Coal Impoundment PNB Mineral Piedmont Municipal Savage River, Maryland Water PNB " Keyser Water New Creek PNB " Fort Ashby PSD Lake M Monongalia Morgantown Water Comm. Colburn Creek & Monongahela River M " Morgantown Ordinance Monongahela River Works M Preston Preston County PSD Deckers Creek M Monongalia Blacksville # 1 Mine Impoundment M " Loveridge Mine Impoundment M " Consolidation Coal Co. Impoundment M Preston Mason Town Water Block Run MC Preston Fibair Inc. Impoundment MC Monongalia Cheat Neck PSD Cheat Lake MC " Lakeview Country Club Cheat Lake-Lake Lynn MC Monongalia Union District PSD Cheat Lake-Lake Lynn MC " Cooper's Rock State Park Impoundment MC Preston Kingwood Water Cheat River MC Preston Hopemount State Hosp. Snowy Creek MC " Rowlesburg Water Keyser Run & Cheat River MC " Albright Cheat River MC Tucker Parsons Water Shavers & Elk Lick Fork MC " Thomas Municipal Thomas Reservoir MC " Hamrick PSD Dry Fork MC " Douglas Water System Long Run MC " Davis Water Blackwater River MC " Hambleton Water System Roaring Creek MC " Canaan Valley State Blackwater River Park MC Pocahontas Cheat Mt. Sewer Shavers Lake MC " Snowshoe Co. Water Shavers Fork MC Randolph Womelsdorf Water Yokum Run MW Harrison Lumberport Water Jones Run MW " Clarksburg Water Bd. West Fork River MW " Bridgeport Mun. Water Deecons & Hinkle Creek MW " Salem Water Board Dog Run MW " West Milford Water West Fork River MW Lewis W.V. Water-Weston West Fork River District MW " Jackson's Mill Camp Impoundment MW " West Fork River PSD West Fork River MW " Kennedy Compressor West Fork River Station MW " Jane Lew Water Comm. Hackers Creek MW Harrison Bel-Meadow Country Lake Club MW " Harrison Power Station West Fork River MW " Oakdale Portal Impoundment MW " Robinson Port Impoundment MT Marion Fairmont Water Comm. Tygart River MT " Mannington Water Impoundment MT " Monongah Water Works Tygart River MT " Eastern Assoc. Coal Corp Impoundment MT " Four States Water Impoundment MT Harrison Shinnston Water Dept. Tygart River MT Taylor Grafton Water Tygart River-Lake MT Barbour Phillippi Water Tygart River MT " Bethlehem Mines Corp. Impoundment MT " Belington Water Works Tygart River & Mill Run Lake MT Randolph Elkins Municipal Water Tygart River MT " Beverly Water Tygart River MT " Valley Water Tygart River MT " Huttonsville Medium Tygart River Security Prison MT " Mill Creek Water Mill Creek MTB Upshur Buckhannon Water Board Buckhannon River Ohio River O Zone 1 Hancock Chester Water & Sewer Ohio River O " Brooke City of Weirton Ohio River O " Brooke Weirton Steel Division Ohio River O " Ohio Wheeling Water Ohio River O " Tyler Sistersville Mun. Water Ohio River O " Pleasants Pleasants Power Station Ohio River O " Cabell Huntington Water Corp. Ohio River O " Marshall Mobay Chemical Co. Ohio River O " Wood E. I. DuPont Ohio River O Zone 2 Marshall Meron Water Glass House Hollow O " " New Urindahana Water Wheeling Creek System O " Wetzel Pine Grove Water North Fork, Fishing Creek O " Marshall Consolidated Coal Co. Impoundment O " Tyler Middlebourne Water Middle Island Creek O " Doddridge West Union Mun. Water Middle Island Creek O " Mason Hidden Valley Country Lake/Impoundment O " Jackson Ripley Water Mill Creek O " Wayne Wayne Municipal Water Twelve Pole Creek O " " East Lynn Lake East Lynn Lake O " " Monterey Coal Co. Impoundment Little Kanawha LK Wood Claywood Park PSD Little Kanawha River LK Calhoun Grantsville Mun. Water Little Kanawha River LK Gilmer Glenville Utility Little Kanawha River LK " Consolidated Gas Steer Creek Compressor LK Braxton Burnsville Water Works Little Kanawha River LK Roane Spencer Water Spring Creek Mile Tree Reservoir LK Wirt Elizabeth Water Little Kanawha River LKH Ritchie Cairo Water North Fork Hughes River LKH " Harrisville Water North Fork Hughes River LKH " Pennsboro Water North Fork Hughes River Kanawha River K Putnam Buffalo Water Cross Creek K " Winfield Water Poplar Fork & Crooked Creek K " South Putnam PSD Poplar Fork & Crooked Creek K Kanawha Cedar Grove Water Kanawha River K " Pratt Water Kanawha River K Fayette Armstrong PSD PO-K1-CO-EL Kanawha River & Gum Hollow K " Kanawha Water Co.- Unnamed Tributary Kanawha Beards Fork K Kanawha Midland Trail School Impoundment K " Cedar Coal Co. Impoundment K Fayette Elkem Metals Co. Kanawha River K Fayette Deepwater PSD Kanawha River K Fayette Kanawha Falls PSD Kanawha River K " W.V. Water-Montgomery Kanawha River Pocatalico River KP Kanawha Sissonville PSD Pocatalico River KP Roane Walton PSD Silcott Fork Dam Coal River KC Kanawha St. Albans Water Coal River KC " Washington PSD Coal River KC Lincoln Lincoln PSD Coal River KC Boone Coal River PSD Coal River KC " Whitesville PSD Coal River KC Raleigh Armco Mine 10 Marsh Fork KC " Armco Steel-Montc. Coal River Stickney KC Raleigh Peabody Coal Coal River KC " Stephens Lake Park Lake Stephens KC Boone W.V. Water-Madison Dist. Little Coal River KC " Van PSD Pond Fork KC Raleigh Consol. Coal Co. Workman Creek KC Boone Water Ways Park Coal River Elk River KE Kanawha Clendenin Water Elk River KE " W.V. Water-Kanawha Elk River Valley District KE " Pinch PSD Elk River KE Clay Clay Waterworks Elk River KE " Procious PSD Elk River KE Braxton Flatwoods-Canoe Run PSD Elk River KE " Sugar Creek PSD Elk River KE " W.V. Water-Gassaway Dist. Elk River KE " W.V. Water-Sutton Dist. Elk River KE Webster W.V. Water-Webster Springs Elk River KE " Holly River State Park Holly River Gauley River KG Nicholas Craigsville PSD Gauley River KG " Summersville Water Impoundment/ Muddlety Creek KG " Nettie-Leivasy PSD Jim Branch KG Webster Cowen PSD Gauley River KG Nicholas Wilderness PSD Anglins Creek & Meadow River KG " Richwood Water North Fork Cherry River KN Fayette Ames Heights Water Mill Creek KN " Mt. Hope Water Impounded Mine (Surface)

KN " Ansted Municipal Water Mill Creek New River KN Fayette Fayette Co. Park Impoundment KN " New River Gorge Campground Impoundment KN " Fayetteville Water Wolfe Creek KN Raleigh Beckley Water Glade Creek KN " Westmoreland Coal Co. Farley Branch Bluestone River KNB Summers Jumping Branch-Nimitz Mt. Valley Lake KNB " Bluestone Conf. Center Bluestone Lake KNB " Pipestem State Park Impoundment KNB Mercer Town of Athens Impoundment KNB " Bluewell PSD Impoundment KNB " Bramwell Water Impoundment KNB " Green Valley-Glenwood PSD Bailey Reservoir KNB " Kelly's Tank Spring KNB " W.V. Water Princeton Impoundment/ Brusch Creek KNB " Lashmeet PSD Impoundment KNB " Pinnacle Water Assoc. Mine KNB " W.V. Water Bluefield Impoundment Greenbrier River KNG Summers W.V. Water Hinton Greenbrier River & New River KNG " Big Bend PSD Greenbrier River KNG Greenbrier Alderson Water Dept. Greenbrier River KNG " Ronceverte Water Greenbrier River KNG " Lewisburg Water Greenbrier River KNG Pocahontas Denmar State Hospital Greenbrier River Water KNG " City of Marlinton Water Knapp Creek KNG " Cass Scenic Railroad Leatherbark Creek KNG " Upper Greenbrier PSD Greenbrier River KNG " The Hermitage Greenbrier River Guyandotte River OG Cabell Salt Rock PSD Guyandotte River OG Lincoln West Hamlin Water Guyandotte River OG Logan Logan Water Board Guyandotte River OG " Man Water Works Guyandotte River OG " Buffalo Creek PSD Buffalo Creek/ Mine/Wells OG " Chapmanville Guyandotte River OG " Logan PSD Whitman Creek/ Guyandotte River OG Mingo Gilbert Water Guyandotte River OG Wyoming Oceana Water Laurel Fork OG " Glen Rogers PSD Impoundment OG " Pineville Water Pinnacle Creek OG Raleigh Raleigh Co. PSD-Amigo Tommy Creek OMG Cabell Milton Water Works Guyandotte River OMG " Culloden PSD Indian Fork Creek OMG Putnam Hurricane Municipal Water Impoundment OMG Putnam Lake Washington PSD Lake Washington Big Sandy River BS Wayne Kenova Municipal Water Big Sandy River BS " Fort Gay Water Tug Fork BST Mingo Kermit Water Tug Fork BST " Matewan Water Tug Fork BST " A & H Coal Co., Inc. Impoundment BST " Williamson Water Impoundment BST McDowell City of Welch Impoundment/Wells BST " City of Gary Impoundment/Mine

APPENDIX C

CATEGORY E-3 - POWER PRODUCTION

This list contains known power production facilities and is not intended to exclude any waters as described in Section 6.6.3, herein.

River Basin County Station Name Operating Company M Monongalia Fort Martin Power Station Monongahela Power M Marion Rivesville Station Monongahela Power MC Preston Albright Station Monongahela Power Potomac Grant Mt. Storm Power Station Virginia Electric & Power Company Ohio River O - Zone 1 Wetzel Hannibal (Hydro) Ohio Power O " " Marshall Kammer Ohio Power O " " " Mitchell Ohio Power O " " Pleasants Pleasants Station Monongahela Power O " " " Willow Island Station Monongahela Power O " " Mason Phillip Sporn Plant Central Operating (AEP)

O " " " Racine (Hydro) Ohio Power O " " " Mountaineer Appalachian Power Co.

K Putnam Winfield (Hydro) Appalachian Power Co.

K Kanawha Marmet (Hydro) Appalachian Power Co.

K " London (Hydro) Appalachian Power Co.

K " Kanawha River Appalachian Power Co.

K " John E. Amos Appalachian Power Co.

APPENDIX D

CATEGORY C - WATER CONTACT RECREATION

This list contains waters known to be used for water contact recreation and is not intended to exclude any waters as described in section 6.4, herein.

River Basin Stream Code Stream County Shenandoah S Shenandoah River Jefferson Potomac P Potomac River Jefferson P " " Hampshire P " " Berkeley P " " Morgan P-9 Sleepy Creek & Berkeley Meadow Branch P-9-G-1 North Fork of Morgan Indian Run South Branch PSB South Branch of Hampshire PSB " " Hardy PSB " " Grant PSB-21-X Hawes Run Pendleton PSB-25-C-2 Spring Run Grant PSB-28 North Fork South Branch Grant North Branch PNB North Branch of Mineral PNB-4-EE North Fork Grant Patterson Creek PNB-7-H Linton Creek Grant PNB-17 Stoney River-Mt. Storm Grant Lake PC Cacapon River Hampshire Monongahela MC Cheat Lake/Cheat River Monongalia/Preston MC Alpine Lake Preston MC-6 Coopers Rock Lake/ Monongalia Quarry Run MC-12 Big Sandy Creek Preston MSC Shavers Fork Randolph MTN Middle Fork River Barbour/Randolph/Upshur MW West Fork River Harrison MW-18 Stonecoal Creek/ Lewis Stonecoal Lake Ohio O Ohio River Brooke/Cabell/ Hancock/Jackson/ Marshall/Mason/Ohio/ Pleasants/Tyler/ Wayne/Wood/Wetzel O-2-H Beech Fork of Wayne Twelvepole Creek/Beech Fork Lake O-2-Q East Fork of Wayne Twelvepole Creek/East Lynn Lake O-3 Fourpole Creek Cabell O-21 Old Town Creek/ Mason McClintic Ponds OMI Middle Island Creek/ Doddridge Crystal Lake OG Guyandotte River Cabell OG Guyandotte River/ Wyoming R. D. Bailey Lake OGM Mud River Cabell Little Kanawha LK Little Kanawha River/ Braxton Burnsville Lake Kanawha K Kanawha River Fayette/Kanawha/ Mason/Putnam K-1 Unnamed Tributary Mason Krodel Lake KC Coal River Kanawha KC-45-Q Stephens Branch/ Raleigh Lake Stephens KE Elk River Kanawha/Clay/ Braxton/Webster/Randolph KE Sutton Lake Braxton KN New River Fayette/Raleigh/ Summers KN-26-F Little Beaver Creek Raleigh KNG Greenbrier River Greenbrier/ Pocahontas/Summers KNG-23-E-1 Little Devil Creek/ Monroe Moncove Lake KNG-28 Anthony Creek Greenbrier KNG-28-P Meadow Creek/ Greenbrier Lake Sherwood KNB Bluestone River/ Summers Bluestone Lake KG Gauley River Webster KG Gauley River/ Nicholas Summersville Lake KGW Williams River Webster

APPENDIX E, TABLE 1

PARAMETER

USE DESIGNATION

AQUATIC LIFE

HUMAN HEALTH

ALL OTHER

USES

B1, B4

B2 C³

A4 ACUTE1

CHRON2

ACUTE1

CHRON2 8.1 Dissolved Aluminum (µg/l)

For water with pH <6.5 or >9.0 750xCF5 750xCF5 750xCF5 87xCF5 8.1.1 Dissolved Aluminum (µg/l)

For water with pH ≥ 6.5 and ≤ 9.0, the four-day average concentration of dissolved aluminum determined by the following equatione:

Al = e(1.3695[ln(hardness)]+0.9121) x CF5 8.1.2 Dissolved Aluminum (µg/l)

For water with pH ≥ 6.5 and ≤ 9.0, the one-hour average concentration of dissolved aluminum determined by the following equatione:

Al = e(1.3695[ln(hardness)]+1.8268) x CF5 8.2 Acute and chronic aquatic life criteria for ammonia shall be determined using the National Criterion for Ammonia in Fresh Waterd from U.S. EPA’s 1999 Update of Ambient Water Quality Criteria for Ammonia (EPA-822-R-99-014, December 1999) 8.3 Antimony (µg/l) 4,300 8.4 Arsenic (µg/l ) 8.4.1 Dissolved Trivalent Arsenic (µg/l) 8.5 Barium (µg/l) 8.6 Beryllium (µg/l) 4.0 8.7 Cadmium (µg/l)

Hardness Soluble Cd (mg/l CaCO3) 0 - 35 1.0 36 - 75 2.0 76 - 150 5.0 > 150 10.0 8.7.1 10 µg/l in the Ohio River (O Zone 1) main stem (See, section 7.1.4, herein) 8.7.2 The four-day average concentration of dissolved cadmium determined by the following equation:

Cd = e(0.7409[ln(hardness)]-4.719) x CF5 8.7.3 The one-hour average concentration of dissolved cadmium determined by the following equation:

Cd = e(1.0166[ln(hardness)]-3.924) x CF5 8.8 Chloride (µg/l) 860,000 230,000 860,000 230,000 250,000 250,000 8.9.1 Chromium, dissolved hexavalent (µg/l): 7.2 8.9.2 Chromium, trivalent (µg/l) The one-hour average concentration of dissolved trivalent chromium determined by the following equation:

CrIII = e(0.8190[ln(hardness)]+3.7256) x CF5 8.9.3 The four-day average concentration of dissolved trivalent chromium determined by the following concentration:

CrIII = e(0.8190[ln(hardness)]+0.6848) x CF5 8.10 Copper (µg/l) 8.10.1 The four-day average concentration of dissolved copper determined by the following equationa:

Cu = e(0.8545[ln(hardness)]-1.702) x CF5 8.10.2 The one-hour average concentration of dissolved copper determined by the following equationa:

Cu = e(0.9422[ln(hardness)]-1.700) x CF5 8.11 Cyanidei (µg/l)

(As free cyanide HCN+CN-) 5.0 5.0 8.12 Dissolved Oxygenc: not less than 5 mg/l at any time. 8.12.1 Ohio River main stem - the average concentration shall not be less than 5.0 mg/l per calendar day and shall not be less than 4.0 mg/l at any time or place outside any established mixing zone - provided that a minimum of 5.0 mg/l at any time is maintained during the April 15-June 15 spawning season. 8.12.2 Not less than 7.0 mg/l in spawning areas and in no case less than 6.0 mg/l at any time. 8.13 E. coli:

Maximum allowable level of E. coli content for Water Contact Recreation (either MPN or MF) shall not exceed 126 cfu/100 ml as a monthly geometric mean; nor shall E. coli concentration exceed 410 cfu/100 ml more than 10% of the time. 8.13.1 Ohio River main stem (zone 1) - During the non-recreational season (November through April only) the maximum allowable level of fecal coliform for the Ohio River (either MPN or MF) shall not exceed 2000/100 ml as a monthly geometric mean based on not less than 5 samples per month. 8.14 Fluoride (µg/l) 1,400 8.14.1 Not to exceed 2,000 for category D1 uses. 8.15 Ironc (µg/l) 1,500 1,500 8.16 Lead (µg/l) 8.16.1 The four-day average concentration of dissolved lead determined by the following equationa:

Pb = e(1.273[ln(hardness)]-4.705)x CF5 8.16.2 The one-hour average concentration of dissolved lead determined by the following equationa:

Pb = e(1.273[ln(hardness)]-1.46) x CF5 8.17 Manganese (µg/l) (See, section 6.2.4) 8.18 Mercury The total organism body burden of any aquatic species shall not exceed 0.5 µg/g as methylmercury. 0.5 0.5 8.18.1 Total mercury in any unfiltered water sample (µg/l): 2.4 2.4 0.15 0.14 8.18.2 Methylmercury (water column) (µg/l): .012 .012 8.19 Nickel (µg/l) 4,600 8.19.1 The four-day average concentration of dissolved nickel determined by the following equationa:

Ni = e(0.846[ln(hardness)]+0.0584) x CF5 8.19.2 The one-hour average concentration of dissolved nickel determined by the following equationa:

Ni = e(0.846[ln(hardness)]+2.255) x CF5 8.20 Nitrate (as Nitrate-N) (µg/l) 10,000 8.21 Nitrite (as Nitrite-N) (µg/l) 8.22 Nutrients Chlorophyll –a (µg/l) (See, section 8.3)

Total Phosphorus (µg/l) (See, section 8.3) 8.23 Organics Acenaphthenei (µg/l)

Acrylonitrileb,i (µg/l) 7.0 0.061 Aldrinb,i (µg/l) 0.003 0.003 0.00000077 0.00000077 0.000071 alpha-BHC (alpha- Hexachlorocyclohexane)b,i (µg/l) 0.00039 0.00036 Anthracenei (µg/l)

Benzeneb (µg/l) 0.66 Benzo(a) Anthraceneb,i (µg/l) 0.0013 0.0012 Benzo(a) Pyreneb,i (µg/l) 0.00013 0.00012 Benzo(b) Fluorantheneb,i (µg/l) 0.0013 0.0012 Benzo(k) Fluorantheneb,i (µg/l) 0.013 0.012 beta-BHC(beta- Hexachlorocyclohexane)b,i (µg/l) 0.014 0.008 Bis(2-Chloroethyl) Etherb,i (µg/l) 2.2 0.030 Bromoformb,i (µg/l) 7.0 Butylbenzyl Phthalatei (µg/l) 0.10 0.10 Carbon tetrachlorideb,i (µg/l) 0.4 Chlordaneb,i (µg/l) 2.4 0.0043 2.4 0.0043 0.00032 0.00031 0.00046 Chlorobenzenei (µg/l)

Chloroformb,i (µg/l) 2,000 Chryseneb,i (µg/l) 0.13 0.12 DDEb,i (µg/l) 0.000018 0.000018 DDTb,i (µg/l) 1.1 0.001 1.1 0.001 0.00003 0.00003 0.000024 Dibenzo(a,h)Anthraceneb,i (µg/l) 0.00013 0.00012 Dichlorobromomethaneb,i (µg/l) 0.95 Dieldrinb,i (µg/l) 2.5 0.0019 2.5 0.0019 0.0000012 0.0000012 0.000071 Diethyl Phthalatei (µg/l)

Dimethyl Phthalatei (µg/l) 2,000 2,000 Di-n-Butyl Phthalatei (µg/l)

Dioxin (2,3,7,8- TCDD)b (µg/l) 0.000000014 0.000000013 0.000000014 Endosulfan Sulfatei (µg/l)

Endrini (µg/l) 0.18 0.0023 0.18 0.0023 Ethylbenzenei (µg/l)

Fluoranthenei (µg/l)

Fluorenei (µg/l) gamma-BHC (gamma- Hexachlorocyclohexane)b,i (µg/l) 2.0 0.08 2.0 0.08 4.4 4.2 Heptachlorb,i (µg/l) 0.52 0.0038 0.52 0.0038 0.0000059 0.0000059 Heptachlor Epoxideb,i (µg/l) 0.000032 0.000032 Hexachlorobenzeneb,i (µg/l) 0.000079 0.000079 Hexachlorobutadieneb,i (µg/l) 0.01 0.01 Indeno(1,2,3-cd)Pyreneb,i (µg/l) 0.0013 0.0012 Methoxychlori (µg/l) 0.02 0.02 Methyl Bromidei (µg/l) 10,000 Methylene Chlorideb,i (µg/l)

Nitrobenzenei (µg/l)

PCBb (µg/l) 0.014 0.014 0.000045 0.000044 0.000045 Phthalate esters6 (µg/l) 3.0 3.0 Pyrenei (µg/l)

Tetrachloroethyleneb,i (µg/l)

Tolueneb,i (µg/l)

Toxapheneb,i (µg/l) 0.73 0.0002 0.73 0.0002 0.00071 0.00070 0.00071 Trichloroethyleneb,i (µg/l) 0.6 Vinyl chlorideb,i (chloroethene) (µg/l) 1.6 0.022 1,1,1- trichloroethaneb,i (µg/l) 200,000 10,000 1,1,2,2-tetrachloroethanei (µg/l) 0.2 1,1-dichloroethyleneb,i (µg/l) 20,000 1,2-dichlorobenzenei (µg/l) 3,000 1,2-dichloroethaneb,i (µg/l) 9.9 1,2-dichloropropaneb,i (µg/l) 0.90 1,3-dichlorobenzenei (µg/l) 1,4-dichlorobenzenei (µg/l) 2,4-dinitrotolueneb,i (µg/l) 1.7 0.049 2-Chloronaphthalenei (µg/l) 2-methyl-4,6-Dinitrophenoli (µg/l) 8.23.1 When the specified criteria for organic chemicals listed in section 8.23 are less than the practical laboratory quantification level, instream values will be calculated from discharge concentrations and flow rates, where applicable. 8.24 pHc No values below 6.0 nor above 9.0. Higher values due to photosynthetic activity may be tolerated. 8.25 Phenolic Materials 8.25.1 Phenoli (µg/l) 300,000 4,000 8.25.2 2-Chlorophenoli (µg/l) 8.25.3 2,4-Dichlorophenoli (µg/l) 8.25.4 2,4-Dimethylphenoli (µg/l) 3,000 8.25.5 2,4-Dinitrophenoli (µg/l) 8.25.6 Pentachlorophenolb,i (µg/l) 0.04 8.25.6.a The one-hour average concentration of pentachlorophenol determined by the following equation: exp(1.005(pH)-4.869) 8.25.6.b The 4-day average concentration of pentachlorophenol determined by the following equation: exp(1.005(pH)-5.134). 8.25.7 2,4,6-Trichlorophenolb,i (µg/l) 2.8 1.5 8.26 Radioactivity:

Gross Beta activity not to exceed 1,000 picocuries per liter (pCi/l), nor shall activity from dissolved strontium-90 exceed 10 pCi/l, nor shall activity from dissolved alpha emitters exceed 3 pCi/l. 8.26.1 Gross total alpha particle activity (including radium-226 but excluding radon and uranium shall not exceed 15 pCi/l and combined radium-226 and radium-228 shall not exceed 5pCi/l; provided that the specific determination of radium-226 and radium-228 are not required if dissolved particle activity does not exceed 5pCi/l; the concentration of tritium shall not exceed 20,000 pCi/l; the concentration of total strontium-90 shall not exceed 8 pCi/l in the Ohio River main stem. 8.27 Selenium (µg/l) Water Column Concentration f 8.27.1 Selenium (µg/g)g (based on instantaneous measurement) 8.5 µg/g Fish Whole-Body Concentration (sturgeon waters) 9.5 µg/g Fish Whole-Body Concentration (non-sturgeon waters) or 11.3 µg/g Fish Muscle (skinless, boneless filet) 8.27.2 Selenium (µg/g) Fish Egg/Ovary Concentrationh (based on instantaneous measurement) 15.8 15.8 8.28 Silver (µg/l)

Hardness Silver 0-50 1 51-100 4 101-200 12 > 201 24 8.28.1 0-50 1 51-100 4 101-200 12 201-400 24 401-500 30 501-600 43 8.28.2 The one-hour average concentration of dissolved silver determined by the following equation:

Ag=e(1.72[ln(hardness)]-6.59) x CF5 8.29 Temperature Temperature rise shall be limited to no more than 5oF above natural temperature, not to exceed 87oF at any time during months of May through November and not to exceed 73oF at any time during the months of December through April. During any month of the year, heat should not be added to a stream in excess of the amount that will raise the temperature of the water more than 5oF above natural temperature. In lakes and reservoirs, the temperature of the epilimnion should not be raised more than 3oF by the addition of heat of artificial origin. The normal daily and seasonable temperature fluctuations that existed before the addition of heat due to other natural causes should be maintained. 8.29.1 For the Kanawha River Main Stem (K-1):

Temperature rise shall be limited to no more than 5oF above natural temperature, not to exceed 90oF in any case. 8.29.2 For the Summersville tailwaters (Above Collison Creek):

Temperature shall be limited to no more than 5oF above natural temperature, not to exceed 72oF any time during the year. 8.29.3 No heated effluents will be discharged in the vicinity of spawning areas. The maximum temperatures for cold waters are expressed in the following table:

Daily Hourly Mean oF Max oF Oct-Apr 50 55 Sep&May 58 62 Jun-Aug 66 70 8.29.4 For Ohio River Main Stem (01) (See, section 7.1.4, herein):

Period Inst.

Dates Avg. Max.

Jan 1-31 45oF 50oF February 45 50 March 1-15 51 56 March 16-31 54 59 April 1-15 58 64 April 16-30 64 69 May 1-15 68 73 May 16-31 75 80 June 1-15 80 85 June 16-30 83 87 July 1-31 84 89 August 1-31 84 89 Sept 1-15 84 87 Sept 16-30 82 86 Oct 1-15 77 82 Oct 16-31 72 77 Nov 1-30 67 72 Dec 1-31 52 57 8.30 Thallium (µg/l) 6.3 1.7 8.31 Threshold odorc Not to exceed a threshold odor number of 8 at 104oF as a daily average. 8.32 Total Residual Chlorine (µg/l - measured by amperometric or equivalent method) 8.32.1 No chlorinated discharge allowed 8.33 Turbidity No point or non-point source to West Virginia's waters shall contribute a net load of suspended matter such that the turbidity exceeds 10 NTU's over background turbidity when the background is 50 NTU or less, or have more than a 10% increase in turbidity (plus 10 NTU minimum) when the background turbidity is more than 50 NTUs. This limitation shall apply to all earth disturbance activities and shall be determined by measuring stream quality directly above and below the area where drainage from such activity enters the affected stream. Any earth disturbing activity continuously or intermittently carried on by the same or associated persons on the same stream or tributary segment shall be allowed a single net loading increase. 8.33.1 This rule shall not apply to those activities at which Best Management Practices in accordance with the State's adopted 208 Water Quality Management Plan are being utilized, maintained and completed on a site-specific basis as determined by the appropriate 208 cooperative or an approved Federal or State Surface Mining Permit is in effect. This exemption shall not apply to Trout Waters. 8.34 Zinc (µg/l)

The four-day average concentration of dissolved zinc determined by the following equationa:

Zn = e(0.8473[ln(hardness)]+0.884) x CF5 8.34.1 The one-hour average concentration of dissolved zinc determined by the following equationa:

Zn = e(0.8473[ln(hardness)]+0.884) x CF5 1 One hour average concentration not to be exceeded more than once every three years on the average, unless otherwise noted. 2 Four-day average concentration not to be exceeded more than once every three years on the average, unless otherwise noted. 3 These criteria have been calculated to protect human health from toxic effects through fish consumption, unless otherwise noted. Annual geometric mean concentration not to be exceeded, unless otherwise noted. 4 These criteria have been calculated to protect human health from toxic and/or organoleptic effects through drinking water and fish consumption, unless otherwise noted. Annual geometric mean concentration not to be exceeded, unless otherwise noted. 5 The appropriate Conversion Factor (CF) is a value used as a multiplier to derive the dissolved aquatic life criterion is found in Appendix E, Table 2. 6 Phthalate esters are determined by the summation of the concentrations of Butylbenzyl Phthalate, Diethyl Phthalate, Dimethyl Phthalate, Di-n-Butyl Phthalate and Di-n-Octyl Phthalate. a Hardness as calcium carbonate (mg/l). The minimum hardness allowed for use in this equation shall not be less than 25 mg/l, even if the actual ambient hardness is less than 25 mg/l. The maximum hardness value for use in this equation shall not exceed 400 mg/l even if the actual hardness is greater than 400 mg/l. b Known or suspected carcinogen. Human health standards are for a risk level of 10-6. c May not be applicable to wetlands (B4) - site-specific criteria are desirable. d The early life stage equation in the National Criterion shall be used to establish chronic criteria throughout the state unless the applicant demonstrates that no early life stages of fish occur in the affected water(s). e Hardness as calcium carbonate (mg/l). The minimum hardness allowed for use in this equation shall not be less than 26 mg/l, even if the actual ambient hardness is less than 26 mg/l. The maximum hardness value for use in this equation shall not exceed 200 mg/l even if the actual hardness is greater than 200 mg/l. f Water column values take precedence over fish tissue values when new inputs of selenium occur in waters previously unimpacted by selenium, until equilibrium is reached between the water column and fish tissue. g Overrides any water column concentration when water concentrations and either fish whole body or fish muscle (skinless, boneless filet) are measured, except in situations described in footnotef. Sturgeon waters are the entire Ohio River mainstem and the Kanawha River mainstem extended upstream to the Kanawha Falls at rivermile 95.8, which may support sturgeon species. h Overrides any fish whole-body, fish muscle (skinless, boneless filet), or water column concentration when fish egg/ovary concentrations are measured, except in situations described in footnote f i Category A and C criteria reflect U.S. EPA’s 2015 national recommended human health criteria and are subject to evaluation described in subsection 8.2.3.

APPENDIX E

TABLE 2

Conversion Factors Metal Acute Chronic Aluminum 1.000 1.000 Arsenic (III) 1.000 1.000 Cadmium 1.136672-[(ln hardness)(0.041838)] 1.101672-[(ln hardness)(0.041838)]

Chromium (III) 0.316 0.860 Chromium (VI) 0.982 0.962 Copper 0.960 0.960 Lead 1.46203-[(ln hardness)(0.145712)] 1.46203-[(ln hardness)(0.145712)]

Nickel 0.998 0.997 Silver 0.85 N/A Zinc 0.978 0.986

APPENDIX F

COOL WATER LAKES

This list contains lakes to be managed for cool water fisheries and is not intended to exclude any waters which meet the definition in Section 2.2.

River Basin County Lake PC Hardy Lost River Trout Pond (Impoundment)

PC Hardy Lost River Rock Cliff Lake (Impoundment)

PSB Pendleton Hawes Run (Impoundment)

PNB Mineral New Creek Dam 14 (Impoundment)

MC Monongalia Coopers Rock (Impoundment)

MC Monongalia Cheat Lake MC Tucker Thomas Park (Impoundment)

MC Randolph Spruce Knob Lake (Impoundment)

MT Taylor Tygart Lake MW Lewis Stonecoal Lake Kanawha River KC Raleigh Stephens Lake (Impoundment)

KG Nicholas Summersville Reservoir (Impoundment)

KG Greenbrier Summit Lake (Impoundment)

KNG Pocahontas Watoga Lake KNG Pocahontas Buffalo Fork (Impoundment)

KNG Pocahontas Seneca (Impoundment)

KCG Pocahontas Handley Pond Guyandotte River OG Wyoming/Mingo RD Bailey Lake

Series 02A Designation Of Tier 3 Waters

W. Va. Code R. § 47-2A-1 General

1.1. Scope. -- This rule provides guidance and clarification for designating a Tier 3 water pursuant to the provisions of 47CSR§2-4.1.c.

1.2. Authority. -- W. Va. Code §22-11-7b and 47CSR§2-4.1.c.

1.3. Filing. -- October 28, 2008.

1.4. Effective Date. -- December 1, 2008.

W. Va. Code R. § 47-2A-2 Definitions

The definitions used in 47CSR2 and 60CSR5 will apply to this rule unless specifically noted otherwise.

2.1. “Water” or “waters” means a lake, stream or stream segment.

W. Va. Code R. § 47-2A-3 Applicability

3.1. This rule applies to the West Virginia Department of Environmental Protection as it designates Tier 3 waters pursuant to the provisions of 47CSR§2-4.1.c. This rule does not apply to the listing of Tier 3 waters pursuant to 60CSR§5-7.1.

W. Va. Code R. § 47-2A-4 Tier 3 Designation

4.1. Waters Located in Federal Wilderness Areas.

4.1.a. All waters located within the boundaries of federally designated wilderness areas, bounded on both sides of the water by public land, will be designated Tier 3 waters.

4.2. Waters Located in State Parks, National Parks and National Forests.

4.2.a. All high quality waters or naturally reproducing trout streams located within the boundaries of state parks, national forests or units within the national park system, bounded on both sides of the water by public land, will be designated Tier 3 waters.

4.3. Specifically Designated Federal Waters.

4.3.a. Waters specifically designated under the Wild and Scenic Rivers Act and the National Parks and Recreation Act of 1978, as amended, will be designated Tier 3, notwithstanding ownership status of the land bordering those waters. Waters included in these designations are currently limited to portions of the main stem of the Bluestone River as described under 16 U.S.C.§1274(a)(65) and portions of the main stem of the New River as described under 16 U.S.C. §460m et seq.

W. Va. Code R. § 47-2A-5 High Quality and Naturally Reproducing Trout Waters

5.1. For purposes of subsection 4.2, waters will be considered “high quality” based on their biological integrity as evidenced by an exceptionally healthy benthic macroinvertebrate community, and not pursuant to the definition in 47CSR§2-2.8, which relates to Tier 2 protection.

5.1.a. “Exceptionally healthy benthic macroinvertebrate community” means a benthic macroinvertebrate community collected and analyzed in accordance with DEP protocols, that whether done at the family or genus level, results in a score that is above the 25th percentile of the applicable reference waters (e.g., West Virginia Stream Condition Index score greater than 78).

5.2. For purposes of subsection 4.2, waters will be considered “naturally reproducing trout waters” based on documented reproduction.

5.2.a. “Documented reproduction” means a DNR or DEP fish survey or other written documentation that verifies the presence of reproducing brown, brook or rainbow trout. Reproduction may be evidenced by the presence of multiple year classes of the same species that are not the result of any recent stocking activity. Reproduction may also be evidenced by the presence of a single year class after consideration of the stream, its location and stocking practices in the area.

5.3. Sample Location with respect to High Quality and Naturally Reproducing Trout Determinations.

5.3.a. When determining whether a water is high quality or a naturally reproducing trout stream, the sampling site may be located in reasonably close proximity to the segment contained on public land, provided the sample is representative of the public land segment.

W. Va. Code R. § 47-2A-6 Waters Upstream of Tier 3 Segments

6.1. Waters immediately upstream of a Tier 3 segment will be considered Tier 1 or Tier 2, as appropriate, unless subsequently designated Tier 3. With respect to the protection of downstream Tier 3 segments, the provisions of 60CSR§5-6.3 apply.

47CSR2A

47CSR2A

Series 03 Pollution Prevention And Compliance Assistance Rule

W. Va. Code R. § 47-3-1 General

1.1. Scope and Purpose. -- To promote pollution prevention by encouraging the reduction or elimination of pollutants at the source through process modification, material substitution, in process recycling, reduction of raw material use or other source reduction opportunities. This rule establishes requirements governing the Division of Environmental Protection=s in-house mechanisms for encouraging bonafide pollution prevention efforts by industries to assist in achieving regulatory compliance; and to further improve compliance with environmental laws by improving advisory and technical assistance features of programs within the Division.

This rule establishes a multi-media program to assist businesses with pollution reduction and elimination activities; providing duties and powers of the director; and designating existing programs by the Director within the Division of Environmental Protection engaged in bonafide pollution prevention and compliance assistance activities to keep information confidential and independent from enforcement or other division personnel unless an imminent hazard to human health or the environment exists.

1.2. Authority. -- W. Va. Code ''22-1-1(b)(10) and 22-1-6d.

1.3. Filing Date. -- May 7, 1999.

1.4. Effective Date. -- May 7, 1999.

W. Va. Code R. § 47-3-2 Definitions

2.1. AAgency@ means the Division of Environmental Protection.

2.2. ACompliance Assistance@ means services provided to the regulated community in order to assure environmental laws and rules pertaining to treatment and proper disposal are being addressed by cooperating businesses.

2.3. ADirector@ means the Director of the Division of Environmental Protection.

2.4. AImminent Hazard@ means any conditions or practices that present an immediate threat to human health and an impending and unreasonable risk to the environment.

2.5. AMulti-media@ means water, air, waste, and land.

2.6. APollution Prevention@ is the means of the reduction or elimination of pollutants at the source through process modification, material substitution, in process recycling, reduction of raw material use, or other source reduction opportunities.

2.7. AProgram@ Pollution Prevention Services is designated as a program of the Division of Environmental Protection within the Office of Water Resources.

2.8. ASource Reduction@ means any practice which reduces the amount of any substance, pollutant, or contaminant entering any waste stream or otherwise released into the environment (including fugitive emissions) prior to recycling, treatment, or disposal; and reduces the hazards to public health and the environment associated with the release of such substances, pollutants, or contaminants.

W. Va. Code R. § 47-3-3 Powers and Limitations

The Director has established Pollution Prevention Services, a program within the Office of Water Resources that provides pollution prevention and compliance assistance to the regulated community within the state.

3.1. The multi-media section seeks to coordinate activities within the Offices of Air, Water, and Waste in matters relating to pollution prevention and compliance assistance.

3.2. Assistance does not protect participating businesses from ongoing enforcement actions or any independent action initiated after the assistance activities are underway. Assistance activities may be conducted concurrent to enforcement activities by enforcement agencies.

3.3. The agency makes specific technical assistance available to businesses seeking information about pollution prevention/compliance assistance opportunities, including on site technical information, for the purpose of assisting in the development of pollution prevention plans.

3.4. The program will target assistance to businesses for whom lack of information is an impediment to pollution prevention.

3.5. The program participants will receive training in pollution prevention techniques.

3.6. Pollution prevention activities shall be coordinated with other assistance providers, federal agencies, other states= pollution prevention/compliance assistance providers, educational establishments, and any other organization engaged in providing pollution prevention resources.

3.7. Agency personnel function as the invitees of businesses seeking assistance. Participating businesses may terminate participation in this program at any time.

W. Va. Code R. § 47-3-4 Confidentiality

4.1. The agency will maintain all information from site evaluations, interviews or otherwise, obtained from facility personnel confidential and shall not provide information to enforcement personnel except for conditions which would result in an imminent hazard as defined in this rule.

4.2. Any information generated subsequent to field evaluations, correspondence, etc., may be retained in a temporary file which shall be given to the participating business upon request following completion of agency involvement.

W. Va. Code R. § 47-3-5 Imminent Hazard

5.1. The agency shall notify the company of obligation on part of pollution prevention personnel to report imminent hazards. If imminent hazards are noted, the agency shall inform company of hazard, and the Pollution Prevention staff will immediately notify the Office of Environmental Enforcement to conduct an inspection. The Office of Environment Enforcement is the enforcement arm of the Office of Waste Management and the Office of Water Resources.

47CSR3

Series 05A Regulations for State Certification of Activities Requiring Federal Licenses and Permits

W. Va. Code R. § 47-5A-1 General

1.1. Scope. -- The purpose of this legislative rule is to carry out the responsibilities placed upon the State by Section 401 of the Federal Clean Water Act, 33 U.S.C. §1341 and W. Va. Code §§22-1-6(d)(7) and 22-11-7(a). Section 401 of the Clean Water Act requires that any applicant for a federal license or permit to conduct an activity that will or may discharge into waters of the United States (as defined in the Clean Water Act) to present the federal authority with a certification from the appropriate state agency. This rule establishes the procedures and criteria for the application, processing and review of state water quality certifications that require a federal permit including those from the United States Army Corps of Engineers under Section 404 of the Clean Water Act, 33 U.S.C. §1344; Section 10 of the Rivers and Harbors Act of 1899, 33 U.S.C. §403; and licenses issued by the Federal Energy Regulatory Commission under the Federal Power Act, 16 U.S.C. §1791 et. seq.

1.2. Authority. -- W. Va. Code §§22-1-6(d)(7) and 22-11-7(a).

1.3. Filing Date. -- April 14, 2014.

1.4. Effective Date. -- May 14, 2014.

W. Va. Code R. § 47-5A-2 Definitions

When used in this rule, for any activity involving a discharge into waters of the United States that requires a 401 state water quality certification, the following terms are defined as follows:

2.1. "Applicant" means persons or entities that are requesting a federal license or permit to conduct activity that discharges or may discharge, into waters of the United States and require an individual Section 401 state water quality certification.

2.2. "Aquatic resources" include, but are not limited to, wildlife, fish, recreational uses, critical habitats, wetlands, and other natural resources subject to the Secretary's jurisdiction.

2.3. "Certification" means the certification as required under Section 401 of the federal Clean Water Act, 33 U.S.C. §1341.

2.4. "Compensatory mitigation" means the compensation to the State for unavoidable impacts to aquatic or recreational resources in waters of the United States after all appropriate and practicable avoidance and minimization has been achieved by replacing those aquatic or recreational resources through creation, preservation, restoration, enhancement, or monetary or other compensation as set forth in this Rule or as may be determined appropriate by the Secretary.

2.5. "Complete" means that the application package submitted to the Department by the applicant for a State 401 Water Quality Certification contains all information necessary, as determined by the Secretary, to initiate processing and public review.

2.6. "Condition" means limitations and monitoring requirements that assure that any applicant for a federal license or permit will comply with all applicable federal and State laws including water quality standards.

2.7. "Department" means the Department of Environmental Protection.

2.8. "Emergent wetlands" or "wet meadows, means an area characterized by the presence of more than fifty percent (50%) grasses, sedges and other non-woody vegetation.

2.9. "Forested wetlands" means an area characterized by woody vegetation that is six meters (19.685 feet) tall or taller.

2.10. "Open water wetlands" are ponds, lakes, and reservoirs. Vegetation may or may not be present and covers less than ten percent (10%) of the surface area. 2.11 "Permanent impacts" means the unavoidable loss of aquatic resources from a permanent structure or activities that cause physical stream loss. 2.12 "Scrub-shrub wetlands" are areas dominated by woody vegetation less than six meters (19.685 feet) tall. The species include true shrubs, young trees, and trees or shrubs that are small or stunted because of environmental conditions.

2.13. "Secretary" means the Secretary of the Department of Environmental Protection or his or her designee.

2.14. "Wetlands" means those areas that are inundated or saturated by surface or groundwater at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions. Wetlands generally include swamps, marshes, bogs, and similar areas.

W. Va. Code R. § 47-5A-3 Scope and Effect of Certification

3.1. Certifications may impose State standard conditions and any special conditions necessary to comply with applicable state and federal laws. When issuing certification, the Department may consider the proposed activity's impact on water resources, fish and wildlife, recreation, critical habitats, wetlands, and other natural resources under the Secretary's jurisdiction. The State may grant, grant with conditions, deny, or waive certification. If the State denies certification, then the federal license or permit shall not be granted.

3.2. Certifications may require compensatory mitigation.

3.2.a. The Secretary shall provide credit for any mitigation that is a required component of the permit issued by the U.S. Army Corps of Engineers pursuant to 33 U.S.C. 1344.

3.3. Any condition the Department puts on a State 401 Certification becomes a term or condition of the federal license or permit.

W. Va. Code R. § 47-5A-4 Applications, Procedures for Certification Issuance

4.1. Information contained within environmental processes and reviews such as environmental assessments, environmental impact statements and mining and reclamation plans, may be used to meet part or all of the requirements of this Rule.

4.1.a. Any applicant for an individual state 401water quality certification shall submit two copies of a complete application, or an electronic application, to the Secretary on the forms prescribed by the Secretary. The applicant shall submit an application fee to the Department in the amount of $350.

4.1.a.1. The Secretary has sixty (60) days upon receipt to determine if an application package is complete.

4.1.a.2. The Secretary may request additional information if he or she determines that such information is necessary to properly evaluate the application.

4.1.b. The Secretary shall, within one year after an application is deemed complete, issue, waive or deny the request for a water quality certification.

4.1.b.1. Basis for Certification Decision. -- Any certification decision will be based on compliance with Sections 301, 302, 303, 306 and 307 of the federal Clean Water Act, the West Virginia Water Pollution Control Act, and the rules promulgated thereunder.

4.1.b.2. Distribution of Certification Decision. -- Copies of the proposed certification decision will be sent to the applicant and all persons who commented or attended the public hearing.

4.1.b.3. Withdrawal, Dismissal or Denial of Federal Application Negates the Need for Certification. -- If an application for a federal license or permit is withdrawn, dismissed, denied, or otherwise rendered void, then the certification is no longer needed and any State certification proceeding or action is rendered moot. Any applicant for an activity requiring a State certification, that was rendered moot, must renew its application for certification and the full time period set forth in subsection 4.1.b. of this Rule starts over upon resubmission of a complete application.

4.2. Contents of Application. Application for State 401 Water Quality Certification shall be made on the form prescribed by the Secretary, including an alternative analysis and the following, if applicable:

4.2.a. A Wetlands Delineation. Wetlands shall be identified using the most current and acceptable method as determined by the US Army Corps of Engineers (currently 1987 Corps Manual for Identifying and Delineating Wetlands).

4.2.b. A Stream Restoration Plan. Any activity in waters of the U. S. shall include a Stream Restoration Plan, which outlines a riparian revegetation plan, fluvial geo-morphological methods, or other acceptable methods to address stream impacts. The plan shall also incorporate the monitoring requirements found in section 6.3 of this Rule.

4.2.c. A Conceptual Mitigation Plan to be executed in accordance with section 6.2 of this Rule.

4.2.d. A Public Notice Form for State 401 Certification.

4.2.e. A statement affirming that the information listed in subsections 4.2.a. through 4.2c. above submitted to the Department for review is accurate and true to the best of applicant's knowledge.

4.2.f. Contents of Application for Surface Mining Operations. In addition to the information listed in subsections 4.2.a. through 4.2.e. above, activities that meet the definition of “surface mining operations” as set forth in W. Va. Code § 22-3-3 shall also submit the following information with their applications for State certification:

4.2.f.1. A No Practical Alternative Demonstration. A document containing the following:

4.2.f.1.A. That no practical alternatives exist to the activity for which the federal permit or license is being sought, including an explanation of alternative activities that were considered but eliminated;

4.2.f.1.B. That treatment facilities will be located as close as practical to the source(s) with which it is associated.

4.2.f.1.C. such activity will impact Waters of the United States no more than is necessary to accommodate its proper construction and operation, and

4.2.f.1.D. Maps, plans, specifications and design analyses for the preferred alternative to the project.

4.2.f.2. An Impact Analysis. A detailed analysis of the potential impacts, to the extent applicable, of the proposed project on water quality and quantity, fish and wildlife, aquatic habitat, parks, recreation, in-stream and downstream water uses.

4.2.f.3. A Biological Survey of the Stream. Each applicant will follow established and accepted protocols for collection, analysis, documentation, and presentation of biological data from Waters of the U.S., i.e., the U.S. Environmental Protection Agency's "Rapid Bioassessment Protocols for Use in Wadeable Streams and Rivers". Bioassessment stations shall be located as follows: one above the proposed activity, one at the proposed activity and one downstream of the proposed activity or at other locations necessary to assess the activity's impact. The Secretary may, at his or her discretion, request from the applicant certain State preferred biologic indices to facilitate review. Upon request of the applicant and for good cause shown, the Secretary may waive the survey requirement.

4.2.f.4. A Delineation of the Stream to be Impacted. The applicant shall measure the length, width and depth of the stream segment to be impacted. Width and depth measurements shall be made at one hundred (100) foot intervals. The stream delineation shall indicate the ephemeral and intermittent/perennial segments to be impacted. The stream shall be measured from the farthest downstream disturbance, excluding stream crossings associated with haul roads for surface mining operations, upstream to the beginning of an intermittent stream, as defined in the Department's rules entitled Requirements Governing Water Quality Standards (47 C.S.R.2 § 2.9) or West Virginia Surface Mining Reclamation Rule (38 C.S.R. 2 §2.69). The applicant shall provide a table listing the station number with the corresponding acreage, including the drainage area from the toe of the pond and the toe of the fill. As an appendix to the Delineation of the Stream to be Impacted, the applicant shall also submit the following information:

4.2.f.4.A. The name of the person(s) conducting the stream delineation and his or her qualifications (i.e. DEP representative, company representative, consultant, biologist, etc.);

4.2.f.4.B. The date on which the delineation was conducted;

4.2.f.4.C. The recent weather conditions and those on the day of the delineation;

4.2.f.4.D. A statement verifying that the applicant followed the October 1999 DEP Stream Delineation Memorandum in the determination process;

4.2.f.4.E. The method used for determination (i.e. post-hole or benthic); and

4.2.f.4.F. A copy of field notes, photographs, and a stream delineation map that indicates the results in relation to the proposed activity, if possible.

4.3. Federal Energy Regulatory Commission Licenses.

4.3.a. The application to the Department for certification of an activity requiring a license from the Federal Energy Regulatory Commission (FERC) shall consist of the following: a letter to the Secretary requesting certification, a completed application form as prescribed by the Secretary, the FERC license application submitted to and accepted by FERC under 18 CFR §4.1-4.202, and/or part 5.1 – 5.31 as applicable, the Order from FERC accepting the application, and a certificate of publication from the newspaper publishing the Class II legal advertisement required by subsection 5.1.d. of this Rule.

4.3.b. If the project application is altered or modified during the FERC licensing process prior to FERC's final decision, the applicant shall inform the Department of such changes. The Department may review such alterations or modifications and, if the changes are deemed significant by the Secretary, the Department may require a new application for certification. The Department has (90) days to review such changes or until the end of the one-year review period, authorized in subdivision 4.1.b. whichever is longer, to determine whether to require a new application or to alter its original certification decision. If the Department requires a new application because of a significant application modification, then the Department has six (6) months from the date it receives a complete application to issue its certification decision.

4.3.c. Prior to issuing a Section 401 Certification, the Secretary shall evaluate the recreational resources of all projects under Federal licensor applications therefor and seek, within his/her authority, the ultimate development of these resources, consistent with the needs of the area to the extent that such development is not inconsistent with the primary purpose of the project. Reasonable expenditures by a licensee for public recreational development pursuant to an approved plan, including the purchase of land, will be included as part of the project cost. The licensee shall assume the following responsibilities:

4.3.c.1. To acquire in fee and include within the project boundary enough land to assure optimum development of the recreational resources afforded by the project. To the extent consistent with the other objectives of the license, such lands to be acquired in fee for recreational purposes shall include the lands adjacent to the exterior margin of any project reservoir plus all other project lands specified in any approved recreational use plan for the project.

4.3.c.2. To develop suitable public recreational facilities upon project lands and waters and to make provisions for adequate public access to such project facilities and waters and to include therein consideration of the needs of persons with disabilities in the design and construction of such project facilities and access.

4.3.c.3. To encourage and cooperate with appropriate local, State, and Federal agencies and other interested entities in the determination of public recreation needs and to cooperate in the preparation of plans to meet these needs, including those for sport fishing and hunting.

4.3.c.4. To encourage governmental agencies and private interests, such as operators of user-fee facilities, to assist in carrying out plans for recreation, including operation and adequate maintenance of recreational areas and facilities.

4.3.c.5. To cooperate with local, State, and Federal Government agencies in planning, providing, operating, and maintaining facilities for recreational use of public lands administered by those agencies adjacent to the project area.

4.3.c.6. To comply with Federal, State and local regulations for health, sanitation, and public safety, and to cooperate with law enforcement authorities in the development of additional necessary regulations for such purposes.

4.3.c.7. To provide either by itself or through arrangement with others for facilities to process adequately sewage, litter, and other wastes from recreation facilities including wastes from watercraft, at recreation facilities maintained and operated by the licensee or its concessionaires.

4.3.c.8. To ensure public access and recreational use of project lands and waters without regard to race, color, sex, religious creed or national origin.

4.3.c.9. To inform the public of the opportunities for recreation at licensed projects, as well as of rules governing the accessibility and use of recreational facilities.

W. Va. Code R. § 47-5A-5 Public Notice, Public Hearings

5.1. Public Notice.

5.1.a. Upon the Certification application being deemed complete by the Department, the applicant shall place a one- time Class I legal advertisement in a qualified newspaper of general circulation in the county of the proposed activity. There will be a (30) day comment period from the date of publication. Nothing herein prohibits a joint public notice process with the U.S. Army Corps of Engineers. Each advertisement shall contain at a minimum the following:

5.1.a.1. Any other State issued permit numbers, if applicable and available.

5.1.a.2. A clear and accurate location map of a scale and detail found in the West Virginia General Highway Map. The map size will be at a minimum four inches (4") by four inches (4"). Longitude and latitude line and north arrow will be indicated on the map and such lines will cross at or near the center of the activity for which the applicant is seeking certification.

5.1.a.3. The name and business address of the applicant including a street address or route number.

5.1.a.4. A narrative description clearly describing the location of the activity for which the applicant is seeking certification.

5.1.a.5. The name(s) of the receiving stream(s) into which the discharge of fill material will be placed.

5.1.a.6. The location where a copy of the application for certification is available for public review.

5.1.a.7. The name and address of the Department of Environmental Protection Office where written comments or requests for a public hearing, on the application for certification may be submitted.

5.1.a.8. The type of operation being permitted; and

5.1.a.9. The type of federal permit being sought.

5.1.b. The advertisement and publication dates for the application for certification shall be certified and notarized by the publishing newspaper. The certificate of publication shall be made part of the approved application no later than four (4) weeks after the last date of publication.

5.1.c. Any person having an interest that is or may be adversely affected by the activity that is the subject of the application for certification, has the right to file written comments or objections to the application with the Secretary within thirty (30) days after the publication date of the advertisement required in subdivision 5.1.a. above. Where a public hearing is granted the public comment period will be extended to the close of the hearing.

5.1.d. Federal Energy Regulatory Commission Licenses. Applicants for State certification of activity licensed by FERC shall provide notice of the same by publishing a Class II legal advertisement in a newspaper of general circulation in the county in which the activity will take place and in a principle newspaper of regional circulation in the area where the project is located. Such notice will describe the activity, advise the public of the scope of certification, their rights to comment on the proposed activity and to request a public hearing, and will also inform the public to whom they should send their requests and comments.

5.1.e. Submission of Comments to Applicant; Response. -- Any comments and information received by the Department may be forwarded to the applicant so that the applicant may resolve disputes raised, rebut adverse comments and information, or supplement its application based on such comments and information. The Department will prepare a response to significant comments.

5.2. Public Hearings.

5.2.a. The decision to hold a public hearing lies within the discretion of the Secretary. The Secretary will evaluate all requests for a public hearing and make a decision based on such requests.

5.2.b. Requests made to the Secretary should explain the need for the public hearing and set forth the kind of information, material or comments the requester expects to give at the hearing.

5.2.c. The Secretary, at his or her discretion, may hold a public hearing without a request for the same.

5.2.d. The Secretary shall send a written notice to all parties requesting the public hearing. The applicant shall publish a Class I legal advertisement in a qualified newspaper of general circulation in the county where the proposed activity shall occur. Such hearing notice shall be sent and published at least thirty (30) days prior to the hearing date and shall include all pertinent information including, location, date and time.

5.2.e. The applicant shall bear the cost of publishing any notice.

W. Va. Code R. § 47-5A-6 Compensatory Mitigation

6.1. The Department may require the applicant, as a condition of certification, to compensate for aquatic resources lost through compensatory mitigation and/or monetary compensation. If mitigation/compensation is required, necessary agreements will be executed prior to certification.

6.2. Compensatory Mitigation Requirements.

6.2.a. For permanent stream impacts/losses to aquatic resources where a Section 404 permit is required, compensatory mitigation projects shall be completed consistent with 33 CFR Part 332, effective date April 10, 2008, as required by the Federal Clean Water Act, for the types and locations of waters impacted.

6.2.b. For temporary stream impacts/losses to aquatic resources where a Section 404 permit is required, compensatory mitigation projects shall be completed consistent with 33 CFR Part 332, effective date April 10, 2008, as required by the Federal Clean Water Act, for the types and locations of waters impacted at a prorated amount of three percent (3%) per year, or portion thereof. Temporary stream impacts or losses to aquatic resources projected to last longer than 20 years shall be mitigated pursuant to the rate for permanent stream impacts or losses set forth in subdivision 6.2.a. above.

6.2.c. Compensation for wetlands must occur for impacts cumulatively greater than one-tenth (1/10) acre and above at the following ratios:

6.2.c.1. Impacts to open water wetlands are to be replaced at a ratio of one (1) unit created for each unit impacted.

6.2.c.2. Impacts to emergent wetlands are to be replaced at a ratio of two (2) units created for each unit impacted.

6.2.c.3. Impacts to scrub-shrub type wetlands are to be replaced at a ratio of three (3) units created for each unit impacted.

6.2.c.4. Impacts to forested wetlands are to be replaced at a ratio of three (3) units created for each unit impacted.

6.2.c.5. If a forested or scrub shrub wetland is converted to an emergent wetland it is to be mitigated at a ratio of two (2) units created for each unit impacted.

6.2.d. An applicant for a proposed project who desires to provide compensatory in-kind mitigation prior to the disturbance of the resource, will comply with the following criteria:

6.2.d.1. Mitigation ratio will be at one (1) unit created to every one (1) unit impacted.

6.2.d.2. Mitigation shall be completed 12 months prior to the impact of the resource. Full credit realization will be dependent upon the success criteria set forth in the mitigation plan.

6.2.d.3. Mitigation plans will meet the review and approval of the Department of Environmental Protection and Division of Natural Resources. Satisfactory completion will be determined by concurrence of DEP and DNR prior to final approval of mitigation obligation.

6.2.e. In certain instances, the Secretary may consider the acquisition of existing wetlands. All wetlands acquired, using the acquisition method of mitigation, shall either be deeded to the West Virginia Division of Natural Resources Office of Lands and Streams for management by the Wildlife Resources Section or placed under a conservation easement and be protected from disturbance by the permittee or their designee. Acquisition ratios are the following:

6.2.e.1. Five (5) units to every one (1) unit for open body wetlands;

6.2.e.2. Ten (10) units to every one (1) unit for wet meadow wetlands and;

6.2.e.3. Fifteen (15) units to every one (1) unit for scrub-shrub and forested wetlands.

6.2.f. Monetary mitigation for permanent stream or wetland impacts will be assessed consistent with 33 CFR Part 332 methodologies and rates, effective date April 10, 2008.

6.2.g. Monetary mitigation for permanent wetland impacts will be assessed consistent with 33 CFR Part 332 methodologies and rates, effective date April 10, 2008, provided the replacement ratios in 6.2.d. are incorporated.

6.2.h. A payment plan over three (3) years may be allowed, provided that the Department receives the compensation prior to impacting a water of the U.S.

6.2.i. Where payment or compensation projects are deferred, the Secretary may require the applicant to post a payment bond in a form satisfactory to the Secretary, to be effective until compensation is made or the in-kind project is satisfactorily completed. The bond shall be released upon satisfactory completion of compensation or payment as determined by the Secretary.

6.2.j. In lieu of monetary compensation, applicants can make in-kind donations of land that would be suitable for lake development, water resources improvement or creation, or the creation of facilities associated with recreation. Such sites must have the approval of both, the Division of Natural Resources, Wildlife Resources Section and the Department.

6.2.k. Impacts to Recreational Resources Associated with Section 10 Permits.

6.2.k.1. Where monetary compensation is the agreed upon mitigation for impacts to recreational resources associated with Section 10 permits, compensation shall be at a rate of $150 per linear foot for single-row barge fleeting areas. For multiple-row barge fleeting areas, the rate shall be $2 per square foot of occupied river. The Secretary will not consider the percentage of time the fleeting area may be vacant in this calculation.

6.2.k.2. The Secretary may consider and approve non-monetary mitigation proposals for impacts to recreational resources associated with Section 10 permits on a case-by-case basis.

6.2.l. The Secretary, consistent with values determined appropriate by the West Virginia Division of Natural Resources for replacement of fish, shall require compensation for loss of fish caused by impingement or entrainment at FERC regulated hydropower facilities.

6.3. Monitoring Requirements.

6.3.a. The permittee shall monitor a compensatory mitigation site until the Secretary determines that the permittee has met the success criteria outlined in the restoration plan.

6.3.b. The permittee shall submit monitoring reports yearly until the Secretary determines that the project is complete and has been successful for three consecutive years.

W. Va. Code R. § 47-5A-7 Appeal of Certification

7.1. Standing for Requesting and Appeal Hearing; Requests; Decision.

7.1.a. Any person whose property, or property interest is directly affected by the Department's certification or certification denial, may request a hearing within 15 days after notification of the certification decision.

7.1.b. A person described under subdivision 7.1.a. shall make a request for hearing to the Secretary. The request for hearing shall identify the interest directly affected and set forth the manner in which the person is aggrieved or adversely affected.

7.1.c. The Secretary shall decide whether to hold such hearing.

7.2. Appeal Hearing.

7.2.a. If the Secretary grants the request for a hearing, the Secretary, or the Secretary's designee acting as a hearing examiner, shall hold the hearing within 60 days from the date the appeal request is received by the Department. All hearings will normally be held in Charleston at a place specified by the Secretary. The Secretary, however, may hold the hearing at another location or time.

7.2.b. The parties to the proceeding shall be the aggrieved person, who shall be known as the appellant and the Department of Environmental Protection which shall be the appellee.

7.2.c. In conducting the hearing, the Secretary or the Secretary's designee acting as a hearing examiner, shall follow the procedures contained in the West Virginia Administrative Procedures Act, W. Va. Code § 29A-5-1, et seq. Both parties may be represented by counsel.

7.2.d. Parties may seek discovery and may make various motions as outlined in the West Virginia Rules of Civil Procedure, Rules 7-16 and 26-37, which rules shall generally apply.

7.2.e. After the hearing the Secretary shall decide the issues presented and shall notify the parties in writing of such decision.

W. Va. Code R. § 47-5A-8 Enforcement of Certification Provisions

8.1. Because certification conditions are considered terms or conditions of the federal permit sought, they are subject to the enforcement mechanisms available for enforcing the federal license or permit to which they attach. In addition the enforcement mechanisms available under W. Va. Code §§22-1-3(a), 22-11-24, and 22-11-25 may also apply.

8.2. If a permittee undertakes activities prior to or without applying for certification, the Department may issue an after-the-fact certification. Any mitigation or compensation required as an after-the-fact certification may be at a rate of up to 125% of the original calculated mitigation or compensation requirement.

47CSR5A

Series 09 Underground Injection Control Fee Schedule (97 tech cleanup)

W. Va. Code R. § 47-9-1 General

1.1. Scope and Purpose. -- This legislative rule establishes schedules of permit fees for state under-ground injection control permits issued by the Chief of the Office of Water Resources. This rule applies to any person who is required to apply for and obtain a permit from the Chief in order to conduct an activity that is enumerated in W. Va. Code '22-11-8, and is separate from permit fees required under W. Va. Code '22-6-6.

1.2. Authority. -- '22-11-10.

1.3. Filing Date. -- May 13, 1994.

1.4. Effective Date -- June 1, 1994.

1.5. Incorporation by Reference -- Whenever federal or state statutes or regulations are incorpo-rated into this rule by reference, the reference is to the statute or regulation in effect on July 1, 1992.

W. Va. Code R. § 47-9-2 Definitions

2.1. "Activity" means an activity for which a permit is required pursuant to the provisions of W. Va. Code '22-11-8.

2.2. "Chief" means the Chief of the Office of Water Resources of the Division of Environmental Protection of the West Virginia Bureau of Environ-ment.

2.3. "Class 1 well" is an underground injection well as described in the Underground Injection Control rule . 47CSR13, subdivision 4.1.a and b.

2.4. "Class 2 well" is an underground injection well as described in the Underground Injection Control rule '46CSR13 subdivisions 4.2.a through c.

2.5. "Class 3 well" is an underground injection well as described in the Underground Injection Control rule 47CSR13 subdivisions 4.3.a through e.

2.6. "Class 4 well" is an underground injection well as described in the Underground Injection Control rule 47CSR13 paragraph 4.4.a.

2.7. "Class 5 well" is an underground injection well as described in the Underground Injection Control rule . 47CSR13 subdivisions 4.5.a through r.

2.8. "Facility" means any "injection well or group of wells" that is subject to rule under the UIC program.

2.9. "Fluid" means any material or substance which flows or moves whether in a semisolid, liquid, sludge, gas or any other form or state.

2.10. "Hazardous Waste" means a waste or combination of wastes, which because of its quan-tity, concentration or physical, chemical or infec-tious characteristics, may (A) cause, or significantly contribute to an increase in mortality or an increase in serious irreversible, or incapacitating reversible, illness; or (B) pose a substantial present or potential hazard to human health or the environment when improperly treated, stored, transported, disposed of or otherwise managed.

2.11. "Major modification" means a modifica-tion of an issued permit made in accordance with the provisions of the Underground Injection Control rule . '47CSR13, subsection 13.18.

2.12. "Minor modification" means a modifica-tion of an issued permit made in accordance with the provisions of the Underground Injection Control rule . '47CSR13, subsection 13.20.

2.13. "Permit" means an authorization, license or equivalent control document issued by the state to implement the requirements of the UIC Program. "Permit" includes an area permit and a UIC Emer-gency Permit. "Permit" does not include UIC authorization by rule or any permit which has not yet been the subject of final agency action, such as a "draft permit."

2.14. "Person", "persons", or "applicant" means any industrial user, public or private corporation, institution, association, firm or company organized or existing under the laws of this or any other state or country; state of West Virginia; governmental agency, including federal facilities; political subdivi-sion; county commission; municipal corporation; industry, sanitary district; public service district; drainage district; soil conservation district; water-shed improvement district; partnership; trust; estate; person or individual; group of persons or individuals acting individually or as a group; or any legal entity whatsoever.

2.15. "UIC" means the Underground Injec-tion Control program under Part C of the Safe Drinking Water Act, 42 USC '300f including an approved state program.

2.16. "Underground Injections" means the subsurface emplacement of fluids through a well, drainfield, cesspool or pit, or any means thereof.

2.17. "Well" for the purpose of the State UIC Program, means a bored, drilled or driven shaft, or a dug hole whose depth is greater than the largest surface dimension and includes those types of Class 5 wells as defined in subsection 4.5 of the Under-ground Injection Control rule, . '47CSR13.

W. Va. Code R. § 47-9-3 Fee Assessment and Collection

3.1. Assessment of Permit Application Fees -- Any person who applies or reapplies for a permit shall pay the appropriate permit application or renewal fee in accordance with the provisions of sections 4 through 6 of this rule.

3.2. Assessment and Collection of Annual Permit Fees -- Any person who holds a permit shall pay an annual permit fee in accordance with the provisions of section 7 of this rule. The first annual permit fee shall be remitted to the proper office one (1) calendar year from the date of permit issuance; subsequent annual permit fees shall be remitted on or before the anniversary date of the permit issu-ance.

3.2.a. A permit becomes void if the annual permit fee has not been paid within one hundred and eighty (180) days of the due date.

3.2.b. The chief shall not reissue a permit until all annual permit fees due during prior terms of that permit have been paid in full.

3.3. Method of Fee Payment -- All fees as-sessed under this rule shall be submitted to the appropriate office by check or money order payable to the West Virginia Division of Environmental Protection.

3.3.a. The appropriate office for remitting fees related to Class 1 or Class 5 well(s) is the Office of Water Resources.

3.3.b. The appropriate office for remitting fees related to Class 2 or Class 3 well(s) is the Office of Oil and Gas.

3.4. Collection of Permit Application Fees -- The permit application fee shall be submitted to the appropriate office with the permit application. No permit application will be processed until the appro-priate fee has been received.

3.4.a. An applicant may seek verification of the correct amount of a permit application fee by submitting his or her calculation of the fee to the appropriate office in writing. The applicant shall submit this calculation sufficiently in advance of the permit application so that the provisions of the Rules Governing The State National Pollutant Discharge Elimination System (NPDES) Program, 47CSR10, subsection 4.3 are met. Within thirty (30) days of the receipt of this calculation, the appropriate office shall notify the applicant of the accuracy of his or her calculation. If the applicant's calculation is incorrect, the appropriate office shall advise the applicant of the correct amount to be submitted as the permit application fee.

3.4.b. If the appropriate office determines that a submitted application is incomplete and must be returned to the applicant for additional informa-tion, a permit application resubmission fee shall accompany the refiled application. This fee is either a sum equivalent to five percent (5%) of the permit application fee or fifty dollars ($50), whichever is greater.

3.5. If a permittee wishes to continue an activ-ity pursuant to paragraph 13.12.b of the Under-ground Injection Control rule, 47CSR13, the permit-tee must apply for a permit renewal at least one hundred eighty (180) days prior to expiration of the permit.

W. Va. Code R. § 47-9-4 Initial UIC Permit Application Fees. 4.l. Class 1 Wells -- The initial permit applica-tion fee is one thousand dollars ($l,000)

4.2. Class 2 Wells -- The initial permit applica-tion fee is five hundred dollars ($500), which is in lieu of any individual well work permit fee required under W. Va. Code . ' 22-6-1 et seq.

4.3. Class 3 Wells -- The initial permit applica-tion fee is five hundred dollars ($500), which is in lieu of any individual well work permit fee required under W. Va. Code '22-6-1 et seq.

4.4. Class 4 Wells. -- Class 4 injection wells are prohibited.

4.5. Class 5 Wells -- The initial permit applica-tion fee shall be calculated through use of the following formula: the initial permit application fee shall equal the volume fee multiplied by the treat-ment factor multiplied by the well type factor (i.e. Initial Permit Application Fee = Volume Fee X Treatment Factor X Well Type Factor). An appli-cant shall use the following paragraphs to calculate the fees and factors.

4.5.a. The appropriate volume fee is determined from Table A of Attachment 1 of this rule.

4.5.b. The appropriate treatment factor is determined from Table B of Attachment 1 of this rule.

4.5.c. The appropriate well type factor is determined from Table C of Attachment 1 of this rule. The interpretive rule, Class 5 Injection Well Type Descriptions, '47CSR9A contains descrip-tions of well type codes.

4.5.d. The total amount of the initial permit application fee for a Class 5 injection well shall be no less than twenty five dollars ($25) and no more than one thousand five hundred dollars ($l,500).

W. Va. Code R. § 47-9-5 Permit Renewal Application Fees

5.1. The permit renewal application fee for a Class 1 UIC Permit is one thousand dollars ($l,000).

5.2. The permit renewal application fee for a Class 2 UIC Permit is five hundred dollars ($500).

5.3. The permit renewal application fee for a Class 3 UIC Permit is five hundred dollars ($500).

5.4. Class 4 injection wells are prohibited.

5.5. The permit renewal application fee for Class 5 injection wells is calculated using the for-mula in section 4.5 of this rule. (i.e. Permit Renewal Application Fee = Volume Fee X Treatment Factor X Well Type Factor).

W. Va. Code R. § 47-9-6 Permit Modification Application Fees. 6.l. The permit modification fee for a Class 1 UIC Permit which requires a major modification is five hundred dollars ($500). The permit modifica-tion fee for Class 1 UIC Permit which requires a minor modification is one hundred dollars ($100)

6.2. The permit modification fee for a Class 2 UIC Permit which requires a major modification is two hundred and fifty dollars ($250).

6.3. The permit modification fee for a Class 3 UIC Permit which requires a major modification is two hundred and fifty dollars ($250).

6.4. Class 4 wells are prohibited.

6.5. The permit modification fee for Class 5 injection wells is calculated through the use of the following formula: the permit modification applica-tion fee is equal the volume fee multiplied by the treatment factor multiplied by the well type factor (i.e., Permit Modification Application Fee = Volume Fee X Treatment Factor X Well Type Factor).

6.5.a. The appropriate volume fee is determined through the use of Table A of Attach-ment 1 of this rule. Only the discharge volume of the activity affected by the modification is used in determining the appropriate volume fee.

6.5.b. The appropriate treatment factor is determined through the use of Table B of Attach-ment 1 of this rule.

6.5.c. The appropriate well type factor is determined through the use of Table C of Attach-ment 1 of this rule. The Interpretive rule, Class 5 Injection Well Type Descriptions, '47CSR9A contains descriptions of well type codes.

6.6. Non-volume related Major Modifications -- For an application seeking a major modification of a Class 5 UIC Permit where no discharge volume is involved, the permit modification application fee is twenty five percent (25%) of the initial permit application fee or a minimum or twenty five dollars ($25).

6.7. Non-volume related Minor Modifications -- For an application seeking a minor modification of a Class 5 UIC Permit where no discharge volume is involved, the permit modification application fee is twenty five dollars ($25).

W. Va. Code R. § 47-9-7 Annual Permit Fees

7.1. The annual permit fee for a Class 1 injec-tion well is seven hundred and fifty dollars ($750).

7.2. The annual permit fee for a Class 2 dis-posal well is twenty five dollars ($25) per well and ten dollars ($10) per well for enhanced recovery injection wells.

7.3. The annual permit fee for a Class 3 injec-tion well is twenty five dollars ($25) per well.

7.4. Class 4 wells are prohibited.

7.5. The annual permit fee for a Class 5 injec-tion well is calculated through the use of the follow-ing formula: annual permit fee shall equal the volume fee multiplied by the treatment factor multi-plied by well type factor multiplied by 0.333 (i.e., Annual Permit Fee = Volume Fee X Treatment Factor X Well Type Factor X 0.333). The total amount of the annual permit fee is no less than twenty-five dollars ($25) nor more than five hun-dred dollars ($500). An applicant shall use the following paragraphs to calculate the fees and factors.

7.5.a. The appropriate volume fee is determined from Table A of Attachment 1 of this rule.

7.5.b. The appropriate treatment factor is determined from Table B of Attachment 1 of this rule.

7.5.c. The appropriate well type factor is determined from Table C of Attachment 1 of this rule. The interpretive rule, Class 5 Injection Well Type Descriptions, '47CSR9A contains descrip-tions of well type codes.

W. Va. Code R. § 47-9-8 Area Permit Fees

8.1. Class 1 UIC area permit. 8.l.a. The initial application fee is one thousand dollars ($1,000).

8.1.b. The permit renewal application fee is one thousand dollars ($1,000).

8.1.c. The application fee for a major permit modification is five hundred dollars ($500).

8.1.d. The application fee for a minor permit modification is one hundred dollars ($100).

8.1.e. The annual permit fee is two hundred fifty dollars ($250).

8.2. Class 2 UIC area permit.

8.2.a. The initial permit application fee is five hundred dollars ($500).

8.2.b. The renewal permit application fee is five hundred dollars ($500).

8.2.c. The application fee for a major permit modification is two hundred and fifty dollars ($250).

8.3. Class 3 UIC area permit.

8.3.a. The initial permit application fee is five hundred dollars ($500).

8.3.b. The renewal permit application fee is five hundred dollars ($500).

8.3.c. The application fee for a major permit modification is two hundred and fifty dollars ($250).

8.4. Class 4 wells are prohibited.

8.5. Class 5 UIC area permit.

8.5.a. The initial permit application fee shall be determined by the applicant by the follow-ing procedure: (1) Total the volumes for each well to be covered by the permit, and (2) Follow the proce-dures outlined in subsection 4.5 through subdivision 4.5.c of this rule.

8.5.a.1. The appropriate treatment factor is determined from Table B of Attachment 1 of this rule.

8.5.a.2. The total amount of the initial permit application fee is no less than twenty five dollars ($25) nor more than one thousand five hundred dollars ($1,500).

8.5.b. The permit renewal application fee is calculated using the formula listed under subsec-tion 8.5.a of this rule.

8.5.c. The application fee for a major permit modification is calculated using the formula listed under subsection 8.5.a. of this rule.

8.5.d. The application fee for a minor permit modification is fifty dollars ($50).

8.5.e. The annual permit fee is determined by the following procedure: (1)Total the volumes for each well to be covered by the permit, and (2) Follow the procedures outlined in subsection 7.5 through subdivision 7.5.c of this rule.

8.5.e.1. The appropriate treatment factor is determined using Table B of Attachment 1 of this rule.

8.5.e.2. The appropriate well type factor is determined using Table C of Attachment 1 of this rule. The Interpretive rule, Class 5 Injection Well Type Descriptions, '47CSR9A contains descriptions of well type codes.

8.5.e.3. The total amount of the annual permit fee is no less than twenty five dollars ($25) no more than five hundred dollars ($500).

ATTACHMENT 1

TABLE A

VOLUME FEES

If the daily discharge (in The Volume Fee is: gallons) is: < 250 $ 50.00 250 - 500 75.00 501 - 1000 150.00 1001 - 5000 200.00 5001 - 50,000 400.00 50,001 - 100,000 600.00 > 100,000 850.00 TABLE B TREATMENT FACTORS LEVEL OF TREATMENT TREATMENT FACTOR NO TREATMENT 3 PRIMARY TREATMENT 2.5 SECONDARY TREATMENT 2 TERTIARY TREATMENT 1.5 >TERTIARY TREATMENT 1 ATTACHMENT 1 TABLE C -- WELL TYPE FACTORS WELL TYPE * FACTOR DRAINAGE WELLS 5F1 1 5D2 1 5D3 2 5D4 3 5G30 1 GEOTHERMAL REINJECTION WELLS 5A5 3 5A6 3 5A7 1 5A8 3 DOMESTIC WASTEWATER DISPOSAL WELLS 5W9 3 5W10 1 5W11 2 5W31 2 5W32 1 5W12 1 MINERAL AND FOSSIL FUEL RECOVERY RELATED WELLS 5X13 3 5X14 2 5X15 2 5X16 2 OIL FIELD PRODUCTION WASTE DISPOSAL WELLS 5X17 3 5X18 2 INDUSTRIAL/COMMERCIAL/UTILITY DISPOSAL WELLS 5A19 2 5W20 3 RECHARGE WELLS 5R21 1 5B22 1 5S23 1 MISCELLANEOUS WELLS 5N24 4 5X25 3 5X26 1 5X29 3 5X27 3 * Note: See '47CSR9A for a description of Well Type codes.

47CSR9

Series 09B Carbon Dioxide Sequestration Fee Schedule

W. Va. Code R. § 47-09B Carbon Dioxide Sequestration Fee Schedule

TITLE 47

LEGISLATIVE RULE

DEPARTMENT OF ENVIRONMENTAL PROTECTION

DIVISION OF WATER AND WASTE MANAGEMENT

SERIES 9B

CARBON DIOXIDE SEQUESTRATION FEE SCHEDULE §47‑9B‑1. General.

1.1. Scope and Purpose. ‑‑ This legislative rule establishes schedules of fees for carbon dioxide capture and sequestration authorized by underground injection control permits issued by the Director of the Division of Water and Waste Management of the West Virginia Department of Environmental Protection. This rule applies to any person who is required to apply for and obtain a permit from the Director in order to conduct activities associated with the capture and underground sequestration of carbon dioxide, that is enumerated in W. Va Code §22-11B and §22-11-10, and is separate from fees required under W. Va. Code §22‑6‑6. Hereinafter, references to “permit”, unless specifically described otherwise, refer only to the term defined in section 2.18 of this Rule.

1.2. Authority. ‑‑ W. Va. Code §22-11-10, §22‑11B

1.3. Filing Date. ‑‑ March 04, 2026

1.4. Effective Date ‑‑ March 04, 2026

1.5. Incorporation by Reference ‑‑ Whenever federal or state statutes or regulations are incorporated into this rule by reference, the reference is to the statute or regulation. §47‑9B-2. Definitions. 2.1 “Access Orders” means orders issued by the Director or the Commission granting a storage operator the right to enter surface lands owned by nonconsenting or unlocatable owners, for the purpose of seismic studies or for emergencies.

2.2. “Activity” means an activity for which a permit is required pursuant to the provisions of W. Va. Code §22‑11B and §47CSR13.

2.3. “Administrative Hearings” means hearings conducted by the Commission related to the collective storage of pore space and the compensation of non-consenting or unlocatable pore space owners, or hearings held for other purposes.

2.4. “Annual Permit Fees” means fees to be paid by the storage operator to cover the Department’s costs for permit maintenance and for regulating storage facilities during their construction, operation, and pre-Completion phases.

2.5. “Carbon Capture and Sequestration”, “carbon dioxide sequestration” or “carbon dioxide storage” means the injection of carbon dioxide and associated constituents into subsurface geologic reservoirs intended to provide for the long-term containment of a gaseous, liquid, or supercritical carbon dioxide stream in subsurface geologic formations and thereby prevent its release into the atmosphere.

2.6. “Carbon Dioxide Storage Facility Administrative Fund” means the special revenue fund the Director shall draw from for the purposes expressed in W. Va. Code §22‑11B, which include payment of all expenses of the Department in processing permit and certificate applications; regulating storage facilities during their construction, operation, and pre-Completion phases; and making storage amount determinations; or to compensate a cooperating agency for these regulatory responsibilities. The fund may also be used to reimburse the Commission for administrative hearing expenses associated with collective storage of pore space.

2.7. “Carbon Dioxide Storage Facility Trust Fund” means the special revenue fund the Director shall draw from for the purposes expressed in W. Va. Code §22‑11B. After issuance of a completion certificate and release of any bonds posted by the operator, the Director shall utilize this fund for the long-term management and monitoring of closed storage facilities or to compensate a cooperating agency for management or monitoring responsibilities. The Director shall draw from this fund to defend, indemnify, and hold harmless the pore space and surface owners against all claims regarding the stored carbon dioxide.

2.8. “Class 6 Well” is an underground injection well as described in the Underground Injection Control rule (§47CSR13, subdivision 4.6.1).

2.9. “Collective Storage Determinations” means orders issued by the Commission after finding that storage operators identified surface owners, mineral owners and lessees, and pore space owners; reached agreements with mineral owners, claimants, and lessees that their interests will not be adversely affected; and reached agreements with at least 75 percent of pore space owners to use the pore space for carbon dioxide storage.

2.10. “Commission” means the WV Oil and Gas Conservation Commission.

2.11. “Completion Certificate” means a Certificate of Underground Carbon Dioxide Storage Project Completion.

2.12. “Director” means the Director of the Division of Water and Waste Management of the Environmental Protection, which is the position responsible for administering this Rule, as delegated by the Secretary.

2.13. “Facility” means any injection well and associated surface operations that are subject to rules under the Underground Injection Control (UIC) Carbon Capture and Sequestration Program.

2.14. “Fluid” means any material or substance which flows or moves whether in a semisolid, liquid, sludge, gas or any other form or state.

2.15. “Major modification” means a modification of an issued permit made in accordance with the provisions of the Underground Injection Control rule §47CSR13, subsection 14.18.

2.16. “Minor modification” means a modification of an issued permit made in accordance with the provisions of the Underground Injection Control rule §47CSR13, subsection 14.20.

2.17. “Operation Fee” is a fee paid by the storage facility operator on each ton of carbon dioxide injected for storage.

2.18. “Permit” means an authorization issued by the state to implement the requirements of the UIC Carbon Capture and Sequestration Program.

2.19. “Permit Application Fee” is a fee paid by a potential storage operator for the costs of reviewing an application, preparing a draft permit, and holding a public hearing regarding issuance of a permit.

2.20. “Permit Modification Fee” is a fee to be paid by a storage operator for Department expenses reviewing a proposed change to a previously issued permit, for preparing a draft permit and public notice, and in the case of major modifications, holding a public hearing regarding the change.

2.21. “Person”, “persons”, or “applicant” means any industrial user, public or private corporation, institution, association, firm or company organized or existing under the laws of this or any other state or country; state of West Virginia; governmental agency, including federal facilities; political subdivision; county commission; municipal corporation; industry, sanitary district; public service district; drainage district; soil conservation district; watershed improvement district; partnership; trust; estate; person or individual; group of persons or individuals acting individually or as a group; or any legal entity whatsoever.

2.22. “Public Notice Fees” means the costs of notifying the public.

2.23. “Secretary” means the Secretary of the West Virginia Department of Environmental Protection.

2.24. “Storage Determination” means calculating the storage volume and total area based on a volumetric determination derived from a submitted reservoir model with total volume projection allotment (in cubic meters/yards) of the target injection reservoir for the lifetime of the project.

2.25. “UIC” means the Underground Injection Control program under Part C of the Safe Drinking Water Act, 42 USC §300f including the West Virginia approved program.

2.26. “Underground Injection” means the subsurface emplacement of fluids through a well.

2.27. “WVDEP” means the West Virginia Department of Environmental Protection.

2.28. “Wellhead” means the physical surface location of a single Class 6 UIC injection well, identified by its wellhead, where carbon dioxide is introduced into the subsurface. For the purposes of fee assessment, each wellhead constitutes a distinct injection point subject to applicable permitting and regulatory fees. §47‑9B-3. Fee Assessment and Collection

3.1. W. Va. Code §22-11B authorizes fees for Class 6 UIC permit applications, for storage facility completion certificates, and for storage determinations, all of which are to be deposited into the Carbon Dioxide Storage Facility Administrative Fund. This fund is also the depository for fees the Director or Commission will set for Public Notice expenses.

3.2. W. Va. Code §22-11B also establishes operating fees for deposit into the Carbon Dioxide Storage Facility Trust Fund and assigns spending authority for both funds ($0.13 per sequestered ton).

3.3. Expenditures from the Carbon Dioxide Storage Facility Administrative Fund and the Carbon Dioxide Storage Facility Trust Fund shall only be made in accordance with this rule. §47‑9B-4. Carbon Dioxide Storage Facility Administrative Fund Fees

4.1. Fees for permit applications, annual permit fees, Completion Certificates, and Storage Determinations shall be deposited into the Carbon Dioxide Storage Facility Administrative Fund. All such fees shall be submitted to the West Virginia State Treasurer and shall be paid by electronic transfer utilizing the Automated Clearing House (ACH), credit card, or check or money order payable to the WVDEP. The applicant shall pay any convenience fees charged by their credit card company, when choosing a credit card as the payment method. The storage operator has responsibility to update the WVDEP of any address changes.

4.2. Permitting Fees - Any person who applies or reapplies for a Class 6 UIC permit shall pay a fee of $55,000 per Class 6 UIC injection wellhead.

4.2.1. If a permittee wishes to continue an activity pursuant to paragraph 14.12.2 of the Underground Injection Control rule, §47CSR13, the permittee must apply for a permit renewal at least one hundred eighty (180) days prior to expiration of the permit. If a permittee wishes to modify a permit or conditions of the permit, pursuant to subsections 14.18 and 14.20, the permittee must apply for a modification and pay the applicable fee.

4.2.1.a. The fee for a Class 6 UIC permit which requires a major modification is $10,000.

4.2.1.b. The fee for a Class 6 UIC permit which requires a minor modification is $1,000.

4.2.1.c. No permit application will be processed until the appropriate fee has been paid.

4.3. If the Director determines that a submitted application is incomplete and must be returned to the applicant for additional information, a permit application resubmittal fee shall accompany the re-filed application. This fee is a sum equivalent to five percent (5%) of the application fee. The resubmittal fee is required, each time an incomplete application must be returned to the applicant for additional information.

4.3.1. Permit application and permit renewal applications – the resubmittal fee shall be $2,000.

4.3.2. Major Modification applications – the resubmittal fee shall be $500.

4.3.3. Minor Modification application - the resubmittal fee shall be $50.00.

4.4. Any person who holds a permit shall pay an annual permit fee. The first annual permit fee shall be remitted to the WV State Treasurer one calendar year from the date of permit issuance; subsequent annual permit fees shall be remitted on or before the anniversary date of the permit issuance.

4.4.1. The annual permit fee for a Class 6 UIC Permit is $5,000.

4.4.2. A permit becomes void if the annual permit fee has not been paid within 90 days of the due date.

4.4.3. The Director shall not reissue a permit until all annual permit fees due during prior terms of that permit have been paid in full.

4.5. Assessment of Completion Certificate Fees - The storage operator shall pay a fee to the Director to review the compliance history of the storage facility, to validate there are no pending claims associated with the stored carbon dioxide, and to review, through modeling, the capability of the reservoir to retain the carbon dioxide.

4.5.1. The Completion Certificate Fee is $10,000, payable at the time of the submission of the Completion Certificate.

4.5.2. No Completion Certificate will be processed until all fees associated with the permit have been paid.

4.5.3. The time frame for review of the Completion Certificate is unrestricted but limited to a reasonable opportunity for the WVDEP Office of Legal Services to verify there are no pending claims and for the technical staff to model the capability of the reservoir to retain the sequestered carbon dioxide.

4.6. Public Notice Fees - Storage operators shall pay the cost of providing notice, including costs charged by newspapers for publishing Class I Legal advertisements; certified mail, personal delivery, or process delivery.

4.7. Reasonable Compensation to Nonconsenting and Unlocatable Surface and Pore Space Owners - Within a Collective Storage order, the Commission shall determine the appropriate compensation and order the storage operator to pay for access to pore space owned by non-consenting or unlocatable owners. To determine the appropriate compensation, the commission shall:

4.7.1. Require storage operators to submit financial agreements reached with consenting surface and pore space owners and calculate the average amounts paid and other relevant evidence of the fair market value requested by the Commission; and

4.7.2. Consider evidence from nonconsenting surface and pore space owners as to the valuation of their interest.

4.7.3. The Director shall not issue the permit until the storage operator submits proof to the ordered compensation that has been paid to non-consenting owners.

4.7.4. The storage operator shall establish an interest-bearing account into which the ordered compensation for unlocatable owners shall be deposited.

4.7.4.a. The Director shall not issue the permit until the storage operator documents that the ordered compensation has been paid into the interest-bearing account and that the WV State Treasurer Unclaimed Property Division has been provided with details of the account, the amount paid, and the interest rate as well as any information discovered to date about the possible identity of the unlocatable owner.

4.8. Storage Determination Fee - Reserved. §47‑9B-5. Carbon Dioxide Storage Facility Trust Fund Fees

5.1. Operation fees shall be deposited into the Carbon Dioxide Storage Facility Trust Fund. Upon approval of a Completion Certificate, the Director shall withdraw from the fund to meet the statutory directives in W. Va. Code §22-11B-12, which are to defend, indemnify, and hold harmless the pore space and surface owners against all claims associated with the stored carbon dioxide.

This fund shall also be used by the Director for long-term management and monitoring of stored carbon dioxide for any permitted facility wherein the Completion Certificate is approved prior to 50 years from the date injection ceased.

5.2. Assessment of Operation Fees ‑‑ All storage operators shall pay a fee on each ton of carbon dioxide injected for storage.

5.2.1. Storage operators shall continuously monitor the volume of injectate. At the end of each month, the operator shall prepare a report for submission to the Director certifying the tonnage injected during the month.

5.2.2. Storage operators injecting carbon dioxide originating from within the State of WV shall pay $0.13 for each ton injected.

5.2.3. Storage operators injecting carbon dioxide originating from outside the State of WV shall pay $0.13 for each ton injected.

5.3. Operation Fees shall be paid on a monthly basis, on the fifteenth day of the month following injection, to the WV State Treasurer for deposit into the Carbon Dioxide Storage Facility Trust Fund and shall be paid by electronic transfer utilizing the Automated Clearing House (ACH), Credit Card, or check or money order payable to the WVDEP. The applicant shall pay any convenience fees charged by the Credit Card company, if choosing Credit Card as the payment method. The storage operator has responsibility to update the WVDEP of any address changes.

5.4. The cost of long-term management and monitoring or indemnifying pore space and surface owners from liability associated with stored carbon dioxide in the facility is limited to the amount paid into the Carbon Dioxide Storage Facility Trust Fund for the facility.

5.4.1. The Director is not authorized to utilize funds for one facility from those paid into the fund for another facility.

Series 10 National Pollutant Discharge System (NPDES) Program

W. Va. Code R. § 47-10-1 General

1.1. Scope. -- This legislative rule establishes requirements governing the State National Pollutant Discharge Elimination System (NPDES) Program.

1.2. Authority. -- W. Va. Code §22-11-4(a)(16).

1.3. Filing Date. -- May 01, 2025.

1.4. Effective Date. -- July 01, 2025.

1.5. Former Rules. -- This legislative rule amends 47CSR10 “National Pollutant Discharge Elimination System (NPDES) Program” that was filed on April 17, 2008 and became effective on May 1, 2008.

W. Va. Code R. § 47-10-2 Definitions

The definitions set forth in W. Va. Code §22-11-3 shall apply to this series, along with the following definitions, unless the context clearly indicates otherwise.

2.1. “Administrator” means the Administrator of the United States Environmental Protection Agency or the Administrator’s authorized representative.

2.2. “Applicable standards and limitations” means all State, interstate, and Federal standards and limitations to which a discharge or a related activity is subject under the Clean Water Act (CWA) and the State Act, including effluent limitations, water quality standards, standards of performance, toxic effluent standards or prohibitions, best management practices, and pretreatment standards under §§301, 302, 303, 304, 306, 307, 308, 403 and 405 of the CWA.

2.3. “Application” means the forms prescribed by the Director and approved by EPA for applying for a permit or permit modification, including any additions, revisions or modifications to the forms.

2.4. “Average monthly discharge limitation” means the highest allowable average of daily discharges over a calendar month, calculated as the sum of all daily discharges measured during a calendar month divided by the number of daily discharges measured during that month.

2.5. “Best management practices” (“BMPs”) means schedules of activities, prohibitions of practices, maintenance procedures, and other management practices to prevent or reduce pollution of waters of the State. BMPs also include treatment requirements, operating procedures, and practices to control plant site runoff, spillage or leaks, sludge or waste disposal, or drainage from raw material storage.

2.6. “C.F.R.” means the Code of Federal Regulations referenced throughout these rules that were effective as of July 1, 2009, unless otherwise noted.

2.7. “Clean Water Act” (“CWA”) (formerly referred to as the Federal Water Pollution Control Act or the Federal Water Pollution Control Act Amendments of 1972) means Public Law 92-500, as amended by Public Law 95-217, Public Law 97-117 and Public Law 95-576 and codified at 33 U.S.C. §1251 et seq.

2.8. “Construction activity” means clearing, grading, and excavation that result in a land disturbance of equal to or greater than one (1) acre in size. Construction activity also includes disturbance of less than one (1) acre total land area that is part of a large common plan of development or sale if the common plan will ultimately disturb equal to or greater than one (1) acre. Construction activity does not include routine maintenance that is performed to maintain the original line and grade, hydraulic capacity, or original purpose of the facility.

2.9. “Continuous discharge” means any discharge that occurs without interruption throughout the operating hours of the facility, except for infrequent shutdowns for maintenance, process changes, or other similar activities.

2.10. “Daily discharge” means the discharge of a pollutant measured during a calendar day or within any specified period that reasonably represents the calendar day for purposes of sampling. For pollutants with limitations expressed in units of mass, the daily discharge is calculated as the total mass of the pollutant discharged over the day. For pollutants with limitations expressed in other units of measurement, the daily discharge is calculated as the average measurement of the pollutant over the day.

2.11. “Direct discharge” means the discharge of a pollutant.

2.12. “Director” means the director of the division of water and waste management (formerly the office of water resources) as designated by the secretary of the department of environmental protection.

2.13. “Discharge” when used without qualification means the discharge of a pollutant for purposes of this series.

2.14. “Discharge of a pollutant” means:

2.14.a. Any addition of any pollutant or combination of pollutants to waters of the State from any point source; and

2.14.b. This definition includes additions of pollutants into waters of the State from: surface runoff that is collected or channeled by man; storm water discharges from construction activity; storm water discharges from a municipal separate storm sewer system; discharges through pipes, sewers or other conveyances owned by the State, a municipality, or other person that do not lead to a treatment work; and discharges through pipes, sewers, or other conveyances leading into privately owned treatment works. This term does not include an addition of pollutants by any indirect discharger.

2.15. “Discharge Monitoring Report” (“DMR”) means the form(s) prescribed by the Director and approved by EPA for the reporting of self-monitoring results by permittees. (See WV/EPA Memorandum of Agreement.)

2.16. “Draft permit” means a document prepared under section 10 of this rule, indicating the Director’s tentative decision to issue, modify, revoke and reissue, suspend or revoke a permit.

2.17. “Effluent limitation” means any restriction established under State or Federal law on quantities, discharge rates, concentrations or other specified units of measure of pollutants that are discharged from point sources into waters of the State.

2.18. “Effluent limitations guidelines” means a regulation to adopt or revise effluent limitations published by the Administrator under §304(b) of the CWA.

2.19. “Environmental Protection Agency” (“EPA”) means the United States Environmental Protection Agency.

2.20. “Facility or activity” means any point source or any other facility or activity (including land or appurtenances thereto) that is subject to regulation under this series.

2.21. “General permit” means a permit authorizing a category of discharges within a geographical area issued under subsection 13.6 of this rule.

2.22. “Hazardous substance” means any substance designated under 40 C.F.R. §116 pursuant to §311 of the CWA.

2.23. “Indirect discharger” means a nondomestic discharger introducing pollutants to a publicly owned treatment works.

2.24. “Interference” means an indirect discharge which, along or in conjunction with a discharge or discharges from other sources, both:

2.24.a. Inhibits or disrupts the POTW, its treatment processes or operations, or its sludge processes, use or disposal; and

2.24.b. Therefore is a cause of a violation of any requirement of the POTW’s NPDES permit (including an increase in the magnitude or duration of a violation) or of the prevention of sewage sludge use or disposal in compliance with applicable statutory provisions, regulations or permits issued thereunder.

2.25. “Interstate agency” means an agency of two (2) or more states, including West Virginia, established by an agreement or compact approved by Congress, or any other agency of two (2) or more states, including West Virginia, having substantial powers or duties pertaining to the control of pollution as determined and approved by the Administrator under the CWA and its regulations.

2.26. “Major facility” means any facility or activity classified as such by the Regional Administrator in conjunction with the Director.

2.27. “Maximum daily discharge limitation” means the highest allowable daily discharge.

2.28. “Municipality” means a city, town, borough, county, parish, district, association, or other public body created by or under State law and having jurisdiction over disposal of sewage, industrial wastes or other wastes, or a designated and approved management agency under §208 of the CWA.

2.29. “Municipal separate storm sewer system” (“MS4”) means:

2.29.a. A conveyance or system of conveyances, including roads with drainage systems, municipal streets, catch basins, curbs, gutters, ditches, man-made channels, or storm drains; and

2.29.b. Owned or operated by a State, city, town, county, district, association or other public body created pursuant to State law having jurisdiction over disposal of sewage, industrial wastes, storm water or other wastes; and

2.29.c. Designated or used for collecting or conveying storm water; and

2.29.d. Which is not a combined sewer; and

2.29.e. Which is not a part of a Publicly Owned Treatment Works (“POTW”).

2.29.f. The MS4 is determined by the Director to require NPDES permit coverage under the criteria established pursuant to 40 C.F.R. §122.32.

2.30. “National Pollutant Discharge Elimination System” (“NPDES”) means the national program for issuing, denying, modifying, revoking and reissuing, suspending, revoking, monitoring, and enforcing permits and imposing and enforcing pretreatment requirements under §§307, 318, 402, and 405 of the CWA, including any approved State program.

2.31. “National Pretreatment Standard” means any regulation containing pollutant discharge limitations promulgated by EPA in accordance with §§307(b) and (c) of the Clean Water Act that applies to indirect discharges. This term includes prohibitive discharge limits and local limits established pursuant to 40 C.F.R. §403.5.

2.32. “New discharger” means any building, structure, facility, or installation:

2.32.a. From which there is or may be a discharge of pollutants that did not commence prior to August 13, 1979;

2.32.b. That has never received a finally effective NPDES Permit for discharges at that site; and

2.32.c. That is not a new source.

2.32.d. This definition includes an indirect discharger that commences discharging into waters of the State after August 13, 1979. It also includes any existing mobile point source that begins discharging at a location for which it does not have an existing permit.

2.33. “New source” means any building, structure, facility or installation from which there is or may be a discharge of pollutants, the construction of which commenced:

2.33.a. After promulgation of standards of performance under §306 of the CWA that are applicable to the source; or

2.33.b. After proposal of standards of performance in accordance with §306 of the CWA that are applicable to such source, but only if the standards are promulgated in accordance with §306 of the CWA within one hundred twenty (120) days of their proposal.

2.34. “Owner or operator” means the owner or operator of any facility or activity subject to regulation under this series. “Owner” owns or holds title to the facility. “Operator” is any person, firm or company who has responsibility for the overall operation of a facility or activity subject to regulation, but does not include any employee, agent or independent contractor of the person with responsibility for the overall operation of a facility subject to regulation.

2.35. “Pass-through” means an indirect discharge that exits the POTW into waters of the State in quantities or concentrations that, alone or in conjunction with a discharge or discharges from other sources, is a cause of a violation of any requirement of the POTW’s NPDES permit (including an increase in the magnitude or duration of a violation).

2.36. “Permit” means an authorization issued by the Director to implement the requirements of this series.

2.37. “POTW” means a “Publicly Owned Treatment Works.”

2.38. “Point source” means any discernible, confined, and discrete conveyance, including, but not limited to, any pipe, ditch, channel, tunnel, conduit, concentrated animal feeding operation, well, discrete fissure, container, rolling stock or vessel or other floating craft from which pollutants are or may be discharged.

2.39. “Primary Industry Category” means any industry category listed in Appendix A of this rule pursuant to §307(a) of the CWA.

2.40. “Privately Owned Treatment Works” means any device or system that is:

2.40.a. Used to treat wastes other than the owner’s waste; and

2.40.b. Not a POTW.

2.41. “Process wastewater” means any water that, during manufacturing or processing, comes into direct contact with or results from the production or use of any raw material, intermediate product, finished product, by-product, or waste product.

2.42. “Proposed permit” means a State NPDES permit prepared after the close of the comment period (and, when applicable, any public hearing) that is sent to EPA for review before final issuance by the Director.

2.43. “Publicly Owned Treatment Works” (“POTW”) means any treatment works owned by the State or any political subdivision thereof, any municipality or any other public entity for the treatment of pollutants. This definition includes sewers, pipes or other conveyances only if they convey wastewater to a POTW providing treatment.

2.44. “Real Time Water Quality Control” means the establishment of an effluent limitation that is based upon a stream-flow-to-discharge-flow ratio, determined by the known characteristics of the stream and the discharge.

2.45. “Recommencing discharger” means a source that recommences discharge after terminating operations.

2.46. “Regional Administrator” means the Regional Administrator of Regional Office (III) of the Environmental Protection Agency or his or her authorized representative.

2.47. “Schedule of compliance” means a schedule of remedial measures in a permit, including an enforceable sequence of interim requirements (for example, actions, operations, or milestone events) leading to compliance with the CWA and the State Act and regulations.

2.48. “Secondary Industry Category” means any industry category that is not a primary industry category.

2.49. “Sewage from vessels” means human body wastes and the wastes from toilets and other receptacles intended to receive or retain body wastes that are discharged from vessels and regulated under §312 of the CWA.

2.50. “Sewage sludge” means the solids, residues, and precipitate separated from or created in sewage by the unit processes of a treatment works. “Sewage” as used in this definition means any wastes, including wastes from humans, households, commercial establishments, industries, and storm water runoff that are discharged to or otherwise enter a treatment works.

2.51. “Site” means the land or water area where any facility or activity is physically located or conducted, including adjacent land used in connection with the facility or activity.

2.52. “State” means the State of West Virginia.

2.53. “State Act” or “State Law” means the West Virginia Water Pollution Control Act, W. Va. Code §§22-11-1, et seq.

2.54. “Storm water” means storm water runoff, snow melt runoff, surface runoff, and drainage.

2.55. “Total dissolved solids” (“TDS”) means the total dissolved filterable solids as determined by the use of the method specified in 40 C.F.R. §136.

2.56. “Toxic pollutant” means any pollutant listed as toxic under §307(a)(1) of the CWA.

2.57. “Variance” means any mechanism or provision under §§301 or 316 of the CWA, under 40 C.F.R. §125, or in the applicable effluent limitations guidelines that allow modification to or waiver of the generally applicable effluent limitation requirements or time deadlines of the CWA. This includes provisions that allow the establishment of alternative limitations based on fundamentally different factors or on §§301(c), 301(g), 301(h), 301(I) and 316(a) of the CWA where appropriate.

2.58. “Wetlands” means those areas that are inundated or saturated by surface or groundwater at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions. Wetlands generally include swamps, marshes, bogs, and similar areas.

W. Va. Code R. § 47-10-3 Permits

3.1. Permit requirement. -- No person shall discharge pollutants from a point source into State waters except as authorized by a State NPDES permit. A NPDES permit issued pursuant to this series shall be deemed to be a permit issued in accordance with W. Va. Code §22-11-4.

3.2. Specific exclusions from NPDES permits.

3.2.a. It is recognized that the Federal NPDES program excludes certain discharges from the requirement of a NPDES permit (although other Federal permits may be necessary) and that the State Act, in certain instances, is broader in scope than the Federal NPDES program. The discharge of dredged or fill material into navigable waters of the United States, for example, does not need a Federal NPDES permit; rather a 404 permit from the United States Army Corps of Engineers is required. The State Act regulates discharges into all waters of the State including groundwater; the Federal NPDES program, on the other hand, regulates discharges into a less inclusive category of waters. In addition, the State Act requires permits for construction of a disposal system or part thereof and the discharge of pollutants into the State’s waters; the Federal NPDES program, however, does not require permits for the construction of the facility, but rather just for the discharge of pollutants from a point source into waters of the United States. Finally, the Natural Streams Preservation Act, W. Va. Code §22-13-1, et seq., requires a separate permit to modify any of the streams designated protected by the Legislature.

3.2.b. The following discharges do not require a NPDES permit; however, the specification of exclusions under subdivision 3.2.a of this rule shall not relieve any person of any requirement imposed by the State Act or regulations, including State Act permitting requirements.

3.2.b.1. Any discharge of sewage from vessels, effluent from properly functioning marine engines, laundry, shower, and galley sink wastes or any other discharge incidental to the normal operation of a vessel. This exclusion does not apply to rubbish, trash, garbage, or other such materials discharged overboard or to other discharges when the vessel is operating in a capacity other than a means of transportation, such as when used as an energy or mining facility, a storage facility or when secured to a storage facility, or when secured to the bed of the water or waters of the State for the purpose of mineral or oil exploration or development.

3.2.b.2. Discharges of dredged or fill material into waters of the State that are regulated under §404 of the CWA.

3.2.b.3. The introduction of pollutants into publicly or privately owned treatment works except as the Director may otherwise require under subdivision 6.3.k below. Plans or agreements to switch to this method of disposal in the future do not relieve dischargers of the obligation to have and comply with permits until all discharges of pollutants into waters of the State are eliminated.

3.2.b.4. Any introduction of pollutants from non-point source agricultural and silvicultural activities, including runoff from orchards, cultivated crops, pastures, range lands, and forest lands, but not discharges from concentrated animal feeding operations as defined in subsection 13.1 below, discharges from concentrated aquatic animal production facilities as defined in subsection 13.2 below, and discharges from silvicultural point sources as defined in subsection 13.5 below.

3.2.b.5. Water, gas or other material that is injected into a well either to facilitate production of oil or gas or for disposal purposes and is approved by the Office of Oil and Gas pursuant to applicable State law.

3.2.b.6. Return flows from irrigated agriculture.

3.2.b.7. Any discharge in compliance with the instructions of an On-Scene Coordinator pursuant to 40 C.F.R. §1510 (The National Oil and Hazardous Substance Pollution Plan) or 33 C.F.R. §153.10(e) (Pollution by Oil and Hazardous Substances).

3.2.c. When issuing permits required under the State Act but not required by NPDES, the Director may follow the procedures set forth in this series.

3.3. NPDES permits issued by EPA.

3.3.a. The Director shall adopt as permits issued under the State Act all NPDES permits that have been issued by the Regional Administrator and made effective prior to the effective date of this series that are transferred by the Regional Administrator and accepted by the Director for administration and enforcement.

3.3.b. Acceptance of a NPDES permit from the Regional Administrator shall not supersede any permit previously issued under the State Act. All provisions of both permits shall be in force; except, in the event of a conflict, the more stringent provisions shall apply. Such permits shall be deemed consolidated and considered as a single permit for the purposes of reporting, administration and enforcement.

3.3.c. Those unexpired permits previously issued under the State Act shall be revoked by the Director whenever a new NPDES permit is issued for the same facility under this series. The issuance of the new permit shall constitute cause for revocation under the State Act. Any unexpired NPDES permit issued by the EPA shall not be enforceable by the Director upon the issuance of a NPDES permit under this series.

3.4. Effect of a permit.

3.4.a. Except for any toxic effluent standards and prohibitions imposed by §307 of the CWA, compliance with a permit during its term constitutes compliance for purposes of enforcement under §§301, 302, 306, 307, 318, 403 and 405 of the CWA. In addition, one who is in compliance with the terms and conditions of a permit shall not be subject to criminal prosecution under W. Va. Code §22-11-19 for pollution recognized and authorized by such permit. However, a permit may be revoked, suspended, revoked and reissued or modified during its term for cause as set forth in section 9 of this rule.

3.4.b. The issuance of a permit does not convey any property rights of any sort or any exclusive privilege.

3.5. Duration and transferability of permits.

3.5.a. Permits shall be effective for a fixed term not to exceed five (5) years.

3.5.b. A permit may be extended by the Director for a period not to exceed eighteen (18) months beyond its expiration date, if the applicant has made a timely and complete application for permit reissuance. Timeliness of an application for permit reissuance is governed by subsection 4.3 of this rule. A complete application, for purposes of this extension, shall mean that the required number of copies of the application were submitted, including the permit application fee required by the 47 C.S.R. 26, and the application forms were signed as required by subsection 4.6 of this rule. Completion, as set forth in this section, shall not preclude the Director from requesting additional information from the applicant during the subsequent substantive review and does not result in the imposition of the regulatory time frame established in subdivision 4.2.f. below. When a permit is issued, the extended permit, if still effective, is automatically void.

3.5.c. Transfer of permits. -- Permits may be transferred from a permittee to another person by either modifying an existing permit or by an automatic transfer under subdivision 3.5.d of this rule. In transferring a permit from a permittee to another person, the Director shall determine that the proposed permittee has all necessary permit responsibility.

3.5.d. Any permit may be automatically transferred to a new permittee if:

3.5.d.1. The current permittee notifies the Director on the forms prescribed by the Director at least thirty (30) days in advance of the proposed transfer date in paragraph 3.5.d.2 of this rule;

3.5.d.2. The notice includes a written agreement between the existing and new permittees containing a specific date for transfer of the permit and explaining the extent of permit responsibility, coverage, and liability between them; and

3.5.d.3. The Director does not notify the existing permittee and the proposed new permittee of his or her intent to require the transfer through permit modification or to require that a new application be filed rather than agreeing to the transfer of the permit or his or her denial of the transfer request. If this notification is not received by the permittee and proposed new permittee within thirty (30) days after the Director’s receipt of the permittee’s notice under paragraphs 3.5.d.1 and 3.5.d.2 above, then the transfer is effective on the date specified in the agreement required by paragraph 3.5.d.2 of this rule.

3.6. Prohibitions. -- No permit may be issued:

3.6.a. When the conditions of the permit do not provide for compliance with the applicable requirements of the CWA and State Act.

3.6.b. By the Director where the Regional Administrator has objected to issuance of the permit.

3.6.c. When, in the judgment of the Secretary of the U.S. Army Corps of Engineers, anchorage and navigation in or on any waters of the State would be substantially impaired by the discharge.

3.6.d. For the discharge of any radiological, chemical, or biological warfare agent or high-level radioactive waste.

3.6.e. For any discharge inconsistent with a plan or plan amendment approved under §208(b) of the CWA.

3.6.f. To a new source or a new discharger, if the discharge from its construction or operation will cause or contribute to the violation of water quality standards. The owner or operator of a new source or new discharger proposing to discharge into a water segment that does not meet applicable water quality standards or is not expected to meet those standards even after the application of the effluent limitations required by §§301(b)(1)(A) and 301(b)(1)(B) of the CWA, and for which the State or interstate agency has performed a pollutant load allocation for the pollutants to be discharged, must demonstrate before the close of the public comment period that:

3.6.f.1. There are sufficient remaining pollutant load allocations to allow for the discharge; and

3.6.f.2. The existing dischargers into that segment are subject to compliance schedules designed to bring the segment into compliance with applicable water quality standards.

3.7. It is the intention of the Director to re-issue permits before the termination of the existing permit. Accordingly, absent agreement of the permittee to an alternative schedule, notice of the draft permit and fact sheet shall be provided to the public in accordance with subdivision 10.1.d. and section 12 of this rule, no less than three months prior to the termination date, with final permit re-issuance a month prior to permit termination: Provided, That an administratively complete application is received 210 days prior to the expiration date of the permit.

W. Va. Code R. § 47-10-4 Application for Permits

4.1. Duty to apply.

4.1.a. Any person who discharges or proposes to discharge pollutants and who does not have an effective permit, except persons covered by general permits and persons excluded under subsection 3.2 above, shall submit a complete application in the manner and on a form prescribed by the Director, in accordance with the following paragraphs, and accompanied by the filing fee as prescribed in 47CSR26.

4.1.b. When a facility or activity is owned by one person but is operated by another, the application should be submitted by the operator. The Director may require documentation of the permit responsibility and liability of the owner and operator and may propose and issue the permit to either the owner or the operator or both, but only after notice to both the owner and operator; or, the Director may deny the permit until the responsible party or parties apply for the permit.

4.2. Completeness.

4.2.a. For the purposes of this section, the term “Director” includes the Director’s authorized representative except in subdivision 4.2.f below.

4.2.b. The Director shall not begin the processing of a permit before receiving a complete application.

4.2.c. The Director shall review every application for completeness in not more than ninety (90) days. Upon completing the review, the Director shall notify the applicant in writing whether the application is complete. If the application is incomplete, the Director shall list the information necessary to make the application complete. When the application is for an existing source, the Director shall specify in the request for supplemental information a date for submitting the necessary information. The Director shall notify the applicant that the application is complete upon receiving this information.

4.2.d. If an applicant fails or refuses to submit the requested supplemental information, the permit application may be denied and appropriate enforcement action may be taken under the applicable provisions of the State Act.

4.2.e. The application shall be considered complete on the date on which the Director notifies the applicant to that effect as provided in subdivision 4.2.c of this rule.

4.2.f. The Director shall have not more than ninety (90) days to act upon the completed application unless EPA has filed a written objection; however, this limitation may be extended by the period of time granted by the Director under paragraph 12.1.b.1 and subdivision 12.4.a of this rule.

4.2.g. For a period of one (1) year after the effective date of this rule, the time period for completeness under subdivision 4.2.c above and the time period for acting upon a completed application under subdivision 4.2.f above may be extended by the Director when necessary, but in no case shall the combined time periods under these provisions exceed two hundred forty (240) days.

4.3. Time to apply. -- Any person proposing a new discharge shall submit an application at least one hundred eighty (180) days prior to commencing construction of the facility, unless permission for a shorter time period has been granted by the Director. Any person with an existing permit shall submit a new application at least one hundred eighty (180) days before the expiration date of the existing permit, unless permission for a shorter time period has been granted by the Director. Any person proposing to abandon a facility under W. Va. Code §22-11-8(b)(6) shall apply for and obtain a permit as required by that section at least one hundred eighty (180) days prior to abandonment.

4.4. Information required from applicant(s).

4.4.a. All applicants shall provide the Director a complete application in the manner and on a form prescribed by the Director. The form may require information in addition to that specified in this section.

4.4.a.1. The activities conducted by the applicant that require it to obtain permits.

4.4.a.2. The name, mailing address, and location of the facility for which the application is submitted.

4.4.a.3. Up to four (4) Standard Industrial Classification (SIC) codes that best reflect the principal products or services provided by the facility.

4.4.a.4. The operator’s name, address, telephone number, ownership status (including the name and address of the owner if different), and status as Federal, State, private, public or other entity.

4.4.a.5. Other relevant permits as defined in 40 C.F.R. §122.21(f)(6).

4.4.a.6. A topographic map (or other map drawing if a topographic map is unavailable) drawn to a reasonable scale and extending at least one (1) mile beyond the site, depicting the facility and each of its intake and discharge structures; each of its hazardous waste treatment, storage, or disposal facilities; each well where fluids from the facility are injected underground; and those wells, springs, other surface water bodies, and drinking water wells listed in public records or otherwise known to the applicant in the map area.

4.4.a.7. A brief description of the nature of the business.

4.4.b. Existing sewage, manufacturing, commercial, mining and silvicultural dischargers shall also provide the following information to the Director, using application forms provided by the Director:

4.4.b.1. Outlet location. -- The latitude and longitude to the nearest second and the name and alphanumeric designation of the immediate receiving stream or river mile point where applicable.

4.4.b.2. Line drawing. -- A line drawing of the water flow through the facility, with a water balance showing operations contributing wastewater to the effluent and treatment units. Similar processes, operations, or production areas may be indicated as a single unit, labeled to correspond to the more detailed identification under paragraph 4.4.b.3 of this rule. The water balance must show approximate average flows at intake and discharge points and between units, including treatment units. If a water balance cannot be determined, the applicant may provide instead a pictorial description of the nature and amount of any sources of water and any collection and treatment measures.

4.4.b.3. Average flows and treatment. -- A narrative identification of each type of process, operation, or production area that contributes wastewater to the effluent for each outlet, including process wastewater, cooling water, sewage, and storm water runoff (including material storage area runoff), the average flow that each wastewater contributes, and a description of the treatment, if any, each wastewater receives, including the ultimate disposal of any solid or fluid wastes other than by discharge. Process, operations or production areas may be described in general terms (for example, “dye-making reactor,” “distillation tower”). For a privately owned treatment works, this information may include the identity of each user of the treatment works.

4.4.b.4. Intermittent flows. -- If any of the discharges described in paragraph 4.4.b.3 above are intermittent or seasonal, a description of the frequency, duration and flow rate of each discharge occurrence, except for storm water runoff, spillage or leaks.

4.4.b.5. Maximum production. -- If an effluent guideline promulgated under §304 of the CWA applies to the applicant and is expressed in terms of production (or other measure of operation), a reasonable measure of the applicant’s actual production reported in the units used in the applicable effluent guideline. The reported measure must reflect the actual production of the facility as required by subdivision 7.2.a. below.

4.4.b.6. Improvements. -- If the applicant is subject to any present requirements or compliance schedules for construction, upgrading or operation of waste treatment equipment, an identification of the abatement project and a listing of the required and projected final compliance dates.

4.4.b.7. Effluent characteristics. -- Information on the discharge of pollutants is specified in this paragraph. When “quantitative data” for a pollutant is required, the applicant must collect a sample effluent and analyze it for the pollutant in accordance with analytical methods approved under 40 C.F.R. §122.21(g)(7) and 40 C.F.R. §136. When no analytical method is approved, the applicant may use any suitable method but must provide a description of the method. When an applicant has two (2) or more outlets with substantially identical effluents, the Director may allow the applicant to test only one (1) outlet and report that the quantitative data also applies to the substantially identical outlet. The requirements in subparagraphs 4.4.b.7.C and 4.4.b.7.D of this rule that an applicant must believe pollutants to be present does not apply to pollutants present in a discharge solely as the result of their presence in intake water; however, an applicant must report such pollutants as present. The Director may require that grab samples or composite samples be used for particular pollutants. An applicant is expected to “know or have reason to believe” that a pollutant is present in an effluent based on an evaluation of the expected use, production or storage of the pollutant or on any previous analyses for the pollutant. For example, any pesticide manufactured by a facility may be expected to be present in contaminated storm water runoff from the facility.

4.4.b.7.A. Every applicant must report quantitative data for every outlet for the following parameters relating to pollutants, unless the prescribed form indicates that such data is not necessary:

4.4.b.7.A.1. Biochemical oxygen demand (BOD);

4.4.b.7.A.2. Chemical oxygen demand;

4.4.b.7.A.3. Total organic carbon;

4.4.b.7.A.4. Total suspended solids;

4.4.b.7.A.5. Ammonia (as N);

4.4.b.7.A.6. Temperature (both winter and summer); and

4.4.b.7.A.7. pH.

4.4.b.7.B. At the applicant’s request, the Director may waive the reporting requirements for particular point sources or for a particular industry category for one (1) or more of the pollutants listed in 4.4.b.7.A above, if the applicant has demonstrated that such a waiver is appropriate because information adequate to support issuance of a permit can be obtained with less stringent requirements.

4.4.b.7.C. Each applicant with processes in one (1) or more primary industry category (see Appendix A) contributing to a discharge must report quantitative data for the following pollutants in each outlet containing process wastewater:

4.4.b.7.C.1. The organic toxic pollutants in the fractions designated in Table I of Appendix C for the applicant’s industrial category or categories; Provided, that testing and reporting for the base/neutral fraction in the Once-Through Cooling Water, Fly Ash, and Bottom Ash Transport Water process wastestreams of the Steam Electric Power Plant industrial category shall not apply. Table II of Appendix C lists the organic toxic pollutants in each fraction. The fractions result from the sample preparation required by the analytical procedure that uses gas chromatography/mass spectrometry. A determination that an applicant falls within a particular industrial category for the purposes of selecting fractions for testing is not conclusive as to the applicant’s inclusion in that category for any other purposes.

4.4.b.7.C.2. The pollutants listed in Table III of Appendix C (the toxic metals, cyanide, and total phenols).

4.4.b.7.D. Reporting of quantitative data shall be as follows:

4.4.b.7.D.1. Each applicant must indicate whether it knows or has reason to believe that any of the pollutants in Table IV of Appendix C (certain conventional and nonconventional pollutants) is discharged from each outlet. If an applicable effluent limitations guideline either directly limits the pollutant or, by its express terms, indirectly limits the pollutant through limitations on an indicator or upon a specific request by the Director for certain Table IV pollutants at the issuance of the application, or at such later time as provided in paragraph 4.4.b.12 of this rule, the applicant must report quantitative data. For every pollutant discharged that is not so limited in an effluent limitations guideline or specifically requested by the Director, the applicant must either report quantitative data or briefly describe the reasons the pollutant is expected to be discharged.

4.4.b.7.D.2. Each applicant must indicate whether it knows or has reason to believe that any of the pollutants listed in Table II or Table III of Appendix C (the toxic pollutants and total phenols) for which quantitative data are not otherwise required under subparagraph 4.4.b.7.C above is discharged from each outfall. For every pollutant expected to be discharged in concentrations of ten parts per billion (10 ppb) or greater, the applicant must report quantitative data. Where acrolein, acrylonitrile, 2,4 dinitrophenol, or 2-methyl-4,6 dinitrophenol are expected to be discharged in concentrations of 100 ppb or greater, the applicant must report quantitative data. For every pollutant expected to be discharged in concentrations less than 10 ppb or, in the case of acrolein, acrylonitrile, 2, 4 dinitrophenol, and 2-methyl-4,6 dinitrophenol, in concentrations less than 100 ppb, the applicant must either submit quantitative data or briefly describe the reasons the pollutant is expected to be discharged. An applicant qualifying as a small business under paragraph 4.4.b.8 of this rule is not required to analyze for pollutants listed in Table II of Appendix C (the organic toxic pollutants).

4.4.b.7.E. Each applicant must indicate whether it knows or has reason to believe that any of the pollutants in Table V of Appendix C (certain hazardous substances and asbestos) are discharged from each outlet. For every pollutant expected to be discharged, the applicant must briefly describe the reasons the pollutant is expected to be discharged and report quantitative data it has for any pollutant.

4.4.b.7.F. Each applicant, except sewage facilities, must report qualitative data generated using a screening procedure not calibrated with analytical standards for 2, 3, 7, 8-tetrachlorodibenzo-p-dioxin (TCDD) if it:

4.4.b.7.F.1. Uses or manufactures 2, 4, 5-trichlorophenoxy acetic acid (2, 4.5-t); 2-(2,4,5-trichlorophenoxy) propanoic acid (Silvex,2,4,5,TP); 2-(2,4,5-trichlorophenoxy) ethyl 2, 2-dichloropropionate (Erbon); 0, 0-dimethyl 0-(2,4,5-trichlorophenyl) phosphorathiate (Ronnel); 2,4-5-trichlorophenol (TCP); or hexachlorophene (HCP); or

4.4.b.7.F.2. Knows or has reason to believe that TCDD is or may be present in an effluent.

4.4.b.8. Small business exemption. -- An applicant that qualifies as a small business under one (1) of the following criteria is exempt from the requirements of subparagraphs 4.4.b.7.C or 4.4.b.7.D of this rule to submit quantitative data for the pollutants listed in Table II of Appendix C (the organic toxic pollutants):

4.4.b.8.1. For coal mines, a probable total annual production of less than one hundred thousand (100,000) tons per year.

4.4.b.8.2. For all other applicants, gross total annual sales averaging less than one hundred thousand dollars ($100,000) per year.

4.4.b.9. Used or manufactured toxics. -- A listing of any toxic pollutant that the applicant uses or manufactures or expects that it will use or manufacture during the next five (5) years as an intermediate or final product or byproduct.

4.4.b.10. Biological toxicity tests. -- An identification of any biological toxicity tests that the applicant knows or has reason to believe have been made within the last three (3) years on any of the applicant’s discharges or on a receiving water in relation to a discharge.

4.4.b.11. Contract analyses. -- If a contract laboratory or consulting firm performed any of the analyses required by paragraph 4.4.b.7 of this rule, the identity of each laboratory or firm and the analyses performed.

4.4.b.12. Additional information. -- In addition to the information reported on the application form, applicants shall provide to the Director, at his or her request, such other information as the Director may reasonably require to assess the discharges of the facility and to determine whether to issue a NPDES permit. The additional information may include additional quantitative data and bioassays to assess the relative toxicity to aquatic life of the discharges and requirements to determine the cause of the toxicity.

4.4.c. New and existing concentrated animal feeding operations and concentrated aquatic animal production facilities shall provide the following information to the Director, using the application form provided by the Director:

4.4.c.1. For concentrated animal feeding operations:

4.4.c.1.A. The name of the owner or operator;

4.4.c.1.B. The facility location and mailing addresses;

4.4.c.1.C. Latitude and longitude of the entrance to the production area;

4.4.c.1.D. A topographic map of the geographic area in which the CAFO is located, showing the specific location of the production area in lieu of the requirements of paragraph 4.4.a.6 of this rule;

4.4.c.1.E. Specific information about the number and type of animals at issue (i.e. beef cattle, broilers, layers, swine weighing fifty-five (55) pounds or more, swine weighing less than fifty-five (55) pounds, mature dairy cows, dairy heifers, veal calves, sheep and lambs, horses, ducks, turkeys, etc.) and whether such animals are in open confinement or housed under roof;

4.4.c.1.F. The type of containment and storage (i.e. anaerobic lagoon, roofed storage shed, storage ponds, under-floor pits, above-ground storage tanks, below-ground storage tanks, concrete pad, impervious soil pad, etc.) and its total capacity for manure, litter or process wastewater storage, measured in tons or gallons;

4.4.c.1.G. The total number of acres under control of the applicant available for land application of manure, litter or process wastewater;

4.4.c.1.H. The estimated amount of manure, litter, or process wastewater generated per year, measured in tons or gallons;

4.4.c.1.I. The estimated amount of manure, litter or process wastewater transferred to other persons per year, measured in tons or gallons; and

4.4.c.1.J. A nutrient management plan that, at a minimum, satisfies the requirements of subdivision 13.1.h below, including, for all CAFOs subject to 40 C.F.R. Part 412 Subpart C or D, the requirements of 40 C.F.R. §412.4(c), as applicable.

4.4.c.2. For concentrated aquatic animal production facilities:

4.4.c.2.A. The maximum daily and average monthly flow from each outlet;

4.4.c.2.B. The number of ponds, raceways, and similar structures;

4.4.c.2.C. The name of the receiving water and the source of intake water.

4.4.c.2.D. For each species of aquatic animal, the total yearly and maximum harvestable weight;

4.4.c.2.E. The calendar month of maximum feeding and the total mass of food fed during that month; and

4.4.c.2.F. Any other information the Director may reasonably require.

4.4.d. Variance requests by non-POTWs. -- A discharger that is not a publicly owned treatment works (POTW) may request a variance from otherwise applicable effluent limitations under any of the following statutory or regulatory provisions within the times specified herein:

4.4.d.1. Fundamentally different factors. -- A request for a variance based on the presence of “fundamentally different factors” from those on which the effluent limitations guideline was based shall be made by the close of the public comment period provided for in subsection 12.1 below. The request shall explain how the requirements of 40 C.F.R. Part 125, Subpart D have been met.

4.4.d.2. Nonconventional pollutants. -- A request for a variance from the best available technology (BAT) requirements of CWA §301(b)(2)(F) pollutants (commonly called “nonconventional pollutants”) pursuant to §301(c) of the CWA because of the economic capability of the owner or operator, or pursuant to §301(g) of the CWA because of certain environmental considerations, when those requirements were based on effluent limitation guidelines, must be made by:

4.4.d.2.A. Submitting an initial request to the Regional Administrator and to the Director stating the name of discharger, the permit number, the outlet number(s), the applicable effluent guideline, and whether the discharger is requesting a CWA §301(c) or CWA §301(G) modification or both. This request must have been filed not later than:

4.4.d.2.A.1. September 25, 1978 for a pollutant that is controlled by a BAT effluent guideline promulgated before December 27, 1977; or

4.4.d.2.A.2. Two hundred seventy (270) days after promulgation of an applicable effluent limitation guideline for guidelines promulgated after December 28, 1977.

4.4.d.2.B. Submitting a completed request no later than the close of the public comment period provided for in subsection 12.1 of this rule, demonstrating that the applicable requirements of 40 C.F.R. §125 have been met.

4.4.d.2.C. Requests for variance from effluent limitations not based on effluent limitation guidelines need only comply with subparagraph 4.4.d.2.B of this rule and need not be preceded by an initial request under subparagraph 4.4.d.2.A.

4.4.d.3. Delay in construction of POTW. -- An extension under CWA §301(i)(2) of the statutory deadlines in §§301(b)(1)(A) or (B)(1)(C) based on delay in completion of a POTW into which the source is to discharge must have been requested on or before June 26, 1978 or one hundred eighty (180) days after the relevant POTW requested an extension under paragraph 4.4.e.1 below, whichever is later, but in no event may this date have been later than December 24, 1978. The request shall explain how the requirements of 40 C.F.R. Part 125, Subpart J have been met.

4.4.d.4. Innovative technology. -- An extension under CWA §301(k) from the statutory deadline of §301(b)(2)(A) for best available technology based on the use of innovative technology may be requested no later than the close of the public comment period provided for in subsection 12.1 of this rule for the discharger’s initial permit requiring compliance with §301(b)(2)(A). The request shall demonstrate that the requirements of 40 C.F.R. §125 have been met.

4.4.d.5. Water quality related effluent limitations. -- A modification under CWA §302(b)(2) of the requirements of §302(a) for achieving water quality related effluent limitations may be requested no later than the close of the public comment period provided for in subsection 12.1 on the permit from which the modification is sought.

4.4.d.6. Thermal discharge. -- A variance under CWA §316(a) for the thermal component of any discharge must be filed with a timely application for a permit under this rule, except that if thermal effluent limitations are established under CWA §402(a)(1) or are based on water quality standards, the request for a variance may be filed by the close of the public comment period provided for in subsection 12.1 below. A copy of the request required by 40 C.F.R. Part 125, Subpart H shall be sent to the Director.

4.4.e. Variance requests by POTWs. -- A discharger that is a publicly owned treatment works (POTW) may request a variance from otherwise applicable effluent limitations under either of the following statutory provisions as specified herein:

4.4.e.1. Delay in construction. -- An extension under CWA §301(i)(1) of the statutory deadlines in CWA §§301(b)(1)(B) or (b)(1)(C) based on delay in the construction of the POTW must have been requested on or before June 26, 1978; or

4.4.e.2. Water quality based effluent limitation. -- A modification under CWA §302(b)(2) of the requirements under §302(a) for achieving water quality based effluent limitations shall be requested on the permit from which the modification is sought no later than the close of the public comment period provided for in subsection 12.1 of this rule.

4.4.f. Expedited variance procedures and time extensions:

4.4.f.1. Notwithstanding the time requirements in subdivisions 4.4.d and 4.4.e above, the Director may notify a permit applicant before a draft permit is issued that the draft permit will likely contain limitations that are eligible for variance. In the notice, as a condition of consideration of any potential variance request, the Director may require the applicant to submit a request explaining how the requirements of 40 C.F.R. §125 applicable to the variance have been met. The Director may also require the request’s submission within a specified reasonable time after receipt of the notice. The notice may be sent before the permit application has been submitted. The draft or final permit may contain the alternative limitations that may become effective upon final grant of the variance.

4.4.f.2. A discharger who cannot file a complete request required under subparagraphs 4.4.d.2.B or 4.4.d.2.C of this rule may request an extension. The extension may be granted or denied at the discretion of the Director. Extensions shall be no more than six (6) months in duration.

4.5. Record keeping. -- The applicant shall keep records of all data used to complete permit applications and any supplemental information submitted for a period of at least three (3) years from the date the application is signed.

4.6. Signatories to permit applications and reports.

4.6.a. Applications. -- All permit applications shall be signed as follows:

4.6.a.1. For a corporation: by a responsible corporate officer. For the purpose of this section, a responsible corporate officer means:

4.6.a.1.A. A president, secretary, treasurer or vice-president of the corporation in charge of a principle business function or any other person who performs similar policy or decision making functions for the corporation; or

4.6.a.1.B. The manager of one (1) or more manufacturing, production, or operating facilities employing more than two hundred fifty (250) persons or having gross annual sales or expenditures exceeding twenty-five million dollars ($25,000,000), if authority to sign documents has been assigned or delegated to the manager in accordance with corporate procedures.

NOTE: The Director does not require specific assignments or delegations of authority to responsible corporate officers identified in subparagraph 4.6.a.1.A. The Director will presume that these responsible corporate officers have the requisite authority to sign permit applications unless the corporation has notified the Director to the contrary. Corporate procedures governing authority to sign permit applications may provide for assignment or delegation to applicable corporate positions under subparagraph 4.6.a.1.B rather than to specific individuals.

4.6.a.2. For a partnership or sole proprietorship: by a general partner or the proprietor respectively; or

4.6.a.3. For a municipality, State, Federal or other public agency: by either a principal executive officer or ranking elected official. For purposes of this section, a principal executive officer of a Federal agency includes:

4.6.a.3.A. The chief executive officer of the agency; or

4.6.a.3.B. A senior executive officer having responsibility for the overall operations of a principal geographic unit of the agency (e.g., Regional Administrator of EPA.)

4.6.b. Reports. -- All reports required by permits and other information requested by the Director shall be signed by a person described in subdivision 4.6.a or by a duly authorized representative of that person. A person is a duly authorized representative only if:

4.6.b.1. The authorization is made in writing by a person described in subdivision 4.6.a above;

4.6.b.2. The authorization specifies either an individual or a position having responsibility for the overall operation of the regulated facility or activity, such as the position of plant manager, operator of a well or a well field, superintendent or position of equivalent responsibility, or an individual or position having overall responsibility for environmental matters for the company. A duly authorized representative may thus be either a named individual or any individual occupying a named position; and

4.6.b.3. The written authorization is submitted to the Director.

4.6.c. Changes to authorization. -- If an authorization under subdivision 4.6.b above is no longer accurate because a different individual or position has responsibility for the overall operation of the facility, a new authorization satisfying the requirements of subdivision 4.6.b must be submitted to the Director prior to or together with any reports, information, or applications to be signed by an authorized representative.

4.6.d. Certification. -- Any person signing a document under subdivisions 4.6.a or 4.6.b of this rule shall make the following certification:

“I certify under penalty of law that this document and all attachments were prepared under my direction or supervision in accordance with a system designed to assure that qualified personnel properly gather and evaluate the information submitted. Based on my inquiry of the person or persons who manage the system, or those persons directly responsible for gathering the information, the information submitted is, to the best of my knowledge and belief, true, accurate, and complete. I am aware that there are significant penalties for submitting false information, including the possibility of fine and imprisonment for knowing violations.”

4.7. Filing fee. -- For all NPDES permits, the filing fees required by 47CSR26 shall apply as though fully set forth herein.

W. Va. Code R. § 47-10-5 Conditions Applicable to All Permits

The following conditions apply to all permits. All conditions shall be incorporated into the permits either expressly or by reference. If incorporated by reference, a specific citation to these rules must be given in the permit.

5.1. Duty to comply:

5.1.a. The permittee must comply with all conditions of this permit. Permit noncompliance constitutes a violation of the CWA and State Act and is grounds for enforcement action, for permit modification, revocation and reissuance, suspension or revocation, or for denial of a permit renewal application.

5.1.b. The permittee shall comply with all effluent standards or prohibitions established under §307(a) of the CWA for toxic pollutants within the time provided in the regulations that establish these standards or prohibitions, even if the permit has not yet been modified to incorporate the requirement.

5.2. Duty to reapply. -- If the permittee wishes to continue an activity regulated by this permit after the expiration date of this permit, the permittee must apply for a new permit at least one hundred eighty (180) days prior to expiration of the permit.

5.3. Need to halt or reduce activity not a defense. -- It shall not be a defense for a permittee in an enforcement action that it would have been necessary to halt or reduce the permitted activity in order to maintain compliance with the conditions of this permit.

5.4. Duty to mitigate. -- The permittee shall take all reasonable steps to minimize or prevent any discharge in violation of this permit that has a reasonable likelihood of adversely affecting human health or the environment.

5.5. Proper operation and maintenance. -- The permittee shall at all times properly operate and maintain all facilities and systems of treatment and control (and related appurtenances) that are installed or used by the permittee to achieve compliance with the conditions of this permit. Proper operation and maintenance also includes adequate laboratory controls and appropriate quality assurance procedures. Unless otherwise required by Federal or State law, this provision requires the operation of back-up auxiliary facilities or similar systems that are installed by the permittee only when the operation is necessary to achieve compliance with the conditions of the permit. For domestic waste treatment facilities, waste treatment operators as classified by the rules promulgated by the State Bureau for Public Health pursuant to W. Va. Code §16-1-1, et seq. will be required, except that in circumstances where the domestic waste treatment facility is receiving any type of industrial waste, the Director may require a more highly skilled operator.

5.6. Permit actions. -- This permit may be modified, revoked and reissued, suspended, or revoked for cause. The filing of a request by the permittee for a permit modification, revocation and reissuance, or revocation or a notification of planned changes or anticipated noncompliance does not stay any permit condition.

5.7. Property rights. -- This permit does not convey any property rights of any sort or any exclusive privilege.

5.8. Duty to provide information. -- The permittee shall furnish to the Director, within a reasonable specified time, any information that the Director may request to determine whether cause exists for modifying, revoking and reissuing, suspending or revoking this permit, or to determine compliance with this permit. The permittee shall also furnish to the Director, upon request, copies of records required to be kept by this permit.

5.9. Inspection and entry. -- The permittee shall allow the Director or the Director’s authorized representative, upon presentation of credentials and other documents as may be required by law, to:

5.9.a. Enter upon the permittee’s premises where an effluent source or activity is located or where records must be kept under the conditions of this permit;

5.9.b. Have access to and copy at reasonable times any records that must be kept under the conditions of this permit;

5.9.c. Inspect at reasonable times any facilities, equipment (including monitoring and control equipment), practices, or operations regulated or required under this permit; and

5.9.d. Sample or monitor at reasonable times for the purpose of assuring permit compliance or as otherwise authorized by the State Act, any substances or parameters at any location.

5.10. Monitoring and records:

5.10.a. Monitoring must be conducted according to test procedures approved under 40 C.F.R. §136 as in effect April 25, 2007, unless other test procedures have been specified in the permit.

5.10.b. Samples and measurements taken for the purpose of monitoring shall be representative of the monitored activity.

5.10.c. The permittee shall retain records of all monitoring information, including all calibration and maintenance records and all original chart recordings for continuous monitoring instrumentation, copies of all reports required by the permit, and records of all data used to complete the application for this permit for a period of at least three (3) years from the date of the sample, measurement, report or application. This period may be extended by request of the Director at any time.

5.10.d. Records of monitoring information shall include:

5.10.d.1. The date, exact place, and time of sampling or measurements;

5.10.d.2. The individual(s) who performed the sampling or measurements;

5.10.d.3. The date(s) analyses were performed;

5.10.d.4. The individual(s) who performed the analyses; if a commercial laboratory is used, the name and address of the laboratory;

5.10.d.5. The analytical techniques or methods used; and

5.10.d.6. The results of such analyses.

5.10.e. Monitoring results shall be reported on DMRs and at the intervals specified elsewhere in the permit.

5.10.f. If the permittee monitors any pollutant at any monitoring point specified in the permit more frequently than required by the permit, using approved test procedures or as specified in the permit, the results of this monitoring shall be included in the calculation and reporting of the data submitted in the DMR.

5.10.g. Calculations for all limitations that require averaging of measurements shall utilize an arithmetic mean unless otherwise specified by the Director in the permit.

5.10.h. The permittee shall not knowingly render inaccurate any monitoring device required to be used under this permit.

5.11. Signatory requirement. -- All applications, reports or information submitted to the Director shall be signed and certified as required in subsection 4.6 of this rule.

5.12. Reporting requirements:

5.12.a. Planned changes. -- The permittee shall give notice to the Director of any planned physical alterations or additions to the permitted facility that may affect the nature or quantity of the discharge and of any planned changes in the method of operating the facility that may affect the nature of quantity of the discharge. Notice is required when:

5.12.a.1. The alteration or addition to a permitted facility may meet one (1) of the criteria for determining whether a facility is a new source pursuant to subdivision 13.7.b below; or

5.12.a.2. The alteration or addition could significantly change the nature or increase the quantity of pollutants discharged. This notification applies to pollutants that are subject neither to effluent limitations in the permit nor to the notification requirements of subdivision 5.12.f below.

5.12.b. Anticipated noncompliance. -- The permittee shall give advance notice to the Director of any planned changes in the permitted facility or activity that may result in noncompliance with permit requirements.

5.12.c. Transfers. -- This permit is not transferable to any person except after notice to the Director. The Director may require modification or revocation and reissuance of the permit to change the name of the permittee and incorporate such other requirements as may be necessary.

5.12.d. Compliance schedules. -- Reports of compliance or noncompliance or any progress reports on interim and final requirements contained in any compliance schedule of this permit shall be submitted no later than fourteen (14) days following each schedule date.

5.12.e. Immediate reporting:

5.12.e.1. The permittee shall report any noncompliance that may endanger public health or the environment immediately after becoming aware of the circumstances by using the Division of Water and Waste Management’s Emergency Notification Number 1-800-642-3074. A written submission shall be provided within five (5) days of the time the permittee becomes aware of the circumstances. The written submission shall contain a description of the noncompliance and its cause; the period of noncompliance, including exact dates and times, and if the noncompliance has not been corrected, the anticipated time it is expected to continue; and steps taken or planned to reduce, eliminate and prevent recurrence of the noncompliance.

5.12.e.2. The following shall also be reported immediately:

5.12.e.2.A. Any unanticipated bypass that exceeds any effluent limitation in the permit;

5.12.e.2.B. Any upset that exceeds any effluent limitation in the permit; and

5.12.e.2.C. Any violation of a maximum daily discharge limitation for any of the pollutants listed by the Director in the permit shall be reported immediately. This list shall include any toxic pollutant or hazardous substance or any pollutant specifically identified as the method to control a toxic pollutant or hazardous substance.

5.12.e.3. The Director may waive the written report on a case-by-case basis if the oral report has been received in accordance with the above.

5.12.e.4. Compliance with the requirements of subdivision 5.12.f below shall not relieve a person of compliance with 47CSR11.

5.12.f. In addition to the above reporting requirements, all existing manufacturing, commercial, and silvicultural dischargers must notify the Director in writing as soon as they know or have reason to believe:

5.12.f.1. That any activity has occurred or will occur that would result in the discharge, on a routine or frequent basis, of any toxic pollutant that is not limited in the permit if that discharge will exceed the highest of the following “Notification Levels:”

5.12.f.1.A. One hundred micrograms per liter (100 µg/1);

5.12.f.1.B. Two hundred micrograms per liter (200 µg/1) for acrolein and acrylonitrile; five hundred micrograms per liter (500 µg/1) for 2,4-dinitrophenol and for 2-methyl-4,6-dinitrophenol; and one milligram per liter (1 mg/1) for antimony;

5.12.f.1.C. Five (5) times the maximum concentration value reported for that pollutant in the permit application in accordance with paragraphs 4.4.b.7 or 4.4.b.9 above; and

5.12.f.1.D. The level established by the Director in accordance with paragraph 6.3.g.5 below.

5.12.f.2. That any activity has occurred or will occur that would result in any discharge (on a non-routine or infrequent basis) of a toxic pollutant that is not limited in the permit, if that discharge will exceed the highest of the following “Notification Levels:”

5.12.f.2.A. Five hundred micrograms per liter (500 µg/1);

5.12.f.2.B. One milligram per liter (1 mg/1) for antimony;

5.12.f.2.C. Ten (10) times the maximum concentration value reported for that pollutant in the permit application in accordance with paragraph 4.4.b.7 above; or

5.12.f.2.D. The level established by the Director in accordance with paragraph 6.3.g.5 below.

5.12.f.3. That they have begun or expect to begin to use or manufacture as an intermediate or final product or by-product of any toxic pollutant that was not reported in the permit application under paragraph 4.4.b.9 above and that will result in the discharge on a routine or frequent basis of that toxic pollutant at levels that exceed five (5) times the detection limit for that pollutant under approved analytical procedure.

5.12.f.4. That they have begun or expect to begin to use or manufacture as an intermediate or final product or by-product of any toxic pollutant that was not reported in the permit application under paragraph 4.4.b.9 above and that will result in the discharge on a non-routine or infrequent basis of that toxic pollutant at levels that exceed ten (10) times the detection limit for that pollutant under approved analytical procedure.

5.12.g. Other noncompliance. The permittee shall report all instances of noncompliance not reported under the above paragraphs at the time monitoring reports are submitted. The reports shall contain the information listed in paragraph 5.12.e.1 of this rule.

5.12.h. Other information. -- Where the permittee becomes aware that it failed to submit any relevant facts in a permit application or submitted incorrect information in a permit application or in any report to the Director, it shall promptly submit such facts or information.

5.13. Bypass:

5.13.a. Definitions:

5.13.a.1. “Bypass” means the intentional diversion of waste streams from any portion of a treatment facility.

5.13.a.2. “Severe Property Damage” means substantial physical damage to property, damage to the treatment facilities that causes them to become inoperable, or substantial and permanent loss of natural resources that can reasonably be expected to occur in the absence of a bypass. Severe property damage does not mean economic loss caused by delays in production.

5.13.b. Bypass not exceeding limitations. -- The permittee may allow any bypass to occur that does not cause effluent limitations to be exceeded, but only if it also is for essential maintenance to assure efficient operation. These bypasses are not subject to the provisions of subdivisions 5.13.c and 5.13.d of this rule.

5.13.c. Notice:

5.13.c.1. If the permittee knows in advance of the need for a bypass, it shall submit prior notice, if possible at least ten (10) days before the date of the bypass; and

5.13.c.2. If the permittee does not know in advance of the need for a bypass, notice shall be submitted as required in paragraph 5.12.e.2 of this rule.

5.13.d. Prohibition of bypass:

5.13.d.1. Bypass is permitted only under the following conditions, and the Director may take enforcement action against a permittee for bypass, unless:

5.13.d.1.A. Bypass was unavoidable to prevent loss of life, personal injury, or severe property damage;

5.13.d.1.B. There were no feasible alternatives to the bypass, such as the use of auxiliary treatment facilities, retention of untreated wastes, or maintenance during normal periods of equipment downtime. This condition is not satisfied if adequate backup equipment should have been installed in the exercise of reasonable engineering judgment to prevent a bypass that occurred during normal periods of equipment downtime or preventive maintenance; and

5.13.d.1.C. The permittee submitted notices as required under subdivision 5.13.c above.

5.13.d.2. The Director may approve an anticipated bypass after considering its adverse effects if the Director determines that it will meet the three (3) conditions listed above in paragraph 5.13.d.1 above.

5.14. Upset.

5.14.a. Definition. -- “Upset” means an exceptional incident in which there is unintentional and temporary noncompliance with technology-based permit effluent limitations because of factors beyond the reasonable control of the permittee. An upset does not include noncompliance to the extent caused by operational error, improperly designed treatment facilities, inadequate treatment facilities, lack of preventive maintenance, or careless or improper operation.

5.14.b. Effect of an upset. -- An upset constitutes an affirmative defense to an action brought for noncompliance with such technology-based effluent limitations if the requirements of subdivision 5.14.c of this rule are met. No determination made during administrative review of claims that noncompliance was caused by upset and before an action for noncompliance is final administrative action subject to judicial review.

5.14.c. Conditions necessary for a demonstration of upset. -- A permittee who wishes to establish the affirmative defense of upset shall demonstrate, through properly signed, contemporaneous operating logs or other relevant evidence that:

5.14.c.1. An upset occurred and that the permittee can identify the cause(s) of the upset;

5.14.c.2. The permitted facility was being properly operated at the time of the upset;

5.14.c.3. The permittee submitted notice of the upset as required in paragraph 5.12.e.2 of this rule; and

5.14.c.4. The permittee complied with any remedial measures required by subsection 5.4 above.

5.14.d. Burden of proof. -- In any enforcement proceeding, the permittee seeking to establish the occurrence of an upset has the burden of proof.

5.15. Removed substances. -- Where removed substances are not otherwise covered by the terms and conditions of this permit or another existing permit issued by the Director, any solids, sludges, filter backwash or other pollutants removed in the course of treatment or control of wastewaters that are intended for disposal within the State shall be disposed of only in a manner and at a site subject to the approval by the Director. If such substances are intended for disposal outside the State or for reuse (i.e. as a material used for making another product, which in turn has another use), the permittee shall notify the Director in writing of the proposed disposal or use of such substances, the identify of the prospective disposer or users, and the intended place of disposal or use, as appropriate.

W. Va. Code R. § 47-10-6 Establishing Permit Conditions

6.1. In addition to conditions required in all permits, the Director shall establish conditions in permits as required on a case-by-case basis to provide for and assure compliance with all applicable requirements of the CWA and the State Act and regulations. An applicable requirement is a State or Federal or interstate compact, statutory or regulatory requirement that takes effect prior to final administrative disposition of a permit, or any requirement that takes effect prior to the modification or revocation and reissuance of a permit.

6.2. In the permit review and planning process, or upon the request of a permit applicant or permittee, the Director may utilize Real Time Water Quality Control on a case-by-case basis when establishing permit conditions when the applicant demonstrates that the use of Real Time Water Quality Control will not violate water quality standards. In order to facilitate a determination or assessment of the applicability of Real Time Management Control, the Director may require a permit applicant or permittee to submit such information as deemed necessary.

6.3. Each permit shall include conditions meeting the following requirements when applicable:

6.3.a. Technology-based effluent limitations and standards based on effluent limitations and standards under §301 of the CWA, new source performance standards promulgated under §306 of the CWA, case-by-case effluent standards determined under §402(a)(1) of the CWA, or a combination of the two (2) in accordance with 40 C.F.R. §125.3(c). For new sources or new dischargers, these technology based limitations and standards are subject to the provisions of subsection 13.7 below (protection period).

6.3.b. Other effluent limitations and standards under §§301, 302, 303, 307, 318, and 405 of the CWA. If any applicable toxic effluent standard or prohibition (including any schedule of compliance specified in such effluent standard or prohibition) is promulgated under §307(a) of the CWA for a toxic pollutant and that standard or prohibition is more stringent than any limitation on the pollutant in the permit, the Director shall institute proceedings under these rules to modify or revoke and reissue the permit to conform to the toxic effluent standard or prohibition. The provisions of 40 C.F.R. §129 are hereby incorporated by reference.

6.3.c. For any discharger within a primary industry category (see Appendix A), the requirements of §307(a)(2) of the CWA as follows:

6.3.c.1. After June 30, 1981, any permit issued shall include effluent limitations and a compliance schedule to meet the requirements of §§301(b)(2)(A), (C), (D), (E) and (F) of the CWA, whether or not applicable effluent limitations guidelines have been promulgated or approved. These permits may include a condition stating that if an applicable standard or limitation is promulgated under §§301(b)(2)(C) and (D), 304(b)(2), and 307(a)(2) and that effluent standard or limitation is more stringent than any effluent limitation in the permit or controls a pollutant not listed in the permit, the permit shall be promptly modified or revoked and reissued to conform to that effluent standard or limitation.

6.3.d. Any more stringent requirements necessary to achieve water quality standards established pursuant to the CWA or the State Act and regulations, including requirements of other affected States. Nothing in this section precludes the application of Real Time Water Quality Control in achieving water quality standards.

6.3.e. Any requirements necessary to ensure consistency with the requirements of a Water Quality Management Plan approved by EPA under §208(b) of the CWA.

6.3.f. For toxic pollutants, limitations established under subdivisions 6.3.a, 6.3.b or 6.3.c above to control pollutants meeting the criteria listed in paragraph 6.3.f.1 below. Limitations will be established in accordance with paragraph 6.3.f.2. An explanation of the development of these limitations shall be included in the fact sheet, if any:

6.3.f.1. Limitations must control all toxic pollutants that:

6.3.f.1.A. The Director determines are or may be discharged at a level greater than the level that can be achieved by the technology-based treatment requirements appropriate to the permittee; or

6.3.f.1.B. The discharger does or may use or manufacture as an intermediate or final product or by-product.

6.3.f.2. The requirement that the limitations control the pollutants meeting the criteria of paragraph 6.3.f.1 above will be satisfied by:

6.3.f.2.A. Limitations on those pollutants; or

6.3.f.2.B. Limitations on other pollutants that, in the judgment of the Director, will provide the necessary treatment of the pollutants.

6.3.g. Notification level. -- A “Notification Level” that exceeds the notification level of subdivision 5.1.f above, upon a petition from the permittee or on the Director’s initiative. This new notification level may not exceed the level that can be achieved by the technology-based treatment requirements appropriate to the permittee.

6.3.h. Monitoring requirements. -- In addition to the requirements set out in subsection 5.10 above, the following monitoring requirements:

6.3.h.1. To assure compliance with permit limitations, requirements to monitor:

6.3.h.1.A. The mass (or other measurement specified in the permit) for each pollutant limited in the permit;

6.3.h.1.B. The volume of effluent discharged from each outlet;

6.3.h.1.C. Other measurements as appropriate, including pollutants in internal waste streams under subsection 7.9 below; pollutants in intake water for net limitations under subsection 7.8 below; frequency, rate of discharge, etc., for noncontinuous dischargers under subsection 7.5 below; and pollutants subject to notification requirements under subdivision 5.12.f above; and

6.3.h.1.D. According to test procedures approved by 40 C.F.R. §136 for the analyses of pollutants having approved methods under that section, and according to a test procedure specified in the permit for pollutants with no approved methods.

6.3.h.2. Requirements to report monitoring results with a frequency dependent on the nature and effect of the discharge, but in no case less than once a year.

6.3.h.3. When appropriate and as determined by the Director, requirements concerning the proper use, maintenance, and installation of monitoring equipment or methods, including biological monitoring methods.

6.3.i. Best management practices to control or abate the discharge of pollutants when:

6.3.i.1. Authorized under §304(e) of the CWA for the control of toxic pollutants and hazardous substances from ancillary activities;

6.3.i.2. Numeric effluent limitations are infeasible; or

6.3.i.3. The practices are reasonably necessary to achieve effluent limitations and standards or to carry out the purposes and intent of the CWA.

6.3.j. Reissued permits.

6.3.j.1. Except as provided in paragraph 6.3.j.2 of this rule, when a permit is renewed or reissued, interim limitations, standards or conditions must be at least as stringent as the final limitations, standards or conditions in the previous permit, unless the circumstances on which the previous permit was based have materially and substantially changed since the time the permit was issued and would constitute cause for permit modification or revocation and reissuance.

6.3.j.2. When effluent limitations were imposed under §402(a)(1) of the CWA in a previously issued permit and these limitations are more stringent than the subsequently promulgated effluent guidelines, this paragraph shall apply unless:

6.3.j.2.A. The discharger has installed the treatment facilities required to meet the effluent limitations in the previous permit and has properly operated and maintained the facilities, but has nevertheless been unable to achieve the previous effluent limitations. In this case the limitations in the reissued permit may reflect the level of pollutant control actually achieved, but shall not be less stringent than required by the subsequently promulgated guidelines;

6.3.j.2.B. The subsequently promulgated effluent guidelines are based on best conventional pollutant control technology pursuant to §301(b)(2)(E) of the CWA;

6.3.j.2.C. The circumstances on which the previous permit was based have materially and substantially changed since the time the permit was issued and would constitute cause for permit modification or revocation and reissuance; or

6.3.j.2.D. There is increased production at the facility that results in significant reduction in treatment efficiency, in which case the permit limitations will be adjusted to reflect any decreased efficiency resulting from increased production and raw waste loads, but in no event shall permit limitations be less stringent than those required by subsequently promulgated standards and limitations.

6.3.k. Privately owned treatment works. -- For a privately owned treatment works, any conditions expressly applicable to any user, as a limited co-permittee, that may be necessary in the permit issued to the treatment works to ensure compliance with applicable requirements of the CWA and the State Act. Alternatively, the Director may issue separate permits to the treatment works and to its users or may require a separate permit application from any user. The Director’s decision to issue a permit with no conditions applicable to any user, to impose conditions on one (1) or more users, to issue separate permits, or to require separate applications, and the basis for that decision shall be stated in the fact sheet for the draft permit for the treatment works, if any.

6.3.l. Grants. -- Any conditions imposed in grants made by the Administrator to POTWs under §§201 and 204 of the CWA that are reasonably necessary for the achievement of effluent limitations under §301 of the CWA.

6.3.m. Sewage sludge. -- Requirements under §405 of the CWA governing the disposal of sewage sludge from publicly owned treatment works, in accordance with any applicable rules.

6.3.n. Navigation. -- Any conditions that the Secretary of the U.S. Army Corps of Engineers considers necessary to ensure that navigation and anchorage will not be substantially impaired.

6.3.o. Any alternative effluent limitations or standards may be incorporated where warranted by “fundamentally different factors,” pursuant to 40 C.F.R. §125.30, et seq.

W. Va. Code R. § 47-10-7 Calculating NPDES Conditions

7.1. Outlets and discharge points. -- All permit effluent limitations, standards, and prohibitions shall be established for each outlet or discharge point of the permitted facility, except as otherwise provided under subdivision 6.3.i and subsection 7.8 of this rule.

7.2. Production-based limitations:

7.2.a. In the case of sewage facilities, permit limitations, standards, or prohibitions shall be calculated based on design flow.

7.2.a.1. Except in the case of sewage facilities, or as provided, in paragraph 7.2.a.3 below, calculation of any permit limitations, standards, or prohibitions that are based on production (or other measure of operation) shall be based not upon the designed production capacity but rather upon a reasonable measure of actual production of the facility. For new sources or new dischargers, actual production shall be estimated using projected production. The time period of the measure of production shall correspond to the time period of the calculated permit limitation; for example, monthly production shall be used to calculate average monthly discharge limitations.

7.2.a.2. Where production-based limitations, standards or prohibitions apply, the Director may include a condition establishing alternate permit limitations, standards or prohibitions based upon anticipated increased or decreased production levels, not to exceed maximum production capability.

7.2.a.3. If the Director establishes permit conditions under paragraph 7.2.a.2 above:

7.2.a.3.A. The permit shall require the permittee to notify the Director at least two (2) business days prior to the month in which the permittee expects to operate at a level higher than the lowest production level identified in the permit. The notice shall specify the anticipated level and the period during which the permittee expects to operate at the alternate level. If the notice covers more than one (1) month, the notice shall specify the reasons for the anticipated production level increase. New notice of discharge at alternate levels is required to cover a period or production level not covered by prior notice or, if during two (2) consecutive months otherwise covered by a notice, the production level at the permitted facility does not in fact meet the higher level designated in the notice.

7.2.a.3.B. The permittee shall comply with the limitations, standards, or prohibitions that correspond to the lowest level of production specified in the permit, unless the permittee has notified the Director, in which case the permittee shall comply with the lower of the actual level of production during each month or the level specified in the notice.

7.2.a.3.C. The permittee shall submit with the DMR the level of production that actually occurred during each month and the limitations, standards, or prohibitions applicable to that level of production.

7.2.b. In the case of facilities and activities providing services and where water usage is not related to a product, limitations, standards, and prohibitions shall be based upon water usage. For those facilities covered by 47CSR1 §§3 and 4, those requirements shall also be considered in these determinations.

7.3. Metals. -- All permit effluent limitations, standards, or prohibitions for a metal shall be expressed in terms of “total recoverable metal” as defined in 40 C.F.R. §136.3, unless:

7.3.a. An applicable effluent standard or limitation has been promulgated under the CWA and specifies the limitation for the metal in the dissolved or valent or total for; or

7.3.b. In establishing permit limitations on a case-by-case basis, it is necessary to express the limitation on the metal in the dissolved or valent or total form in order to carry out the provisions of the CWA; or

7.3.c. All approved analytical methods for the metal inherently measure only its dissolved form (e.g. hexavalent chromium).

7.4. Continuous discharges. -- For all continuous discharges, all permit effluent limitations, standards, and prohibitions, including those necessary to achieve water quality standards, shall be stated as maximum daily and average monthly discharge limitations, unless impracticable.

7.5. Noncontinuous discharges. -- Discharges that are not continuous shall be particularly described and limited, considering the following factors as appropriate:

7.5.a. Frequency;

7.5.b. Total mass;

7.5.c. Maximum rate of discharge of pollutants during the discharge; or

7.5.d. Prohibition or limitation of specified pollutants by mass, concentration, or other appropriate measure.

7.6. Mass limitations:

7.6.a. All pollutants limited in permits shall have limitations, standards, or prohibitions expressed in terms of mass except:

7.6.a.1. For pH, temperature, radiation, or other pollutants that cannot appropriately be expressed by mass;

7.6.a.2. When applicable standards and limitations are expressed in terms of other units of measurement; or

7.6.a.3. If, in establishing permit limitations on a case-by-case basis, limitations expressed in terms of mass are infeasible because the mass of the pollutant discharged cannot be related to a measure of operation and permit conditions ensure that dilution will not be used as a substitute for treatment.

7.6.b. Pollutants limited in terms of mass additionally may be limited in terms of other units of measurement, and the permit shall require the permittee to comply with both limitations.

7.7. Pollutants in intake water.

7.7.a. Upon request of the permittee, technology-based effluent limitations or standards shall be adjusted to reflect credit for pollutants in the permittee's intake water, if:

7.7.a.1. The applicable effluent limitations and standards specifically provide that they shall be applied on a net basis; or

7.7.a.2. The permittee demonstrates that the control system it proposes or uses to meet applicable technology-based limitations and standards would, if properly installed and operated, meet the limitations and standards in the absence of pollutants in the intake waters.

7.7.b. Credit for generic pollutants such as biochemical oxygen demand (BOD) or total suspended solids (TSS) should not be granted unless the permittee demonstrates that the constituents of the generic measure in the effluent are substantially similar to the constituents of the generic measure in the intake water or unless appropriate additional limits are placed on process water pollutants either at the outlet or elsewhere.

7.7.c. Effluent limitations or standards shall not be calculated on a “net” basis for permittees whose intake water comes from underground water systems.

7.7.d. Credit shall be granted only to the extent necessary to meet the applicable limitation or standard, up to a maximum value equal to the influent value. Additional monitoring may be necessary to determine eligibility for credits and compliance with permit limits.

7.7.e. Credit shall be granted only if the permittee demonstrates that the intake water is drawn from the same body of water into which the discharge is made. The Director may waive this requirement if he finds that no environmental degradation will result.

7.7.f. This section does not apply to the discharge of raw water clarifier sludge generated from the treatment of intake water.

7.8. Internal waste streams. -- When permit effluent limitations or standards imposed at the point of discharge are impractical or infeasible, effluent limitations or standards for discharges of pollutants may be imposed on internal waste streams before mixing with other waste streams or cooling water streams. In those instances, the monitoring requirements under subdivision 6.3.h above shall also be applied to the internal waste streams.

7.9. Disposal of pollutants into wells, into POTWs, or by land application:

7.9.a. When part of a discharger’s process wastewater is not being discharged into waters of the State because it is disposed into a well, into a POTW or by land application, thereby reducing the flow or level of pollutants being discharged into waters of the State, applicable effluent standards and limitations for the discharge in a NPDES permit shall be adjusted to reflect the reduced raw waste resulting from such disposal. Effluent limitations and standards in the permit shall be calculated by one (1) of the following methods:

7.9.a.1. If none of the waste from a particular process is discharged into waters of the State, and effluent limitations guidelines provide separate allocation for wastes from that process, all allocations for the process shall be eliminated from calculation of permit effluent limitations or standards.

7.9.a.2. In all cases other than those described in paragraph 7.9.a.1 above, effluent limitations shall be adjusted by multiplying the effluent limitation derived by applying effluent limitation guidelines to the total waste stream by the amount of wastewater flow to be treated and discharged into waters of the State, and dividing the result by the total wastewater flow. Effluent limitations and standards so calculated may be further adjusted to make them more stringent if discharges to wells, publicly owned treatment works, or by land application change the character or treatability of the pollutants being discharged to receiving waters.

7.9.b. Subdivision 7.9.a above shall not apply to the extent that promulgated effluent limitations guidelines:

7.9.b.1. Control concentrations of pollutants discharged but not mass; or

7.9.b.2. Specify a different specific technique for adjusting effluent limitations to account for well injection, land application, or disposal into POTWs.

7.9.c. Subdivision 7.9.a above does not alter a discharger’s obligation to meet any more stringent requirements established under sections 5 and 6 of this series.

7.10. At the request of the permittee, the Director shall develop alternative permit limits and conditions for alternative operating scenarios or conditions that are reasonably likely to occur and are identified by the permit applicant.

W. Va. Code R. § 47-10-8 Schedules of Compliance

8.1. General. -- The permit may, when appropriate, specify a schedule of compliance leading to compliance with the CWA and State Act and rules:

8.1.a. Any schedule of compliance shall require compliance as soon as possible, but in no case later than an applicable statutory deadline. In the case of permit conditions based on water quality standards established after July 1, 1977, a schedule of compliance may be used that shall assure that the discharge will not cause a violation of applicable water quality standards.

8.1.b. The first NPDES permit issued to a new source or a new discharger shall contain a schedule of compliance only when necessary to allow a reasonable opportunity to attain compliance with requirements issued or revised after commencement of construction but less than three (3) years before commencement of the relevant discharge. For recommencing dischargers, a schedule of compliance shall be available only when necessary to allow a reasonable opportunity to attain compliance with requirements issued or revised less than three (3) years before recommencement of discharge.

8.1.c. Interim dates. -- If a permit establishes a schedule of compliance that exceeds one (1) year from the date of permit issuance, the schedule shall set forth interim requirements and the dates for their achievement:

8.1.c.1. The time between interim dates shall not exceed one (1) year.

8.1.c.2. If the time necessary for completion of any interim requirement is more than one (1) year and is not readily divisible into stages for completion, the permit shall specify interim dates for the submission of reports of progress toward completion of the interim requirements and indicate a projected completion date.

8.2. Alternative schedules of compliance. -- A permit applicant or permittee may cease conducting regulated activities rather than continue to operate and meet permit requirements as follows:

8.2.a. If the permittee decides to cease conducting regulated activities at a given time within the term of a permit that has already been issued:

8.2.a.1. The permit may be modified to contain a new or additional schedule leading to timely cessation of activities; or

8.2.a.2. The permittee shall cease conducting permitted activities before noncompliance with any interim or final compliance schedule requirement already specified in the permit.

8.2.b. If the decision to cease conducting regulated activities is made before issuance of a permit the term of which will include the termination date, the permit shall contain a schedule leading to termination that will ensure timely compliance with applicable requirements for compliance not later than the statutory deadline.

8.2.c. If the permittee is undecided whether to cease conducting regulated activities, the Director may issue or modify a permit to contain two (2) schedules as follows:

8.2.c.1. Both schedules shall contain an identical interim deadline requiring a final decision on whether to cease conducting regulated activities no later than a date that ensures sufficient time to comply with applicable requirement in a timely manner if the decision is to continue conducting regulated activities;

8.2.c.2. One (1) schedule shall lead to timely compliance with applicable requirements and compliance no later than the statutory deadline;

8.2.c.3. The second schedule shall lead to cessation of regulated activities by a date that will ensure timely compliance with applicable requirements or compliance no later than the statutory deadline; and

8.2.c.4. Each permit containing two (2) schedules shall include a requirement that, after the permittee has made a final decision under paragraph 8.2.c.1 of this rule, it shall follow the schedule leading to compliance if the decision is to cease conducting regulated activities.

8.2.d. If the applicant’s or permittee’s decision to cease conducting regulated activities shall be evidenced by a firm public commitment satisfactory to the Director.

W. Va. Code R. § 47-10-9 Modification, Revocation and Reissuance, Suspension and Revocation of Permits

9.1. Actions by the Director.

9.1.a. Permits may be modified, revoked and reissued, suspended or revoked either at the request of any interested person or upon the Director’s initiative. Permits may only be modified, revoked and reissued, suspended or revoked for the reasons specified in this section. When a permit is modified, only the conditions subject to modification are reopened. All other conditions of the permit shall remain in effect for the duration of the permit. All requests under this section shall be in writing submitted to the Director citing facts or reasons supporting the request and indicating under which subsection the request is being made. If a permit modification is being requested pursuant to an emergency declared by the Director, an affidavit signed by a person meeting the requirements of subsection 4.6 above attesting to the emergency shall be filed with the request. The Director may require additional information, and in the case of a major modification, may require submission of a new permit application. For a reissuance under subdivision 9.2.b or subsection 9.3 below, the Director shall require submission of a new permit application.

9.1.b. If the Director decides the request is not justified, he or she shall send the requestor a brief written response giving the reasons for the decision. Denials of such requests are not subject to public notice, comment, or hearings.

9.1.c. Permit modifications shall be governed as follows:

9.1.c.1. If the Director tentatively decides to modify or revoke and reissue a permit and the modification is not made pursuant to subsection 9.5 below, he or she shall prepare a draft permit in accordance with section 10 of this rule and shall follow the public notice procedures in section 12. The Director may request additional information and, in the case of a modified permit, may require the submission of an updated permit application. In the case of revoked and reissued permits, the Director shall require the submission of a new application.

9.1.c.2. In a permit modification under this section, only those conditions to be modified shall be reopened when a new draft permit is prepared. All other conditions of the existing permit shall remain in effect for the duration of the permit. When a permit is revoked and reissued under this section, the entire permit is reopened just as if the permit had expired and was being reissued. During any revocation and reissuance proceeding, the permittee shall comply with all conditions of the existing permit until a new final permit is reissued.

9.2. Causes for modification or permittee requested reissuance of permits.

9.2.a. Minor modifications. -- Permits may be modified by the Director for any good cause as defined in subsection 9.4 below and, unless such cause is specified in subdivision 9.2.b, modification does not require the preparation of a draft permit or the public notice procedures of sections 10 and 12 respectively.

9.2.b. Modifications. -- The following are causes for modification, but not reissuance, of a permit (unless the permittee requests or agrees) and require the preparation of a draft permit in accordance with section 10 and the public notice procedures of section 12 of this rule, unless an emergency is declared by the Director. If the permittee requests or agrees, then the following causes can be reason for a permit reissuance, which will open the entire permit for comment and change.

9.2.b.1. Alterations. There are material and substantial alterations or additions to the permitted facility or activity that justify the application of permit conditions that are different or absent in the existing permit, including the acceptance of wastes from an indirect discharger pursuant to section 14 of this rule. Alterations or additions to a facility’s equipment or activities that do not result in the discharge of a new pollutant, or in concentrations or amounts that are greater than allowed in the permit, are not material or substantial and do not require modification.

9.2.b.2. Information. -- The Director has received new information. Permits may be modified during their terms for this cause only if information was not available at the time of permit issuance (other than revised rules, guidance, or test methods), which would have justified the application of different permit conditions at the time of issuance. For NPDES general permits, this cause shall include any information indicating that cumulative effects on the environment are unacceptable.

9.2.b.3. New rules. -- The standards or rules on which the permit was based have been changed by promulgation of amended standards or rules or by judicial decision after the permit was issued. Permits may be modified during their terms for this cause only as follows:

9.2.b.3.A. For promulgation of amended standards or rules when:

9.2.b.3.A.1. The permit condition to be modified was based on a promulgated rule, effluent limitation guideline, new source performance standard, pretreatment standard, or water quality standard;

9.2.b.3.A.2. The State has revised, withdrawn or modified that portion of the rule, effluent limitation guideline, new source performance standard, pretreatment standard, or water quality standard on which the permit condition was based; and

9.2.b.3.A.3. A permittee requests modification within ninety (90) days after the State Register notice of the action on which the request is based.

9.2.b.3.B. For judicial decisions, when a court of competent jurisdiction has remanded and stayed State or Federal promulgated rules, if the remand and stay concern that portion of the rules on which the permit condition was based.

9.2.b.4. Modification and extension of compliance schedules:

9.2.b.4.A. The Director determines good cause exists for extension of a compliance schedule, such as an act of God, strike, flood or materials shortage or other event over which the permittee has little or no control and for which there is no reasonably available remedy.

9.2.b.4.B. To modify a schedule of compliance to reflect the time lost during construction of an innovation or alternative facility, in the case of a POTW that has received a grant under §202(a)(3) of the CWA for one hundred percent (100%) of the costs to modify or replace facilities constructed with a grant for innovative or alternative wastewater technology under §202(a)(2).

9.2.b.4.C. In no case shall a compliance schedule be modified to extend beyond an applicable CWA statutory deadline for compliance.

9.2.b.5. Transfer of a permit under subdivision 3.5.c above.

9.2.b.6. When the permittee has filed a timely request for a variance under CWA §§301(c), 301(g), 301(I), 309(k), or for “fundamentally different factors” after compliance with the procedures of subsection 10.2 below, as applicable.

9.2.b.7. When required to incorporate an applicable CWA §307(a) toxic effluent standard or prohibition.

9.2.b.8. When required by the “Reopener” conditions in a permit, which are established in the permit under subdivision 6.3.c of this rule or 40 C.F.R. §403.10(e).

9.2.b.9. Upon request of a permittee who qualifies for effluent limitations on a net basis under subsection 7.7 above.

9.2.b.10. When a discharger is no longer eligible for net limitations, as provided in subdivision 7.2.a above.

9.2.b.11. As necessary in accordance with 40 C.F.R. §403.8(e) (compliance schedule for development of pretreatment programs).

9.2.b.12. When the level of discharge of any pollutant that is not limited in the permit exceeds the level that can be achieved by the technology-based treatment requirements appropriate to the permittee.

9.2.b.13. When the permittee begins or expects to begin to use or manufacture as an intermediate or final product or by-product any toxic pollutant that was not reported in the permit application.

9.2.b.14. Upon failure of the Director to notify another State whose waters may be affected by a discharge from this State, as required by subsection 12.1 of this rule.

9.2.b.15. A determination that the permitted activity endangers human health or the environment and cannot be regulated to acceptable levels by a permit modification.

9.2.b.16. Any of the reasons cited in subsection 9.4 below.

9.2.b.17. When the permittee’s effluent limitations were imposed under §402(a)(1) of the CWA and the permittee demonstrates operation and maintenance costs that are totally disproportionate from the operation and maintenance costs considered in the development of a subsequently promulgated effluent limitations guideline, but in no case may the limitations be made less stringent than the subsequent guideline.

9.2.b.18. To correct technical mistakes, such as errors in calculation or mistaken interpretations of law made in determining permit conditions.

9.2.b.19. When the discharger has installed the treatment technology considered by the permit writer in setting effluent limitations imposed under §402(a)(1) of the CWA and has properly operated and maintained the facilities, but nevertheless has been unable to achieve those effluent limitations. In this case, the limitations in the modified permit may reflect the level of pollution control actually achieved, but shall not be less stringent than required by a subsequently promulgated effluent limitations guideline.

9.2.b.20. Upon request by the permittee, following final adoption by the Board of amendments to its rules consistent with changes in EPA rules adopted as a result of the legal challenge to EPA rules in the case of Natural Resources Defense Council v. EPA, No. 80-1607 and consolidated cases, or other cases challenging EPA’s NPDES rules, a permit may be reopened for the limited purpose of changing any conditions that were based upon rules that have subsequently been so amended, provided that the request is made within six (6) months of adoption of the new rules.

9.3. Reissuance. -- When a permit is reissued under this subsection, the entire permit is reopened, just as if the permit has expired. Reissuance requires a draft permit in accordance with section 10 and the public notice procedures of section 12 of this rule. Processing of a reissuance application does not exempt the permittee from compliance with any permit term or condition. The following are causes for reissuance:

9.3.a. Cause exists for revocation under subsection 9.4 below and the Director determines reissuance is appropriate.

9.3.b. The permit was issued prior to July 1, 1974 and has no expiration date.

9.4. Suspension and revocation of permits.

9.4.a. The following are causes for revocation or suspension of a permit or for denying a permit renewal application:

9.4.a.1. Noncompliance by the permittee with any condition of the permit; or

9.4.a.2. The permittee’s failure in the application or during the permit issuance process to disclose fully all relevant facts, or the permittee’s misrepresentation of any relevant facts at any time; or

9.4.a.3. A determination that the permitted activity endangers human health or the environment and can only be regulated to acceptable levels by permit modification or revocation; or

9.4.a.4. A change in any condition that requires either a temporary or a permanent reduction or elimination of any discharge controlled by the permit.

9.4.b. If the Director tentatively decides to suspend or revoke a permit, he or she shall issue a notice of intent to suspend or revoke. A notice of intent to suspend or revoke a permit is a type of draft permit that follows the same procedures as any draft prepared under section 10 and shall fulfill the requirements of notice under Section 12 of this rule.

9.5. Minor modifications of permits. -- Upon the consent of the permittee, the Director may modify a permit to make the corrections or allowances for changes in the permitted activity listed in this section without preparing a draft permit pursuant to section 10 or following the notice procedures in Section 12 of this rule. Minor modifications may only:

9.5.a. Correct typographical errors.

9.5.b. Require more frequent monitoring or reporting by the permittee.

9.5.c. Change an interim compliance date in a schedule of compliance, provided the new date is not more than one hundred twenty (120) days after the date specified in the existing permit and does not interfere with attainment of the final compliance date requirement.

9.5.d. Allow for a change in ownership or operational control of a facility where the Director determines that no other change in the permit is necessary, provided that any forms prescribed by the Director, including a written agreement containing a specific date for transfer of permit responsibility, coverage, and liability between the current and new permittees, have been submitted to the Director.

9.5.e. Change the construction schedule for a discharger that is a new source. No such change shall affect a discharger’s obligation to have all pollution control equipment installed and in operation prior to discharge.

9.5.f. Delete a point source outlet when the discharge from that outlet is terminated and does not result in discharge of pollutants from other outlets except in accordance with permit limits.

9.5.g. Allow disposal system equipment substitution when the substituted equipment would not require new or different permit conditions.

9.5.h. Allow rerouting of discharge lines when the rerouted line would not discharge to a different receiving stream and would not require new or different permit conditions.

9.5.i. Allow relocation of elements of treatment facilities or disposal systems when the relocation would not require new or different permit conditions (for example, relocation due to topography or equipment failures).

9.5.j. Allow the addition of wastes from indirect dischargers under paragraph 14.2.b.2 below.

9.5.k. Incorporate substantial modifications of POTW pretreatment programs after approval is granted in accordance with the procedures of 40 C.F.R. §403.18.

9.6. Permits that have exceeded their stated term and have been extended pending reissuance may be modified in accordance with this section.

W. Va. Code R. § 47-10-10 Draft Permits

10.1. Administration.

10.1.a. Once an application is complete, the Director shall tentatively decide whether to prepare a draft permit or to deny the application.

10.1.b. If the Director tentatively decides to issue a general permit, he or she shall prepare a draft general permit in accordance with subdivision 10.1.c below.

10.1.c. If a draft permit is to be prepared by the Director, it shall contain the following information:

10.1.c.1. All conditions under sections 5 and 6 above;

10.1.c.2. All compliance schedules;

10.1.c.3. All monitoring requirements; and

10.1.c.4. Effluent limitations, standards, prohibitions and conditions and all variances that are to be included.

10.1.d. All draft permits shall be provided to permittees, shall be accompanied by a fact sheet if required under section 11 of this rule, and shall be publicly noticed and available for public comment in accordance with section 12.

10.1.e. All draft permits and fact sheets for individual NPDES permits shall be made available to the permittee at least 10 business days prior to being publicly noticed in accordance with subsection 3.7. of this rule, unless such opportunity for review is expressly waived by the permittee. The Director or the Director’s designee shall meet with any permittee to discuss the draft permit at the request of the permittee before issuing the draft permit.

10.2. Decision on variances.

10.2.a. The Director may grant or deny requests based on 40 C.F.R. §125 and concurrence with EPA for the following variances:

10.2.a.1. Extensions under CWA §302(I) based on delay in completion of a publicly owned treatment works;

10.2.a.2. After consultation with the Regional Administrator, extensions under CWA §301(k) based on the use of innovative technology; or

10.2.a.3. Variances under CWA §316(a) for thermal pollution.

10.2.b. The Director may deny, forward to the Regional Administrator with a written concurrence, or submit to EPA without recommendation a completed request for:

10.2.b.1. A variance based on the presence of “fundamentally different factors” from those on which an effluent limitations guideline was based;

10.2.b.2. A variance based on the economic capability of the applicant pursuant to CWA §301(c); or

10.2.b.3. A variance based upon certain water quality factors listed in CWA §301(g).

10.2.c. The Regional Administrator may deny, forward, or submit to the EPA Deputy Assistant Administrator for Water Enforcement with a recommendation for approval a request for a variance that has been forwarded by the Director in accordance with subdivision 10.2.b above.

10.2.d. The EPA Deputy Assistant Administrator for Water Enforcement may approve or deny any variance request submitted under subdivision 10.2.c above. Any public notice of a draft permit for which a variance or modification has been approved or denied shall identify the applicable procedures for appealing that decision under 40 C.F.R. §124.64.

W. Va. Code R. § 47-10-11 Fact Sheet

11.1. A fact sheet shall be prepared for every draft permit for a major facility or activity, for every general permit, for every draft permit that incorporates a variance, and for every draft permit that the Director finds is the subject of widespread public interest or raises major issues. The fact sheet shall briefly set forth the principal facts and the significant factual, legal, methodological and policy questions considered in preparing the draft permit. The Director shall send this fact sheet to the applicant, to the persons required by subdivision 12.1.e of this rule to receive notice and, on request, to any other person.

11.2. When a term or condition of the final permit differs from the draft permit, the Director shall prepare a statement of basis that briefly describes each change from the changes in the draft permit and the reasons for them. The statement of basis shall be sent to the applicant and, on request, to any other person.

11.3. The fact sheet shall include, when applicable:

11.3.a. A brief description of the type of facility or activity that is the subject of the draft permit.

11.3.b. The type and quantity of wastes, fluids, or pollutants that are proposed to be or are being discharged.

11.3.c. A brief summary of the basis for the draft permit conditions, including references to applicable statutory or regulatory provisions.

11.3.d. Reasons why any requested variances or alternatives to required standards do or do not appear justified.

11.3.e. A description of the procedures for reaching a final decision on the draft permit including:

11.3.e.1. The beginning and ending dates of the comment period and the address where comments will be received, in accordance with section 12 of this rule;

11.3.e.2. Procedures for requesting a hearing and the nature of that hearing; and

11.3.e.3. Any other procedures by which the public may participate in the final decision.

11.3.f. Name and telephone number of a person to contact for additional information.

11.3.g. Any calculations or other necessary explanation of the derivation from specific effluent limitations and conditions, including a citation to the applicable effluent limitation guideline or performance standard provisions and reasons why they are applicable or an explanation of how the alternate effluent limitations were developed.

11.3.h. When the draft permit contains any of the following conditions, a full and documented explanation of the reasons why such conditions are appropriate:

11.3.h.1. Limitations to control toxic pollutants under subdivision 6.3.f above;

11.3.h.2. Limitations on internal waste streams under subsection 7.8 above;

11.3.h.3. Limitations on indicator pollutants under 40 C.F.R. §125.3(g);

11.3.h.4. For every permit to be issued to a privately owned treatment works, an explanation of the Director’s decision on regulation of users under subdivision 6.3.k above;

11.3.h.5. Conditions listed in subdivision 6.3.d above; or

11.3.i. When appropriate, a sketch or detailed description of the location of the discharge described in the application.

W. Va. Code R. § 47-10-12 Public Comment, and Hearings and Effective Date of Permit

12.1. Public notice.

12.1.a. Scope:

12.1.a.1. Public notice shall be given that the following actions have occurred:

12.1.a.1.A. A draft permit has been prepared; and

12.1.a.1.B. A hearing has been scheduled under subsection 12.3 of this rule.

12.1.a.2. Public notices may describe more than one (1) permit or permit action.

12.1.b. Timing:

12.1.b.1. Public notice of the preparation of a draft permit shall allow at least thirty (30) days for public comment. Upon request of the permittee, the public comment period will be extended for an additional thirty (30) days. Further extension of the comment period may be granted by the Director for good cause shown, but in no case may the further extension exceed an additional thirty (30) days.

12.1.b.2. Public notice of a public hearing shall be given at least thirty (30) days before the hearing. Public notice of the hearing may be given at the same time as public notice of the draft permit and the two (2) notices may be combined.

12.1.c. Methods. -- Public notice shall be given by the following methods:

12.1.c.1. By mailing a copy of a notice to the following persons (any person otherwise entitled to receive notice under this paragraph may waive his or her right to receive notice for any classes and categories of permits):

12.1.c.1.A. The applicant;

12.1.c.1.B. Any other State or Federal agency that the Director knows has issued or is required to issue a permit for the same facility or activity under any of the following Federal programs: RCRA, UIC, 404 and PSD;

12.1.c.1.C. Federal, State, and interstate agencies with jurisdiction over fish, wildlife resources, public health, the Historic Preservation Unit of the State Division of Culture and History, and other appropriate government authorities, including any affected states and the United States Army Corps of Engineers;

12.1.c.1.D. Any State agency responsible for plan development under CWA §§308(b)(2), 208(b)(4) or 303(e);

12.1.c.1.E. Any user identified in the permit application of a privately owned treatment works;

12.1.c.1.F. Persons on a mailing list developed by:

12.1.c.1.F.1. Including those who request in writing to be on the list;

12.1.c.1.F.2. Soliciting persons for “area lists” from participants in past permit proceedings in that area; and

12.1.c.1.F.3. Notifying the public of the opportunity to be put on the mailing list through periodic publication in the public press and in such publications as regional and State funded newsletters or environmental bulletins. The Director may update the mailing list from time to time by requesting written indication of continued interest from those listed. The Director may delete from the list the name of any person who fails to respond to such a request.

12.1.c.1.G. Any unit of local government having jurisdiction over the area where the facility is proposed to be located.

12.1.c.2. By the Director publishing the public notice as a Class I legal advertisement in a qualified newspaper with the largest circulation for the county where the discharge will occur. The cost of the publication will be borne by the applicant who must send a certificate of publication to the Director within twenty (20) days after publication.

12.1.c.3. Any other method reasonably calculated to give actual notice of the action in question to the persons potentially affected by it, including press releases or any other forum or medium to elicit public participation.

12.1.d. Contents:

12.1.d.1. All public notices. -- All public notices issued under this part shall contain the following minimum information:

12.1.d.1.A. Name and address of the office processing the permit action for which notice is being given;

12.1.d.1.B. Name and address of the permittee or permit applicant and, if different, of the facility or activity regulated by the permit, except in the case of general permits;

12.1.d.1.C. A brief description of the business conducted at the facility or activity described in the permit application or in the draft permit when there is no application;

12.1.d.1.D. Name, address and telephone number of a person from whom interested persons may obtain further information, including copies of the draft permit or draft general permit, fact sheet, and application;

12.1.d.1.E. A brief description of the comment procedures required by subsections 12.2 and 12.3 below and the time and place of any hearing that will be held, including a statement of procedures to request a hearing (unless a hearings has already been scheduled) and other procedures by which the public may participate in the final permit decision; and

12.1.d.1.F. A general description of the location of each existing or proposed discharge point and the name of the receiving water. For draft general permits, this requirement will be satisfied by a map or description of the permit area.

12.1.d.2. Public notices for hearings. -- In addition to the requirements of paragraph 12.1.d.1 above, public notice of a hearing shall contain the following information:

12.1.d.2.A. Reference to the date of previous public notices relating to the permit;

12.1.d.2.B. Date, time, and place of the hearing; and

12.1.d.2.C. A brief description of the nature and purpose of the hearing, including the applicable rules and procedures.

12.1.d.3. Special requirements. -- Public notice of a draft permit for a discharge where a CWA §316(a) request has been filed shall include:

12.1.d.3.A. A statement that the thermal component of the discharge is subject to effluent limitations under CWA §§301 or 306 and a brief description, including a quantitative statement, of the thermal effluent limitations proposed under §§301 or 306;

12.1.d.3.B. A statement that a §316(a) request has been filed, that alternative less stringent effluent limitations may be imposed on the thermal component of the discharge under §316(a), and a brief description, including a quantitative statement of the alternative effluent limitations, if any, included in the request; and

12.1.d.3.C. If the applicant has filed an early screening request pursuant to 40 C.F.R. §125.72 for a CWA §316(a) variance, a statement that the applicant has submitted such a plan.

12.1.e. In addition to the general public notice described in paragraph 12.1.d.1 above, all persons identified in subparagraphs 12.1.c.1.A, 12.1.c.1.B, 12.1.c.1.C, 12.1.c.1.D, and 12.1.c.1.G of this section shall be mailed a copy of the fact sheet, if any, and notification of where to inspect or how to receive a copy of the draft permit and application.

12.2. Public comments and requests for public hearings. -- During the public comment period provided under subsection 12.1 above, any interested person may submit written comments on the draft permit and may request a public hearing if no public hearing has already been scheduled. A request for a public hearing shall be in writing and shall state the nature of the issues proposed to be raised in the hearing. All comments shall be considered in making the final decision and shall be answered as provided in subsection 12.4 below.

12.3. Public hearings.

12.3.a. The Director shall hold a public hearing whenever he or she finds, on the basis of requests, a significant degree of public interest on issues relevant to the draft permit(s). The Director also may hold a public hearing at his or her discretion whenever, for instance, such a hearing might clarify one (1) or more issues involved in the permit decision.

12.3.b. Any person may submit oral or written statements and data concerning the draft permit. Reasonable limits may be set upon the time allowed for oral statements, and the submission of statements in writing under subdivision 12.1.b above shall automatically be extended to ten (10) days after the close of any public hearings under this section.

12.3.c. A tape recording or written transcript of the hearing shall be made available to the public upon request.

12.4. Reopening of the public comment period.

12.4.a. If any data, information or arguments submitted during the public comment period raise substantial new questions concerning a permit, if as a result of comments submitted by someone other than the permittee, or if the Director determines to revise any condition of the permit that had been sent to initial public notice, the Director shall take one (1) or more of the following actions:

12.4.a.1. Prepare a new draft permit, appropriately modified in accordance with section 10 of this rule;

12.4.a.2. Prepare a revised fact sheet pursuant to section 11 above and reopen the comment period under this section; or

12.4.a.3. Reopen or extend the comment period under subsection 12.1 to give interested persons an opportunity to comment on the information or arguments submitted.

12.4.b. Comments filed during the reopened comment period shall be limited to the substantial new questions that caused its reopening. The public notice shall define the scope of the reopening.

12.5. Response to comments.

12.5.a. At the time that any final permit is issued, the Director shall issue a response to comments. This response shall:

12.5.a.1. Specify which provisions, if any, of the draft permit have been changed in the final permit decision and the reasons for the change; and

12.5.a.2. Briefly describe and respond to all significant comments on the draft permit raised during the public comment period or during any hearing.

12.5.b. The response to comments shall be delivered to any person who commented or any person who requests the same.

12.6. Public comment by government agencies.

12.6.a. If during the comment period for a draft permit, the District Engineer of the United States Army Corps of Engineers advises the Director in writing that anchorage and navigation of any of the waters of the State would be substantially impaired by the granting of a permit, the permit shall be denied and the applicant so notified. If the District Engineer advises the Director that imposing specified conditions upon the permit is necessary to avoid any substantial impairment of anchorage or navigation, then the Director shall include the specified conditions in the permit. Review or appeal of denial of a permit under this section or of conditions specified by the District Engineer shall be made through the applicable procedures of the Corps of Engineers and may not be made under the provisions of this rule. If the conditions are stayed by a court of competent jurisdiction or by applicable procedures of the Corps of Engineers, those conditions shall be stayed in the State NPDES permit for the duration of that stay.

12.6.b. If during the comment period, any other State or Federal agency with jurisdiction over fish, wildlife, or public health advises the Director in writing that the imposition of specified conditions upon the permit is necessary to avoid substantial risk to public health or impairment of fish, shellfish or wildlife resources, the Director may include the specified conditions in the permit to the extent they are determined necessary to carry out the provisions of the CWA and the State Act.

12.6.c. In appropriate cases the Director may consult with one (1) or more of the agencies referred to in this section before issuing a draft permit. The views of those agencies may be reflected in the fact sheet or draft permit.

12.7. Public access to information.

12.7.a. Any information (except effluent data, application forms, and information in permits) submitted pursuant to these rules may be claimed as confidential by the submitter. Any such claim must be asserted at the time of submission in the manner prescribed on the application form or, in the case of other submissions, by stamping the words “Confidential Business Information” on each page containing such information. If no claim is made at the time of submission, the Director may make the information available to the public without further notice.

12.7.b. Any information claimed to be confidential shall be forwarded to the Regional Administrator for his or her concurrence in any determination of confidentiality.

12.7.c. Such information shall be subject to appropriate Federal regulations governing confidentiality.

12.8. Issuance and effective date of permit.

12.8.a. After the close of the public comment period on a draft permit, the Director shall issue a final permit decision. The Director shall notify the applicant and each person who has submitted written comments or requested notice of the final permit decision. This notice shall include reference to the procedures for appealing the decision. For the purposes of this section, a final permit decision means a final decision to issue, deny, modify, revoke and reissue, or terminate a permit.

12.8.b. A final permit decision shall become effective not less than thirty (30) days after the date of notice of the decision under subdivision 12.8.a above.

W. Va. Code R. § 47-10-13 Special NPDES Programs

13.1. Concentrated animal feeding operations.

13.1.a. Concentrated animal feeding operations (CAFOs), as defined in subdivision 13.1.b. or designated in accordance with subdivision 13.1.c. of this rule, are point sources subject to NPDES permitting requirements as provided herein. Once an animal feeding operation is defined as a CAFO for at least one (1) type of animal, the NPDES requirements for CAFOs apply with respect to all animals in confinement at the operation and all manure, litter or process wastewater generated by those animals or the production of those animals, regardless of the type of animal.

13.1.b. Definitions applicable to this section:

13.1.b.1. “Animal feeding operation” (“AFO”) means a lot or facility, other than an aquatic animal production facility, where the following conditions are met:

13.1.b.1.A. Animals other than aquatic animals have been, are or will be stabled or confined and fed or maintained for a total of forty-five (45) days or more in any twelve (12) month period; and

13.1.b.1.B. Crops, vegetation, forage growth, or post-harvest residues are not sustained in the normal growing season over any portion of the lot or facility.

13.1.b.2. “Concentrated animal feeding operation” (“CAFO”) means an AFO that is defined or designated as a Large CAFO or as a Medium CAFO by the terms of this rule. Two or more AFOs under common ownership are considered to be a single AFO for the purposes of determining the number of animals at an operation if they adjoin each other or if they use a common area or system for the disposal of wastes.

13.1.b.3. “Land application area” means land under the control of an AFO owner or operator, whether it is owned, rented or leased, to which manure, litter or process wastewater from the production area is or may be applied.

13.1.b.4. “Large concentrated animal feeding operation” (“Large CAFO”) means an AFO that:

13.1.b.4.A. Stables or confines as many as or more than the number of animals specified in any of the following categories:

13.1.b.4.A.1. Seven hundred (700) mature dairy cows, whether milked or dry;

13.1.b.4.A.2. One thousand (1,000) veal calves;

13.1.b.4.A.3. One thousand (1,000) cattle other than mature dairy cows or veal calves. Cattle includes, but is not limited to, heifers, steers, bulls, and cow/calf pairs;

13.1.b.4.A.4. Two thousand five hundred (2,500) swine, each weighing fifty-five (55) pounds or more;

13.1.b.4.A.5. Ten thousand (10,000) swine, each weighing less than fifty-five (55) pounds;

13.1.b.4.A.6. Five hundred (500) horses;

13.1.b.4.A.7. Ten thousand (10,000) sheep or lambs;

13.1.b.4.A.8. Fifty-five thousand (55,000) turkeys;

13.1.b.4.A.9. Thirty thousand (30,000) laying hens or broilers, if the AFO uses a liquid manure handling system;

13.1.b.4.A.10. One hundred twenty-five thousand (125,000) chickens other than laying hens, if the AFO uses other than a liquid manure handling system;

13.1.b.4.A.11. Eighty-two thousand (82,000) laying hens, if the AFO uses other than a liquid manure handling system;

13.1.b.4.A.12. Thirty thousand (30,000) ducks, if the AFO uses other than a liquid manure handling system; or

13.1.b.4.A.13. Five thousand (5,000) ducks, if the AFO uses a liquid manure handling system).

13.1.b.5. “Manure” is defined to include manure, bedding, compost and raw materials or other materials commingled with manure or set aside for disposal.

13.1.b.6. “Medium concentrated animal feeding operation” (“Medium CAFO”) means an AFO that:

13.1.b.6.A. Stables or confines the type and number of animals that fall within the following ranges:

13.1.b.6.A.1. Two hundred (200) to six hundred ninety-nine (699) mature dairy cows, whether milked or dry;

13.1.b.6.A.2. Three hundred (300) to nine hundred ninety-nine (999) veal calves;

13.1.b.6.A.3. Three hundred (300) to nine hundred ninety-nine (999) cattle other than mature dairy cows or veal calves. Cattle includes but is not limited to heifers, steers, bulls, and cow/calf pairs;

13.1.b.6.A.4. Seven hundred fifty (750) to two thousand four hundred ninety-nine (2,499) swine, each weighing fifty-five (55) pounds or more;

13.1.b.6.A.5. Three thousand (3,000) to nine thousand nine hundred ninety-nine (9,999) swine, each weighing less than fifty-five (55) pounds;

13.1.b.6.A.6. One hundred fifty (150) to four hundred ninety-nine (499) horses;

13.1.b.6.A.7. Three thousand (3,000) to nine thousand nine hundred ninety-nine (9,999) sheep or lambs;

13.1.b.6.A.8. Sixteen thousand five hundred (16,500) to fifty-four thousand nine hundred ninety-nine (54,999) turkeys;

13.1.b.6.A.9. Nine thousand (9,000) to twenty-nine thousand nine hundred ninety-nine (29,999) laying hens or broilers, if the AFO uses a liquid manure handling system;

13.1.b.6.A.10. Thirty-seven thousand five hundred (37,500) to one hundred twenty-four thousand nine hundred ninety-nine (124,999) chickens other than laying hens, if the AFO uses other than a liquid manure handling system;

13.1.b.6.A.11. Twenty-five thousand (25,000) to eighty-one thousand nine hundred ninety-nine (81,999) laying hens, if the AFO uses other than a liquid manure handling system;

13.1.b.6.A.12. Ten thousand (10,000) to twenty-nine thousand nine hundred ninety-nine (29,999) ducks, if the AFO uses other than a liquid manure handling system; or

13.1.b.6.A.13. One thousand five hundred (1,500) to four thousand nine hundred ninety-nine (4,999) ducks, if the AFO uses a liquid manure handling system; and

13.1.b.6.B. Either one of the following conditions is met:

13.1.b.6.B.1. Pollutants are discharged into waters of West Virginia through a man-made ditch, flushing system or other similar man-made device; or

13.1.b.6.B.2. Pollutants are discharged directly into waters of West Virginia that originate outside of and pass over, across or through the facility or otherwise come into direct contact with the animals confined in the operation.

13.1.b.7. “Process wastewater” means water directly or indirectly used in the operation of the AFO for any or all of the following: spillage or overflow from animal or poultry watering systems; washing, cleaning or flushing pens, barns, manure pits or other AFO facilities; direct contact swimming, washing or spray-cooling of animals; or dust control. Process wastewater also includes any water that comes into contact with any raw materials, products or byproducts, including manure, litter, feed, milk, eggs or bedding.

13.1.b.8. “Production area” means that part of an AFO that includes the animal confinement area, the manure storage area, the raw materials storage area, and the waste containment areas. The animal confinement area includes but is not limited to open lots, housed lots, feedlots, confinement houses, stall barns, free stall barns, milkrooms, milking centers, cowyards, barnyards, medication pens, walkers, animal walkways, and stables. The manure storage area includes but is not limited to lagoons, runoff ponds, storage sheds, stockpiles, under-house or pit storages, liquid impoundments, static piles, and composting piles. The raw materials storage area includes but is not limited to feed silos, silage bunkers and bedding materials. The waste containment area includes but is not limited to settling basins, and areas within berms and diversions that separate uncontaminated storm water. Also included in the definition of production area is any egg washing or egg processing facility and any area used in the storage, handling, treatment, or disposal of mortalities.

13.1.b.9. “Small concentrated animal feeding operation” (“Small CAFO”) means an AFO that is designated as a CAFO and is not a Medium CAFO as defined above.

13.1.c. The appropriate authority (i.e., Director or Regional Administrator or both, as specified in paragraph 13.1.c.1. below) may designate any AFO as a CAFO upon determining that it is a significant contributor of pollutants to the waters of West Virginia.

13.1.c.1. CAFO designations shall be made by the Director. The Regional Administrator may also designate CAFOs, but only where the Regional Administrator has determined that one or more pollutants in the AFO’s discharge contributes to an impairment in a downstream or adjacent State or Indian country water that is impaired for that pollutant.

13.1.c.2. In making this designation, the Director or the Regional Administrator shall consider the following factors:

13.1.c.2.A. The size of the AFO and the amount of waste reaching the waters of West Virginia;

13.1.c.2.B. The location of the AFO relative to the waters of West Virginia;

13.1.c.2.C. The means of conveyance of animal wastes and process wastewaters into the waters of West Virginia;

13.1.c.2.D. The slope, vegetation, rainfall, and other factors affecting the likelihood or frequency of discharge of animal wastes, manure, and process wastewaters into the waters of West Virginia; and

13.1.c.2.E. Other relevant factors.

13.1.c.3. No AFO shall be designated under this section unless the Director or the Regional Administrator has conducted an on-site inspection of the operation and determined that the operation should and could be regulated under the permit program. In addition, no AFO with numbers of animals below those established in paragraph 13.1.b.6 of this rule may be designated as a CAFO unless:

13.1.c.3.A. Pollutants are discharged into the waters of West Virginia through a manmade ditch, flushing system or other similar manmade device; or

13.1.c.3.B. Pollutants are discharged directly into the waters of West Virginia that originate outside of the facility and pass over, across or through the facility or otherwise come into direct contact with the animals confined in the operation.

13.1.d. Permit Requirement.

13.1.d.1. The owner or operator of a CAFO must apply for an individual NPDES permit if the CAFO discharges or proposes to discharge into the waters of West Virginia. A CAFO proposes to discharge if it is designed, constructed, operated or maintained such that a discharge will occur.

13.1.d.2. A permit application for an individual permit must include the information specified in paragraph 4.4.c.1 above.

13.1.e. Land application discharges from a CAFO are subject to NPDES requirements. The discharge of manure, litter or process wastewater to waters of West Virginia from a CAFO as a result of the application of manure, litter or process wastewater by the CAFO to land areas under its control is a discharge from that CAFO subject to NPDES permit requirements, except where it is an agricultural storm water discharge as provided in 33 U.S.C. §1362(14). For purposes of this paragraph, where the manure, litter or process wastewater has been applied in accordance with site-specific nutrient management practices that ensure appropriate agricultural utilization of the nutrients in the manure, litter or process wastewater, a precipitation-related discharge of manure, litter or process wastewater from land areas under the control of a CAFO is an agricultural storm water discharge.

13.1.e.1. For unpermitted Large CAFOs, a precipitation-related discharge of manure, litter or process wastewater from land areas under the control of the CAFO shall be considered an agricultural storm water discharge only where the manure, litter or process wastewater has been land applied in accordance with site-specific nutrient management practices that ensure appropriate agricultural utilization of the nutrients in the manure, litter or process wastewater, as specified in subparagraphs 13.1.h.1.A through 13.1.h.1.I below.

13.1.e.2. Unpermitted Large CAFOs must maintain documentation specified in subparagraph 13.1.h.1.I. below, either on site or at a nearby office or otherwise make such documentation readily available to the Director or Regional Administrator upon request.

13.1.f. Any CAFO that is required to seek permit coverage under paragraph 13.1.d.1 of this rule must seek coverage when the CAFO proposes to discharge.

13.1.f.1. New sources. -- The owner or operator of a new source must seek to obtain coverage under a permit at least one hundred eighty (180) days prior to the time that the CAFO commences operation.

13.1.f.2. Expansion of AFO to CAFO. -- For other operations (e.g. resulting from an increase in the number of animals), the owner or operator must seek to obtain coverage under a permit as soon as possible, but no later than ninety (90) days after becoming defined as a CAFO.

13.1.f.3. Operations that are designated as CAFOs. -- For an operation designated as a CAFO in accordance with subdivision 13.1.c. above, the owner or operator must seek to obtain a permit no later than ninety (90) days after receiving notice of the designation.

13.1.g. Duty to Maintain Permit Coverage. -- No later than one hundred eighty (180) days before the expiration of the permit, or as provided by the Director, any permitted CAFO must submit an application to renew its permit in accordance with paragraph 4.4.c.1 of this rule, unless the CAFO will not discharge or propose to discharge upon expiration of the permit.

13.1.h. Additional conditions applicable to NPDES permits issued to CAFOs. -- Any permit issued to a CAFO must include the following:

13.1.h.1. Requirement to implement a nutrient management plan. -- Any permit issued to a CAFO must include a requirement to implement a nutrient management plan (NMP) that, at a minimum, contains BMPs necessary to meet the requirements of this section and applicable effluent limitations and standards, including those specified in 40 C.F.R. §412. The NMP must, to the extent applicable:

13.1.h.1.A. Ensure adequate storage of manure, litter, and process wastewater, including procedures to ensure proper operation and maintenance of the storage facilities;

13.1.h.1.B. Ensure proper management of mortalities (i.e. dead animals) to make certain that they are not disposed of in a liquid manure, storm water or process wastewater storage or treatment system that is not specifically designed to treat animal mortalities;

13.1.h.1.C. Ensure that clean water is diverted, as appropriate, from the production area;

13.1.h.1.D. Prevent direct contact of confined animals with waters of West Virginia;

13.1.h.1.E. Ensure that chemicals and other contaminants handled on-site are not disposed of in any manure, litter, process wastewater or storm water storage or treatment system, unless such system is specifically designed to treat such chemicals and other contaminants;

13.1.h.1.F. Identify appropriate site-specific conservation practices to be implemented, including as appropriate buffers or equivalent practices to control runoff of pollutants into the waters of West Virginia;

13.1.h.1.G. Identify protocols for appropriate testing of manure, litter, process wastewater, and soil;

13.1.h.1.H. Establish protocols to land-apply manure, litter and/or process wastewater in accordance with site-specific nutrient management practices that ensure appropriate agricultural utilization of the nutrients in the manure, litter and/or process wastewater; and

13.1.h.1.I. Identify specific records that will be maintained to document the implementation and management of the minimum elements described hereinabove.

13.1.h.2. Recordkeeping requirements.

13.1.h.2.A. The permittee must create, maintain for five (5) years, and make available to the Director upon request the following records:

13.1.h.2.A.1. All applicable records identified in subparagraph 13.1.h.1.I above;

13.1.h.2.A.2. In addition, all CAFOs subject to 40 C.F.R. §412 must comply with the recordkeeping requirements of 40 C.F.R. §§412.37(b) and (c) and 40 C.F.R. §§412.47(b) and (c).

13.1.h.2.B. A copy of the CAFO’s site-specific NMP must be maintained on site and made available to the Director upon request.

13.1.h.3. Requirements relating to the transfer of manure or process wastewater to other persons. -- Prior to transferring manure, litter or process wastewater to other persons, Large CAFOs must provide the recipient of the manure, litter or process wastewater with the most current nutrient analysis. The analysis provided must be consistent with the requirements of 40 C.F.R. §412. Large CAFOs must retain for five (5) years records of the recipient’s name and address, approximate amount of manure, litter or process wastewater transferred, and the date of the transfer.

13.1.h.4. Annual reporting requirements for CAFOs. The permittee must submit an annual report to the Director, which must include:

13.1.h.4.A. The number and type of animals, as listed in paragraphs 13.1.b.4 and 13.1.b.6 above, whether in open confinement or housed under roof;

13.1.h.4.B. The estimated amount of total manure, litter or process wastewater generated by the CAFO in the previous twelve (12) months, measured in tons or gallons;

13.1.h.4.C. The estimated amount of total manure, litter or process wastewater transferred to another person by the CAFO in the previous twelve (12) months, measured in tons or gallons;

13.1.h.4.D. The total number of acres of land application covered by the NMP developed in accordance with this rule;

13.1.h.4.E. The total number of acres under the control of the CAFO that were used for land application of manure, litter or process wastewater in the previous twelve (12) months;

13.1.h.4.F. A summary of all manure, litter or process wastewater discharges from the production area in the previous twelve (12) months, including date, time, and approximate volume;

13.1.h.4.G. A statement indicating whether the current version of the CAFO’s NMP was developed or approved by a certified nutrient management planner; and

13.1.h.4.H. The actual crop(s) planted and actual yield(s) for each field, the actual nitrogen and phosphorus content of the manure, litter or process wastewater, the results of calculations conducted in accordance with parts 13.1.h.5.A.2 and 13.1.h.5.B.4 below, and the amount of manure, litter or process wastewater applied to each field during the previous twelve (12) months; and, for any CAFO that implements a NMP that addresses rates of application in accordance with subparagraph 13.1.h.5.B of this rule, the results of any soil testing for nitrogen or phosphorus taken during the preceding twelve (12) months, the data used in calculations conducted in accordance with part 13.1.h.5.B.4 below, and the amount of any supplemental fertilizer applied during the previous twelve (12) months.

13.1.h.5. Terms of the NMP. -- Any permit issued to a CAFO must require compliance with the terms of the CAFO’s site-specific NMP. The terms of the NMP are the information, protocols, BMPs, and other conditions determined by the Director to be necessary to meet the requirements of paragraph 13.1.h.1 above. The terms of the NMP with respect to protocols for land application of manure, litter or process wastewater required by subparagraph 13.1.h.1.H above and, if applicable, 40 C.F.R. §412.4(c), must include the fields available for land application; field-specific rates of application, properly developed in accordance with subparagraphs 13.1.h.5.A through 13.1.h.5.B below, to ensure appropriate agricultural utilization of the nutrients in the manure, litter or process wastewater; and any timing limitations identified in the NMP concerning land application on the fields available for such use. The terms must address rates of application using one of the following two approaches, unless the Director specifies that a certain approach must be used:

13.1.h.5.A. Linear approach. -- An approach that expresses rates of application as pounds of nitrogen and phosphorus, according to the following specifications:

13.1.h.5.A.1. The terms include maximum application rates from manure, litter or process wastewater for each year of permit coverage for each crop identified in the NMP, in chemical forms determined to be acceptable to the Director, in pounds per acre per year for each field to be used for land application, and certain factors necessary to determine such rates. At a minimum, the factors that are terms must include: the outcome of the field-specific assessment of the potential for nitrogen and phosphorus transport from each field; the crops to be planted in each field or any other uses of a field, such as pasture or fallow fields; the realistic yield goal for each crop or use identified for each field; the nitrogen and phosphorus recommendations from sources specified by the Director for each crop or use identified for each field; credits for all nitrogen in the field that will be plant-available; consideration of multi-year phosphorus application; and accounting for all other additions of plant-available nitrogen and phosphorus to the field. In addition, the terms include the form and source of manure, litter or process wastewater to be land-applied; the timing and method of land application; and the methodology by which the NMP accounts for the amount of nitrogen and phosphorus in the manure, litter, and process wastewater to be applied.

13.1.h.5.A.2. Large CAFOs that use this approach must calculate the maximum amount of manure, litter or process wastewater to be land-applied at least once each year, using the results of the most recent representative manure, litter or process wastewater tests for nitrogen and phosphorus taken within twelve (12) months of the date of land application.

13.1.h.5.B. Narrative rate approach. -- An approach that expresses rates of application as a narrative rate of application that results in the amount in tons or gallons of manure, litter or process wastewater to be land-applied, according to the following specifications:

13.1.h.5.B.1. The terms include maximum amounts of nitrogen and phosphorus derived from all sources of nutrients for each crop identified in the NMP, in chemical forms determined to be acceptable to the Director, in pounds per acre for each field, and certain factors necessary to determine such amounts. At a minimum, the factors that are terms must include: the outcome of the field-specific assessment of the potential for nitrogen and phosphorus transport from each field; the crops to be planted in each field or any other uses of a field, such as pasture or fallow fields (including alternative crops identified in part 13.1.h.5.B.2 below); the realistic yield goal for each crop or use identified for each field; and the nitrogen and phosphorus recommendations from sources specified by the Director for each crop or use identified for each field. In addition, the terms include the methodology by which the NMP accounts for the following factors when calculating the amounts of manure, litter or process wastewater to be land applied: results of soil tests conducted in accordance with protocols identified in the NMP required by subparagraph 13.1.h.1.G of this rule; credits for all nitrogen in the field that will be plant-available; the amount of nitrogen and phosphorus in the manure, litter or process wastewater to be applied; consideration of multi-year phosphorus application; accounting for all other additions of plant-available nitrogen and phosphorus to the field; the form and source of manure, litter, and process wastewater; the timing and method of land application; and volatilization of nitrogen and mineralization of organic nitrogen.

13.1.h.5.B.2. The terms of the NMP include alternative crops identified in the CAFO’s NMP that are not in the planned crop rotation. Where a CAFO includes alternative crops in its nutrient management plan, the crops must be listed in field, in addition to the crops identified in the planned crop rotation for that field, and the NMP must include realistic crop yield goals and the nitrogen and phosphorus recommendations from sources specified by the Director for each crop. Maximum amounts of nitrogen and phosphorus from all sources of nutrients and the amounts of manure, litter and/or process wastewater to be applied must be determined in accordance with the methodology described in part 13.1.h.5.B.1 above.

13.1.h.5.B.3. For CAFOs using this approach, the following projections must be included in the NMP submitted to the Director, but are not terms of the NMP the CAFO’s planned crop rotations for each field for the period of permit coverage; the projected amount of manure, litter or process wastewater to be applied; projected credits for all nitrogen in the field that will be plant-available; consideration of multi-year phosphorus application; accounting for all other additions of plant-available nitrogen and phosphorus to the field; and the predicted form, source, and method of application of manure, litter or process wastewater for each crop. Timing of application for each field, insofar as it concerns the calculation of rates of application, is not a term of the NMP.

13.1.h.5.B.4. CAFOs that use this approach must calculate maximum amounts of manure, litter or process wastewater to be land-applied at least once each year, using the methodology required by part 13.1.h.5.B.1 above, before land-applying manure, litter or process wastewater and must rely on the following data:

13.1.h.5.B.4.a. A field-specific determination of soil levels of nitrogen and phosphorus, including for nitrogen a concurrent determination of nitrogen that will be plant-available consistent with the methodology required by part 13.1.h.5.B.1 above, and for phosphorus, the results of the most recent soil test conducted in accordance with soil testing requirements approved by the Director; and

13.1.h.5.B.4.b. The results of most recent representative manure, litter or process wastewater tests for nitrogen and phosphorus, taken within twelve (12) months of the date of land application, in order to determine the amount of nitrogen and phosphorus in the manure, litter or process wastewater to be applied.

13.1.h.6. Changes to a NMP. -- Any permit issued to a CAFO must require the following procedures to apply when a CAFO owner or operator makes changes to the NMP previously submitted to the Director:

13.1.h.6.A. The CAFO owner or operator must provide the Director with the most current version of the its NMP and identify changes from the previous version, except that the results of calculations made in accordance with the requirements of parts 13.1.h.5.A.2 and 13.1.h.5.B.4 of this rule are not subject to the requirements of paragraph 13.1.h.6.

13.1.h.6.B. The Director must review the revised NMP to ensure that it meets the requirements of this section and applicable effluent limitations and standards, including those specified in 40 C.F.R. §412, and must determine whether the changes to the NMP necessitate revision to the terms of the NMP incorporated into the permit issued to the CAFO. If revision to the terms of the NMP is not necessary, the Director must notify the CAFO owner or operator and, upon such notification, the CAFO may implement the revised NMP. If revision to the terms of the NMP is necessary, the Director must determine whether such changes are substantial changes as described in subparagraph 13.1.h.6.C below.

13.1.h.6.B.1. If the Director determines that the changes to the terms of the NMP are not substantial, the Director must make the revised NMP publicly available and include in it the permit record, revise the terms of the NMP, notify the owner or operator, and inform the public of any changes to the terms of the NMP that are incorporated into the permit.

13.1.h.6.B.2. If the Director determines that the changes to the terms of the NMP are substantial, the Director must notify the public and make the proposed changes and the information submitted by the CAFO owner or operator available for public review and comment. The process for public comments, hearing requests, the hearing process, if a hearing is held, and revisions to the CAFO’s permit must follow the procedures applicable to draft permits set forth in sections 10 and 12 above. Once the Director incorporates the revised terms of the NMP into the permit, the Director must notify the owner or operator and inform the public of the final decision concerning revisions to the terms and conditions of the permit.

13.1.h.6.C. Substantial changes to the terms of a NMP incorporated as terms and conditions of a permit include, but are not limited to:

13.1.h.6.C.1. Addition of new land application areas not previously included in the CAFO’s NMP. Except that if the land application area that is being added to the NMP is covered by terms of a NMP incorporated into an existing NPDES permit in accordance with the requirements of paragraph 13.1.h.5 above, and the CAFO owner or operator applies manure, litter or process wastewater on the newly added land application area in accordance with the existing field-specific permit terms applicable to the newly added land application area, such addition of new land would be a change to the new CAFO owner or operator’s NMP, but not a substantial change for purposes of this section;

13.1.h.6.C.2. Any changes to the field-specific maximum annual rates for land application as set forth in subparagraph 13.1.h.5.A above, and to the maximum amounts of nitrogen and phosphorus derived from all sources for each crop as set forth in subparagraph13.1.h.5.B above;

13.1.h.6.C.3. Addition of any crop or other uses not included in the terms of the CAFO’s NMP and corresponding field-specific rates of application expressed in accordance with paragraph 13.1.h.5 of this rule; and

13.1.h.6.C.4. Changes to site-specific components of the CAFO’s NMP, where such changes are likely to increase the risk of nitrogen and phosphorus transport to the waters of West Virginia.

13.2. Concentrated aquatic animal production facilities.

13.2.a. Permit requirement. -- Concentrated aquatic animal production facilities, as defined in this section, are point sources subject to the permit program.

13.2.b. Definition. -- “Concentrated Aquatic Animal Production Facility” means a hatchery, fish farm, or other facility that meets the criteria set forth in Appendix B below or that the Director designates as such pursuant to subdivision 13.2.c below.

13.2.c. Case-by-case designation of concentrated aquatic animal production facilities:

13.2.c.1. The Director may designate any warm or cold water aquatic animal production facility as a concentrated aquatic animal production facility upon determining that it is a significant contributor of pollution to the waters of the State. In making this designation, the Director shall consider the following factors:

13.2.c.1.A. The location and quality of the receiving waters of the State;

13.2.c.1.B. The holding, feeding, and production capacities of the facility;

13.2.c.1.C. The quantity and nature of the pollutants reaching waters of the State;

13.2.c.1.D. The slope, vegetation, rainfall, and other factors affecting the likelihood or frequency of discharge of animal wastes and process wastewaters into waters of the state; and

13.2.c.1.E. Other relevant factors.

13.2.d. A permit application shall not be required from a concentrated aquatic animal production facility designated under this section until the Director has conducted on-site inspection of the facility and has determined that the facility should and could be regulated under the permit program.

13.3. Aquaculture projects.

13.3.a. Permit requirements. -- Discharges into aquaculture projects, as defined in this section, are subject to the permit program pursuant to §318 of CWA.

13.3.b. Definitions:

13.3.b.1. “Aquaculture Project” means a defined managed water area that uses discharges of pollutants into that designated area for the maintenance or production of harvestable freshwater plants or animals.

13.3.b.2. “Designated Project Area” means the portions of the waters of the State within which the permittee or permit applicant plans to confine the cultivated species, using a method or plan or operation (including, but not limited to, physical confinement) which, on the basis of reliable scientific evidence, is expected to ensure that specific individual organisms comprising an aquaculture crop will enjoy increased growth attributable to the discharge of pollutants and will be harvested within a defined geographic area.

13.4. Separate storm sewers.

13.4.a. Permit requirement. -- Separate storm sewers, as defined in this section, are point sources subject to the permit program. Separate storm sewers may be permitted either individually or under a general permit. A permit for discharges into the waters of the State from a separate storm sewer covers all conveyances that are a part of the separate storm sewer system, even though there may be several owners or operators of these conveyances. However, discharges into separate storm sewers from point sources that are not part of the separate storm sewer systems may also require a permit.

13.4.b. Definition:

13.4.b.1. “Separate Storm Sewer” means a conveyance or system of conveyances (including pipes, conduits, ditches, and channels) primarily used for collecting and conveying storm water runoff and that is either:

13.4.b.1.A. Located in an urbanized area as determined by the United States Bureau of the Census in the 1990 Decennial Census; or

13.4.b.1.B. Not located in an urbanized area but designated under subdivision 13.4.c of this rule.

13.4.b.2. Except as provided in paragraph 13.4.b.3 below, a conveyance or system of conveyances operated primarily for the purpose of collecting and conveying storm water runoff that is not located in an urbanized area and has not been designated by the Director under subdivision 13.4.c below is not considered a point source and is not subject to the provisions of this series.

13.4.b.3. Conveyances that discharge process wastewater or storm water runoff contaminated by contact with wastes, raw material, or pollutant-contaminated soil from land or facilities used for industrial or commercial activities into waters of the State or into separate storm sewers are point sources subject to the requirements of this series, but are not separate storm sewers for purposes of this section. As used in this paragraph, the term “wastes” does not include sand, silt and gravel.

13.4.b.4. Whether a system of conveyances is or is not a separate storm sewer for purposes of this section shall have no bearing on whether the system is eligible for funding under Title 2 of the CWA.

13.4.c. Case-by-case designation of separate storm sewers. -- The Director may designate a storm sewer not located in an urbanized area as a separate storm sewer. This designation may be made to the extent allowed or required by EPA-promulgated effluent guidelines for point sources in the separate storm sewer category or when:

13.4.c.1. A Water Quality Management plan under §208 of the CWA that contains requirements applicable to such point sources is approved; or

13.4.c.2. The Director determines that a storm sewer is a significant contributor of pollution to the waters of the State. In making this determination, the Director shall consider the following factors:

13.4.c.2.A. The location of the discharge with respect to waters of the State;

13.4.c.2.B. The size of the discharge;

13.4.c.2.C. The quantity and nature of the pollutants reaching waters of the State; and

13.4.c.2.D. Other relevant factors.

13.5. Silvicultural activities.

13.5.a. Permit requirement. -- Silvicultural point sources, as defined in this section, are point sources subject to the permit program.

13.5.b. Definitions:

13.5.b.1. “Silvicultural Point Source” means any discernible, confined, and discrete conveyance related to rock crushing, gravel washing, log sorting or log storage facilities that are operated in connection with silvicultural activities and from which pollutants are discharged into waters of the State. The term does not include non-point source silvicultural activities such as nursery operations, site preparation, reforestation and subsequent cultural treatment, thinning, prescribed burning, pest and fire control, harvesting operations, surface drainage, or road construction and maintenance from which there is natural runoff. However, some of these activities (such as stream crossing for roads) may involve point source discharges of dredged or fill material that may require a CWA §404 permit.

13.5.b.2. ‘"Rock Crushing and Gravel Washing Facilities” means facilities that process crushed and broken stone, gravel, and riprap.

13.5.b.3. “Log Sorting and Log Storage Facilities” means facilities whose discharges result from the holding of unprocessed wood, for example, logs or roundwood with bark or after removal of bark held in self-contained bodies of water (mill ponds or log ponds) or stored on land where water is applied intentionally on the logs (wet decking).

13.6. General permits.

13.6.a. Coverage. -- The Director may issue a general permit in accordance with the following:

13.6.a.1. Area. -- The general permit shall be written to cover a category of discharges described in the permit under paragraph 13.6.a.2 below, except those covered by individual permits, within a geographic area. The area shall correspond to existing geographic or political boundaries, such as:

13.6.a.1.A. Designated planning areas under §§208 and 303 of the CWA;

13.6.a.1.B. Sewer districts or sewer authorities;

13.6.a.1.C. City, county, or state political boundaries;

13.6.a.1.D. State highway systems;

13.6.a.1.E. Standard metropolitan statistical areas, as defined by the United States Office of Management and Budget; and

13.6.a.1.F. Any other appropriate division or combination of boundaries.

13.6.a.2. Sources. -- The general permit may be written to regulate, within the area described in paragraph 13.6.a.1 above, either:

13.6.a.2.A. Separate storm sewers; or

13.6.a.2.B. A category of point sources other than separate storm sewers, if the sources all:

13.6.a.2.B.1. Involve the same or substantially similar types of operations;

13.6.a.2.B.2. Discharge the same types of wastes;

13.6.a.2.B.3. Require the same effluent limitations or operating conditions;

13.6.a.2.B.4. Require the same or similar monitoring; and

13.6.a.2.B.5. In the opinion of the Director, are more appropriately controlled under a general permit than under individual permits.

13.6.b. Administration:

13.6.b.1. In general. -- General permits may be modified, revoked and reissued, suspended or revoked in accordance with the applicable requirements of section 9 of this series.

13.6.b.2. Requiring an individual permit:

13.6.b.2.A. The Director may require any person authorized by a general permit to apply for and obtain an individual permit. Any interested person may petition the Director to take action under this subparagraph. Cases where an individual permit may be required include the following:

13.6.b.2.A.1. The discharger is a significant contributor of pollution as determined by the factors set forth in paragraph 13.4.c.2 above;

13.6.b.2.A.2. The discharger is not in compliance with the conditions of the general permit;

13.6.b.2.A.3. A change has occurred in the availability of demonstrated technology or practices for the control or abatement of pollutants applicable to the point source;

13.6.b.2.A.4. Effluent limitation guidelines are promulgated for point sources covered by the general permit; or

13.6.b.2.A.5. A Water Quality Management Plan containing requirements applicable to such point sources is approved.

13.6.b.2.B. The Director may require any owner or operator authorized by a general permit to apply for an individual permit as provided in subparagraph 13.6.b.2.A of this rule only if the owner or operator has been notified in writing that a permit application is required. This notice shall include a brief statement of the reasons for this decision, an application form, a statement setting a time for the owner or operator to file the application, and a statement that on the effective date of the individual permit the general permit as it applies to the individual permittee shall automatically terminate. The Director may grant additional time upon request of the applicant.

13.6.b.2.C. Any owner or operator authorized by a general permit may request to be excluded from the coverage of the general permit by applying for an individual permit. The owner or operator shall submit an application pursuant to section 4 of this rule, with reasons supporting the request, to the Director no later than ninety (90) days after the general permit notice, in accordance with subsection 12.1 above.

13.6.b.3. Upon issuance of a general permit, the Director shall cause to be published a notice of issuance as a Class I legal advertisement in a qualified daily or weekly newspaper within the geographical area affected by the subject of the permit, and by any other means reasonably calculated to give notice of issuance to the persons affected by it.

13.7. New sources and new discharges.

13.7.a. Definitions:

13.7.a.1. “Site,” “New Source,” and “New Discharger” are defined in section 2 above.

13.7.a.2. “Source” means any building, structure, facility or installation from which there is or may be a discharge of pollutants.

13.7.a.3. “Existing Source” means any source that is not a new source or a new discharger.

13.7.a.4. “Facilities or Equipment” means buildings, structures, process or production equipment or machinery that form a permanent part of the new source and that will be used in its operation, if these facilities or equipment are of such value as to represent a substantial commitment to construct. It excludes facilities or equipment used in connection with feasibility, engineering, and design studies regarding the source of water pollution treatment for the source.

13.7.b. Criteria for new source determination.

13.7.b.1. Except as otherwise provided in an applicable new source performance standard, a source is a “new source” if it meets that definition of “new source” in section 2 of this rule, and

13.7.b.1.A. It is constructed at a site at which no other source is located; or

13.7.b.1.B. It totally replaces the process or production equipment that causes the discharge of pollutants at an existing source; or

13.7.b.1.C. Its processes are substantially independent of an existing source at the same site. In determining whether these processes are substantially independent, the Director shall consider such factors as the extent to which the new facility is integrated with the existing plant and the extent to which the new facility is engaged in the same general type of activity as the existing source.

13.7.b.2. A source meeting the requirements of subparagraphs 13.7.b.1.A, 13.7.b.1.B or 13.7.b.1.C above is a new source only if a new source performance standard is independently applicable to it. If there is no such independently applicable standard, the source is a new discharger (see, section 2).

13.7.b.3. Construction on a site at which an existing source is located results in a modification subject to section 9 of this rule, rather than a new source or a new discharger, if the construction does not create a new building, structure, facility or installation meeting the criteria of subparagraphs 13.7.b.1.B or 13.7.b.1.C above, but otherwise alters, replaces, or adds to existing process or production equipment.

13.7.b.4. Construction of a new source as defined in section 2 has commenced if the owner or operator has:

13.7.b.4.A. Begun, or caused to begin as part of a continuous on-site construction program:

13.7.b.4.A.1. Any placement, assembly or installation of facilities or equipment; or

13.7.b.4.A.2. Significant site preparation work, including clearing, excavation or removal of existing buildings, structures or facilities that is necessary for the placement, assembly or installation of new source equipment; or

13.7.b.4.B. Entered into a binding contractual obligation for the purchase of facilities or equipment, which is intended to be used in its operation within a reasonable time. Options to purchase or contracts that can be terminated or modified without substantial loss and contracts for feasibility engineering and design studies do not constitute a contractual obligation under this subparagraph.

13.7.c. Effect of compliance with new source performance standards:

13.7.c.1. Except as provided in paragraph 13.7.c.2 below, any new discharger, the construction of which commenced after October 18, 1972, or new source that meets the applicable promulgated new source performance standards before the commencement of discharge may not be subject to any more stringent new source performance standards or to any more stringent technology-based standards under §301(b)(2) of the CWA for the shortest of the following periods:

13.7.c.1.A. Ten (10) years from the date that construction is completed;

13.7.c.1.B. Ten (10) years from the date the source begins to discharge process or other non-construction related wastewater; or

13.7.c.1.C. The period of depreciation or amortization of the facility for the purposes of §§167 or 169 (or both) of the Internal Revenue Code of 1954.

13.7.c.2. The protection from more stringent standards of performance afforded by the above paragraph does not apply to:

13.7.c.2.A. Additional or more stringent permit conditions that are not technology based; for example, conditions based on water quality standards or toxic effluent standards or prohibitions under §307(a) of the CWA; or

13.7.c.2.B. Additional permit conditions controlling pollutants that are listed as toxic in §307(a) of the CWA and that are not controlled by new source performance standards. This includes permit conditions controlling pollutants other than those identified as toxic pollutants or hazardous substances, when control of these pollutants has been specifically identified as the method to control the toxic pollutants or hazardous substances.

13.7.c.3. When a NPDES permit with a “Protection Period” is issued to a source in accordance with paragraph 13.7.c.1 above, it will expire on or after the expiration of the protection period. Such permit shall require the owner or operator of the source to comply with the requirements of §301 and any other applicable requirements of the CWA immediately upon the expiration of the protection period. No additional period for achieving compliance with these requirements shall be allowed, except when necessary to achieve compliance with requirements promulgated less than three (3) years before the expiration of the protection period.

13.7.c.4. The owner or operator of a new source, a new discharger that commenced discharge after August 13, 1979, or a recommencing discharger shall install, have in operating condition, and “Start Up” all pollution control equipment required to meet the conditions of its permit before beginning to discharge. Within the shortest feasible time, not to exceed ninety (90) days, the owner or operator must meet all permit conditions.

13.7.c.5. After the effective date of new source performance standards, it shall be unlawful for any owner or operator of any new source to operate the source in violation of those standards applicable to the source.

W. Va. Code R. § 47-10-14 Pretreatment Program

14.1. All indirect dischargers and POTWs shall comply with the requirements of the Clean Water Act and the regulations at 40 C.F.R. §403 promulgated thereunder.

14.1.a. Prohibited discharges. -- Pollutants introduced into POTWs by indirect dischargers shall not cause pass-through or interference. These general prohibitions apply to all indirect dischargers. The following pollutants may not be introduced into a POTW:

14.1.a.1. Pollutants that create a fire or explosion hazard in the POTW, including but not limited to waste streams with a closed cup flashpoint of less than one hundred forty degrees (140°) Fahrenheit or sixty degrees (60°) Centigrade using the test methods specified in 40 C.F.R. §261.21;

14.1.a.2. Pollutants that cause corrosive structural damage to the POTW, and in no case discharges with pH lower than 5.0, unless the works is specifically designed to accommodate such discharges;

14.1.a.3. Solid or viscous pollutants in amounts that will cause obstruction to the flow in sewers or other interference with the operation of the POTW;

14.1.a.4. Any pollutant, including oxygen-demanding pollutants (BOD, etc.) released in a discharge of such volume or strength that, singly or by interaction with other pollutants, would cause interference in the POTW;

14.1.a.5. Heat in amounts that will inhibit biological activity in the POTW resulting in interference, but in no case heat in such quantities that the temperature at the treatment works influent exceeds one hundred four degrees (104°) Fahrenheit or forty degrees (40°) Centigrade, unless the works is designed to accommodate such heat;

14.1.a.6. Petroleum oil, non-biodegradable cutting oil or products of mineral oil origin in amounts that will cause interference or pass-through;

14.1.a.7. A daily pollutant loading in excess of that allowed by the individual control mechanism with the POTW or by Federal, State, or local law;

14.1.a.8. Pollutants that result in the presence of toxic gases, vapors or fumes within the POTW in a quantity that may cause acute worker health and safety problems;

14.1.a.9. Any trucked or hauled pollutants, except at discharge points designated by the POTW.

14.1.b. Categorical standards. -- In addition to the prohibited discharges listed above, any indirect discharger that is subject to a Categorical Pretreatment Standard established in 40 C.F.R. Chapter I, Subchapter N and 40 C.F.R. §403.6 shall comply with the specific requirements of such standards and shall also comply with applicable requirements of 40 C.F.R. §403.12.

14.2. POTW reporting and permit requirements.

14.2.a. Existing indirect discharges to publicly owned treatment works. -- Any publicly owned treatment works accepting non-domestic wastes from indirect dischargers shall report to the Director the names of indirect dischargers, quantity and characteristics of indirect discharges, and any other information or data deemed necessary by the Director to evaluate the discharge with regard to its impact on the permittee’s capacity to meet all applicable State and Federal requirements on treatment, water quality standards, effluent limitations, and reliable operation and maintenance of the treatment works and with regard to compliance with National Pretreatment Standards.

14.2.b. Proposed indirect discharges to publicly owned treatment works. -- A publicly owned treatment works contemplating acceptance of new or increased non-domestic wastewater from an indirect discharger shall file an application to modify its permit and shall provide such information and data as deemed necessary by the Director to evaluate the discharge with regard to its impact on the permittee’s capability to meet all applicable State and Federal requirements on treatment, water quality standards, effluent limitations, reliable operation and maintenance of the treatment works, and with regard to compliance with National Pretreatment Standards.

14.2.b.1. Those proposed indirect discharges considered by the Director to be significant indirect discharges or to be a significant increase or to have potential for significant impact on the existing or planned POTW can be incorporated into the POTW’s permit only by modification in accordance with subsection 9.2 above.

14.2.b.2. Those proposed indirect discharges considered by the Director to have no significant increase or impact on the existing or planned publicly owned treatment works may be incorporated into the POTW’s permit by minor modification in accordance with subsection 9.5 above.

14.2.b.3. Those publicly owned treatment works that have developed and received approval of a POTW Pretreatment Program in accordance with subdivision 14.4.a of this rule are exempt from the requirements of this section.

14.3. Reporting requirement for indirect dischargers. -- Indirect dischargers currently discharging or proposing to discharge into a POTW shall be required to submit to the Director the information required in 40 C.F.R. §403.12. The Director may require additional information. The Director shall insure compliance with pretreatment standards by indirect dischargers.

14.4. Local POTW pretreatment program.

14.4.a. POTWs are required to develop and submit a local pretreatment program in accordance with 40 C.F.R. §403 if the total design flow of the treatment facility is greater than five million gallons per day (5 MGD). POTWs with total design flow less than five (5) MGD may be required to develop and submit a pretreatment program if the Director determines that circumstances warrant such development. Such programs shall be incorporated into the permit issued to the POTWs. All POTWs required to have a program must have an approved pretreatment program no later than July 1, 1983. POTWs identified as being required to develop a POTW pretreatment program after July 1, 1983 shall develop and submit such a program not later than one (1) year after written notification of such identification from the Director. After obtaining the Director’s approval of a POTW Pretreatment Program, the POTW shall implement the approved program in accordance with all requirements of 40 C.F.R. §403.

14.4.b. When a local program is not required under subdivision 14.4.a. above, the Director shall administer and enforce the pretreatment program in accordance with the provisions of this section.

14.5. Variances from categorical standards for indirect dischargers. -- Indirect dischargers may apply to the Director for variances from categorical pretreatment standards if factors relating to such uses are fundamentally different from the factors considered during development of a categorical pretreatment standard applicable to that discharger. The Director shall act upon variances in accordance with 40 C.F.R. §403.

W. Va. Code R. § 47-10-15 Federal Effluent Limitations Guidelines and Standards Incorporation

15.1. The provisions of 40 C.F.R. Chapter 1, Subchapter N, Parts 400-471 are hereby incorporated by reference.

15.2. (Reserved.)

W. Va. Code R. § 47-10-16 Enforcement

16.1. General. -- The provisions of this series may be enforced by all of the applicable provisions of the State Act, including:

16.1.a. Orders issued by the Director in accordance with W. Va. Code §§ 22-11-11, 22-11-12, 22-11-15, and 22-11-19;

16.1.b. Civil penalties and injunctive relief in accordance with W. Va. Code §22-11-22; and

16.1.c. Criminal penalties in accordance with W. Va. Code §22-11-24.

16.2. Citizen participation. -- The Director shall provide for public participation in enforcement by the following:

16.2.a. Investigating and providing a written response to all signed, written complaints from citizens;

16.2.b. Not opposing intervention by any citizen when permissive intervention is authorized by statute or rule; and

16.2.c. Publishing notice in a newspaper of general circulation in the county in which the discharge is located at least thirty (30) days prior to the final settlement of any civil action or consent order issued by the Board. This notice will identify the person discharging, the specific enforcement action to be taken, and the name and address where information on the proposed settlement can be obtained. The Director shall consider all comments received during the thirty (30) day period.

W. Va. Code R. § 47-10-17 Conflict of Interest

17.1. Members of the Environmental Quality Board shall be bound by the conflict of interest requirements contained in W. Va. Code §22B-1-11.

17.2. The Director shall not be a person who receives, or has during the previous two (2) years received, a significant portion of his or her income directly or indirectly from permit holders or applicants for a permit.

17.2.a. For the purposes of this section:

17.2.a.1. “Significant portion of income” means ten percent (10%) or more of gross personal income for a calendar year, except that it means fifty percent (50%) or more of gross personal income for a calendar year if the recipient is over sixty (60) years of age and is receiving that portion under retirement, pension or similar arrangement.

17.2.a.2. “Permit holders or applicants for a permit” does not include any department or agency of the State.

17.2.a.3. “Income” includes retirement benefits, consultant fees, and stock dividends.

17.2.b. For the purposes of this section, income is not received “directly or indirectly from permit holders or applicants for a permit” when it is derived from mutual fund payments or from other diversified investments for which the recipient does not know the identity of the primary sources of income.

W. Va. Code R. § 47-10-18 Conflicting Provisions

In the event of any inconsistency or conflict between any provision of this rule and any provisions of 47CSR11, the provisions of this rule shall control.

Appendix A -- NPDES Primary Industry Categories Industry Category Adhesives and Sealants Aluminum Forming Auto and Other Laundries Battery Manufacturing Coal Mining Coil Coating Copper Forming Electrical and Electronic Components Electroplating Explosives Manufacturing Foundries Gum and Wood Chemicals Inorganic Chemicals Manufacturing Iron and Steel Manufacturing Leather Tanning and Finishing Mechanical Products Manufacturing Nonferrous Metals Manufacturing Ore Mining Organic Chemicals Manufacturing Paint and Ink Formulation Pesticides Petroleum Refining Pharmaceutical Preparations Photographic Equipment and Supplies Plastics Processing Plastic and Synthetic Materials Manufacturing Porcelain Enameling Printing and Publishing Pulp and Paper Mills Rubber Processing Soap and Detergent Manufacturing Steam Electric Power Plants Textile Mills Timber Products Processing

Appendix B -- Criteria for Determining a Concentrated Aquatic Animal Production Facility A hatchery, fish farm, or other facility is a concentrated aquatic animal production facility for purposes of section 13.2 if it contains, grows, or holds aquatic animals in either of the following categories:

(a) Cold water fish species or other cold water aquatic animals in ponds, raceways or other similar structures that discharge at least thirty (30) days per year, but not including:

(1) Facilities that produce less than nine thousand ninety (9,090) harvest weight kilograms (approximately twenty thousand (20,000) pounds) of aquatic animals per year; and (2) Facilities that feed less than two thousand two hundred seventy-two (2,272) kilograms (approximately five thousand (5,000) pounds) of food during the calendar month of maximum feeding.

(b) Warm water fish species or other warm water aquatic animals in ponds, raceways or other similar structures that discharge at least thirty (30) days per year, but not including:

(1) Closed ponds that discharge only during periods of excess runoff; or (2) Facilities that produce less than forty-five thousand four hundred fifty-four (45,454) harvest weight kilograms (approximately one hundred thousand (100,000) pounds) of aquatic animals per year.

“Cold water aquatic animals” include, but are not limited to, the Ameiuride, Centrarachidae and Cyprinidae families of fish (e.g., respectively, catfish, sunfish and minnows).

Appendix C -- Permit Testing Requirements Table I -- Testing Requirements for Organic Pollutants by Industrial Category for Existing Dischargers Industrial category GC/MS fraction 1 Volatile Acid Base/ Pesticide neutral Adhesives and Sealants () () (*) .....

Aluminum Forming () () (*) .....

Auto and Other Laundries () () () ()

Battery Manufacturing () ..... () .....

Coil Coating () () (*) .....

Copper Forming () () (*) .....

Electric & Electronic Components () () () ()

Electroplating () () (*) .....

Explosives Manufacturing ..... () () .....

Foundries () () (*) .....

Gun and Wood Chemicals () () () ()

Inorganic Chemicals Manufacturing () () (*) .....

Iron & Steel Manufacturing () () (*) .....

Leather Tanning and Finishing () () () ()

Mechanical Products Manufacturing () () (*) .....

Nonferrous Metals Manufacturing () () () ()

Ore Mining () () () ()

Organic Chemicals Manufacturing () () () ()

Paint and Ink Formulation () () () ()

Pesticides () () () ()

Petroleum Refining () () () ()

Pharmaceutical Preparations () () (*) .....

Photographic Equipment & Supplies () () () ()

Plastic and Synthetic Materials Manufacturing () () () ()

Plastic Processing (*) ..... ..... .....

Porcelain Enameling () ..... () (*)

Printing and Publishing () () () ()

Pulp and Paper Mills () () () ()

Rubber Processing () () (*) .....

Soap and Detergent Manufacturing () () (*) .....

Steam Electric Power Plants () () (*) .....

Textile Mills () () () ()

Timber Products Process Processing () () () () _________________________________________________________________________________ 1 The toxic pollutants in each fraction are listed in Table II * Testing required.

Appendix C -- Continued Table II -- Organic Toxic Pollutants in Each of Four Fractions in Analysis by Gas Chromatography/Mass Spectroscopy (GS/MS)

Volatiles 1V acrolein 2V acrylonitrile 3V benzene 5V bromoform 6V carbon tetrachloride 7V chlorobenzene 8V chlorodibromomethane 9V chloroethane 10V 2-chloroethylvinyl ether 11V chloroform 12V dichlorobromomethane 14V 1,1-dichloroethane 15V 1,2-dichloroethane 16V 1,1-dichlorethylene 17V 1,2-dichloropropane 18V 1,2-dichloropropylene 19V ethylbenzene 20V methyl bromide 21V methyl chloride 22V methylene chloride 23V 1,2,2,2-tetrachloroethane 24V tetrachloroethylene 25V toluene 26V 1,2-trans-dichloroethylene 27V 1,1,1-trichloroethane 28V 1,1,2-trichloroethane 29V trichloroethylene 31V vinyl chloride Acid Compounds 1A 2-chlorophenol 2A 2,4-dichlorophenol 3A 2,4-dimethylphenol 4A 4,6-dinitro-o-cresol 5A 2,4-dinitrophenol 6A 2-nitrophenol 7A 4-nitrophenol 8A p-cloro-m-cresol 9A pentachlorophenol 10A phenol 11A 2,4,6-trichlorophenol

Appendix C -- Continued Base/Neutral 1B acenaphthene 2B acenaphthylene 3B anthracene 4B benzidine 5B benzo(a)anthracene 6B benzo(a)pyrene 7B 3,4-benzofluoranthene 8B benzo(ghi)perylene 9B benzo(K)fluoranthene 10B bis(2-chloroethoxy)methane 11B bis(2-chloroethyl)ether 12B bis(2-chloroisopropyl)ether 13B bis(2-ethylhexyl)phthalate 14B 4-bromophenyl phenyl ether 15B butylbenzyl phthalate 16B 2-chloronaphthalene 17B 4-chlorophenyl phenyl ether 18B chrysene 19B dibenzo(a,h)anthracene 20B 1,2-dichlorobenzene 21B 1,3-dichlorobenzene 22B 1,4-dichlorobenzene 23B 3,3'-dichlorobenzidine 24B diethyl phthalate 25B dimethyl phthalate 26B di-n-butyl phthalate 27B 2,4-dinitrotoluene 28B 2,6-dinitrotoluene 29B di-n-octyl phthalate 30B 1,2-diphenylhydrazine (as azobenzene) 31B fluoranthene 32B fluorene 33B hexachlorobenzene 34B hexachlorobutadiene 35B hexachlorocyclopentadiene 36B hexachloroethane 37B indeno(1,2,3-cd)pyrene 38B isophorone 39B naphthalene 40B nitrobenzene 41B N-nitrosodimethylamine 42B N-nitrosodi-n-propylamine 43B N-nitrosodiphenylamine 44B phenanthrene 45B pyrene 46B 1,2,4-trichlorobenzene

Appendix C -- Continued Pesticides 1P aldrin 2P alpha-BHC 3P beta-BHC 4P gamma-BHC 5P delta-BHC 6P clordane 7P 4,4'-DDT 8P 4,4'-DDE 9P 4,4'-DDD 10P dieldrin 11P alpha-endosulfan 12P beta-endosulfan 13P endosulfan sulfate 14P endrin 15P endrin aldehyde 16P heptachlor 17P heptachlor epoxide 18P PCB-1242 19P PCB-1254 20P PCB-1221 21P PCB-1232 22P PCB-1248 23P PCB-1260 24P PCB-1016 25P toxaphene Table III -- Other Toxic Pollutants: Metals, Cyanide, and Total Phenols Antimony, Total Arsenic, Total Beryllium, Total Cadmium, Total Chromium, Total Copper, Total Lead, Total Mercury, Total Nickel, Total Selenium, Total Silver, Total Thallium, Total Zinc, Total Cyanide, Total Phenols, Total

Appendix C - Continued Table IV -- Conventional and Nonconventional Pollutants required to be Tested by Existing Dischargers If Expected to be Present Bromide Chloride Chlorine, Total Residual Color Fecal Coliform Fluoride Nitrate-Nitrite Nitrogen, Total Organic Oil and Grease Phosphorus, Total Radioactivity Sulfate Sulfide Sulfite Surfactants Aluminum, Total Barium, Total Boron, Total Cobalt, Total Iron, Total Magnesium, Total Molybdenum, Total Manganese, Total Tin, Total Titanium, Total Table V -– Toxic Pollutants and Hazardous Substances Required to be Identified by Existing Dischargers if Expected to be Present Toxic Pollutants Asbestos Hazardous Substances Acetaldehyde Allyl alcohol Allyl chloride Amyl acetate Aniline Benzonitrile Benzyl chloride Butyl acetate Butylamine Captan

Appendix C - Continued Carbaryl Carbofuran Carbon disulfide Chlorpyrifos Coumaphos Cresol Crotonaldehyde Cyclohexane Strychnine Cyclohexane 2,4-D(2,4-Dichlorophenoxy acetic acid)

Diazinon Dicamba Dichlobenil Dichlone 2,2-Dichloropropionic acid Dichlorvos Diethyl amine Dimethyl amine Dinitrobenzene Diquat Disulfoton Diuron Epichlorohydrin Ethanolamine Ethion Ethylene diamine Ethylene dibromide Formaldehyde Furfural Guthion Isoprene Isopropanolamine Kelthane Kepone Malathion Mercaptodimethur Methoxychlor Methyl mercaptan Methyl methacrylate Methyl parathion Mevinphos Mexacarbate Monoethyl amine Monomethyl amine Naled Napthenic acid Nitrotoluene Parathion Phenolsulfanate Phosgene Propargite Propylene oxide Pyrethrines Quinoline Resorcinol Strontium

Series 11 Special Rules

W. Va. Code R. § 47-11-1 General

1.1. Scope. -- These rules establish requirements governing pollution control measures which are considered special situations that are not generally covered in the Environmental Quality Board's legislative rule, 46CSR1, and the Office of Water Resources= legislative rule, 47CSR10.

1.2. Authority. -- W. Va. Code '22-11 et seq.

1.3. Filing Date. -- June 30, 1987.

1.4. Effective Date. -- July 1, 1987.

W. Va. Code R. § 47-11-2 Reporting spills and accidental discharges.

2.1. It is recognized that spill and accidental discharges of sewage, industrial wastes and other wastes are contrary to the language and intent of the State Law and Federal Law and that these spills and accidental discharges may occur from time to time, notwithstanding efforts to prevent them.

2.2. It is further recognized that such spills and discharges are likely to have adverse effects upon the quality of the waters of the state impairing existing and future uses of those waters. The Environmental Quality Board hereby declares it mandatory that, in order to minimize the adverse effects which the above described occurrences may have upon users of waters of the state, the following procedures shall be followed:

2.2.a. Each and every person who may cause or be responsible for any spill or accidental discharges of pollutants into the waters of the state shall give immediate notification to the Office of Water Resources' Emergency Notification Number 1-800-642-3074.

2.2.b. Such notification shall set forth insofar as possible and as soon thereafter as practical the time and place of such spill or discharge, type or types and quantity or quantities of the material or materials therein, action or actions taken to stop such spill or discharge and to minimize the polluting effect thereof, the measures or measures taken or to be taken in order to prevent a recurrence of any such spill or discharge and such additional information as may be requested by the . Office of Water Resources. A written verification of such notification shall be submitted upon request of the . Office of Water Resources.

2.2.c. It shall be the responsibility of each industrial establishment or other entity discharging directly to a person to have available the following information pertaining to those substances that are employed or handled in its operation in sufficiently large amounts as to constitute a hazard in case of an accidental spill and discharge into a public stream.

2.2.c.1. Potential toxicity in water to man, animals and aquatic life;

2.2.c.2. Details on analytical procedures for the quantitative estimation of such substances in water; and

2.2.c.3. Suggestions on safeguards or other precautionary measures to nullify the toxic effects of a substance once it has gotten into a stream.

2.3. Subdivision 2.2.a and 2.2.b shall also apply to spills to the waters of the state resulting from accidents to common carriers by highways, rail and water.

2.4. Failure to furnish such information as required by W. Va. Code '22-11-14 shall be punishable under W. Va. Code '22-11-24.

2.5. It shall be the responsibility of any person who causes or contribute in any way to the spill or accidental discharge of any pollutant or pollutants into state waters to immediately take any and all measures necessary to contain such spill or discharge.

2.5.a. It shall further be the responsibility of such person to take any and all measures necessary to clean up, remove and otherwise render such spill or discharge harmless to the waters of the state.

2.5.b. When the chief determines it necessary for the effective containment and abatement of spills and accidental discharges, the chief may require the person or persons responsible for such spill or discharge to monitor affected waters in a manner described by one chief until the possibility of any adverse effect on the waters of the state no longer exist.

2.6. Within thirty (30) days after the spill or accidental discharge, a permittee shall apply for a modification to its permit incorporating any new or altered device, equipment or measures which is a permanent change to its disposal system, facility or activity. For the purposes of this section, a permanent change is one which will remain in place for at least one (3) years after installation, construction or initiation.

W. Va. Code R. § 47-11-3 Coin-operated and other commercial laundries

3.1. The increasing appearance of coin operated and other commercial laundries particularly, in unsewered areas, has led to a variety of wastewater treatment problems. In order to establish minimum requirements governing construction of such wastewater handing facility and in accordance with W. Va. Code 22-11 et seq, the following legislative rules are established.

3.2. Coin-operated laundries and other commercial laundries located with in the corporate limits of a West Virginia municipality, town or within the boundaries of a public service district, or sanitary district or a privately owned installation having an approved sewage treatment facility shall divert wastewater to these systems for treatment.

3.2.a. Laundry discharging directly to a sewer. - A laundry without pretreatment of the wastewater connected to a sewer requires adherence to local plumbing codes and to any special regulations regarding acceptance of waste at the sewage treatment plant.

3.2.b. Laundry with pretreatment and discharge directly to sewer. - The laundry shall provide equipment for removal of lint from the waste.

3.3. Coin-operated and other commercial laundries located such that POTW is unavailable or incapable of handing or treating the wastewater from such establishment shall either divert the wastewater to an approved sewage treatment facility or shall apply to the chief for an approved sewage treatment facility or shall apply to the chief for a permit to construct, install and operate a disposal system. The system to be constructed, installed and operated must meet the following minimum requirements in addition to those described elsewhere by law:

3.3.a. Substantial removal of all settleable solids.

3.3.b. Ninety percent (90%) removal of a five (5) day biochemical oxygen demand.

3.3.c. Chlorination of final effluent is required at the initial installation. A chlorination contact chamber shall provide a contact period of at least fifteen (15) minutes with a residual of 0.5 mg/l of chlorine at maximum flow. Dechlorination may be necessary to meet water quality standards criteria. (See 46CSR1, section 8).

3.3.d. Laundry discharging water into a receiving stream used primarily for recreational pursuit and support sport fisheries shall in addition to items 3.3.a through 3.3.c provide tertiary treatment of additional BOD removal to 10 mg/l.

3.4. Laundry with no wastewater discharge: - A laundry may be located where no discharge of the wastewater can be made to a sanitary sewer or to a receiving stream. In these cases, holding tanks shall be provided for wastes and the waste must be transported to an approved wastewater treatment plant for treatment.

3.5. The following systems are non-allowable and will not be permitted:

3.5.a. Septic tanks with or without leach fields.

3.5.b. Cesspools.

3.5.c. Direct or indirect discharge of untreated or inadequately treated laundry wastewater to the waters of the state.

W. Va. Code R. § 47-11-4 Coin operated and other fee generating car washing establishments

4.1. The following minimum requirements are established for coin operated and other fee generating car washing establishments.

4.2. Any coin operated and other fee generating car washing establishment located such a publicly owned treatment works and sewerage system is available to handle and treat such wastewater shall direct its wastewater to the publicly owned treatment works. A coin operated or other fee generating car washing establishment so situated need not install a pretreatment system unless the POTW certifies to the establishment that it could not handle and treat the establishment's wastewater without minimum pretreatment as set forth in subdivision 4.2.b.

4.2.a. A car wash discharging to a POTW without pretreatment of the wastewater must adhere to local plumbing codes and to any special local ordinances or regulations regarding acceptance of waste at the sewage treatment plant.

4.2.b. A car wash pretreatment system at a minimum shall consist of a device to prevent large objects from entering the sewer lines and a settling tank to remove settleable solids and shall comply with the applicable requirements of the local sewer use ordinances or regulations including the pretreatment requirements of section 14 (NPDES Series 10 rules) where applicable.

4.3. Any coin-operated or other fee generating car washing establishment located such that a POTW is unavailable or incapable of handling or treating the wastewater from such establishment shall either direct its wastewater to an approved sewage treatment facility or shall apply to the chief for a permit to construct, install and operate a disposal system. The disposal system to be constructed, installed and operated must meet the following minimum requirements, in addition to those prescribed elsewhere by law:

4.3.a. Substantial removal of all settleable solids.

4.3.b. Substantial removal of five (5) day biochemical oxygen demand.

4.3.c. A grease trap shall be installed and properly maintained within to prevent oil and grease from entering the wastewater treatment facility.

4.3.d. A grit removal chamber shall be installed in such a manner to be readily cleaned.

4.4.e. A car wash discharging wastewater to a receiving stream and primarily for recreational pursuit and supporting sport fisheries may be required to provide treatment in addition to the minimum requirements of the above cited 4.3.a. to 4.3.d.

4.4. A car wash which does not provide treatment facilities under subsection 4.3 shall provide impervious holding facilities for wastes and the wastes must be transported to an approved wastewater treatment plant for treatment.

4.5. A car wash employing a reuse system shall provide proper disposal of settleable materials.

4.6. The following systems are non-allowable and will not be permitted:

4.6.a. Septic tanks with or without leach fields.

4.6.b. Cesspools.

4.6.c. Direct or indirect discharge of untreated or improperly treated wastewater from coin-operated or other fee generating car washing establishments to the waters of the state.

W. Va. Code R. § 47-11-5 Water purification wastewater control measure

5.1. Waste disposal. - Provision must be made for proper disposal of wastes from water treatment plants. Such wastes include but are not limited to those emanating from sanitary facilities, laboratories, clarification facilities, softening facilities and filter backwash. Discharges shall be governed by W. Va. Code 22-11 and the following rules:

5.1.a. The following means of waste and sludge disposal be considered:

5.1.a.1. Lagoon design must provide the following:

5.1.a.1.A. Location above the twenty-five (25) year flood level;

5.1.a.1.B. Dikes, deflecting gutters or other means of diverting surface water when necessary;

5.1.a.1.C. A minimum depth of four (4) to five (5) feet;

5.1.a.1.D. Multiple cell, except where filter backwash frequency is less than once a day in which case a single cell may be used;

5.1.a.1.E. Adjustable decanting devices; and

5.1.a.1.F. Convenient cleaning.

5.1.a.2. Sludge beds for lime softening sludge or other sludges must provide the following:

5.1.a.2.A. Location above the twenty-five (25) year flood level;

5.1.a.2.B. Multiple beds, each designed for at least one (1) year's storage;

5.1.a.2.C. Size of sludge beds will be governed by the concentration of solids to be disposed of with an ultimate depth of twelve (12) inches dry basis;

5.1.a.2.D. Distribution channels may be required for spreading sludge over entire area;

5.1.a.2.E. Easy access roads and loading ramps with proper under drains must be provided; and

5.1.a.2.F. Tank truck. - Trucking wet sludge to agricultural lands or disposal areas requires proper handling, vehicles and equipment to permit hauling and spreading without creating and nuisances. It is necessary to provide sludge holding facilities for use during times that trucks cannot operate.

5.1.a.3. Community wastewater treatment facility. - Discharges to sewer system and their treatment facilities depend on type of treatment, rate of discharge, plant design capacity, character of waste and local conditions.

5.1.a.4. Other methods. - These include holding tanks, vacuum filters, centrifuging and re-calcining. Detailed studies must be made to justify their use.

5.1.a.5. Direct discharge when the chief finds that water quality standards as set forth in Series 1 of the Environmental Quality Board's legislative rules will not be violated.

W. Va. Code R. § 47-11-6 Waste load allocation for sewage discharges

6.1. Purpose. - Waste load allocations for sewage discharges are to be issued by the chief to potential applicants for a Water Pollution Control Permit to assist with planning of wastewater treatment works which will meet prescribed effluent requirements and not violate state Water Quality Standards for the receiving waters. Applications for the waste load allocations shall be made prior to the initiation of any planning of any facilities which will produce or result in a wastewater discharge to the state's surface waters. Waste load allocations are not intended to, and shall not be interpreted to be an advance approval of wastewater treatment facilities which may be proposed nor is an assurance that a Water Pollution Control Permit will be issued.

6.2. Applications forms may be prescribed by the chief requiring submission of necessary information and data by the applicant to enable the . Office of Water Resources to make a waste load allocation determination. Such determination shall be valid for a period of time specified by the chief. Reapplication for a new waste load allocation will be required upon expiration of the preceding waste load allocation unless application for a Water Pollution Control Permit has been filed.

6.3. Waste load allocations shall prescribe the concentration and quality of significant wastewater substances and physical, chemical or biological conditions for the proposed discharge. The waste load limitations shall represent thirty (30) day and seven (7) day average values for biochemical oxygen demand, solids, nitrogen and other criteria defining the load, except for pH and dissolved oxygen which are instantaneous limits if it is deemed necessary to assure protection of water uses immediately downstream from the point of discharge to the receiving waters.

6.4. Waste load allocations for the achievement of water quality standards shall normally be based on a specified low flow. The design flow for this purpose shall be the minimum mean (seven) consecutive day flow with a ten (10) year return frequency.

6.5. In cases where a waste discharge is proposed to a wet weather stream, the allocation shall define the treatment plant effluent quality which will not affect designated uses of downstream waters in the nearest downstream segment of the stream but in no case less than the established water quality standard for this segment.

6.6. More stringent requirements may be specified by the chief where necessary to protect downstream uses of where special conditions such as recreation or water supply impoundments or danger to aquatic or animal life exists.

6.7. A waste load allocation may be denied when the assimilative capacity of the receiving waters is being fully utilized or if the additional waste load would result in a violation of water quality standards.

6.8. Waste load allocations are not required prior to an application to dispose of treated domestic sewage effluent by land treatment and disposal methods. Applications for a Water Pollution Control Permit for such purpose will be reviewed on a case-by-case basis. Such systems may require a Water Pollution Control Permit for the chief, . Office of Water Resources.

6.9. United States Geological Survey data may be used in determining the mean seven (7) consecutive day drought flows with a ten (10) year recurrence interval but does not preclude the use of other reliable data systems as they become available.

W. Va. Code R. § 47-11-7 Small wastewater treatment plants

7.1. For the purpose of this section, these rules pertain to sewage treatment plants of forty thousand (40,000) gallons per day capacity or less.

7.2. Operational reliability for such plants shall be provided in order that pollutants are not discharge during periods of power failure.

7.3. The wastewater treatment structure shall be protected against physical damage for the twenty-five (25) year flood level and operability be maintained during the ten (10) year flood level.

7.4. In the case of mine bathhouses, schools, shopping centers or other wastewater treatment facilities which surcharge the plant on a periodic basis, as opposed to generally constant flows, equalization facilities shall be provided. In cases where the organic loading is of low concentration, supplementation substances may be added, to obtain adequate treatment.

7.5. No construction, installation, modification or operation of a wastewater disposal system (treatment plant, sewers, lift stations and appurtenances) Shall be performed until a Water Pollution Control Permit has been issued for the facilities.

W. Va. Code R. § 47-11-8 This section was superseded by 47CSR26

W. Va. Code R. § 47-11-9 Outlet markers

9.1. In accordance with the definitions provided in W. Va. Code '22-11, the following rules are established to identify outlets:

9.2. Each holder of a Water Pollution Control Permit shall post a permanent marker at the establishment under permit in accordance with the following:

9.2.a. A marker shall be posed on the stream bank at each outlet covered by the permit.

9.2.b. The marker shall consist of the name of the establishment to which the permit was issued, the permit number, and the outlet number.

9.2.c. The marker shall be a minimum of two (2) feet by two (2) feet and shall be a minimum of three (3) feet above ground level.

47CSR11

Series 11A Waste Loads

W. Va. Code R. § 47-11A-1 General

1.1. Scope. -- This rule provides the agency's interpretation of the rights and privileges associated with waste load allocations using the provisions of 47CSR10 and 47CSR11, National Pollutant Discharge Elimination System (NPDES) Program and Special Rules respectively. It is further the purpose of this rule to explain the procedures used in requesting and transferring a waste load determination and the length of time for which that determination is applicable.

1.2. Authority. -- W. Va. Code '22-11-4(a)(14).

1.3. Filing Date. -- November 22, 1996.

1.4. Effective Date. -- December 23, 1996.

1.5. This is a new rule interpreting the provisions of 47CSR10, National Pollutant Discharge Elimination System (NPDES) Program and 47CSR11, Special Rules. This rule applies to current holders of wasteload allocations and all applicants for wasteload allocations.

1.6. Constitutional Takings Determination -- As a procedural rule, the director has determined that his rule will not result in taking of private property within the meaning of the Constitutions of West Virginia and the United States of America. The director further finds that his rule is consistent with the Declaration of Policy provided for in W. Va. Code '22-11-2.

W. Va. Code R. § 47-11A-2 Definition

2.1. Waste Load Allocation -- Means a calculation to determine a stream's capacity, which takes into consideration a margin of safety, to assimilate a potential discharge within the immediate receiving watershed. This allocation is used by the applicant to plan and complete wastewater treatment works design in preparing to make application for an NPDES permit, and is used by the office of water resources in developing permit effluent limits.

W. Va. Code R. § 47-11A-3 Interpretation of the Waste Load Allocation Concept

3.1. The Special Rule, 47CSR11 includes miscellaneous provisions related to the NPDES program. In particular, section 6 of that rule contains provisions titled "Waste load allocations for sewage discharges." Subsection 6.1 of that rule clearly indicates that waste load allocations are provided only to assist in the planning of waste water treatment works while preparing a (NPDES)/Water Pollution Control Permit application. No where in the provisions of this subsection are any other rights provided the applicant other than as stated above. Furthermore, paragraph 3.4.b of 47CSR10, National Pollutant Discharge Elimination System (NPDES) Program, states that the issuance of a permit does not convey any property rights of any sort or any exclusive privilege.

3.2. Because an NPDES permit does not convey any special right or privilege, and that such permit can be revoked, suspended or modified; it is clear then that a calculation, such as the waste load allocation, used in planning the application for the permit can carry no greater right or privilege than the permit which finally results.

3.3. Accordingly then, a waste load allocation is no more than a calculation of the quantity of waste which can be discharged into a stream at a given location on a given date without violating the state's water quality standards provided for in 46CSR1, Requirements Governing Water Quality Standards. Further, the waste load allocation for a point on a stream could range from zero to the maximum allowable depending upon development/discharges, including nonpoint sources, industrial, mining and domestic discharges in the watershed. Waste load allocations then are not a right that runs with any particular piece of property.

3.4. The changing nature of a stream's ability to assimilate wastes, forces a wasteload allocation to be temporary. As a practical matter, a potential applicant for an NPDES Permit needs to know the discharge limitations to be imposed in the permit, so that an appropriate treatment facility can be designed.

W. Va. Code R. § 47-11A-4 Waste Load Allocation Procedure

4.1. In order to provide the services identified in Subsection 3.4 of this rule, the Office of Water Resources will incorporate the calculated values of a wasteload allocation as discharge limitations in a WV/NPDES Permit, provided that a complete WV/NPDES Permit application is submitted within six months after the applicant receives the wasteload allocation. If a potential permit applicant can demonstrate that application preparation has begun, but, if the applicant demonstrates to the Chief that despite good faith efforts, a complete application cannot be submitted in the six-month time frame, then the Chief may grant one six-month extension of the wasteload allocation. Requests for an extension must be in writing to the Chief. A wasteload allocation terminates automatically upon submission of the complete WV/NPDES Permit application.

4.2. At times, planned development may cause the submission of multiple wasteload allocation requests which, if granted, could exceed the watershed's assimilative capacity. Requests for wasteload allocations will therefore be processed on a first-come, first-served basis. If a wasteload allocation is granted that precludes the granting of subsequent allocations, then the latter allocation(s) will be denied. Applicants that have been denied an allocation may have their name put on a waiting list. If the potential permit applicant holding the wasteload allocation does not submit a complete permit application in the time frame specified above, then the allocation will be rescinded and the next applicant(s) on the waiting list will be offered an allocation. Waiting list activities will also be conducted on a first come, first serve basis.

4.3. As stated previously, the wasteload allocation process was designed specifically for potential permit applicants to plan wastewater treatment works. The Chief may deny a request for a wasteload allocation if it is believed that the applicant does not intend to pursue, or is unable to accomplish development as indicated in the request. The Chief may require the submission of information as necessary to determine the validity of a request for a wasteload allocation.

4.4. Application forms will be provided by the Chief which shall include, but not be limited to, a statement identifying the source of the applicant's right to enter in and upon the real property adjacent to the receiving stream to install or construct the proposed point source. Such a statement, acceptable to the Chief, shall be a condition precedent to receiving a wasteload allocation. Though not limited to these forms of real property interests, such interests as may be acceptable to the Chief for purposes of granting wasteload allocations are recorded deeds, leases, options, real estate contracts and easements. Wasteload allocations are planning tools only and do not create interests in real property.

W. Va. Code R. § 47-11A-5 Transfer or Assignment of Wasteload Allocation

Once a wasteload allocation is granted to a potential permit applicant, that allocation may be transferred or assigned with the written approval of the Chief. Because wasteload allocations are granted with the expectation that a complete WV/NPDES Permit application will be timely filed with the Office of Water Resources, the approval of a transfer or assignment of a wasteload allocation will not alter the time limitation of subsection 4.1 of this rule for the filing of a complete WV/NPDES Permit application by the proposed transferee. No approval of a transfer or assignment of a wasteload allocation shall be granted by the Chief except on compliance by the proposed transferee with all of the requirements of these regulations for the original issuance thereof and upon forms provided by the Chief.

47CSR11A

Series 12 Requirements Governing Groundwater Standards

W. Va. Code R. § 47-12-1 General

1.1. Scope. -- The purpose of this Legislative rule is to establish minimum standards of purity and quality for groundwater located within this State.

1.2. Authority. -- W. Va. Code §22-12-4.

1.3. Filing Date. -- June 16, 2011.

1.4. Effective Date. -- July 1, 2011.

W. Va. Code R. § 47-12-2 Definitions

As used in this rule:

2.1. “Act” means the Groundwater Protection Act, W. Va. Code §22-12-1, et seq.

2.2. “Constituent” means any chemical or biological substance found in groundwater due to either natural or man-made conditions.

2.3. “Groundwater” means the water occurring in the zone of saturation beneath the seasonal high water table, or any perched water zones.

2.4. “Person” means any industrial user, public or private corporation, institution, association, firm or company organized or existing under the laws of this or any other state or country; the State of West Virginia and any of its political subdivisions, including any county commission or municipal corporation; any governmental agency, including federal facilities; industry; sanitary district; public service district; soil conservation district; watershed improvement district; partnership; trust; estate; person or individual; group of persons or individuals acting individually or as a group; or any legal entity whatever.

W. Va. Code R. § 47-12-3 Groundwater Standards

3.1. Except as provided in subsections 3.2 and 3.3 below, the standards of purity and quality for groundwater in the state shall be the constituent concentrations found in Appendix A of this rule.

3.2. Concentration of a constituent in excess of otherwise applicable groundwater quality standards shall be governed as follows:

3.2.a. Where the concentration of a constituent exceeds an otherwise applicable groundwater quality standard as a result of natural conditions, the naturally occurring level of that constituent shall become the groundwater quality standard for the affected area.

3.2.b. Where the concentration of a certain constituent exceeds an otherwise applicable groundwater quality standard due to human-induced contamination, no further contamination by that constituent shall be allowed and every reasonable effort shall be made to identify, remove or mitigate the source of such contamination and to strive, where practical, to reduce the level of contamination over time to support drinking water use.

3.3. Constituents in groundwater shall not cause a violation of the standards found at 47CSR2 in any surface water.

3.4. Groundwater quality standards do not apply:

3.4.a. Within areas of geologic formations that are site-specific to site production or storage zones of crude oil or natural gas and that are utilized for the exploration, development or production of crude oil or natural gas permitted pursuant to W. Va. Code §§22-6-1, et seq., 22-7-1, et seq., 22-8-1, et seq., 22-9-1, et seq., or 22-10-1, et seq.; and

3.4.b. Within areas of geologic formations that are site-specific to the injection zones of Class II or III or wells permitted pursuant to the statutes and regulations governing the underground injection control program.

3.4.c. To any constituent or any class of activities for which a variance from groundwater quality standards has been granted by the Secretary pursuant to W. Va. Code §22-12-5(l).

3.4.d. To coal extraction and earth disturbing activities directly involved in coal extraction that are subject to either or both W. Va. Code §§22-3-1, et seq. or 22-11-1, et seq.

3.5. Measurement of inorganic constituents.

3.5.a. Compliance with groundwater protection standards for inorganic constituents shall be determined in terms of dissolved concentrations rather than total concentrations, except as specified in subdivision 3.5.b below.

3.5.b. Any groundwater regulatory agency as specified in the Act may determine compliance with groundwater protection standards for inorganic constituents utilizing total concentration values only as necessary to protect human health or the environment. Appropriate situations for utilizing total concentrations values include, but are not limited to, the following:

3.5.b.1. The sample is from a carbonate formation in an area of karst terrane;

3.5.b.2. The sample is from a collection point for groundwater used for private or public water supply;

3.5.b.3. The sample is from a spring or seep; or

3.5.b.3. The sample is one for which State or Federal regulations require that total inorganic concentrations be measured.

W. Va. Code R. § 47-12-4 Hazardous Waste Treatment, Storage or Disposal Facilities

4.1. Nothing in this rule prohibits the Division of Water and Waste Management, acting in accordance with federal regulations, from using criteria other than the standards specified in this rule for purposes of determining the need for corrective action at hazardous waste treatment, storage or disposal facilities, as provided in 40 C.F.R. Parts 264 and 265, Subpart F.

APPENDIX A

Organic Compounds Constituent Limit (mg/L)

(except where noted)

Alachlor Aldicarb 0.003 Aldicarb sulfone Aldicarb sulfoxide 0.004 Atrazine 0.003 Benzene Benzo (a) pyrene (PAH) 0.0002 Bromodichloromethane (THM)1 0.08 Bromoform (THM)1 0.08 Carbofuran 0.04 Carbon tetrachloride Chlordane Chloroform (THM)1 0.08 2, 4-D 0.07 Dalapon 0.2 Di(2-ethylhexyl)adipate 0.4 Di(2-ethylhexyl)phthalate 0.006 Dibromochloromethane (THM)1 0.08 Dibromochloropropane (DBCP) 0.0002 Dichloroacetic acid 0.06 Dichlorobenzene p- 0.075 Dichlorobenzene o- 0.6 Dichlorobenzene m- 0.6 Dichloroethane (1, 2)

Dichloroethylene (1, 1-) 0.007 Dichloroethylene (cis-1, 2-) 0.07 Dichloroethylene (trans-1, 2-)

Dichloromethane Dichloropropane (1, 2-)

Dinoseb 0.007 Diquat 0.02 Endothall Endrin Ethylbenzene 0.7 Ethylene dibromide (EDB) 0.00005 Glyphosate 0.7 Heptachlor 0.0004 Heptachlor epoxide 0.0002 Hexachlorobenzene 0.001 Hexachlorocyclopentadiene 0.05 Lindane 0.0002 Methoxychlor 0.04 Monochloroacetic acid2 0.06 Monochlorobenzene Oxamyl (Vydate) 0.2 Pentachlorophenol 0.001 Picloram 0.5 Polychlorinated biphenyls 0.0005 Simazine 0.004 Styrene 2, 3, 7, 8-TCDD (Dioxin) 0.00000003 Tetrachlorethylene Toluene 1.0 Toxaphene 0.003 2, 4, 5-TP (Silvex) 0.05 Trichloroacetic acid2 0.06 Trichlorobenzene (1, 2, 4-) 0.07 Trichloroethane (1, 1, 1-) 0.2 Trichloroethane (1, 1, 2-)

Trichloroethylene Vinyl Chloride Xylenes (Total) 10.0 Inorganic Compounds Constituent Limit (mg/L)

(except where noted)

Arsenic 0.01 Asbestos 7 MFL3 Barium 2.0 Beryllium 0.004 Bromate 0.01 Cadmium Chloramine 4.0 Chlorine 4.0 Chlorine dioxide 0.8 Chlorite 1.0 Chromium (Total)

Copper 1.3 Cyanide 0.2 Fluoride 4.0 Lead 0.015 Mercury (Inorganic)

Nitrate (as N) 10.0 Nitrite (as N) 1.0 Total Nitrate and Nitrite (both as N) 10.0 Selenium 0.05 Thallium Radionuclides Beta particle and photon activity 4 mrem4 Gross alpha particle activity 15 pCi/L5 Combined Radium 226 and 228 5 pCi/L Uranium 30 µg/L6 1 – The total of the trihalomethanes (THM) is 0.08 mg/L 2 – The total of the haloacetic acides is 0.06 mg/L 3 – MFL = million fibers per liter 4 – mrem = millirem (rem = roentgen – equivalent – man) 5 – pCi = picocurie 6 – µg/L = microgram per liter 47CSR12 47CSR12

Series 13 Underground Injection Control

W. Va. Code R. § 47-13-1 General

1.1. Scope. -- These rules set forth criteria and standards for the requirements which apply to the State Underground Injection Control Program (UIC). The UIC permit program regulates underground injections by 6 classes of wells. The 6 classes of wells are set forth in section 4 of this rule. All owners or operators of these injection wells must be authorized either by permit or rule by the Director.

1.1.1. Specific inclusions. The following wells are included among those types of injection activities which are covered by the UIC rules (this list is not intended to be exclusive but is for clarification only):

1.1.2. Any dug hole or well that is deeper than its largest surface dimension, where the principal function of the hole is emplacement of fluids.

1.1.3. Any septic tank or cesspool used by generators of hazardous waste, or by owners or operators of hazardous waste management facilities, to dispose of fluids containing hazardous waste.

1.1.4. Any septic tank, cesspool, or other well used by multiple dwelling, community, or regional system for the injection of waste.

1.1.5. Specific exclusions. The following are not covered by this rule:

1.1.5.a. Individual or single-family residential waste disposal systems such as domestic cesspools or septic systems.

1.1.5.b. Any dug hole which is not used for emplacement of fluids underground.

1.1.5.c. Nonresidential cesspools, septic systems or similar waste disposal systems if such systems are used solely for the disposal of sanitary wastes and have the capacity to serve fewer than 20 persons a day.

1.1.5.d. Injection wells are used for injection of hydrocarbons which are of pipeline quality and are gases at standard temperature and pressure for the purpose of storage.

NOTE: The specification of exclusions under subdivision 1.1.5 of this section shall not relieve any person of any requirements imposed under the State Act and rules, other than this Series, including State permit requirements.

NOTE: Interim Status under RCRA for Class 1 Hazardous Waste Injection Wells. The minimum national standards which define acceptable injection of hazardous waste during the period of interim status under RCRA are set out in the applicable provisions of 40 CFR parts 144, 146, 147, and 40 CFR section 265.430. A UIC permit does not automatically terminate upon issuance to that well of a RCRA permit-by-rule under 40 CFR section 270.60(b). Thus, until a Class 1 well injecting hazardous waste receives a RCRA permit or permit-by-rule, the well’s interim status requirements are the applicable requirements imposed pursuant to 40 CFR parts 144, 146, 147 and 40 CFR part 265, including any requirements imposed in the UIC permit.

1.2. Authority. -- W. Va. Code §22-11-8(B)(7) and §22-11B-3.

1.3. Filing Date. -- May 01, 2025.

1.4. Effective Date. -- July 01, 2025.

1.5. Sunset Provision. -- This rule is not subject to a sunset provision and does not expire.

W. Va. Code R. § 47-13-2 Definitions

The definitions set forth in W. Va. Code §22-11-3 shall apply to this rule along with the following definitions unless the context clearly indicates otherwise:

2.1. "Abandoned well" means a well whose use has been permanently discontinued or which is in a state of disrepair such that it cannot be used for its intended purpose or for observation purposes.

2.2. "Acidizing" means the injection of acid through the borehole or "well" into a "formation" to increase permeability and porosity by dissolving the acid-soluble portion of the rock constituents.

2.3. "Application" means the State standard forms for applying for a permit or permit modification, including any additions, revisions, or modifications to the forms.

2.4. "Aquifer" means a geological "formation", group of formations, or part of a formation that is capable of yielding a usable amount of water to a well or spring.

2.5. "Area of review" means the area surrounding an injection well described according to the criteria set forth in subsection 5.2, or in the case of an area permit, the project area plus a circumscribing area the width of which is either 1/4 of a mile or a number calculated according to the criteria set forth in subsection 5.3.

2.5.1. For Class 6 well types, “area of review” means the region surrounding the geologic sequestration project where underground sources of drinking water (USDWs) may be endangered by the injection activity. The area of review is delineated using computational modeling that accounts for the physical and chemical properties of all phases of the injected carbon dioxide stream and displaced fluids, and is based on available site characterization, monitoring, and operational data as set forth in section 5.4.

2.6. "Authorized representatives of the Director" means the personnel of the Division of Water and Waste Management, Division of Mining and Reclamation, and the personnel of the Office of Oil and Gas and the Commissioner.

2.7. "Carbon dioxide plume" means the extent underground, in three dimensions of an injected carbon dioxide stream.

2.8. "Carbon dioxide stream" means carbon dioxide that has been captured from an emission source (e.g., a power plant), plus incidental associated substances derived from the source materials and the capture process, and any substances added to the stream to enable or improve the injection process. This subpart does not apply to any carbon dioxide stream that meets the definition of a hazardous waste under 40 CFR part 261.

2.9. "Casing" means a pipe or tubing of appropriate material, of varying diameter and weight, lowered into a borehole during or after drilling in order to support the sides of the hole and thus prevent the walls from caving, to prevent loss of drilling mud into porous ground, or to prevent water, gas, or other fluid from entering or leaving the hole.

2.10. "Catastrophic collapse" means the sudden and utter failure of overlying "strata" caused by removal of underlying materials.

2.11. "Cementing" means the operation whereby a cement slurry is pumped into a drilled hole and/or forced behind the casing.

2.12. "Commissioner" means the Commissioner of the West Virginia Oil and Gas Conservation Commission.

2.13. "Confining bed" means a body of impermeable or distinctly less permeable material stratigraphically adjacent to one or more aquifers.

2.14. "Confining zone" means a geological formation, group of formations, or part of a formation stratigraphically overlying the injection zone(s) that acts as barrier to fluid movement above an injection zone. For Class 6 wells operating under an injection depth waiver, confining zone means a geologic formation, group of formations, or part of a formation stratigraphically overlying and underlying the injection zone(s).

2.15. "Contaminant" means any man induced physical, chemical, biological or radiological substance or matter in water.

2.16. "Conventional mine" means an open pit or underground excavation for the production of minerals.

2.17. "Corrective action" means the use of Director-approved methods to ensure that wells within the area of review do not serve as conduits for the movement of fluids into USDWs.

2.18. "Draft permit" means a document indicating the Director’s tentative decision to issue, modify, suspend, revoke, revoke, and reissue, or reissue a "permit". A notice of intent to revoke a permit is a type of "draft permit". A denial of a request for modification, suspension, revocation, or revocation and reissuance, is not a "draft permit".

2.19. "Drilling mud" means a heavy suspension used in drilling an "injection well", introduced down the drill pipe and through the drill bit.

2.20. "Dry Well" means a bored, drilled, or driven shaft or a dug hole, that is not an improved sinkhole or subsurface fluid distribution system, whose depth is greater than its largest surface dimension which is completed above the water table so that its bottom and sides are typically dry except when receiving fluids.

2.21. "Environmental Protection Agency" (EPA) means the United States Environmental Protection Agency.

2.22. "Exempted aquifer" means an "aquifer" or its portion that meets the criteria in the definition of "underground source of drinking water" but which has been exempted according to the procedures in subsection 3.1.

2.23. "Existing injection well" means an "injection well" other than a "new injection well".

2.24. "Experimental technology" means a technology which has not been proven feasible under the conditions in which it is being tested.

2.25. "Facility or activity" means any "injection well" that is subject to rule under the UIC program.

2.26. "Fault" means a surface or zone of rock fracture along which there has been displacement.

2.27. "Flow rate" means the volume per time unit given to the flow of gases or other fluid substance which emerges from an orifice, pump, turbine, or passes along a conduit or channel.

2.28. "Fluid" means any material or substance which flows or moves whether in a semisolid, liquid, sludge, gas, or any other form or state.

2.29. "Formation" means a body of rock characterized by a degree of lithologic homogeneity which is prevailingly, but not necessarily, tabular and is mappable on the earth's surface or traceable in the subsurface.

2.30. "Formation fluid" means "fluid" present in a "formation" under natural conditions as opposed to introduced fluids, such as "drilling mud".

2.31. "Generator" means any person, by site location, whose act or process produces hazardous waste identified or listed in 33CSR20, Hazardous Waste Management Rule, or whose act first causes a hazardous waste to become subject to this rule.

2.32. "Geologic sequestration" means the long-term containment of a gaseous, liquid, or supercritical carbon dioxide stream in subsurface geologic formations. This term does not apply to carbon dioxide capture or transport.

2.33. "Geologic sequestration project" means an injection well or wells used to emplace a carbon dioxide stream beneath the lowermost formation containing a USDW; or, wells used for geologic sequestration of carbon dioxide that have been granted a waiver of the injection depth requirements pursuant to requirements at § 47CSR13-14.8.4; or, wells used for geologic sequestration of carbon dioxide that have received an expansion to the areal extent of an existing Class 2 enhanced oil recovery or enhanced gas recovery aquifer exemption pursuant to 47CSR13-3 and 47CSR13-14.22. It includes the subsurface three-dimensional extent of the carbon dioxide plume, associated area of elevated pressure, and displaced fluids, as well as the surface area above that delineated region.

2.34. "Groundwater" means water below the land surface in a zone of saturation.

2.35. "Hazardous waste" means a hazardous waste as defined in 33CSR20-2.1.1.

2.36. "Hazardous Waste Management facility" ("HWM facility") means all contiguous land, and structures, other appurtenances, and improvements on the land, used for treating, storing, or disposing of "hazardous waste". A facility may consist of several "treatment", "storage", or "disposal" operational units.

2.37. "Improved Sinkhole" means a naturally occurring karst depression or other natural crevice found in volcanic terrain and other geologic settings which have been modified by man for the purposes of directing and emplacing fluids into the subsurface.

2.38. "Injection well" means a well, subsurface distribution system, or an improved sinkhole into which fluids are being injected.

2.39. "Injection zone" means a geological "formation", group of formations or part of a formation receiving fluids through a "well" and for Class 6 Wells, the formation that is of sufficient areal extent, thickness, porosity, and permeability to receive carbon dioxide through a well or wells associated with a geologic sequestration project.

2.40. "Large Capacity Cesspool" means a dry well that receives untreated sanitary waste containing human excreta, and which sometimes have an open bottom and/or perforated sides. Large-capacity cesspools serve multiple dwellings and community or regional establishments. Non-residential large capacity cesspools must have the capacity to serve more than 20 persons per day.

2.41. "Lithology" means the description of rocks on the basis of their physical and chemical characteristics.

2.42. "Manifest" means the form used for identifying the quantity, composition and the origin, routing and destination of the hazardous waste during its transportation off-site from the point of generation to the point of disposal, treatment or storage.

2.43. "Maximum Contaminant Level (MCL)" means as defined in the Safe Drinking Water Act as “the maximum permissible level of a contaminant in water which is delivered to any user of a public water system.”

2.44. "Motor Vehicle Waste Disposal Wells (MVWDW)" mean dry wells or septic tank and leachfield combinations that receive or have received fluids from motor vehicle repair or maintenance activities, such as an auto body repair shop, automotive repair shop, new and used car dealership, specialty repair shop (e.g. transmission and muffler repair shop), or any facility that does any vehicular repair work.

2.45. "New injection well" means a "well" which began injection after the effective date of this rule.

2.46. "Owner or operator" means the owner or operator of a facility or activity subject to regulation under the UIC program.

2.47. "Packer" means a device lowered into a "well" to produce a fluid-tight seal.

2.48. "Permit" means an authorization, license, or equivalent control document issued by the State to implement the requirements of the UIC Program. "Permit" includes an area permit and a UIC Emergency Permit. "Permit" does not include UIC authorization by rule or any permit which has not yet been the subject of final agency action, such as a "draft permit".

2.49. "Person" means an individual, association, partnership, corporation, municipality, State, Federal, or Tribal agency, or an agency or employee thereof.

2.50. "Plugging" means the act or process of stopping the flow of water, oil or gas into or out of a "formation" through a borehole or well penetrating that formation.

2.51. "Plugging record" means a systematic listing of permanent or temporary abandonment of water, oil, gas, test, exploration and waste injection wells, and may contain a well log, description of amounts and types of plugging material used, the method employed for plugging, a description of formations which are sealed and a graphic log of the well showing formation location, formation thickness, and location of plugging structures.

2.52. "Point of Injection" means for a Class 5 well the last accessible sampling point before the release of waste fluids into the subsurface environment. For example, the point of injection of a septic system might be the distribution box-the last accessible sampling point before the waste fluids drain into the leachfield and the underlying soils. For a dry well, it is likely to be the well bore itself.

2.53. "Post-injection site care" means appropriate monitoring and other actions (including corrective action) needed following cessation of injection to ensure that USDWs are not endangered by Class 6 wells, as required under subsection 13.9.

2.54. "Pressure" means the total load or force per unit area acting on a surface.

2.55. "Pressure front" means the zone of elevated pressure that is created by the injection of carbon dioxide into the subsurface. For the purposes of this subpart, the pressure front of a carbon dioxide plume refers to a zone where there is a pressure differential sufficient to cause the movement of injected fluids or formation fluids into a USDW.

2.56. "Project" means a group of "wells" in a single operation.

2.57. "Public water system" means a system for the provision to the public of piped water for human consumption, if such system has at least 15 individuals. Such term includes (a) any collection, treatment, storage, and distribution facilities under control of the operator of such system and used primarily in connection with such system, and (b) any collection or pretreatment storage facilities not under such control which are used primarily in connection with such system.

2.58. "Radioactive waste" means any waste which contains radioactive material in concentrations which exceed those listed in 10 CFR Part 20, Appendix B, Table II, Column 2.

2.59. "RCRA" means the Solid Waste Disposal Act as amended by the Resource Conservation and Recovery Act of 1976 (Pub. 1. 94-580, as amended by Pub. L. 95-609, 42 USC 6901 et seq.)

2.60. "Regional Administrator" means the Regional Administrator of Region 3 of the U.S. Environmental Protection Agency or the authorized representative of the Regional Director.

2.61. "Safe Drinking Water Act" (SDWA) means the Safe Drinking Water Act (Pub. L. 95-523 as amended by Pub. L. 95-1900; 42 USC section 3000 et seq.

2.62. "Sanitary waste" means liquid or solid waste originating solely from humans and human activities, such as wastes collected from toilets, showers, wash basins, sinks used for cleaning domestic areas, sinks used for food preparation, clothes washing operations, and sinks or washing machines where food and beverage serving dishes, glasses, and utensils are cleaned. Sources of these wastes may include single or multiple residences, hotels and motels, restaurants, bunkhouses, schools, ranger stations, crew quarters, guard stations, campgrounds, picnic grounds, day-use recreation areas, other commercial facilities, and industrial facilities provided the waste is not mixed with industrial waste.

2.63. "Schedule of compliance" means a schedule of remedial measures included in a "permit", including an enforceable sequence of interim requirements (for example, actions, operations, or milestone events) leading to compliance with the SDWA and State Act and rules.

2.64. "Septic system" means a "well" that is used to emplace sanitary waste below the surface and is typically comprised of a septic tank and subsurface fluid distribution system or disposal system.

2.65. "Site" means the land or water where any "facility or activity" is physically located or conducted, including adjacent land used in connection with the facility or activity.

2.66. "Site closure" means the point/time, as determined by the Director following the requirements under subsection 13.9., at which the owner or operator of a geologic sequestration site is released from post-injection site care responsibilities.

2.67. "Sole or principal source aquifer" means an aquifer which has been designated by the Administrator pursuant to section 1424 (a) or (e) of the SDWA.

2.68. "State" means the State of West Virginia.

2.69. "State Act" means the State Water Pollution Control Act, W. Va. Code §22-11-1 et seq.

2.70. "State/EPA agreement" means an agreement between the Regional Administrator and the State which coordinates EPA and State activities, responsibilities and programs.

2.71. "Stratum" (plural strata) means a single sedimentary bed or layer, regardless of thickness, that consists of generally the same kind of rock material.

2.72. "Subsidence" means the lowering of the natural land surface in response to: Earth movements; lowering of fluid pressure; removal of underlying supporting material by mining or solution of solids, either artificially or from natural causes; compaction due to wetting (Hydro compaction); oxidation of organic matter in soils; or added load on the land surface.

2.73. "Subsurface distribution system" means an assemblage of perforated pipes, drain tiles, or other similar mechanisms intended to distribute fluids below the surface of the ground.

2.74. "Surface casing" means the first string of well casing to be installed in the well.

2.75. "Total dissolved solids" means the total dissolved (filterable) solids as determined by use of the method specified in 40 CFR Part 136.

2.76. "Transmissive Fault" is a type of fault or fracture that has sufficient permeability and vertical extent to allow fluids to move between formations.

2.77. "UIC" means the Underground Injection Control program under Part C of the Safe Drinking Water Act, including an approved State program.

2.78. "Underground injection" means the subsurface emplacement of fluids into a well, subsurface distribution system, or improved sinkhole.

2.79. "Underground source of drinking water" (USDW) means an "aquifer" or its portion:

2.79.1. which supplies any public water system; or

2.79.2. which contains a sufficient quantity of groundwater to supply a public water system; and

2.79.2.a. currently supplies drinking water for human consumption; or

2.79.2.b. contains fewer than 10,000 mg/1 total dissolved solids; and

2.79.3. which is not an exempted aquifer.

2.80. "Well" for the purpose of the State UIC Program, means a bored, drilled or driven shaft, or a dug hole whose depth is greater than the largest surface dimension, an improved sinkhole; or, a subsurface fluid distribution system.

2.81. "Well injection" means the subsurface emplacement of fluids through a well.

2.82. "Well plug" means a watertight and gastight seal installed in a borehole or well to prevent movement of fluids.

2.83. "Well stimulation" means several processes used to clean the well bore, enlarge channels, and increase pore space in the interval to be injected thus making it possible for wastewater to move more readily into the formation, and includes (1) surging, (2) jetting, (3) blasting, (4) acidizing, (5) hydraulic fracturing.

2.84. "Well monitoring" means the measurement, by on-site instruments or laboratory methods, of the quality of water in a well.

2.85. "Wetlands" means those areas that are inundated and saturated by surface groundwater at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions. Wetlands generally include swamps, marshes, bogs and similar areas such as sloughs, wet meadows, mudflats, sandflats and natural ponds.

W. Va. Code R. § 47-13-3 Criteria for Exempted Aquifer Status

3.1. An aquifer or a portion thereof which meets the criteria for an "underground source of drinking water" in section 2 may be determined to be an exempted aquifer if it meets the following criteria:

3.1.1. It does not currently serve as a source of drinking water; and

3.1.2. It cannot now and will not in the future serve as a source of drinking water because:

3.1.2.a. It is a mineral, hydrocarbon or geothermal energy producing, or can be demonstrated by a permit applicant as part of a permit application for a Class 2 or 3 operation to contain minerals or hydrocarbons that considering their quantity and location are expected to be commercially producible;

3.1.2.b. It is situated at a depth or location which makes recovery of water for drinking water purposes economically or technologically impractical;

3.1.2.c. It is so contaminated that it would be economically or technologically impractical to render the water fit for human consumption; or

3.1.2.d. It is located over a Class 3 well mining area subject to subsidence or catastrophic collapse; or

3.1.3. The Total Dissolved Solids content of the groundwater is more than 3,000 and less than 10,000 mg/1 and it is not reasonably expected to supply a public water system.

3.1.4. The areal extent of an aquifer exemption for a Class 2 EOR/EGR well may be expanded for the exclusive purpose of Class 6 injection for geologic sequestration if:

3.1.4.a. It is not currently a source of drinking water; and

3.1.4.b. Total dissolved solids content of the groundwater is >3,000 but <10,000 mg/l; and

3.1.4.c. It is not reasonably expected to supply a public water system.

W. Va. Code R. § 47-13-4 Classes of Wells

4.1. Class 1.

4.1.1. Wells used by generators of hazardous waste or owners or operators of hazardous waste management facilities to inject hazardous waste beneath the lowermost formation containing, within 1/4 mile of the well bore, an underground source of drinking water.

4.1.2. Other industrial and municipal disposal wells which inject fluids beneath the lowermost formation containing, within 1/4 mile of the well bore, an underground source of drinking water.

4.1.3. It also includes wells not covered in Class 4 that inject radioactive material listed in 10 CFR Part 20, Appendix B, Table II, Column 2.

4.2. Class 2. Wells injecting fluids:

4.2.1. Which are brought to the surface in connection with natural gas storage, or oil or natural gas production and may be commingled with waste waters from gas plants which are an integral part of production operations, unless those waters are classified as a hazardous waste at the time of injection;

4.2.2. For enhanced recovery of oil or natural gas; and

4.2.3. For storage of hydrocarbons which are liquid at standard temperature and pressure.

4.3. Class 3. Wells which inject for extraction of minerals including:

4.3.1. Mining of sulphur by the Frasch process;

4.3.2. In situ production of uranium or other metals. This category includes only in situ production from ore bodies which have not been conventionally mined. Solution mining of conventional mines such as stopes leaching is included in Class 5;

4.3.3. Solution mining of salts or potash.

4.4. Class 4.

4.4.1. Wells used by generators of hazardous waste or by owners or operators of hazardous waste management facilities, or by owners or operators of radioactive waste disposal sites, to dispose of hazardous wastes which cannot be classified under subdivisions 4.1.1., 4.1.2., or 4.1.3.

4.5. Class 5. Injection wells not included in Classes 1, 2, 3, 4, or 6. Class 5 wells include, but are not limited to:

4.5.1. Cesspools, including multiple dwelling, community or regional cesspools, or other devices that receive wastes, which have an open bottom and sometimes have perforated sides. The UIC requirements do not apply to single family residential cesspools nor to nonresidential cesspools which receive solely sanitary wastes and have the capacity to serve fewer than 20 persons a day.

4.5.2. Sand backfill and other backfill wells used to inject a mixture of water and sand, mill tailings or other solids into mined out portions of subsurface mines provided what is injected is not a radioactive waste.

4.5.3. Septic system wells used to inject the waste or effluent from a multiple dwelling, business establishment, community or regional business establishment septic tank. The UIC requirements do not apply to single family residential septic system wells, nor to nonresidential septic system wells which are used solely for the disposal of sanitary waste and have the capacity to serve fewer than 20 persons a day.

4.5.4. Injection wells associated with the recovery of geothermal energy for heating, aquaculture and production of electric power.

4.5.5. Wells used for solution mining of conventional mines such as stopes leaching.

4.5.6. Injection wells used for in situ recovery of lignite, coal, tar sands, and oil shale.

4.5.7. Wells used to inject spent brine into the same formation from which it was withdrawn after extraction of halogens or their salts.

4.5.8. Injection wells used in experimental technologies.

4.5.9. Wells for waste disposal into solution cavities in carbonate formations.

4.5.10. Sinkholes used for the disposal of sewage or any other waste.

4.5.11. Air conditioning return flow wells used to return to the supply aquifer the water used for heating or cooling in a heat pump.

4.5.12. Cooling water return flow wells used to inject water previously used for cooling.

4.5.13. Drainage wells used to drain surface fluid, primarily storm runoff, into a subsurface formation.

4.5.14. Dry wells used for the injection of wastes into a subsurface formation.

4.5.15. Recharge wells used to replenish the water in an aquifer.

4.5.16. Salt water intrusion barrier wells used to inject water into the fresh water aquifer to prevent the intrusion of salt water into the fresh water.

4.5.17. Subsidence control wells (not used for the purpose of oil or natural gas production) used to inject fluids into a non-oil or gas producing zone to reduce or eliminate subsidence associated with the overdraft of fresh water.

4.6. Class 6.

4.6.1. Wells used to inject carbon dioxide (CO2) into rock formations. Wells that are not experimental in nature that are used for geologic sequestration of carbon dioxide beneath the lowermost formation containing a USDW; or, wells used for geologic sequestration of carbon dioxide that have been granted a waiver of the injection depth requirements pursuant to requirements at subsection 14.8.4 of this chapter; or, wells used for geologic sequestration of carbon dioxide that have received an expansion to the areal extent of an existing Class 2 enhanced oil recovery or enhanced gas recovery aquifer exemption pursuant to section 13.3 and 40 CFR 144.7(d).

W. Va. Code R. § 47-13-5 Area of Review

5.1. The Director shall select the methods by which the area of review shall be established for each injection well or each field, project, or area of the State.

5.2. The area of review may be defined as either:

5.2.1. The zone of endangering influence as determined in accordance with subdivision 5.3.1; or

5.2.2. An area within a fixed radius around each injection well as determined in accordance with subdivision 5.3.3.

5.3. Zone of endangering influence. The zone of endangering influence shall be:

5.3.1. In case of application(s) for well permit(s) under subsection 14.3, that area the radius of which is the horizontal distance from the injection well in which the pressures in the injection zone may cause the migration of the injection and/or formation fluid into an underground source of drinking water; or

5.3.2. In the case of an application for an area permit under subsection 14.4, the area of the project plus a circumscribing area, the width of which is the horizontal distance for the perimeter of the project, in which the pressures in the injection zone may cause the migration of the injection and/or formation fluid into an underground source of drinking water. Computation of the zone of endangering influence should be based upon but not limited to, the parameters listed below and should be calculated for an injection time period equal to the expected life of the facility. The Theis equation is an example of one possible objective method:

Where "r" is equal to the square root of a quantity which consists of a numerator divided by the denominator where the numerator is equal to 2.25 multiplied by "K" multiplied by "H" multiplied by "t"; and, the denominator is equal to "S" multiplied by 10 to the "x" power. And, where "x" is equal to a numerator divided by a denominator, where the numerator is equal to four multiplied by "pi" multiplied by "K" multiplied by "H" multiplied [by the quantity equal to the product of ("h(subscript w)" minus "h(subscript bo)")] multiplied by "S(subscript p)G(subscript b)"; and, the denominator is equal to 2.3 multiplied by "Q". (See Figure 47-13-5 at the end of this rule)

5.3.2.a. Where "r" is equal to the radius of endangering influence from injection well (length):

5.3.2.a.1. "K" is equal to hydraulic conductivity of the injection zone (length/time);

5.3.2.a.2. "H" is equal to thickness of the injection zone (length);

5.3.2.a.3. "t" is equal to time of injection (time);

5.3.2.a.4. "S" is equal to storage coefficient (dimensionless);

5.3.2.a.5. "Q" is equal to injection rate (volume/time);

5.3.2.a.6. "h(subscript bo)" is equal to observed original hydrostatic head of injection zone (length) measured from the base of the lowermost underground source of drinking water;

5.3.2.a.7. "h(subscript w)" is equal to hydrostatic head of underground source of drinking water (length) measured from the base of the lowest underground source of drinking water;

5.3.2.a.8. "S(subscript p)G(sub-script b)" is equal to specific gravity of fluid in the injection zone (dimensionless);

5.3.2.a.9. "pi" is equal to 3.142 (dimensionless)

5.3.2.b. The above equation is based on the following assumptions:

5.3.2.b.1. The injection zone is homogenous and isotropic;

5.3.2.b.2. The injection zone has infinite area extent;

5.3.2.b.3. The injection well penetrates the entire thickness of the injection zone;

5.3.2.b.4. The well diameter is infinitesimal compared to "r" when injection time is longer than a few minutes; and

5.3.2.b.5. The emplacement of fluid into the injection zone creates instantaneous increase in pressure.

5.3.3. Fixed radius:

5.3.3.a. In the case of application(s) for well permit(s), a fixed radius around the well may be used but not less than 1/4 mile, except for:

5.3.3.a.1. For Class1 hazardous waste wells, the area of review is a 2 mile radius.

5.3.3.b. In the case of an application for an area permit, a fixed width may be used but not less than 1/4 mile for the circumscribing area.

5.3.3.c. In determining the fixed radius, the following factors shall be taken into consideration: the chemistry of the injected and formation fluids; geology; hydrogeology; population and groundwater use and dependence; and historical practices in the area.

5.4. For Class 6 wells, the area of review is the region surrounding the geologic sequestration project where USDWs may be endangered by the injection activity. The area of review is delineated using computational modeling that accounts for the physical and chemical properties of all phases of the injected carbon dioxide stream and is based on available site characterization, monitoring, and operational data.

W. Va. Code R. § 47-13-6 Corrective Action and Mechanical Integrity

6.1. Corrective Action. In determining the adequacy of corrective action proposed by the applicant and in determining the additional steps needed to prevent fluid migration into underground sources of drinking water, the Director shall consider the following criteria and factors:

6.1.1. Nature and volume of injected fluid;

6.1.2. Nature of native fluids or by-products of injection;

6.1.3. Geology;

6.1.4. Hydrology;

6.1.5. History of the injection operation;

6.1.6. Completion and plugging reports;

6.1.7. Abandonment procedures in effect at the time the well was abandoned;

6.1.8. Hydraulic connections with the underground sources of drinking water; and

6.1.9. Potentially effected population.

6.1.10. Reliability of the procedures used to identify abandoned wells; and

6.1.11. Any other factors which might affect the movement of fluids into or between USDWs.

6.2. Mechanical Integrity.

6.2.1. An injection well has mechanical integrity if:

6.2.1.a. There is no significant leak in the casing, tubing, or packer; and

6.2.1.b. There is no significant fluid movement into an underground source of drinking water through vertical channels adjacent to the injection well bore.

6.2.2. One of the following methods must be used to evaluate the absence of significant leaks under paragraph 6.2.1.a. of this section:

6.2.2.a. Monitoring of annulus pressure; or

6.2.2.b. Pressure test with liquid or gas.

6.2.3. The absence of significant fluid movement under paragraph 6.2.1.b. of this section may be demonstrated by:

6.2.3.a. For Class 2 wells, any requirements determined necessary under subdivision 9.1.1.;

6.2.3.b. For Class 3 wells where the nature of the casing precludes the use of logging techniques prescribed at 6.2.3.c. of this section, cementing records demonstrating the presence of adequate cement to prevent such migration;

6.2.3.c. The results of a temperature or noise log;

6.2.3.d. For Class 3 wells where the Director elects to rely on cementing records to demonstrate the absence of significant fluid movement, the monitoring program prescribed by subsection 10.4 shall be designed to verify the absence of significant fluid movement;

6.2.3.e. For Class 6 wells, to evaluate the absence of significant leaks under 6.2.1. of this section, owners or operators must, following an initial annulus pressure test, continuously monitor injection pressure, rate, injected volumes; pressure on the annulus between tubing and long-string casing; and annulus fluid volume as specified in subsection 13.6.1.e.;

6.2.3.e.1. At least once per year, the owner or operator must use an approved tracer survey such as an oxygen-activation log or a temperature or noise log to determine the absence of significant fluid movement under 6.2.2. of this section.

6.2.3.e.2. If required by the Director, at a frequency specified in the testing and monitoring plan required at subsection 13.6.2., the owner or operator must run a casing inspection log to determine the presence or absence of corrosion in the long-string casing.

6.2.3.e.3. The Director may require any other test to evaluate mechanical integrity under 6.2.3.e. of this section. Also, the Director may allow the use of a test to demonstrate mechanical integrity other than those listed above with the written approval of the Administrator. To obtain approval for a new mechanical integrity test (MIT), the Director must submit a written request to the Administrator setting forth the proposed test and all technical data supporting its use. The Administrator may approve the request if he or she determines that it will reliably demonstrate the mechanical integrity of wells for which its use is proposed. Any alternate method approved by the Administrator will be published in the Federal Register and may be used in all States in accordance with applicable State law unless its use is restricted at the time of approval by the Administrator.

6.2.3.e.4. In conducting and evaluating the tests enumerated in this section or others to be allowed by the Director, the owner or operator and the Director must apply methods and standards generally accepted in the industry. When the owner or operator reports the results of mechanical integrity tests to the Director, he/she shall include a description of the test(s) and the method(s) used. In making his/her evaluation, the Director must review monitoring and other test data submitted since the previous evaluation.

6.2.3.e.5. The Director may require additional or alternative tests if the results presented by the owner or operator under paragraphs 1 through 4 of this subsection (6.2.3.e) are not satisfactory to the Director to demonstrate that there is no significant leak in the casing, tubing, or packer, or to demonstrate that there is no significant movement of fluid into a USDW resulting from the injection activity as stated in 6.2.1. of this section; or

6.2.4. The Director may allow the use of a test to demonstrate mechanical integrity other than those listed in subdivisions 6.2.2. and 6.2.3. of this section with the written approval of the Director of the U.S. Environmental Protection Agency.

6.2.5. In conducting and evaluating the tests enumerated in this section or others to be allowed by the Director, the owner or operator and the Director shall apply methods and standards generally accepted in the industry. When the owner or operator reports the results of mechanical integrity tests to the Director, he shall include a description of the test(s) and the method(s) used. In making his/her evaluation, the Director shall review monitoring and other test data submitted since the previous evaluation.

W. Va. Code R. § 47-13-7 Requirements for Wells Injecting Hazardous Waste

7.1. Applicability. The rules in this section and section 8 apply to all generators of hazardous waste, and to the owners or operators of all hazardous waste management facilities, using any Class 1 well to inject hazardous waste accompanied by a manifest.

7.2. Authorization. The owner or operator of any Class 1 well that is used to inject hazardous wastes accompanied by a manifest or delivery document shall apply for authorization to inject within 6 months of the effective date of this rule.

7.3. Requirements. In addition to requiring compliance with the applicable requirements of section 8, the Director shall, for each facility meeting the requirements of subsection 7.2 require that the owner or operator comply with the following:

7.3.1. Notification. The owner or operator shall comply with the notification requirements in the Hazardous Waste Management Rule, 33CSR20-4, (W. Va. Code §22-18).

7.3.2. Identification number. The owner or operator shall comply with the requirements in the Hazardous Waste Management Rule, 33CSR20-8. (W. Va. Code §22-18).

7.3.3. Manifest system. The owner or operator shall comply with the applicable record keeping and reporting requirements for manifested wastes in the Hazardous Waste Management Rules, 33CSR20-8. (W. Va. Code §22-18).

7.3.4. Manifest discrepancies. The owner or operator shall comply with the Hazardous Waste Management Rules, 33CSR20-8. (W. Va. Code §22-18).

7.3.5. Operating record. The owner or operator shall comply with the Hazardous Waste Management Rules, 33CSR20-8. (W. Va. Code §22-18).

7.3.6. Annual report. The owner or operator shall comply with the Hazardous Waste Management Rules, 33CSR20-8. (W. Va. Code §22-18).

7.3.7. Unmanifested waste report. The owner or operator shall comply with the Hazardous Waste Management Rules, 33CSR20-8. (W. Va. Code §22-18).

7.3.8. Personnel training. The owner or operator shall comply with the applicable personnel training requirements in the Hazardous Waste Management Rules, 33CSR20-8. (W. Va. Code §22-18).

7.3.9. Certification of closure. When abandonment is completed, the owner or operator must submit to the Director certification by the owner or operator and certification by an independent registered professional engineer that the facility has been closed in accordance with the specifications in subsection 14.7.6. of this rule.

7.4. Location Standards. Owners and operators of all new hazardous waste injection wells shall comply with the following location standards:

7.4.1. Seismic Risk Zones. Wells shall not be located in Seismic Risk Zone 2 (Expected Moderate Damage). The following counties are located in Seismic Risk Zone 2: Jefferson, Berkeley, Morgan (east of Cacapon District), Hampshire (Bloomery, Capon Districts), Hardy (Capon, Lost River Districts), Pendleton (Bethel, Sugar Grove Districts), Pocahontas (south of the Green Bank District), Greenbrier, Monroe, Summers, Mercer, Raleigh (Slab Fork, Shady Spring, and Richmond Districts), McDowell and Wyoming (south of Oceana District).

7.4.2. Subsurface Mining Areas. The borehole of any hazardous waste injection well shall not pass through a cavity created by subsurface mining.

7.4.3. Carbonate Formations. The borehole of any hazardous waste injection well shall not pass through any cavity created by solution of carbonate rock above the injection zone.

7.4.4. Inundation Danger Zone. Hazardous waste injection wells shall not be located where inundation from dam failure or a 100-year flood could occur.

7.4.5. Designated Wetlands. Hazardous waste injection wells shall not be located in wetlands.

W. Va. Code R. § 47-13-8 Criteria and Standards Applicable to Class 1 Wells

8.1. General. This section sets forth requirements for underground injection control programs to regulate Class 1 wells.

8.1.1. Existing well means a Class 1 well which was authorized prior to August 25, 1988, or a well which has become a Class 1 well as a result of a change in the definition of the injected waste into a hazardous waste.

8.2. Construction Requirements. The Director shall prescribe requirements for the construction of Class 1 injection wells. Existing wells shall achieve compliance with such requirements according to a specific compliance schedule established by the Director as a condition of the permit. New wells shall be in compliance with construction requirements before injection operations begin. The owner or operator of a proposed injection well shall submit plans to the Director for testing, drilling, and construction and obtain the approval of the initial plans as a condition of the permit. The Director’s approval of any modifications of the plan shall be obtained before incorporating them into the construction of the injection well. At a minimum, such requirements shall prescribe that:

8.2.1. Each Class 1 well shall be sited in such a fashion that it injects into a formation which is below the lowermost formation containing within 1/4 mile of the well bore, an underground source of drinking water, and which has an overlying confining bed that is free of known faults or fractures within the area of review. The injection zone shall have sufficient permeability, porosity, thickness and areal extent to prevent migration of fluids into USDWs. The confining zone shall be laterally continuous and free of transecting, transmissive faults or fractures over an area sufficient to prevent the movement of fluids into a USDW. The siting shall contain at least one formation of sufficient thickness and with lithologic and stress characteristics capable of preventing vertical propagation of fractures.

8.2.1.a. Owners or operators must demonstrate that: 1) the confining zone is separated by at least one sequence of permeable and less permeable strata to prevent fluid migration; or 2) the piezometric surface of the fluid in the injection zone is less than the piezometric surface of the lowermost USDW; or 3) no USDW is present; or 4) would not endanger USDWs if the site does not meet the requirements in (1), (2), or (3).

8.2.2. Each Class 1 well shall be cased and cemented to prevent the movement of fluids into or between underground sources of drinking water, and to prevent potential leaks of fluids from the well. The casing and cement used in the construction of each newly drilled well shall be designed for the life expectancy of the well and post-closure period. The well construction must permit use of appropriate testing devices and workover tools, and continuous monitoring of tubing and casing. In determining and specifying casing and cementing requirements, the Director shall consider the following factors:

8.2.2.a. Depth to the injection zone;

8.2.2.b. Injection pressure (external pressure, internal pressure, axial loading, etc.);

8.2.2.c. Hole size;

8.2.2.d. Size and grade of all casing strings (wall thickness, diameter, nominal weight, length, joint specification, construction material, etc.);

8.2.2.e. Corrosiveness of injected fluid, formation fluids, and temperatures;

8.2.2.f. Lithology of possible injection and confining intervals; and

8.2.2.g. Type or grade of cement.

8.2.2.h. Quantity and chemical composition of the injected fluid.

8.2.3. All Class 1 injection wells, except for those municipal wells injecting only non-corrosive wastes, shall inject fluids through tubing and packer set immediately above the injection zone. The tubing and packer shall be designed for the expected service.

8.2.3.a. The use of other alternatives to a packer may be allowed with the written approval of the Director. To obtain approval, the operator shall submit a written request to the Director, which shall set forth the proposed alternative and all technical data supporting its use. The Director shall approve the request only if the alternative method will reliably provide a comparable level of protection to underground sources of drinking water. The Director may approve an alternative method solely for an individual well or for general use.

8.2.3.b. In determining and specifying requirements for tubing and packer, the Director shall consider the following factors:

8.2.3.b.1. Depth of setting;

8.2.3.b.2. Characteristics of injection fluid (chemical content, density, etc.);

8.2.3.b.3. Injection pressure;

8.2.3.b.4. Annular pressure;

8.2.3.b.5. Rate, temperature and volume of injected fluid; and

8.2.3.b.6. Size of casing; and

8.2.3.b.7. Tubing tensile, burst, and collapse strengths.

8.2.3.c. The Director may approve the use of a fluid seal if the conditions in this section are met.

8.2.3.c.1. Operator demonstrates that seal will provide a level of protection comparable to a packer;

8.2.3.c.2. Operator demonstrates that staff is adequately trained to operate and maintain the well;

8.2.3.c.3. The permit specifies limitations on variations in annular pressure and loss of annular fluid;

8.2.3.c.4. The design and construction of the well allow continuous monitoring of the annular pressure and mass balance of annular fluid; and

8.2.3.c.5. A secondary system is used to monitor the interface between the annulus fluid and the injection fluid and the permit contains requirements for testing the system every 3 months and recording the results.

8.2.3.d. One surface casing string shall extend into the confining bed below the lowest formation that contains a USDW and be cemented by circulating cement from the base of the casing to the surface, using a minimum of 120% of the calculated annular volume.

8.2.3.e. At least one long string casing, using a sufficient number of centralizers, shall extend to the injection zone and shall be cemented by circulating cement to the surface in one or more stages of sufficient quantity and quality to withstand the maximum operating pressure; and in a quantity no less than 120% of the calculated volume necessary to fill the annular space. The Director may require more than 120% when the geology or other circumstances warrant it.

8.2.3.f. Circulation of cement may be accomplished by staging. The Director may approve an alternative method of cementing in cases where the cement cannot be recirculated to the surface, provided the cement is continuous and does not allow fluid movement behind the well bore.

8.2.3.g. Casings must be rated to have sufficient structural strength to withstand:

First, the maximum burst and collapse pressures which may be experienced during construction, operation and closure of the well; and second, the maximum tensile stress which may be experienced at any point along the length of the casing during the construction, operation, and closure of the well. Cement and cement additives must be of sufficient quality and quantity to maintain integrity over the design life of the well.

8.2.4. All parts of Class 1 wells which will come into contact with corrosive fluids (whether injected or in the native environment) shall be constructed of corrosion resistant material.

8.2.5. Logs and other tests shall be conducted during the drilling and construction of new Class 1 wells. A descriptive report interpreting the results of such logs and tests shall be prepared by a knowledgeable log analyst and submitted to the Director. At a minimum such logs and tests shall include:

8.2.5.a. Directional surveys conducted on all holes, including pilot holes, at sufficiently frequent intervals to assure that vertical avenues for fluid migration in the form of diverging holes are not created during drilling.

8.2.5.b. For surface casing intended to protect underground sources of drinking water:

8.2.5.b.1. Resistivity, spontaneous potential and caliper logs before the casing is installed; and

8.2.5.b.2. A cement bond, temperature, or density log after the casing is set and cemented.

8.2.5.c. For intermediate and long strings of casing intended to facilitate injection:

8.2.5.c.1. Resistivity, spontaneous potential, porosity, caliper and gamma ray logs before the casing is installed;

8.2.5.c.2. Fracture finder logs in appropriate situations as prescribed by the Director; and

8.2.5.c.3. A cement bond, temperature, or density log after the casing is set and cemented.

8.2.5.d. Cores of the injection and confining zones must be taken. Fluid temperature, pH, conductivity, pressure, and static fluid level must be measured in the injection zone.

8.2.6. At a minimum, the measurements required in subsection 8.2.5.d. and the following information concerning the injection formation shall be determined for the new Class 1 wells, and submitted to the Director:

8.2.6.a. Fluid pressure;

8.2.6.b. Temperature;

8.2.6.c. Fracture pressure;

8.2.6.d. Other physical and chemical characteristics of the injection matrix;

8.2.6.e. Physical and chemical characteristics of the formation fluids;

8.2.6.f. Compatibility of injected fluids with formation fluids; and

8.2.6.g. Fracture pressure and other physical and chemical characteristics of the confining zones must be recorded.

8.2.7. Information requirements for Class 1 Hazardous Waste Injection Well Permits.

8.2.7.a. The following is required for each active Class 1 hazardous waste injection well at a facility seeking a UIC permit:

8.2.7.a.1. Dates well was operated.

8.2.7.a.2. Specifications of all wastes which have been injected in the well, if available.

8.2.7.b. The owner or operator of any existing facility containing one or more active hazardous waste injection wells must submit all available information pertaining to any release of hazardous waste or constituents from any active hazardous waste injection well at the facility.

8.2.7.c. The owner or operator of any facility containing one or more active Class 1 hazardous waste injection wells must conduct preliminary site investigations as are necessary to determine whether a release is occurring, has occurred, or is likely to have occurred.

8.2.7.d. Permit requirements for hazardous waste wells which inject wastes which can react with the injection formation to generate gases shall include 1) Conditions limiting the temperature, pH or acidity of the injected waste and 2) Procedures necessary to assure that pressure imbalances which might cause a backflow or blowout do not occur.

8.2.8. Hydrogeologic characteristics of the injection zone should be verified through pump or injectivity tests before injection begins. The Director may witness all logging and testing by this Subpart if desired.

8.3. Abandonment of Class 1 Wells.

8.3.1. Class 1 wells shall be abandoned in a manner to be prescribed by the Director under subdivision 14.7.6. At a minimum, the well shall be plugged with cement in a manner which will not allow the movement of fluids either into or between underground sources of drinking water.

8.3.2. Placement of cement plugs shall be accomplished by one of the following:

8.3.2.a. The Balance Method;

8.3.2.b. The Dump Bailer Method;

8.3.2.c. The Two-Plug method; or

8.3.2.d. An alternative method approved by the Director which will reliably provide a comparable level of protection to USDW'S.

8.3.3. Prior to closure, the owner or operator shall observe and record the pressure decay for a time specified by the Director. The Director shall determine whether the injection activity has conformed with predicted values.

8.3.4. Prior to closure, MIT is required to ensure integrity of the long string casing and cement that will be left in the ground. Testing methods may include pressure tests with liquid or gas; radioactive tracer surveys; noise, temperature, pipe evaluation, or cement bond logs; and any other test required by the Director.

8.3.5. Prior to closure, the well shall be flushed with a buffer fluid. Each plug used shall be appropriately tagged and tested for seal and stability before closure is completed.

8.3.6. The well to be abandoned shall be in a state of static equilibrium with the mud weight equalized top to bottom, either by circulating the mud in the well at least once or a comparable method prescribed by the Director, prior to the placement of the cement plug(s).

8.3.7. The owner or operator shall assure, through a performance bond or other appropriate means, the availability of resources necessary for the proper abandonment of the well as required in subdivision 14.7.7.

8.4. Operating, Monitoring, and Reporting Requirements.

8.4.1. Operating Requirements: The Director shall, under subdivision 14.7.3. prescribe requirements governing the operation of injection wells in the permit. Requirements for Class 1 wells shall, at a minimum, specify that:

8.4.1.a. Except during stimulation, injection pressure at the wellhead shall not exceed a maximum which shall be calculated so as to assure that the pressure in the injection zone during injection does not initiate new fractures or propagate existing fractures in the injection zone. In no case shall injection pressure initiate fractures in the confining zone or cause the movement of injection or formation fluids into an underground source of drinking water;

8.4.1.b. Injection between the outermost casing protecting underground sources of drinking water and the well bore is prohibited; and

8.4.1.c. Unless alternative to tubing and packer has been approved, the annulus between the tubing and the long string of casings shall be filled with a fluid approved by the Director and a pressure, also approved by the Director, shall be maintained on the annulus that is greater than the injection pressure.

8.4.1.d. The owner/operator must notify the Director by writing at least 30 days before conducting any workovers.

8.4.2. Monitoring Requirements: The Director shall prescribe requirements for the monitoring of the injection fluids, the injection well, and the underground sources of drinking water that could potentially be affected by the injection. Monitoring requirements shall, at a minimum, include:

8.4.2.a. Testing of the injected fluids with sufficient frequency to yield representative data of its characteristics;

8.4.2.b. Continuous recording devices to monitor injection pressure, temperature, flow rate and volume, and the pressure on the annulus between the tubing and the long strings of casing;

8.4.2.c. Mechanical integrity must be maintained at all times. Demonstration of mechanical integrity at least every 5 years during the life of the well;

8.4.2.d. Type, number and location of wells within the area of review to monitor any migration of fluids into and pressure in the underground sources of drinking water with the parameters to be measured and the frequency of monitoring specified; and

8.4.2.e. The maintenance of the results of required monitoring for at least 3 years.

8.4.2.f. The owner/operator must also install automatic alarms and shut off systems as described in this section, designed to sound and shut-in the well when pressures and flow rates or other parameters approved by the Director exceed a range and/or gradient specified in the permit. If an automatic alarm or shutdown is triggered, the owner or operator shall immediately investigate the cause. If the well appears or is found to be lacking mechanical integrity, the owner or operator shall:

8.4.2.f.1. Cease injection unless authorized by the Director to continue or resume injection;

8.4.2.f.2. Take all necessary steps to determine the presence or absence of a leak; and

8.4.2.f.3. Notify the Director within 24 hours after the alarm or shutdown.

8.4.2.g. Owners/operators must show that well design will not be compromised by adverse reactions between well materials and waste stream. The Director shall require continuous corrosion monitoring of the construction materials in wells injecting corrosive waste, and may require such monitoring for other waste, by placing coupons of the well construction materials in contact with the waste stream; routing the waste stream through a loop constructed with well material; or using an alternative method approved by the Director. If a corrosion monitoring program is required: One, the test shall use materials identical to those used in well’s construction, and such materials must be continuously exposed to the operating pressures and temperatures and flow rates; and Two, the owner or operator shall monitor the materials for loss of mass, thickness, cracking, pitting and other signs of corrosion quarterly.

8.4.2.h. Owners of Class 1 wells injecting hazardous waste shall conduct mechanical integrity testing as follows:

8.4.2.h.1. The long string casing, injection tube, and annular seal shall be tested by an approved pressure test with a liquid or gas annually and whenever there has been a well workover;

8.4.2.h.2. The bottom-hole cement shall be tested by means of an approved radioactive tracer survey annually;

8.4.2.h.3. An approved temperature, noise, or other approved log shall be run at least once every five years to test for movement of fluid along the borehole;

8.4.2.h.4. Casing inspection logs shall be run whenever the owner or operator conducts a workover in which the injection string is pulled, unless the Director waives this requirement due to well construction or other factors which limit the test’s reliability, or based upon the satisfactory results of a casing inspection log run within the previous five years. The Director may require a casing inspection log every five years, if he is concerned about the integrity of the long string casing; and

8.4.2.h.5. Any other test approved by the Director may also be used.

8.4.2.i. Owners shall develop an ambient monitoring program based on an assessment of the potential for fluid movement. At a minimum, the Director shall require monitoring of the pressure buildup in the injection zone annually, including a shut down of the well for a time sufficient to observe the pressure fall-off curve. The Director may also require:

8.4.2.i.1. Continuous monitoring for pressure changes in the first aquifer overlying the confining zone. When such a well is installed, the owner or operator shall, sample the aquifer quarterly and analyze for constituents specified by the Director;

8.4.2.i.2. The use of geophysical techniques to determine the position of the waste front, the water quality in a formation designated by the Director, or to provide other site specific data;

8.4.2.i.3. Periodic monitoring of groundwater quality in the first aquifer overlying the injection zone and in the lowermost USDW;

8.4.2.i.4. Any additional monitoring necessary to determine whether fluids are moving into or between USDWs; and

8.4.2.i.5. The Director may require seismicity monitoring when he has reason to believe that the injection activity may cause seismic disturbances.

8.4.2.j. For Class 1 hazardous waste injection wells, testing and monitoring requirements shall include the following requirements for monitoring of the injected wastes:

8.4.2.j.1. The owner or operator shall develop and follow an approved written waste analysis plan that describes the procedures to be carried out to obtain a detailed chemical and physical analysis of a representative sample of the waste, including the quality assurance procedures used. At a minimum, the plan shall specify:

8.4.2.j.1.A. The parameters for which the waste will be analyzed and the rationale for the selection of these parameters;

8.4.2.j.1.B. The test methods that will be used to test for these parameters; and

8.4.2.j.1.C. The sampling method that will be used to obtain a representative sample of the waste to be analyzed.

8.4.2.j.2. The owner or operator shall repeat the analysis of the injected wastes as described in the waste analysis plan at frequencies specified in the waste analysis plan and when process or operating changes occur that may significantly alter the characteristics of the waste stream.

8.4.2.j.3. The owner or operator shall conduct continuous or periodic monitoring of selected parameters as required by the Director.

8.4.2.j.4. The owner or operator shall assure that the plan remains accurate and the analyses remain representative.

8.4.3. Reporting requirements: The Director shall prescribe the form, manner, content and frequency of reporting by the operator. The operator shall be required to identify the types of tests and methods used to generate the monitoring data. At a minimum, requirements shall include:

8.4.3.a. Quarterly reports to the Director on:

8.4.3.a.1. The physical, chemical, and other relevant characteristics of injection fluids;

8.4.3.a.2. Monthly average, maximum, and minimum values for injection pressure, flow rate and volume, and annular pressure;

8.4.3.a.3. Monitoring of pressure and quality in underground sources of drinking water as prescribed under paragraph 8.4.2.d; and

8.4.3.a.4. Descriptions of any event where operating parameters exceed permit requirements and/or any event that triggered an alarm or shut down device including the response taken.

8.4.3.a.5. The total volume of fluid injected;

8.4.3.a.6. Any change in the annular fluid volume;

8.4.3.b. Reporting with the first quarterly report after the completion of:

8.4.3.b.1. Periodic demonstration of mechanical integrity;

8.4.3.b.2. Any other test of injection well conducted by the permittee if required by the Director; and

8.4.3.b.3. Any well workover results.

8.4.3.c. Written notice to the Director within 30 days after any compliance schedule date whether the permittee has or has not complied with the requirements in question;

8.4.3.d. Immediate reports to the Director of any violation of a permit condition or malfunction of the injection system which may cause fluid migration into or between underground sources of drinking water.

8.5. Information to be Considered by the Director Prior to the Issuance of a Permit.

8.5.1. Prior to the issuance of a permit for an existing or new Class 1 well, the Director shall consider the following information: For an existing Class 1 well the Director may rely on the existing State permit file for those items of information listed below which are current and accurate in the State file. For a new Class 1 well, the Director shall require the submission of all the information listed below. For both existing and new Class 1 wells, paragraphs 8.5.1.c., 8.5.1.d., and 8.5.1.f. of this section may be included in the application by reference if the reference is specific in identifying the maps in question and the maps are readily available to the Director. The following information is required:

8.5.1.a. Any increase in the amount of hazardous waste or change in the type of hazardous waste injected;

8.5.1.b. A map showing the injection well(s) for which a permit is sought and the applicable area of review. Within the area of review, the map must show the number or name, and location of all producing wells, injection wells, abandoned wells, dry holes, surface bodies of water, springs, mines (surface and subsurface), quarries, water wells and other pertinent surface features including residences and roads. The map should also show faults, if known or suspected.

8.5.1.c. A tabulation of data on all wells within the area of review which penetrate into the proposed injection zone and/or confining zone. Such data shall include a description of each well's type, construction, date drilled, location, depth, record of plugging and/or completion, and any additional information on these wells as the Director may require;

8.5.1.c.1. The protocol used to identify all wells within the area of review, and to determine if the wells are properly plugged.

8.5.1.d. Maps and cross sections indicating the general vertical and lateral limits of all underground source of drinking water within the area of review, their position relative to the injection formation and the direction of water movement, where known, in each underground source of drinking water which may be affected by the proposed injection;

8.5.1.e. Maps and cross sections detailing the geologic structure of the local area;

8.5.1.f. Generalized maps and cross sections illustrating the regional geologic setting;

8.5.1.g. Operating data:

8.5.1.g.1. The anticipated average and maximum pressure and flow rate at which the permittee will operate; and

8.5.1.g.2. Source and an analysis of the chemical, physical, radiological and biological characteristics of injection fluids;

8.5.1.h. Formation testing program to obtain analysis of the chemical, physical, and radiological characteristics of and other information on the receiving formation;

8.5.1.h.1. A determination that the geology of the area can be described confidently and that limits of waste fate and transport can be accurately predicted through the use of models.

8.5.1.i. Stimulation program;

8.5.1.j. Injection procedure;

8.5.1.k. Schematic or other appropriate drawings of the surface and subsurface construction details of the well;

8.5.1.l. Contingency plans to cope with all shut-ins or well failures so as to prevent migration of contaminating fluids into any underground source of drinking water;

8.5.1.m. All available logging and testing program data on the well;

8.5.1.n. Plans for meeting the monitoring requirements, including an Ambient monitoring plan. Owners/operators must develop a monitoring plan based on the site-specific assessment of the fluid migration potential. Pressure build up in the injection zone must be monitored annually;

8.5.1.o. For wells within the area of review which penetrate the injection zone and/or confining zone but are not properly completed or plugged, the corrective action proposed to be taken under subsections 6.1 and 14.9;

8.5.1.p. Construction procedures including a cementing and casing program, well materials specifications and their life expectancy, logging procedures, directional survey, and a drilling, testing, and coring program;

8.5.1.q. Feasibility of monitoring permeable strata located between the injection zone and underground sources of drinking water;

8.5.1.r. Compatibility of injected waste with fluids in the injection zone and minerals in both the injection zone and the confining strata including proving that injection fluid will not react with formation fluids and change relevant characteristics if the confining or injection zones so they would no longer meet requirements in 8.5.1.;

8.5.1.s. A certificate that the applicant has assured, through a performance bond or other appropriate means, the resources necessary to close, plug, or abandon the well and for post-closure care under subdivision 8.7, 8.8, 14.7.7. and 8.5.2.;

8.5.1.t. A satisfactory demonstration of mechanical integrity under subdivision 14.7.8. and subsection 6.2.;

8.5.1.u. The calculated area of review;

8.5.1.v. Owner/operator must have certification that the hazardous waste generator has a program to reduce the volume and toxicity of waste stream to the extent economically feasible; and injection of such waste minimizes the present and future threats to human health and the environment; and

8.5.1.w. Such other information as the Director may reasonably require.

8.5.2. Prior to granting approval for the plugging and abandonment of a Class 1 well, the Director shall consider the following information:

8.5.2.a. The type and number of plugs to be used;

8.5.2.b. The placement of each plug including the elevation of the top and bottom;

8.5.2.c. The type and grade and quantity of cement to be used;

8.5.2.d. The method for placement of the plugs;

8.5.2.e. The procedure to be used to meet the requirements of subsection 8.3;

8.5.2.f. Any proposed test or measure to be made;

8.5.2.g. The amount, size, and location (by depth) of casing and any other materials to be left in the well;

8.5.2.h. The method and location where casing is to be parted, if applicable; and

8.5.2.i. The estimated cost of closure.

8.6. Post-Closure Care

8.6.1. The owner or operator of a Class 1 hazardous waste well shall prepare, maintain, and comply with a plan for post-closure care. The obligation to implement the plan survives the termination of a permit or the cessation of injection activities. The requirement to maintain an approved plan is directly enforceable regardless of whether the requirement is a condition of the permit. Any revision to the plan must be submitted no later than the date of the closure report. The plan shall assure financial responsibility. The owner or operator shall submit the plan as a part of the permit application and, upon approval by the Director, such plan shall be a condition of any permit issued. The plan shall include the following information:

8.6.1.a. The pressure in the injection zone before injection began;

8.6.1.b. The anticipated pressure in the injection zone at the time of closure;

8.6.1.c. The predicted time until pressure in the injection zone decays to the point that the well's cone of influence no longer intersects the base of the lowermost USDW;

8.6.1.d. Predicted position of waste front at closure;

8.6.1.e. The status of any cleanups; and

8.6.1.f. The estimated cost of post-closure care.

8.6.1.f.1. The Director may modify the post-closure plan after submission of the closure report following the procedures in subdivision 14.18.

8.6.2. Owners/operators shall:

8.6.2.a. Continue any clean up actions and groundwater monitoring until the cone of influence no longer intersects the base of the lowermost USDW;

8.6.2.b. Retain records for 3 years. The Director shall require the owner or operator to deliver the records to the Director at the conclusion of the retention period, and the records shall thereafter be retained at a location designated by the Director for that purpose;

8.6.2.c. Submit a survey plat to the local zoning authority as well as to the Regional Administrator indicating the location of the well;

8.6.2.d. Notify appropriate State agencies responsible for drilling activities; and

8.6.2.e. Include a note on the property deed that the land was used to manage hazardous waste; the type and volume of waste injected.

8.6.3. Each owner of a Class 1 hazardous waste injection well, and the owner of the property on which the well is located, must record a notation on the deed to the facility property that will in perpetuity provide the following information:

8.6.3.a. The fact that land has been used to manage hazardous waste;

8.6.3.b. The name of the Agency or local authority with which the plat was filed; and

8.6.3.c. The type and volume of waste injected, the injection interval or intervals into which it was injected, and the period over which injection occurred.

8.6.4. The owner/operator must demonstrate and maintain financial responsibility for post-closure care by using a trust fund, surety bond, letter of credit, financial test, insurance or corporate guarantee that meets the specifications for the mechanisms and instruments revised as appropriate to cover closure and post-closure care in 47-13-8.7 and 47-13-8.8. The amount of the funds available shall be no less than the amount identified in subdivision 8.6.1.f. The obligation to maintain financial responsibility for post-closure care survives the termination of a permit or the cessation of injection. This requirement is enforceable regardless of the fact that it is a permit condition.

8.7. Adoption of 40 CFR part 144, subpart f (financial responsibility: Class 1 hazardous waste injection wells):

Except as otherwise provided, the regulations of the United States environmental protection agency set forth in 40 CFR Part 144, Subpart F are hereby incorporated by reference.

8.8. Modifications, Exceptions, and Omissions. Except as otherwise provided, the following modifications, exceptions, and omissions are made to the incorporated federal regulations.

8.8.1. The following term defined in 40 CFR Section 144.61 has the meaning set forth herein, in lieu of the meaning set forth in 40 CFR Section 144.61: “plugging and abandonment plan” means the plan for plugging and abandonment prepared in accordance with the requirements of 47-13-14.7.6.

8.8.2. The following terms not defined in 40 CFR Part 144, Subsection F have the meanings set forth herein when the terms are used in this part:

8.8.2.a. “Administrator,” “regional administrator” and other similar variations means the director of the Division of the Water and Waste Management , Department of Environment Protection, West Virginia or his/her designee;

8.8.2.b. “United States environmental protection agency” or “EPA” means Division of the Water and Waste Management , Department of Environment Protection, West Virginia except when used in 40 CFR Section 144.70(f).

8.8.3. The following provisions of 40 CFR Part 144, Subpart F are modified in 47-13-8.8:

8.8.3.a. Cross references to 40 CFR Part 144 shall be replaced by cross references to 47-13-7 through 47-13-8;

8.8.3.b. The cross reference to Sections 144.28 and 144.51 in Section 144.62(a) shall be replaced by a cross reference to 47-13-14.7.6;

8.8.3.c. References to EPA identification numbers in financial assurance documents shall be replaced by references to API well numbers (US well numbers);

8.8.3.d. Trust agreements prepared in accordance with 40 CFR Section 144.70(a) must state that they will be administered, construed, and enforced according to the laws of West Virginia;

8.8.3.e. The cross references to 40 CFR Parts 264, Subpart H and 265, Subpart H shall be modified to include cross references to 40 CFR Parts 264, Subpart H and 265, Subpart H and 33 CSR 20, sections 33-20-7.5 and 33-20-8.3.

8.8.4. The following provisions of 40 CFR Part 144, Subpart F are omitted from 47-13-8.7,

8.8.4.a. Section 144.65;

8.8.4.b. Section 144.66;

8.8.4.c. The third sentence in 40 CFR Section 144.63(h).

8.9. The Provisions of 40 CFR 148 subpart A and B are hereby adopted and incorporated by reference with modifications, exceptions, and additions set forth in this section.

8.9.1. The following provisions of 40 CFR Part 148, Subparts A and B are excepted from incorporation by reference:

8.9.1.a. Section 148.1(c)(2);

8.9.1.b. Section 148.10(e)(2);

8.9.1.c. Section 148.11(b)(2);

8.9.1.d. Section 148.12(c)(2);

8.9.1.e. Section 148.14(j)(2);

8.9.1.f. Section 148.15(g)(2);

8.9.1.g. Section 148.16(g)(2);

8.9.1.h. Section 148.17(e)(2); and

8.9.1.i. Section 148.18(m)(2).

W. Va. Code R. § 47-13-9 Criteria and Standards Applicable to Class 2 Wells

9.1. General

9.1.1. The criteria and standards applicable to Class 2 wells shall be those which are required pursuant to W. Va. Code §§22-6 et seq. and 22C-9-1 et seq. and the rules thereunder, including W. Va. Code of State Rules §35-4, this rule, and any other requirements that the Director considers reasonably necessary to ensure that no pollution of USDWs occurs.

9.1.2. Owners and operators of Class 2 wells shall obtain permits in accordance with the requirements of this section and section 14 of this rule.

9.2. Construction Requirements.

9.2.1. All new Class 2 wells shall be cased and cemented to prevent the migration of fluids into or between underground sources of drinking water. The casing and cement used in the construction of each newly drilled well shall be designed for the life expectancy of the well. In determining and specifying casing and cementing requirements, the Director shall consider the following factors:

9.2.1.a. Depth to the injection zone;

9.2.1.b. Estimated maximum and average injection pressures; and

9.2.1.c. Depth to the bottom of all USDWs.

9.2.2. Appropriate logs and other tests shall be conducted during the drilling and construction of new Class 2 wells. A descriptive report interpreting the results of such logs and tests shall be prepared by a knowledgeable log analyst and submitted to the Director. The Director may specify, as may be needed, the logs and tests appropriate to each type of Class 2 well based on the intended function, depth, construction and other characteristics of the well, availability of similar data in the area of the drilling site and the need for additional information that may arise from time to time as the construction of the well progresses. At a minimum, such logs and tests to be considered by the Director, may, as appropriate, include:

9.2.2.a. Deviation checks at sufficiently frequent intervals to assure no fluid movement.

9.2.2.b. For surface casing intended to protect underground sources of drinking water:

9.2.2.b.1. Resistivity, spontaneous potential, and caliper logs before the casing is installed; and

9.2.2.b.2. A cement bond, temperature, or density log after casing is set and cemented.

9.2.2.c. For intermediate and long strings of casing intended to facilitate injection:

9.2.2.c.1. Resistivity, spontaneous potential, porosity, and gamma ray logs before the casing is installed;

9.2.2.c.2. Fracture finder logs in appropriate situations as prescribed by the Director; and

9.2.2.c.3. A cement bond, temperature, or density log after the casing is set and cemented.

9.2.3. The following information concerning the injection zone shall be determined or calculated for new Class 2 wells or projects:

9.2.3.a. Fluid pressure;

9.2.3.b. Fracture pressure; and

9.2.3.c. Physical and chemical characteristics of the formation fluids.

9.3. Abandonment of Class 2 Wells.

9.3.1. Class 2 wells shall be abandoned in a manner, prescribed by the Director, under subdivision 14.7.6, and W. Va. Code §22-6 et seq. and the rules thereunder. At a minimum the well shall be plugged with cement in a manner which will not allow movement of fluids either into or between underground sources of drinking water. The Director may allow Class 2 wells to use other plugging materials if he is satisfied that such materials will prevent movement of fluids into or between underground sources of drinking water.

9.3.2. Placement of the cement plugs shall be accomplished by one of the following:

9.3.2.a. The Balance Method;

9.3.2.b. The Dump Bailer Method;

9.3.2.c. The Two-Plug Method; or

9.3.2.d. An alternative method approved by the Director, which will reliably provide a comparable level of protection to underground sources of drinking water.

9.3.3. The well to be abandoned shall be in a state of static equilibrium before plugging commences with the mud weight equalized top to bottom, either by circulating the mud in the well at least once or a comparable method prescribed by the Director, prior to the placement of the cement plug(s).

9.4. Operating, Monitoring, and Reporting Requirements

9.4.1. Operating Requirements: The Director shall prescribe requirements governing the operation of injection wells in the permit. Requirements for Class 2 wells shall, at a minimum, include that:

9.4.1.a. Except during well stimulation the injection pressure at the wellhead shall be calculated so as to assure that the pressure in the injection zone during injection does not initiate new fractures or propagate existing fractures in the injection zone. In no case shall injection pressure initiate fractures in the confining zone or cause the migration of injection or formation fluids into an underground source of drinking water; and

9.4.1.b. Injection between the outermost casing protecting underground sources of drinking water and the well bore shall be prohibited.

9.4.2. Monitoring Requirements:

9.4.2.a. Monitoring of the nature of injected fluids with sufficient frequency to yield representative data on its characteristics. Whenever the injection fluid is modified to the extent that the analysis required by subparagraph 9.5.1.f.2. is incorrect or incomplete, a new analysis shall be provided to the Director;

9.4.2.b. Monitoring of injection pressure, flow rate, and cumulative volume shall be conducted as follows: weekly for produced fluid disposal; monthly for enhanced recovery; daily during the injection of liquid hydrocarbons and injection for withdrawal of stored hydrocarbons; and daily during the injection phase of cyclic steam operations. Recording of one observation of injection pressure, flow rate, and cumulative volume shall be conducted at reasonable intervals not to exceed 30 days.

9.4.2.c. Demonstration of mechanical integrity pursuant to subsection 6.2 shall be conducted at least every 5 years during the life of the Class 2 injection well;

9.4.2.d. Facilities must keep monitoring results until the next permit review; and

9.4.2.e. All Class 2 hydrocarbon storage and enhanced recovery wells may be monitored on a field or project basis rather than an individual well basis by manifold monitoring. Manifold monitoring may be used in cases of facilities consisting of more than one injection well, operating with a common manifold. Separate monitoring systems for each well are not required provided the owner/operator demonstrates that manifold monitoring is comparable to individual well monitoring.

9.5. Information to be Considered by the Director Prior to the Issuance of a Permit.

9.5.1. Prior to the issuance of a permit for an existing or new Class 2 well, the Director shall consider the following information at a minimum. For an existing Class 2 injection operation the Director may rely upon the existing permit file for these items of information listed below which are current and accurate in the State file. For a new Class 2 injection well, the Director shall require the submission of all the information listed below. For both existing and new Class 2 wells, paragraphs 9.5.1.b., 9.5.1.c. and 9.5.1.f. of this section may be included by reference if the maps are specifically identified and readily available to the Director:

9.5.1.a. A map showing the injection well or project area for which a permit is sought and the applicable area of review. Within the area of review, the map must show the number or name and location of all existing producing wells, injection wells, abandoned wells, and water wells. The map should also show surface bodies of water, mines (surface and subsurface), quarries and other pertinent surface features including residence and roads, and faults if known. All new class 2 injection wells shall be sited in such a manner that they inject into a formation which is separated from any USDW by a confining zone that is free of known open faults or fractures within the area of review. Only information of public record and pertinent information known to the applicant is required to be included on this map;

9.5.1.b. Geologic name and depth to bottom of all USDW’s affected by the injection.

9.5.1.c. Maps and cross sections detailing the geologic structure of the local area; and

9.5.1.d. Generalized maps and cross sections illustrating the regional geologic setting.

9.5.1.e. A tabulation of data reasonably available for public records or otherwise known to the applicant on wells within the area of review. Such data shall include a description of each well's type, construction, date drilled, location, depth, record of plugging and completion, and any additional information the Director may require.

9.5.1.f. Operating data:

9.5.1.f.1. The anticipated average and maximum pressure and daily flow rate and injection volumes at which the permittee will operate;

9.5.1.f.2. Characteristics and source of the injection fluid; and

9.5.1.f.3. Geological data on the injection and confining zones.

9.5.1.g. Schematic or other appropriate drawings of the surface and subsurface construction details of the well;

9.5.1.h. The corrective action proposed to be taken under subsection 6.1;

9.5.1.i. A certificate that the applicant has assured, through a performance bond or other appropriate means, the resources necessary to close, plug or abandon the well under subdivision 14.7.7.; and

9.5.1.j. A satisfactory demonstration of mechanical integrity for all new wells as required by subsection 6.2.

W. Va. Code R. § 47-13-10 Criteria and Standards Applicable to Class 3 Wells

10.1. General. This section sets forth requirements for underground injection control programs to regulate Class 3 wells.

10.2. Construction Requirements. The Director shall prescribe requirements for the construction of Class 3 injection wells. Existing wells shall achieve compliance with such requirements according to a specific compliance schedule established by the Director as a condition of the permit. New wells shall be in compliance with construction requirements before injection operations begin. The owner or operator of a proposed injection well shall submit plans for testing, drilling and construction to the Director and obtain the approval of the Director of the initial plans as a condition of the permit. The Director’s approval of any modifications of the plans shall be obtained before incorporating them into the construction of the injection well. At a minimum, such requirements shall specify that:

10.2.1. All new Class 3 wells shall be cased and cemented to prevent the migration of fluids into or between underground sources of drinking water. The Director may waive the cementing requirements for new wells in existing projects or portions of existing projects where he has substantial evidence that no contamination of underground sources of drinking water would result. The casing and cement used in the construction of each newly drilled well shall be designed for the life expectancy of the well. In determining and specifying casing and cementing requirements, the Director shall consider the following factors:

10.2.1.a. Depth to the injection zone;

10.2.1.b. Injection pressure (external pressure, internal pressure, axial loading, etc.);

10.2.1.c. Hole size;

10.2.1.d. Size and grade of all casing strings (wall thickness, diameter, nominal weight, length, joint specification, construction material, etc.);

10.2.1.e. Corrosiveness of injected and formation fluids;

10.2.1.f. Lithology of possible injection and confining zones; and

10.2.1.g. Type and grade of cement.

10.2.2. All parts of Class 3 wells which will come into contact with corrosive fluids (whether injected or in the native environment) shall be constructed of corrosive resistant material.

10.2.3. Appropriate logs and other tests shall be conducted during the drilling and construction of new Class 3 wells. A descriptive report interpreting the results of such logs and tests shall be prepared by a knowledgeable log analyst and submitted to the Director. The Director shall specify the logs and tests appropriate to each type of Class 3 well based on the intended function, depth, construction and other characteristics of the well, availability of similar data in the area of the drilling site and the need for additional information that may arise from time to time as the construction of the well progresses. At a minimum, such logs and tests, shall, as appropriate, include:

10.2.3.a. Deviation checks are conducted on all holes where pilot holes and reaming are used unless the hole will be cased and cemented by circulating cement to the surface. Where deviation checks are necessary, they shall be conducted at sufficiently frequent intervals to assure that vertical avenues for fluid migration in the form of diverging holes are not created during drilling;

10.2.3.b. For surface casing intended to protect underground sources of drinking water:

10.2.3.b.1. Resistivity, spontaneous potential, and caliper logs before the casing is installed; and

10.2.3.b.2. A cement bond, temperature, or density log after casing is set and cemented.

10.2.3.c. For intermediate and long strings of casing intended to facilitate injection:

10.2.3.c.1. Resistivity, spontaneous potential, porosity, and gamma ray logs before the casing is installed;

10.2.3.c.2. Fracture finder logs in appropriate situations as prescribed by the Director; and

10.2.3.c.3. A cement bond, temperature, or density log after the casing is set and cemented.

10.2.4. Where the injection zone is a formation which is naturally water bearing the following information concerning the injection zone shall be determined or calculated for new Class 3 wells or projects:

10.2.4.a. Fluid pressure;

10.2.4.b. Fracture pressure;

10.2.4.c. Physical and chemical characteristics of the formation fluids; and

10.2.4.d. The nature and volume of the injected fluid, the formation water and the process by-products.

10.2.5. Where the injection formation is not a water bearing formation, the information in paragraph 10.2.4.b of this section must be submitted.

10.2.6. Where injection is into a formation which contains water with less than 10,000 mg/l TDS monitoring wells shall be completed into the injection zone and into any underground sources of drinking water above the injection zone which could be affected by the mining operation. These wells shall be located in such a fashion as to detect any excursion of injection fluids, process by-products, or formation fluids outside the mining area or zone. If the operation may be affected by subsidence or catastrophic collapse the monitoring wells shall be located so that they will not be physically affected.

10.2.7. Where injection is into a formation which does not contain water with less than 10,000 mg/1 TDS, no monitoring wells are necessary in the injection stratum.

10.2.8. Where the injection wells penetrate an USDW in an area subject to subsidence or catastrophic collapse an adequate number of monitoring wells shall be completed into the USDW to detect any movement of injected fluids, process by-products or formation fluids into the USDW. The monitoring wells shall be located outside the physical influence of the subsidence or catastrophic collapse.

10.2.9. Determining the number, location, construction and frequency of monitoring of the monitoring wells the following criteria shall be considered:

10.2.9.a. The population relying on the USDW affected or potentially affected by the injection operation;

10.2.9.b. The proximity of the injection operation to points of withdrawal of drinking water;

10.2.9.c. The local geology and hydrology;

10.2.9.d. The operating pressures and whether a negative pressure gradient is being maintained;

10.2.9.e. The nature and volume of the injected fluid, the formation water and the process by-products; and

10.2.9.f. The injection well density.

10.3. Abandonment of Class 3 Wells.

10.3.1. Class 3 wells shall be abandoned in a manner, prescribed by the Director, under subdivision 14.7.6. At a minimum the well shall be plugged with cement in a manner which will not allow movement of fluids either into or between underground sources of drinking water. The Director may allow Class 3 wells to use other plugging materials if he is satisfied that such materials will prevent movement of fluids into or between underground sources of drinking water.

10.3.2. Placement of the cement plugs shall be accomplished by one of the following:

10.3.2.a. The Balance Method;

10.3.2.b. The Dump Bailer Method;

10.3.2.c. The Two-Plug Method; or

10.3.2.d. An alternative method approved by the Director, which will reliably provide a comparable level of protection to underground sources of drinking water.

10.3.3. The well to be abandoned shall be in a state of static equilibrium with the mud weight equalized top to bottom, either by circulating the mud in the well at least once or a comparable method prescribed by the Director, prior to the placement of the cement plug(s).

10.3.4. The owners and operators shall assure, through a performance bond or other appropriate means, the availability of resources necessary for the proper abandonment of the well as required under subdivision 14.7.6.

10.3.5. The plugging and abandonment plan required in subdivision 14.7.6. shall, in the case of a Class 3 project which underlies or is in an aquifer which has been exempted under section 3, also demonstrate adequate protection of USDWs. The Director shall prescribe aquifer cleanup and monitoring where he deems it necessary and feasible to ensure adequate protection of USDWs.

10.4. Operating, Monitoring, and Reporting Requirements

10.4.1. Operating Requirements: The Director shall prescribe requirements governing the operation of injection wells in the permit. Requirements for Class 3 wells shall, at a minimum, include that:

10.4.1.a. Except during well stimulation the injection pressure at the wellhead shall be calculated so as to assure that the pressure in the injection zone during injection does not initiate new fractures or propagate existing fractures in the injection zone. In no case shall injection pressure initiate fractures in the confining zone or cause the migration of injection or formation fluids into an underground source of drinking water; and

10.4.1.b. Injection between the outermost casing protecting underground sources of drinking water and the well bore shall be prohibited.

10.4.2. Monitoring Requirements:

10.4.2.a. Monitoring of the nature of injected fluids with sufficient frequency to yield representative data on its characteristics. Whenever the injection fluid is modified to the extent that the analysis required by subparagraph 10.5.1.f.2 is incorrect or incomplete, a new analysis shall be provided to the Director;

10.4.2.b. Monitoring of injection pressure and either flow rate or volume semi-monthly, or metering and daily recording of injected and produced fluid volumes as appropriate;

10.4.2.c. Demonstration of mechanical integrity pursuant to subsection 6.2 at least every 5 years during the life of the well for salt solution mining;

10.4.2.d. Monitoring of the fluid level in the injection zone semi-monthly, where appropriate and monitoring of the parameters chosen to measure quality of water in the monitoring wells required by subdivision 10.2.6 semi-monthly;

10.4.2.e. Quarterly monitoring of wells required by subdivision 10.2.8; and

10.4.2.f. All Class 3 wells may be monitored on a field or project basis rather than an individual well basis by manifold monitoring. Manifold monitoring may be used in cases of facilities consisting of more than one injection well, operating with a common manifold. Separate monitoring systems for each well are not required provided the owner/operator demonstrates that manifold monitoring is comparable to individual well monitoring.

10.4.3. Reporting Requirements: The Director shall prescribe the form, manner, content, and frequency of reporting by the permittee. The permittee shall be required to identify the types of tests and methods used to generate the monitoring data. At a minimum, requirements shall include:

10.4.3.a. Quarterly monitoring of wells;

10.4.3.b. Results of mechanical integrity and any other periodic test required by the Director reported with the first regular quarterly report after the completion of the test;

10.4.3.c. Written notice to the Director within 30 days of any compliance schedule date of whether the permittee has or has not complied with the requirements in question; and

10.4.3.d. Immediate reports to the Director on any violation of a permit condition or malfunction of the injection system which may cause fluid migration into underground sources of drinking water.

10.5. Information to be Considered by the Director Prior to the Issuance of a Permit.

10.5.1. Prior to the issuance of a permit for an existing or new Class 3 well, the Director shall consider the following information. For an existing Class 3 injection operation the Director may rely upon the existing permit file for these items of information listed below which are current and accurate in the State file. For a new Class 3 injection well, the Director shall require the submission of all the information listed below. For both existing and new Class 3 wells, paragraphs 10.5.1.b., 10.5.1.c., and 10.5.1.f. of this section may be included by reference if the maps are specifically identified and readily available to the Director:

10.5.1.a. A map showing the injection well or project area for which a permit is sought and the applicable area of review. Within the area of review, the map must show the number or name and location of all existing producing wells, injection wells, abandoned wells, dry holes, public water systems and water wells. The map may also show surface bodies of water, mines (surface and subsurface), quarries and other pertinent surface features including residence and roads, and faults if known or suspected. Only information of public record and pertinent information known to the applicant is required to be included on this map;

10.5.1.b. Maps and cross sections indicating the vertical and lateral limits of all underground sources of drinking water within the area of review, their position relative to the injection formation, and the direction of water movement, where known, in every underground source of drinking water which may be affected by the proposed injection;

10.5.1.c. Maps and cross sections detailing the geologic structure of the local area;

10.5.1.d. Generalized maps and cross sections illustrating the regional geologic setting;

10.5.1.e. A tabulation of data reasonably available for public records or otherwise known to the applicant on all wells within the area of review included on the map which penetrate the proposed injection zone. Such data shall include a description of each well's type, construction, date drilled, location, depth, record of plugging and completion, and any additional information the Director may require. In cases where the information may be repetitive and the wells are of similar age, type and construction the Director may elect to only require data on a representative number of wells;

10.5.1.f. Operating data:

10.5.1.f.1. The anticipated average and maximum pressure and flow rate at which the permittee will operate;

10.5.1.f.2. Qualitative analysis and ranges in concentrations of all constituents of injected fluids. The applicant may request confidentiality;

If the information is proprietary an applicant may, in lieu of the ranges in concentrations, choose to submit maximum concentrations which shall not be exceeded. In such a case the applicant shall retain records of the undisclosed concentrations and provide them upon request to the Director as part of any enforcement investigation; and

10.5.1.f.3. An analysis of the physical and chemical characteristics of the formation.

10.5.1.g. Formation testing program;

10.5.1.h. Stimulation program;

10.5.1.i. Injection procedure;

10.5.1.j. Schematic or other appropriate drawings of the surface and subsurface construction details of the well;

10.5.1.k. Plans (including maps) for meeting the monitoring requirements of subdivision 10.4.2;

10.5.1.l. Expected changes in pressure, native fluid displacement, direction of movement of injection fluid;

10.5.1.m. Contingency plans to cope with all shut-ins or well failures so as to prevent the migration of contaminating fluids into underground sources of drinking water;

10.5.1.n. All available logging and testing data on the well;

10.5.1.o. The corrective action proposed to be taken under subsection 6.1;

10.5.1.p. A certificate that the applicant has assured, through a performance bond or other appropriate means, the resources necessary to close, plug or abandon the well under subdivision 14.7.6.; and

10.5.1.q. A satisfactory demonstration of mechanical integrity for all new wells and for all existing salt solution wells as required by subsection 6.2.

10.5.2. Prior to granting approval for the plugging and abandonment of a Class 3 well the Director shall consider the following information:

10.5.2.a. The type and number of plugs to be used;

10.5.2.b. The placement of each plug including the elevation of the top and bottom;

10.5.2.c. The type, grade and quantity of cement to be used;

10.5.2.d. The method of placement of the plugs; and

10.5.2.e. The procedure to be used to meet the requirements of subsection 10.3.

W. Va. Code R. § 47-13-11 Criteria and Standards Applicable to Class 4 Wells

11.1. General.

11.1.1. This section sets forth criteria and standards for underground injection control programs to regulate wells, including non-residential septic system wells, used by generators of hazardous wastes or owners and operators of hazardous waste management facilities to inject into or above strata that contain an underground source of drinking water.

11.1.2. All new Class 4 wells are prohibited.

11.2. Notification by Owners and Operators. The owner or operator of an existing Class 4 well shall submit to the Director:

11.2.1. Notice of the existence of any Class 4 well under his control; and

11.2.2. Information regarding the well.

11.3. Closure of Class 4 Wells.

11.3.1. The operation of any existing Class 4 well shall be prohibited 6 months after the effective date of this rule.

11.3.2. In determining the enforcement strategy and time allowed for closure, the Director shall consider the following criteria:

11.3.2.a. Population relying on the underground source of drinking water affected or potentially affected by the injection;

11.3.2.b. Local geology and hydrology;

11.3.2.c. Toxicity and volume of injected fluid; and

11.3.2.d. Injection well density.

11.3.3. The owners or operators of Class 4 wells shall be notified by certified mail of the time by which closure must be accomplished as decided upon by the Director and, if appropriate, of a compliance schedule leading to closure.

11.3.4. Nothing in this section is intended to limit the Director in taking immediate action necessary to protect the health of persons.

11.3.5. Class 4 Wells should not be in operation unless as part of an EPA administered program. Therefore, closure shall follow federal rules 40 CFR 144.23.

11.4. Monitoring and Reporting Requirements. The Director shall prescribe monitoring and reporting requirements for existing Class 4 wells while they are operating.

11.4.1. Monitoring requirements shall, at a minimum include:

11.4.1.a. Record keeping as required in W. Va. Code §22-18 and rules thereunder.

11.4.1.b. Weekly monitoring of existing water supply wells in the vicinity for parameters based upon the characteristics of the injection fluids.

11.4.1.c. Maintenance of the results of monitoring under subdivision 14.6.2. and paragraph 14.12.10.b.

11.4.2. Reporting requirements shall prescribe the form, manner, content and frequency of reports to the Director. The permittee shall be required to identify the types of tests and methods used to generate the monitoring data. At a minimum, the requirements shall include:

11.4.2.a. Quarterly reporting of the results of monitoring required under subdivision 11.4.1 of this section;

11.4.2.b. Immediate notification to the Director of any change in the concentration of any parameter measured at an existing water supply well; and

11.4.2.c. Written notification to the Director within 30 days after any compliance schedule date of whether the owner or operator has or has not complied with the requirements in question.

W. Va. Code R. § 47-13-12 Criteria and Standards Applicable to Class 5 Injection Wells

12.1. General. This section sets forth requirements for underground injection control programs to regulate all injection not regulated in sections 8, 9, 10, 11, and 13. Generally, wells covered in this section inject non-hazardous fluids into strata that contain underground sources of drinking water. It includes, but is not limited to, the following types of injection wells: Waste disposal wells, such as drainage wells, cooling water return flow wells, air conditioning return flow wells, salt water barrier wells and subsidence control wells (not associated with oil and gas production).

12.1.1. All new large capacity cesspools are prohibited.

12.1.2. All existing large capacity cesspools must be closed by April 5, 2005.

12.1.3. All new motor vehicle waste disposal wells are prohibited.

12.1.4. All existing motor vehicle waste disposal wells must be closed by January 1, 2005, or operated in compliance with Section 14.1.2. and 4 of this rule such that the Director will require wells to be permitted and maintained.

12.1.5. Applicants for permits for existing MVWDWs must meet MCLs at the point of injection while the permit application is under review. If a permit is issued for a MVWDW, the permittee must comply with permit requirements including requirements to meet MCLs and other health-based standards at the point of injection.

12.2. Inventory and Assessment.

12.2.1. The owner or operator of any Class 5 well shall within 1 year of the effective date of this rule notify the Director of the existence of any well meeting the definition of Class 5 under his control, and submit a description of:

12.2.1.a. The construction features of the well;

12.2.1.b. The nature and volume of injected fluids;

12.2.1.c. The alternative means of disposal available to the operator;

12.2.1.d. The environmental and economic consequences of well disposal and its alternatives;

12.2.1.e. Facility name and location;

12.2.1.f. Name and address of legal contact;

12.2.1.g. Ownership of facility;

12.2.1.h. Nature and type of injection wells; and

12.2.1.i. Operating status of injection wells.

12.3. Requirement. If at any time the Director gains knowledge of a Class 5 well which presents a significant risk to the health of persons, he/she shall prescribe such action as necessary (including the immediate closure of the injection well) to remove such risk.

12.4. Wells Regulated by Rule and Permit.

12.4.1. Certain Class 5 wells may be authorized by rule pursuant to subsection 14.2. unless the Director requires an individual permit.

12.4.2. Information to be considered by the Director prior to issuance of a permit.

W. Va. Code R. § 47-13-13 Criteria and Standards Applicable to Class 6 Wells

13.1. General. This section sets forth requirements for underground injection control programs to regulate Class 6 carbon dioxide geologic sequestration wells. This section establishes criteria and standards for underground injection control programs to regulate any Class 6 carbon dioxide geologic sequestration injection wells, for long-term containment of a gaseous, liquid, or supercritical carbon dioxide stream in subsurface geologic formations.

13.1.1. This subpart also applies to owners or operators of permit or rule-authorized Class 1, Class 2, or Class 5 experimental carbon dioxide injection projects who seek to apply for a Class 6 geologic sequestration permit for their well or wells. Owners or operators seeking to convert existing Class 1, Class 2, or Class 5 experimental wells to Class 6 geologic sequestration wells must demonstrate to the Director that the wells were engineered and constructed to meet the requirements at subsection 13.3.1.and ensure protection of USDWs, in lieu of requirements at subsection 13.3.2., 13.3.2.a., and 13.5. By December 10, 2011, owners, or operators of either Class 1 wells previously permitted for the purpose of geologic sequestration or Class 5 experimental technology wells no longer being used for experimental purposes that will continue injection of carbon dioxide for the purpose of GS must apply for a Class 6 permit. A converted well must still meet all other requirements under section 13-13.

13.1.1.a. The construction, operation or maintenance of any non-experimental Class 5 geologic sequestration well is prohibited.

13.1.1.b. Owners or operators of Class 6 wells must obtain a permit. Class 6 wells cannot be authorized by the rule to inject carbon dioxide.

13.1.2. Existing well means a Class 6 well which was authorized prior to August 25, 1988, or a well which has become a Class 6 well as a result of a change in the definition of the injected waste into a hazardous waste.

13.1.3. Transitioning to a Class 6 Well from a Class 2 Well. Owners or operators that are injecting carbon dioxide for the primary purpose of long-term storage into an oil and gas reservoir must apply for and obtain a Class 6 geologic sequestration permit when there is an increased risk to USDWs compared to Class 2 operations. In determining if there is an increased risk to USDWs, the owner or operator as well as the Director must consider:

13.1.3.a. Increase in reservoir pressure within the injection zone(s);

13.1.3.b. Increase in carbon dioxide injection rates;

13.1.3.c. Decrease in reservoir production rates;

13.1.3.d. Distance between the injection zone(s) and USDWs;

13.1.3.e. Suitability of the Class 2 area of review delineation;

13.1.3.f. Quality of abandoned well plugs within the area of review;

13.1.3.g. The owner’s or operator’s plan for recovery of carbon dioxide at the cessation of injection;

13.1.3.h. The source and properties of injected carbon dioxide; and

13.1.3.i. Any additional site-specific factors as determined by the Director.

13.2. Minimum Criteria for Siting.

13.2.1. Owners or operators of Class 6 wells must demonstrate to the satisfaction of the Director that the wells will be sited in areas with a suitable geologic system. The owners or operators must demonstrate that the geologic system comprises:

13.2.1.a. An injection zone(s) of sufficient areal extent, thickness, porosity, and permeability to receive the total anticipated volume of the carbon dioxide stream;

13.2.1.b. Confining zone(s) free of transmissive faults or fractures and of sufficient areal extent and integrity to contain the injected carbon dioxide stream and displaced formation fluids and allow injection at proposed maximum pressures and volumes without initiating or propagating fractures in the confining zone(s).

13.2.2. The Director may require owners or operators of Class 6 wells to identify and characterize additional zones that will impede vertical fluid movement, are free of faults and fractures that may interfere with containment, allow for pressure dissipation, and provide additional opportunities for monitoring, mitigation, and remediation.

13.3. Construction Requirements. The Director shall prescribe requirements for the construction of Class 6 injection wells. Existing wells shall achieve compliance with such requirements according to a specific compliance schedule established by the Director as a condition of the permit. New wells shall be in compliance with construction requirements before injection operations begin. The owner or operator of a proposed injection well shall submit plans to the Director for testing, drilling, and construction and obtain the approval of the initial plans as a condition of the permit. The Director’s approval of any modifications of the plan shall be obtained before incorporating them into the construction of the injection well. At a minimum, such requirements shall prescribe that:

13.3.1. Each Class 6 well is constructed and completed to:

13.3.1.a. Prevent the movement of fluids into or between USDWs or into any unauthorized zones;

13.3.1.b. Permit the use of appropriate testing devices and workover tools; and

13.3.1.c. Permit continuous monitoring of the annulus space between the injection tubing and long string casing.

13.3.2. Casing and cementing of Class 6 wells.

13.3.2.a. Casing and cement or other materials used in the construction of each Class 6 well must have sufficient structural strength and be designed for the life of the geologic sequestration project. All well materials must be compatible with fluids with which the materials may be expected to come into contact and must meet or exceed standards developed for such materials by the American Petroleum Institute, ASTM International, or comparable standards acceptable to the Director. The casing and cementing program must be designed to prevent the movement of fluids into or between USDWs. In order to allow the Director to determine and specify casing and cementing requirements, the owner or operator must provide the following information:

13.3.2.a.1. Depth to the injection zone(s);

13.3.2.a.2. Injection pressure, external pressure, internal pressure, and axial loading;

13.3.2.a.3. Hole size;

13.3.2.a.4. Size and grade of all casing strings (wall thickness, external diameter, nominal weight, length, joint specification, and construction material);

13.3.2.a.5. Corrosiveness of the carbon dioxide stream and formation fluids;

13.3.2.a.6. Down-hole temperatures;

13.3.2.a.7. Lithology of injection and confining zone(s);

13.3.2.a.8. Type or grade of cement and cement additives; and

13.3.2.a.9. Quantity, chemical composition, and temperature of the carbon dioxide stream.

13.3.2.b. Surface casing must extend through the base of the lowermost USDW and be cemented to the surface through the use of a single or multiple strings of casing and cement.

13.3.2.c. At least one long string casing, using a sufficient number of centralizers, must extend to the injection zone and must be cemented by circulating cement to the surface in one or more stages.

13.3.2.d. Circulation of cement may be accomplished by staging. The Director may approve an alternative method of cementing in cases where the cement cannot be recirculated to the surface, provided the owner or operator can demonstrate by using logs that the cement does not allow fluid movement behind the well bore.

13.3.2.e. Cement and cement additives must be compatible with the carbon dioxide stream and formation fluids and of sufficient quality and quantity to maintain integrity over the design life of the geologic sequestration project. The integrity and location of the cement shall be verified using technology capable of evaluating cement quality radially and identifying the location of channels to ensure that USDWs are not endangered.

13.3.3. Tubing and packer.

13.3.3.a. Tubing and packer materials used in the construction of each Class 6 well must be compatible with fluids with which the materials may be expected to come into contact and must meet or exceed standards developed for such materials by the American Petroleum Institute, ASTM International, or comparable standards acceptable to the Director.

13.3.3.b. All owners or operators of Class 6 wells must inject fluids through tubing with a packer set at a depth opposite a cemented interval at the location approved by the Director.

13.3.3.c. In order for the Director to determine and specify requirements for tubing and packer, the owner or operator must submit the following information:

13.3.3.c.1. Depth of setting;

13.3.3.c.2. Characteristics of the carbon dioxide stream (chemical content, corrosiveness, temperature, and density) and formation fluids;

13.3.3.c.3. Maximum proposed injection pressure;

13.3.3.c.4. Maximum proposed annular pressure;

13.3.3.c.5. Proposed injection rate (intermittent or continuous) and volume and/or mass of the carbon dioxide stream;

13.3.3.c.6. Size of tubing and casing; and

13.3.3.c.7. Tubing tensile, burst, and collapse strengths.

13.4. Abandonment of Class 6 Wells. Owners and operators shall abandon Class 6 wells in a manner to be prescribed by the Director under sub-division 14.7.6., in addition to the following:

13.4.1. Prior to the well plugging, the owner or operator must flush each Class 6 injection well with a buffer fluid, determine bottomhole reservoir pressure, and perform a final external mechanical integrity test.

13.4.2. Well plugging plan. The owner or operator of a Class 6 well must prepare, maintain, and comply with a plan that is acceptable to the Director. The requirement to maintain and implement an approved plan is directly enforceable regardless of whether the requirement is a condition of the permit. The well plugging plan must be submitted as part of the permit application and must include the following information:

13.4.2.a. Appropriate tests or measures for determining bottomhole reservoir pressure;

13.4.2.b. Appropriate testing methods to ensure external mechanical integrity as specified in section 6.2;

13.4.2.c. The type and number of plugs to be used;

13.4.2.d. The placement of each plug, including the elevation of the top and bottom of each plug;

13.4.2.e. The type, grade, and quantity of material to be used in plugging. The material must be compatible with the carbon dioxide stream; and

13.4.2.f. The method of placement of the plugs.

13.4.3. Notice of intent to plug. The owner or operator must notify the Director in writing pursuant to subsection 13.6.3.a.5., at least 60 days before plugging of a well. At this time, if any changes have been made to the original well plugging plan, the owner or operator must also provide the revised well plugging plan. The Director may allow for a shorter notice period. Any amendments to the injection well plugging plan must be approved by the Director, must be incorporated into the permit, and are subject to the permit modification requirements at sections 14.18 and 14.20 of this rule, as appropriate.

13.4.4. Plugging report. Within 60 days after plugging, the owner or operator must submit, pursuant to subsection 13.6.3.a.5., a plugging report to the Director. The report must be certified as accurate by the owner or operator and by the person who performed the plugging operation (if other than the owner or operator). The owner or operator shall retain the well plugging report for 10 years following site closure.

13.5. Logging, Sampling, and Testing Prior to Injection Well Operation.

13.5.1. During the drilling and construction of a Class 6 injection well, the owner or operator must run appropriate logs, surveys and tests to determine or verify the depth, thickness, porosity, permeability, and lithology of, and the salinity of any formation fluids in all relevant geologic formations to ensure conformance with the injection well construction requirements under section 13.3 and to establish accurate baseline data against which future measurements may be compared. The owner or operator must submit to the Director a descriptive report prepared by a knowledgeable log analyst that includes an interpretation of the results of such logs and tests. At a minimum, such logs and tests must include:

13.5.1.a. Deviation checks during drilling on all holes constructed by drilling a pilot hole which is enlarged by reaming or another method. Such checks must be at sufficiently frequent intervals to determine the location of the borehole and to ensure that vertical avenues for fluid movement in the form of diverging holes are not created during drilling; and

13.5.1.b. Before and upon installation of the surface casing:

13.5.1.b.1. Resistivity, spontaneous potential, and caliper logs before the casing is installed; and

13.5.1.b.2. A cement bond and variable density log to evaluate cement quality radially, and a temperature log after the casing is set and cemented.

13.5.1.c. Before and upon installation of the long string casing:

13.5.1.c.1. Resistivity, spontaneous potential, porosity, caliper, gamma ray, fracture finder logs, and any other logs the Director requires for the given geology before the casing is installed; and

13.5.1.c.2. A cement bond and variable density log, and a temperature log after the casing is set and cemented.

13.5.1.d. A series of tests designed to demonstrate the internal and external mechanical integrity of injection wells, which may include:

13.5.1.d.1. A pressure test with liquid or gas;

13.5.1.d.2. A tracer survey such as oxygen-activation logging;

13.5.1.d.3. A temperature or noise log;

13.5.1.d.4. A casing inspection log; and

13.5.1.e. Any alternative methods that provide equivalent or better information and that are required by and/or approved of by the Director.

13.5.2. The owner or operator must take whole cores or sidewall cores of the injection zone and confining system and formation fluid samples from the injection zone(s) and must submit to the Director a detailed report prepared by a log analyst that includes: Well log analyses (including well logs), core analyses, and formation fluid sample information. The Director may accept information on cores from nearby wells if the owner or operator can demonstrate that core retrieval is not possible and that such cores are representative of conditions at the well. The Director may require the owner or operator to core other formations in the borehole.

13.5.3. The owner or operator must record the fluid temperature, pH, conductivity, reservoir pressure, and static fluid level of the injection zone(s). 13.5.4 At a minimum, the owner or operator must determine or calculate the following information concerning the injection and confining zone(s):

13.5.4.a. Fracture pressure;

13.5.4.b. Other physical and chemical characteristics of the injection and confining zone(s); and

13.5.4.c. Physical and chemical characteristics of the formation fluids in the injection zone(s).

13.5.5. Upon completion, but prior to operation, the owner or operator must conduct the following tests to verify hydrogeologic characteristics of the injection zone(s):

13.5.5.a. A pressure fall-off test; and,

13.5.5.b. A pump test; or

13.5.5.c. Injectivity tests.

13.5.6. The owner or operator must provide the Director with the opportunity to witness all logging and testing by this subpart. The owner or operator must submit a schedule of such activities to the Director 30 days prior to conducting the first test and submit any changes to the schedule 30 days prior to the next scheduled test.

13.6. Operating, Monitoring, and Reporting Requirements.

13.6.1. Operating Requirements: The Director shall, under subdivision 14.7.3., prescribe requirements governing the operation of injection wells in the permit. Requirements for Class 6 wells shall, at a minimum, specify that:

13.6.1.a. Except during stimulation, the owner or operator must ensure that injection pressure does not exceed 90 percent of the fracture pressure of the injection zone(s) so as to ensure that the injection does not initiate new fractures or propagate existing fractures in the injection zone(s). In no case may injection pressure initiate fractures in the confining zone(s) or cause the movement of injection or formation fluids that endangers a USDW. Pursuant to requirements at subsection 13.8.1.i., all stimulation programs must be approved by the Director as part of the permit application and incorporated into the permit.

13.6.1.b. Injection between the outermost casing protecting underground sources of drinking water and the well bore is prohibited; and

13.6.1.b.1. The owner or operator must fill the annulus between the tubing and the long string casing with a non-corrosive fluid approved by the Director. The owner or operator must maintain on the annulus a pressure that exceeds the operating injection pressure, unless the Director determines that such requirement might harm the integrity of the well or endanger USDWs.

13.6.1.c. Other than during periods of well workover (maintenance) approved by the Director in which the sealed tubing-casing annulus is disassembled for maintenance or corrective procedures, the owner or operator must maintain mechanical integrity of the injection well at all times.

13.6.1.d. The owner or operator must install and use:

13.6.1.d.1. Continuous recording devices to monitor: The injection pressure; the rate, volume and/or mass, and temperature of the carbon dioxide stream; and the pressure on the annulus between the tubing and the long string casing and annulus fluid volume; and

13.6.1.d.2. Alarms and automatic surface shut-off systems or, at the discretion of the Director, down-hole shut-off systems (e.g., automatic shut-off, check valves) for onshore wells or, other mechanical devices that provide equivalent protection; and

13.6.1.d.3. Alarms and automatic down-hole shut-off systems for wells located offshore but within State territorial waters, designed to alert the operator and shut-in the well when operating parameters such as annulus pressure, injection rate, or other parameters diverge beyond permitted ranges and/or gradients specified in the permit.

13.6.1.e. If a shutdown (i.e., down-hole or at the surface) is triggered or a loss of mechanical integrity is discovered, the owner or operator must immediately investigate and identify as expeditiously as possible the cause of the shutoff. If, upon such investigation, the well appears to be lacking mechanical integrity, or if monitoring required under paragraph (e) of this section otherwise indicates that the well may be lacking mechanical integrity, the owner or operator must:

13.6.1.e.1. Immediately cease injection;

13.6.1.e.2. Take all steps reasonably necessary to determine whether there may have been a release of the injected carbon dioxide stream or formation fluids into any unauthorized zone;

13.6.1.e.3. Notify the Director within 24 hours;

13.6.1.e.4. Restore and demonstrate mechanical integrity to the satisfaction of the Director prior to resuming injection; and

13.6.1.e.5. Notify the Director when injection can be expected to resume.

13.6.2. Testing and monitoring requirements. The owner or operator of a Class 6 well must prepare, maintain, and comply with a testing and monitoring plan to verify that the geologic sequestration project is operating as permitted and is not endangering USDWs. The requirement to maintain and implement an approved plan is directly enforceable regardless of whether the requirement is a condition of the permit. The testing and monitoring plan must be submitted with the permit application, for Director approval, and must include a description of how the owner or operator will meet the requirements of this section, including accessing sites for all necessary monitoring and testing during the life of the project. Testing and monitoring associated with geologic sequestration projects must, at a minimum, include:

13.6.2.a. Analysis of the carbon dioxide stream with sufficient frequency to yield data representative of its chemical and physical characteristics;

13.6.2.b. Installation and use, except during well workovers as defined in subsection 13.6.1.c., of continuous recording devices to monitor injection pressure, rate, and volume; the pressure on the annulus between the tubing and the long string casing; and the annulus fluid volume added;

13.6.2.c. Corrosion monitoring of the well materials for loss of mass, thickness, cracking, pitting, and other signs of corrosion, which must be performed on a quarterly basis to ensure that the well components meet the minimum standards for material strength and performance set forth in subsection 13.3.2. and 13.3.2.a., by:

13.6.2.c.1. Analyzing coupons of the well construction materials placed in contact with the carbon dioxide stream; or

13.6.2.c.2. Routing the carbon dioxide stream through a loop constructed with the material used in the well and inspecting the materials in the loop; or

13.6.2.c.3. Using an alternative method approved by the Director;

13.6.2.d. Periodic monitoring of the groundwater quality and geochemical changes above the confining zone(s) that may be a result of carbon dioxide movement through the confining zone(s) or additional identified zones including:

13.6.2.d.1. The location and number of monitoring wells based on specific information about the geologic sequestration project, including injection rate and volume, geology, the presence of artificial penetrations, and other factors; and

13.6.2.d.2. The monitoring frequency and spatial distribution of monitoring wells based on baseline geochemical data that has been collected under subsection 13.8.1.f. and on any modeling results in the area of review evaluation required by subsection 14.9.3.

13.6.2.e. A demonstration of external mechanical integrity pursuant to subsection 6.2.3. at least once per year until the injection well is plugged; and, if required by the Director, a casing inspection log pursuant to requirements at subsection 6.2.3.e.1. at a frequency established in the testing and monitoring plan;

13.6.2.f. A pressure fall-off test at least once every 5 years unless more frequent testing is required by the Director based on site-specific information;

13.6.2.g. Testing and monitoring to track the extent of the carbon dioxide plume and the presence or absence of elevated pressure (e.g., the pressure front) by using:

13.6.2.g.1. Direct methods in the injection zone(s); and,

13.6.2.g.2. Indirect methods (e.g., seismic, electrical, gravity, or electromagnetic surveys and/or down-hole carbon dioxide detection tools), unless the Director determines, based on site-specific geology, that such methods are not appropriate;

13.6.2.h. The Director may require surface air monitoring and/or soil gas monitoring to detect movement of carbon dioxide that could endanger a USDW.

13.6.2.h.1. Design of Class 6 surface air and/or soil gas monitoring must be based on potential risks to USDWs within the area of review;

13.6.2.h.2. The monitoring frequency and spatial distribution of surface air monitoring and/or soil gas monitoring must be decided using baseline data, and the monitoring plan must describe how the proposed monitoring will yield useful information on the area of review delineation and/or compliance with standards under § 47 CSR 13-14.1.;

13.6.2.h.3. If an owner or operator demonstrates that monitoring employed under 40 CFR 98.440 to 98.449 of this chapter (Clean Air Act, 42 U.S.C. 7401 et seq.) accomplishes the goals of 13.6.2.h.1., and 13.6.2.h.2 above, and meets the requirements pursuant to 13.6.3.a.3.E., a Director that requires surface air/soil gas monitoring must approve the use of monitoring employed under 40 CFR 98.440 to 98.449 of this chapter. Compliance with 40 CFR 98.440 to 98.449 of this chapter pursuant to this provision is considered a condition of the Class 6 permit;

13.6.2.i. Any additional monitoring, as required by the Director, necessary to support, upgrade, and improve computational modeling of the area of review evaluation required under subsection 14.9.3. and to determine compliance with standards under section 14.1 of this rule;

13.6.2.j. The owner or operator shall periodically review the testing and monitoring plan to incorporate monitoring data collected under this subpart, operational data collected under section 13.6., and the most recent area of review reevaluation performed under subsection 14.9.5. In no case shall the owner or operator review the testing and monitoring plan less often than once every five years. Based on this review, the owner or operator shall submit an amended testing and monitoring plan or demonstrate to the Director that no amendment to the testing and monitoring plan is needed. Any amendments to the testing and monitoring plan must be approved by the Director, must be incorporated into the permit, and are subject to the permit modification requirements at sections 14.8 and 14.20 of this rule, as appropriate. Amended plans or demonstrations shall be submitted to the Director as follows:

13.6.2.j.1. Within one year of an area of review reevaluation;

13.6.2.j.2. Following any significant changes to the facility, such as addition of monitoring wells or newly permitted injection wells within the area of review, on a schedule determined by the Director; or

13.6.2.j.3. When required by the Director.

13.6.2.k. A quality assurance and surveillance plan for all testing and monitoring requirements.

13.6.3. Reporting requirements: The Director shall prescribe the form, manner, content, and frequency of reporting by the operator. The operator shall be required to identify the types of tests and methods used to generate the monitoring data. At a minimum, requirements shall include:

13.6.3.a. The owner or operator must, at a minimum, provide, as specified in 13.6.3.a.5., the following reports to the Director, for each permitted Class 6 well:

13.6.3.a.1. Semi-annual reports containing:

13.6.3.a.1.A. Any changes to the physical, chemical, and other relevant characteristics of the carbon dioxide stream from the proposed operating data;

13.6.3.a.1.B. Monthly average, maximum, and minimum values for injection pressure, flow rate and volume, and annular pressure;

13.6.3.a.1.C. A description of any event that exceeds operating parameters for annulus pressure or injection pressure specified in the permit;

13.6.3.a.1.D. A description of any event which triggers a shut-off device required pursuant to subsection 13.6.1.d. and the response taken;

13.6.3.a.1.E. The monthly volume and/or mass of the carbon dioxide stream injected over the reporting period and the volume injected cumulatively over the life of the project;

13.6.3.a.1.F. Monthly annulus fluid volume added; and

13.6.3.a.1.G. The results of monitoring prescribed under subsection 13.6.2.

13.6.3.a.2. Report, within 30 days, the results of:

13.6.3.a.2.A. Periodic tests of mechanical integrity;

13.6.3.a.2.B. Any well workover; and,

13.6.3.a.2.C. Any other test of the injection well conducted by the permittee if required by the Director.

13.6.3.a.3. Report, within 24 hours:

13.6.3.a.3.A. Any evidence that the injected carbon dioxide stream or associated pressure front may cause an endangerment to a USDW;

13.6.3.a.3.B. Any noncompliance with a permit condition, or malfunction of the injection system, which may cause fluid migration into or between USDWs;

13.6.3.a.3.C. Any triggering of a shut-off system (i.e., down-hole or at the surface);

13.6.3.a.3.D. Any failure to maintain mechanical integrity; or.

13.6.3.a.3.E. Pursuant to compliance with the requirement at subsection 13.6.2.h for surface air/soil gas monitoring or other monitoring technologies, if required by the Director, any release of carbon dioxide to the atmosphere or biosphere.

13.6.3.a.4. Owners or operators must notify the Director in writing 30 days in advance of:

13.6.3.a.4.A. Any planned well workover;

13.6.3.a.4.B. Any planned stimulation activities, other than stimulation for formation testing conducted under subsection 13.8.3.d., and

13.6.3.a.4.C. Any other planned test of the injection well conducted by the permittee.

13.6.3.a.5. Regardless of whether a State has primary enforcement responsibility, owners or operators must submit all required reports, submittals, and notifications under subpart H of 40 CFR 146 to EPA in an electronic format approved by EPA.

13.6.3.a.6. Records shall be retained by the owner or operator as follows:

13.6.3.a.6.A. All data collected under §47-13-13.8 for Class permit applications shall be retained throughout the life of the geologic sequestration project and for 10 years following site closure.

13.6.3.a.6.B. Data on the nature and composition of all injected fluids collected pursuant to subsection 13.6.2.a. shall be retained until 10 years after site closure. The Director may require the owner or operator to deliver the records to the Director at the conclusion of the retention period.

13.6.3.a.6.C. Monitoring data collected pursuant to subsections 13.6.2.b. through 13.6.2.i. shall be retained for 10 years after it is collected.

13.6.3.a.6.D. Well plugging reports, post-injection site care data, including, if appropriate, data and information used to develop the demonstration of the alternative post-injection site care timeframe, and the site closure report collected pursuant to requirements at subsections 13.9.6. and 13.9.8. shall be retained for 10 years following site closure.

13.6.3.a.6.E. The Director has authority to require the owner or operator to retain any records required in this subpart for longer than 10 years after site closure.

13.7. Emergency and Remedial Response.

13.7.1. As part of the permit application, the owner or operator must provide the Director with an emergency and remedial response plan that describes actions the owner or operator must take to address movement of the injection or formation fluids that may cause an endangerment to a USDW during construction, operation, and post-injection site care periods. The requirement to maintain and implement an approved plan is directly enforceable regardless of whether the requirement is a condition of the permit.

13.7.2. If the owner or operator obtains evidence that the injected carbon dioxide stream and associated pressure front may cause an endangerment to a USDW, the owner or operator must:

13.7.2.a. Immediately cease injection;

13.7.2.b. Take all steps reasonably necessary to identify and characterize any release;

13.7.2.c. Notify the Director within 24 hours; and

13.7.2.d. Implement the emergency and remedial response plan approved by the Director.

13.7.3. The Director may allow the operator to resume injection prior to remediation if the owner or operator demonstrates that the injection operation will not endanger USDWs.

13.7.4. The owner or operator shall periodically review the emergency and remedial response plan developed under paragraph (a) of this section. In no case shall the owner or operator review the emergency and remedial response plan less often than once every 5 years. Based on this review, the owner or operator shall submit an amended emergency and remedial response plan or demonstrate to the Director that no amendment to the emergency and remedial response plan is needed. Any amendments to the emergency and remedial response plan must be approved by the Director, must be incorporated into the permit, and are subject to the permit modification requirements at sections 14.8 and 14.20 of this rule, as appropriate. Amended plans or demonstrations shall be submitted to the Director as follows:

13.7.4.a. Within one year of an area of review reevaluation;

13.7.4.b. Following any significant changes to the facility, such as addition of injection or monitoring wells, on a schedule determined by the Director; or

13.7.4.c. When required by the Director.

13.8. Required Class 6 Permit Information.

13.8.1. Prior to the issuance of a permit for the construction of a new Class 6 well or the conversion of an existing Class 1, Class 2, or Class 5 well to a Class 6 well, the owner or operator shall submit, pursuant to 13.6.3.a.5., and the Director shall consider the following:

13.8.1.a. Information required in section 10.4. of this rule;

13.8.1.b. A map showing the injection well for which a permit is sought and the applicable area of review consistent with section 5.4. and subsection 14.9.2.e. Within the area of review, the map must show the number or name, and location of all injection wells, producing wells, abandoned wells, plugged wells or dry holes, deep stratigraphic boreholes, State- or EPA-approved subsurface cleanup sites, surface bodies of water, springs, mines (surface and subsurface), quarries, water wells, other pertinent surface features including structures intended for human occupancy, State, Tribal, and Territory boundaries, and roads. The map should also show faults, if known or suspected. Only information of public record is required to be included on this map;

13.8.1.c. Information on the geologic structure and hydrogeologic properties of the proposed storage site and overlying formations, including:

13.8.1.c.1. Maps and cross sections of the area of review;

13.8.1.c.2. The location, orientation, and properties of known or suspected faults and fractures that may transect the confining zone(s) in the area of review and a determination that they would not interfere with containment;

13.8.1.c.3. Data on the depth, areal extent, thickness, mineralogy, porosity, permeability, and capillary pressure of the injection and confining zone(s); including geology/facies changes based on field data which may include geologic cores, outcrop data, seismic surveys, well logs, and names and lithologic descriptions;

13.8.1.c.4. Geo-mechanical information on fractures, stress, ductility, rock strength, and in situ fluid pressures within the confining zone(s);

13.8.1.c.5. Information on the seismic history including the presence and depth of seismic sources and a determination that the seismicity would not interfere with containment; and

13.8.1.c.6. Geologic and topographic maps and cross sections illustrating regional geology, hydrogeology, and the geologic structure of the local area.

13.8.1.d. A tabulation of all wells within the area of review which penetrate the injection or confining zone(s). Such data must include a description of each well's type, construction, date drilled, location, depth, record of plugging and/or completion, and any additional information the Director may require;

13.8.1.e. Maps and stratigraphic cross sections indicating the general vertical and lateral limits of all USDWs, water wells and springs within the area of review, their positions relative to the injection zone(s), and the direction of water movement, where known;

13.8.1.f. Baseline geochemical data on subsurface formations, including all USDWs in the area of review;

13.8.1.g. Proposed operating data for the proposed geologic sequestration site:

13.8.1.g.1. Average and maximum daily rate and volume and/or mass and total anticipated volume and/or mass of the carbon dioxide stream;

13.8.1.g.2. Average and maximum injection pressure;

13.8.1.g.3. The source(s) of the carbon dioxide stream; and

13.8.1.g.4. An analysis of the chemical and physical characteristics of the carbon dioxide stream.

13.8.1.h. Proposed pre-operational formation testing program to obtain an analysis of the chemical and physical characteristics of the injection zone(s) and confining zone(s) and that meets the requirements at section 13.5.;

13.8.1.i. Proposed stimulation program, a description of stimulation fluids to be used and a determination that stimulation will not interfere with containment;

13.8.1.j. Proposed procedure to outline steps necessary to conduct injection operation;

13.8.1.k. Schematics or other appropriate drawings of the surface and subsurface construction details of the well;

13.8.1.l. Injection well construction procedures that meet the requirements of section 13.3;

13.8.1.m. Proposed area of review and corrective action plan that meets the requirements under section 5.4. and subsection 14.9.2.e.;

13.8.1.n. A demonstration, satisfactory to the Director, that the applicant has met the financial responsibility requirements under subsection 14.7.7.;

13.8.1.o. Proposed testing and monitoring plan required by subsection 13.6.2.;

13.8.1.p. Proposed injection well plugging plan required by subsection 13.4.2.;

13.8.1.q. Proposed post-injection site care and site closure plan required by subsection 13.9.1.;

13.8.1.r. At the Director's discretion, a demonstration of an alternative post-injection site care timeframe required by subsection 13.9.3.;

13.8.1.s. Proposed emergency and remedial response plan required by subsection 13.7.1.;

13.8.1.t. A list of contacts, submitted to the Director, for those States, Tribes, and Territories identified to be within the area of review of the Class 6 project based on information provided in subsection 13.8.1.b. of this section; and

13.8.1.u. Any other information requested by the Director.

13.8.2. The Director shall notify, in writing, any States, Tribes, or Territories within the area of review of the Class 6 project based on information provided in paragraphs 13.8.1.b., and 13.8.1.t., of this section of the permit application and pursuant to the requirements at 40CFR 145.23(f)(13).

13.8.3. Prior to granting approval for the operation of a Class 6 well, the Director shall consider the following information:

13.8.3.a. The final area of review based on modeling, using data obtained during logging and testing of the well and the formation as required by subsections 13.8.3.b., 13.8.3.c., 13.8.3.d., 13.8.3.f., 13.8.3.g., and 13.8.3.j.;

13.8.3.b. Any relevant updates, based on data obtained during logging and testing of the well and the formation as required by subsections 13.8.3.c., 13.8.3.d., 13.8.3.f., 13.8.3.g., and 13.8.3.j., to the information on the geologic structure and hydrogeologic properties of the proposed storage site and overlying formations, submitted to satisfy the requirements of subsection 13.8.1.c.;

13.8.3.c. Information on the compatibility of the carbon dioxide stream with fluids in the injection zone(s) and minerals in both the injection and the confining zone(s), based on the results of the formation testing program, and with the materials used to construct the well;

13.8.3.d. The results of the formation testing program required at subsection 13.8.1.h.;

13.8.3.e. Final injection well construction procedures that meet the requirements of section 13.3.;

13.8.3.f. The status of corrective action on wells in the area of review;

13.8.3.g. All available logging and testing program data on the well required by section 13.5.;

13.8.3.h. A demonstration of mechanical integrity pursuant to section 6.2;

13.8.3.i. Any updates to the proposed area of review and corrective action plan, testing and monitoring plan, injection well plugging plan, post-injection site care and site closure plan, or the emergency and remedial response plan submitted under subsection 13.8.1., which are necessary to address new information collected during logging and testing of the well and the formation as required by all paragraphs of this section, and any updates to the alternative post-injection site care timeframe demonstration submitted under subsection 13.8.1., which are necessary to address new information collected during the logging and testing of the well and the formation as required by all paragraphs of this section; and

13.8.3.j. Any other information requested by the Director.

13.8.4. Owners or operators seeking a waiver of the requirement to inject below the lowermost USDW must also refer to subsection 14.8.4. and submit a supplemental report, as required at subsection 14.8.4.a. The supplemental report is not part of the permit application.

13.9. Post-injection Site Care and Site Closure.

13.9.1. The owner or operator of a Class 6 well must prepare, maintain, and comply with a plan for post-injection site care and site closure that meets the requirements of subsection 13.9.1.b. and is acceptable to the Director. The requirement to maintain and implement an approved plan is directly enforceable regardless of whether the requirement is a condition of the permit.

13.9.1.a. The owner or operator must submit the post-injection site care and site closure plan as a part of the permit application to be approved by the Director.

13.9.1.b. The post-injection site care and site closure plan must include the following information:

13.9.1.b.1. The pressure differential between pre-injection and predicted post-injection pressures in the injection zone(s);

13.9.1.b.2. The predicted position of the carbon dioxide plume and associated pressure front at site closure as demonstrated in the area of review evaluation required under subsection 14.9.3.a.;

13.9.1.b.3. A description of post-injection monitoring location, methods, and proposed frequency;

13.9.1.b.4. A proposed schedule for submitting post-injection site care monitoring results to the Director pursuant to subsection 13.6.3.a.5.; and,

13.9.1.b.5. The duration of the post-injection site care timeframe and, if approved by the Director, the demonstration of the alternative post-injection site care timeframe ensures non-endangerment of USDWs.

13.9.1.c. Upon cessation of injection, owners or operators of Class 6 wells must either submit an amended post-injection site care and site closure plan or demonstrate to the Director through monitoring data and modeling results that no amendment to the plan is needed. Any amendments to the post-injection site care and site closure plan must be approved by the Director, be incorporated into the permit, and are subject to the permit modification requirements at sections 14.18 and 14.20 of this rule, as appropriate.

13.9.1.d. At any time during the life of the geologic sequestration project, the owner or operator may modify and resubmit the post-injection site care and site closure plan for the Director's approval within 30 days of such change.

13.9.2. The owner or operator shall monitor the site following the cessation of injection to show the position of the carbon dioxide plume and pressure front and demonstrate that USDWs are not being endangered.

13.9.2.a. Following the cessation of injection, the owner or operator shall continue to conduct monitoring as specified in the Director-approved post-injection site care and site closure plan for at least 50 years or for the duration of the alternative timeframe approved by the Director pursuant to requirements in subsection 13.9.3., unless he/she makes a demonstration under subsection 13.9.2.b. The monitoring must continue until the geologic sequestration project no longer poses an endangerment to USDWs and the demonstration under subsection 13.9.2.b. is submitted and approved by the Director.

13.9.2.b. If the owner or operator can demonstrate to the satisfaction of the Director before 50 years or prior to the end of the approved alternative timeframe based on monitoring and other site-specific data, that the geologic sequestration project no longer poses an endangerment to USDWs, the Director may approve an amendment to the post-injection site care and site closure plan to reduce the frequency of monitoring or may authorize site closure before the end of the 50-year period or prior to the end of the approved alternative timeframe, where he or she has substantial evidence that the geologic sequestration project no longer poses a risk of endangerment to USDWs.

13.9.2.c. Prior to authorization for site closure, the owner or operator must submit to the Director for review and approval a demonstration, based on monitoring and other site-specific data, that no additional monitoring is needed to ensure that the geologic sequestration project does not pose an endangerment to USDWs.

13.9.2.d. If the demonstration in subsection 13.9.2.c. cannot be made (i.e., additional monitoring is needed to ensure that the geologic sequestration project does not pose an endangerment to USDWs) at the end of the 50-year period or at the end of the approved alternative timeframe, or if the Director does not approve the demonstration, the owner or operator must submit to the Director a plan to continue post-injection site care until a demonstration can be made and approved by the Director.

13.9.3. Demonstration of alternative post-injection site care timeframe. At the Director's discretion, the Director may approve, in consultation with EPA, an alternative post-injection site care timeframe other than the 50-year default, if an owner or operator can demonstrate during the permitting process that an alternative post-injection site care timeframe is appropriate and ensures non-endangerment of USDWs. The demonstration must be based on significant, site-specific data and information including all data and information collected pursuant to section 13.8. and subsection 13.2.1 and must contain substantial evidence that the geologic sequestration project will no longer pose a risk of endangerment to USDWs at the end of the alternative post-injection site care timeframe.

13.9.3.a. A demonstration of an alternative post-injection site care timeframe must include consideration and documentation of:

13.9.3.a.1. The results of computational modeling performed pursuant to delineation of the area of review under section 5.4.;

13.9.3.a.2. The predicted timeframe for pressure decline within the injection zone, and any other zones, such that formation fluids may not be forced into any USDWs; and/or the timeframe for pressure decline to pre-injection pressures;

13.9.3.a.3. The predicted rate of carbon dioxide plume migration within the injection zone, and the predicted timeframe for the cessation of migration;

13.9.3.a.4. A description of the site-specific processes that will result in carbon dioxide trapping including immobilization by capillary trapping, dissolution, and mineralization at the site;

13.9.3.a.5. The predicted rate of carbon dioxide trapping in the immobile capillary phase, dissolved phase, and/or mineral phase;

13.9.3.a.6. The results of laboratory analyses, research studies, and/or field or site-specific studies to verify the information required in subsections 13.9.3.a.4. and 13.9.3.a.5.;

13.9.3.a.7. A characterization of the confining zone(s) including a demonstration that it is free of transmissive faults, fractures, and micro-fractures and of appropriate thickness, permeability, and integrity to impede fluid (e.g., carbon dioxide, formation fluids) movement;

13.9.3.a.8. The presence of potential conduits for fluid movement including planned injection wells and project monitoring wells associated with the proposed geologic sequestration project or any other projects in proximity to the predicted/modeled, final extent of the carbon dioxide plume and area of elevated pressure;

13.9.3.a.9. A description of the well construction and an assessment of the quality of plugs of all abandoned wells within the area of review;

13.9.3.a.10. The distance between the injection zone and the nearest USDWs above and/or below the injection zone; and

13.9.3.a.11. Any additional site-specific factors required by the Director.

13.9.3.b. Information submitted to support the demonstration in subsection 13.9.3.a., must meet the following criteria:

13.9.3.b.1. All analyses and tests performed to support the demonstration must be accurate, reproducible, and performed in accordance with the established quality assurance standards;

13.9.3.b.2. Estimation techniques must be appropriate and EPA-certified test protocols must be used where available;

13.9.3.b.3. Predictive models must be appropriate and tailored to the site conditions, composition of the carbon dioxide stream and injection and site conditions over the life of the geologic sequestration project;

13.9.3.b.4. Predictive models must be calibrated using existing information (e.g., at Class 1, Class 2, or Class 5 experimental technology well sites) where sufficient data are available;

13.9.3.b.5. Reasonably conservative values and modeling assumptions must be used and disclosed to the Director whenever values are estimated on the basis of known, historical information instead of site-specific measurements;

13.9.3.b.6. An analysis must be performed to identify and assess aspects of the alternative post-injection site care timeframe demonstration that contribute significantly to uncertainty. The owner or operator must conduct sensitivity analyses to determine the effect that significant uncertainty may contribute to the modeling demonstration.

13.9.3.b.7. An approved quality assurance and quality control plan must address all aspects of the demonstration; and,

13.9.3.b.8. Any additional criteria required by the Director.

13.9.4. Notice of intent for site closure. The owner or operator must notify the Director in writing at least 120 days before site closure. At this time, if any changes have been made to the original post-injection site care and site closure plan, the owner or operator must also provide the revised plan. The Director may allow for a shorter notice period.

13.9.5. After the Director has authorized site closure, the owner or operator must plug all monitoring wells in a manner which will not allow movement of injection or formation fluids that endangers USDW.

13.9.6. The owner or operator must submit a site closure report to the Director within 90 days of site closure, which must thereafter be retained at a location designated by the Director for 10 years. The report must include:

13.9.6.a. Documentation of appropriate injection and monitoring well plugging as specified in section 13.4. and subsection 13.9.5. The owner or operator must provide a copy of a survey plat which has been submitted to the local zoning authority designated by the Director. The plat must indicate the location of the injection well relative to permanently surveyed benchmarks. The owner or operator must also submit a copy of the plat to the Regional Administrator of the appropriate EPA Regional Office;

13.9.6.b. Documentation of appropriate notification and information to such State, local and Tribal authorities that have authority over drilling activities to enable such State, local, and Tribal authorities to impose appropriate conditions on subsequent drilling activities that may penetrate the injection and confining zone(s); and

13.9.6.c. Records reflecting the nature, composition, and volume of the carbon dioxide stream.

13.9.7. Each owner or operator of a Class 6 injection well must record a notation on the deed to the facility property or any other document that is normally examined during title search that will in perpetuity provide any potential purchaser of the property the following information:

13.9.7.a. The fact that land has been used to sequester carbon dioxide;

13.9.7.b. The name of the State agency, local authority, and/or Tribe with which the survey plat was filed, as well as the address of the Environmental Protection Agency Regional Office to which it was submitted; and

13.9.7.c. The volume of fluid injected, the injection zone or zones into which it was injected, and the period over which injection occurred.

13.9.8. The owner or operator must retain for 10 years following site closure, records collected during the post-injection site care period. The owner or operator must deliver the records to the Director at the conclusion of the retention period, and the records must thereafter be retained at a location designated by the Director for that purpose.

W. Va. Code R. § 47-13-14 Injection Well Permitting Program

14.1. General Prohibition and Prohibition of Movement of Fluid into Underground Sources of Drinking Water.

14.1.1. Underground injection is prohibited unless authorized by permit or rule. The construction of any well required to have a permit is prohibited until the permit has been issued.

14.1.2. No owner or operator shall construct, operate, maintain, convert, plug, abandon or conduct any other underground injection activity in a manner which causes or allows the movement of fluid containing any contaminant into underground sources of drinking water, if the presence of that contaminant may cause a violation of any primary drinking water regulation under 40 CFR Part 142 or promulgated pursuant to W. Va. Code §16-1-1 et seq., or may otherwise adversely affect the health of persons. The applicant for a permit shall have the burden of showing that the requirements of this paragraph are met.

14.1.3. For Class 1, 2, 3, and 6 wells, if any water quality monitoring of an USDW indicates the movement of any contaminant into USDW except as authorized under this rule, the Director shall prescribe such additional requirements for construction, corrective action, operation, monitoring, or reporting (including closure of the injection well) as are necessary to prevent such movement. In the case of wells authorized by permit, these additional requirements shall be imposed by modifying the permit or the permit may be revoked if cause exists, or appropriate enforcement action may be taken if the permit has been violated. In the case of wells authorized by rule, see subsection 14.2.

14.1.4. For Class 5 wells, if at any time the Director learns that a Class 5 well may cause a violation of primary drinking water rules under 40 CFR Part 142 or W. Va. Code §16-1-1 et seq., he or she shall:

14.1.4.a. Require the injector to obtain an individual permit;

14.1.4.b. Order the injector to take such actions (including where required closure of the injection well) as may be necessary to prevent the violation; or

14.1.4.c. Take enforcement action.

14.1.5. Whenever the Director learns that a Class 5 well may be otherwise adversely affecting the health of persons, he or she may prescribe such actions as may be necessary to prevent the adverse effect, including any action authorized under subdivision 14.2.4. of this section.

14.1.6. Notwithstanding any other provision of this section, the Director may take emergency action under W. Va. Code §22-11-19 upon receipt of information that a contaminant which is present in or is likely to enter a public water system or USDW may present an imminent and substantial endangerment to health of persons.

14.2. Authorization of Underground Injection by Rule.

14.2.1. Types of underground injection which may be authorized by rule. Facilities may be authorized by rule under this rule as outlined in this paragraph. Underground injections not authorized by rule or permit are prohibited:

14.2.1.a. Injection into existing or new Class 5 wells may be authorized by rule for periods up to 1 year from the effective date of this rule. Rule authorizations may be reissued annually; however, all such wells must be issued permits within 5 years or close down at the end of the fifth year’s authorization period.

14.2.1.b. In the case of Class 5 wells, at the time of application for injection approval, the applicability of this rule is undetermined, such as:

14.2.1.b.1. Septic systems which receive solely sanitary wastes and the number of people the system has the capacity to serve has not been determined; especially existing systems that must be evaluated by the health department for capacity, however authorization by rule terminates upon establishing the system is incapable of serving at least 20 people in a day; or

14.2.1.b.2. For systems deemed capable of serving 20 or more people unless an application for permit is submitted in accordance with 14.3.2.

14.2.1.c. An existing or new Class 5 septic system capable of serving less than 20 people but which receives an alternate waste stream may be authorized by rule while a determination of the applicability of this rule is made, such as in the case of:

14.2.1.c.1. Meat processing facilities, kennels, beauty salons, or other facilities with waste streams, other than sanitary waste.

14.2.1.d. However, the Director has authority to withdraw the authorization if required under this section. Remediation related injections that are not expected to be continuous are typically authorized by rule, while most septic system and stormwater discharges are authorized by permit.

14.2.2. Requirements of Rules. Any facility authorized by rule pursuant to this section shall meet the following requirements no later than 1 year after authorization by such rules:

14.2.2.a. Subdivision 14.6.1. - (exemption from rule where authorized by temporary permits);

14.2.2.b. Subdivision 14.6.2. - (retention of records);

14.2.2.c. Subdivision 14.6.4. - (immediate reporting):

14.2.2.d. Subdivision 14.6.5. - (notice of abandonment);

14.2.2.e. Subdivision 14.7.6, and subsections 8.3, 9.3, and 10.3. - (plugging and abandonment);

14.2.3. Requiring a permit.

14.2.3.a. The Director may require any Class 1, 2, 3, or 5 injection well authorized by rule to apply for and obtain an individual or area UIC permit. Under no circumstances may a Class 6 well be authorized to inject by rule. Cases where individual or area UIC permits may be required include, but are not limited to:

14.2.3.a.1. The injection well is not in compliance with any requirement of the rule;

(Note: Any underground injection which violates any rule under this section is subject to appropriate enforcement action).

14.2.3.a.2. The injection well is not or no longer is within the category of wells and types of well operations authorized in the rule;

14.2.3.a.3. The protection of USDWs requires that the injection operation be regulated by requirements, such as for corrective action, monitoring and reporting, or operation, which are not contained in the rule; and

14.2.3.a.4. As a part of the orderly implementation of the UIC Program during the period of authorization by rule.

14.2.3.b. Any owner or operator authorized by a rule may request to be excluded from the coverage of the rule by applying for an individual or area UIC permit. The owner or operator shall submit an application under subsection 14.3 with reasons supporting the request to the Director. The Director may grant any such request.

14.2.4. Inventory requirements. All injection wells covered by the rule shall submit inventory information to the Director. Any rule under this section shall provide for the automatic termination of authorization for any well which fails to comply within the time specified in paragraph 14.2.4.c., of this section.

14.2.4.a. Contents. The Director shall require:

14.2.4.a.1. Information regarding pollutant loads and schedules for attaining compliance with water quality standards;

14.2.4.a.2. Facility name and location;

14.2.4.a.3. Name and address of legal contact;

14.2.4.a.4. Ownership of facility;

14.2.4.a.5. Nature and type of injection wells; and

14.2.4.a.6. Operating status of injection wells.

14.2.4.b. Notice. Upon approval of the State UIC Program, the Director shall notify owners or operators of injection wells of their duty to submit inventory information. The method of notification selected by the Director must assure that the owners or operators will be made aware of the inventory requirement.

14.2.4.c. Deadlines. Owners or operators of injection wells must submit inventory information no later than 1 year after authorization by rule. The Director need not require inventory information from any facility with interim status under W. Va. Code §22-18.

14.3. Application for a Permit; Authorization by Permit.

14.3.1. Permit application. Except as provided in subsection 14.2 (authorization by rule), all underground injections into Class 1, 2, 3, or 6 wells shall be prohibited unless authorized by permit. Those authorized by a rule under subsection 14.2 must still apply for a permit under this section unless authorization was for the life of the well or project. Rules authorizing well injections for which permit applications have been submitted shall lapse for a particular well injection or project upon the effective date of the permit or permit denial for that well injection or project. Expiration will be effective following the effective date of a permit, after closure (plugging and abandonment), or after conversion of the well.

14.3.2. Time to apply. Any person who performs or proposes an underground injection for which a permit is or will be required shall submit an application to the Director in accordance with the State UIC Program as follows:

14.3.2.a. For existing injection wells as expeditiously as practicable and in accordance with the schedule contained in the State UIC Program description, but no later than 4 years from the effective date of this rule or as required under subsection 7.3 for wells injecting hazardous waste.

14.3.2.b. For new injection wells, except new wells in projects authorized under paragraph 14.2.1.a., or covered by an existing area permit under subdivision 14.4.3., a reasonable time before construction is expected to begin.

14.3.3. Contents of UIC application.

(Reserved)

14.4. Area Permits.

14.4.1. The Director may issue a permit on an area basis, rather than for each well individually, provided that the permit is for injection wells:

14.4.1.a. Described and identified by location in permit application(s) if they are existing wells, except that the Director may accept a single description of wells with substantially the same characteristics;

14.4.1.b. Within the same well field, facility site, reservoir project, or similar unit in the State;

14.4.1.c. Operated by a single owner or operator;

14.4.1.d. Used to inject other than hazardous waste; and

14.4.1.e. Other than Class 6 Wells.

14.4.2. Area permits shall specify:

14.4.2.a. The area within which underground injections are authorized; and

14.4.2.b. The requirements for construction, monitoring, reporting, operation, and abandonment, for all wells authorized by the permit.

14.4.3. The area permit may authorize the permittee to construct and operate, convert, or plug and abandon wells within the permit area provided:

14.4.3.a. The permittee notifies the Director at such time as the permit requires;

14.4.3.b. The additional well satisfies the criteria in subdivision 14.4.1 of this section and meets the requirements specified in the permit under subdivision 14.4.2 of this section; and

14.4.3.c. The cumulative effects of drilling and operation of additional injection wells are considered by the Director during evaluation of the area permit application and are acceptable to the Director.

14.4.4. If the Director determines that any well constructed pursuant to subdivision 14.4.3 of this section does not satisfy any of the requirements of paragraphs 14.4.3.a. and 14.4.3.b of this section, the Director may modify the permit under subsection 14.18, revoke under subsection 14.19, or take enforcement action. If the Director determines that cumulative effects are unacceptable, the permit may be modified under subsection 14.18.

14.5. Emergency Permits.

14.5.1. Coverage. Notwithstanding any other provision of this rule, the Director may temporarily permit a specific underground injection which has not otherwise been authorized by rule or permit if:

14.5.1.a. An imminent and substantial endangerment to the health of persons will result unless a temporary emergency permit is granted; or

14.5.1.b. A substantial or irretrievable loss of oil or gas resources will occur unless a temporary emergency permit is granted to a Class 2 well; and

14.5.1.b.1. Timely application for a permit could not practicably have been made; and

14.5.1.b.2. The injection will not result in the movement of fluids into underground sources of drinking water; or

14.5.1.c. A substantial delay in production of oil or gas resources will occur unless a temporary emergency permit is granted to a new Class 2 well and the temporary authorization will not result in the movement of fluids into an underground source of drinking water.

14.5.2. Requirements for issuance.

14.5.2.a. Any temporary permit under paragraph 14.5.1.a., of this section shall be for no longer term than required to prevent the hazard.

14.5.2.b. Any temporary permit under paragraph 14.5.1.b., of this section shall be for no longer term than 90 days, except that if a permit application has been submitted prior to the expiration date of the 90-day period, the Director may extend the temporary permit until final action on the application.

14.5.2.c. Any temporary permit under paragraph 14.5.1.c of this section shall be issued only after a complete permit application has been submitted and shall be effective until final action on the application.

14.5.2.d. Notice of any temporary permit under this paragraph shall be published within 10 days of the issuance of the permit. Public Notice follows subsections 14.24 and 14.25.

14.5.2.e. The temporary permit under this section may be either oral or written. If oral, it must be followed within 5 calendar days by a written temporary emergency permit.

14.5.2.f. The Director shall condition the temporary permit in any manner he or she determines is necessary to ensure that the injection will not result in the movement of fluids into an underground source of drinking water.

14.6. Additional Conditions Applicable to all UIC Permits. The following conditions, in addition to those set forth in subsection 14.12, apply to all UIC permits and shall be incorporated into all permits either expressly or by reference. If incorporated by reference, a specific citation to this rule must be given in the permit.

14.6.1. In addition to subdivision 14.12.1 (duty to comply): the permittee need not comply with the provisions of this permit to the extent and for the duration such non-compliance is authorized in a temporary emergency permit under subsection 14.5.

14.6.2. In addition to paragraph 14.12.10.b (monitoring and records): the permittee shall retain all records concerning the nature and composition of injected fluids until 3 years after completion of any plugging and abandonment procedures specified under subdivision 14.7.6. The Director may require the owner or operator to deliver the records to the Director at the conclusion of the retention period.

14.6.3. In addition to paragraph 14.12.12.a (notice of planned changes): except for all new wells authorized by an area permit under subdivision 14.4.3., a new injection well may not commence injection until construction is complete, and:

14.6.3.a. The permittee has submitted notice of completion of construction to the Director; and

14.6.3.a.1. The Director has inspected or otherwise reviewed the new injection well and finds it is in compliance with the conditions of the permit; or

14.6.3.a.2. The permittee has not received notice from the Director of his or her intent to inspect or otherwise review the new injection well within 13 days of the date of the notice in paragraph 14.6.3.a. of this section, in which case prior inspection or review is waived and the permittee may commence injection. The Director shall include in the notice a reasonable time period in which he or she shall inspect the well.

14.6.4. The following shall be included as information which must be reported immediately under paragraph 14.12.12.f:

14.6.4.a. Any monitoring or other information which indicates that any contaminant may cause an endangerment to USDWs; and

14.6.4.b. Any non-compliance with a permit condition or malfunction of the injection system which may cause fluid migration into or between the USDWs.

14.6.5. The permittee shall notify the Director as such times as the permit requires before conversion or abandonment of the well or in the case of area permits before closure of the project.

14.6.6. If a loss of mechanical integrity is discovered based on alarm shut off or during periodic mechanical integrity testing, the owner or operator shall:

14.6.6.a. Immediately cease injection of waste fluids;

14.6.6.b. Take steps to determine whether there may have been a release of hazardous wastes into any unauthorized zone;

14.6.6.c. Notify the Director within 24 hours;

14.6.6.d. Notify the Director when injection can be expected to resume; and

14.6.6.e. Restore and demonstrate mechanical integrity to the satisfaction of the Director prior to resuming injection.

14.6.7. Whenever the owner or operator obtains evidence that there may have been a release of injected wastes into an unauthorized zone, he shall:

14.6.7.a. Immediately cease injection of waste fluids,

14.6.7.b. Notify the Director within 24 hours of obtaining such evidence;

14.6.7.c. Take steps to identify and characterize the extent of any release;

14.6.7.d. Comply with any remediation plan specified by the Director;

14.6.7.e. Implement any remediation plan approved by the Director; and

14.6.7.f. Where such release is into a USDW currently serving as a water supply, place a notice in a newspaper of general circulation.

14.6.8. Pursuant to 14.6.6. and 14.6.7. The Director may allow the operator to resume injection prior to completing cleanup if the injection operation will not endanger USDWs.

14.6.9. When the Director determines that a Class 1, 2, 3 or 6 well lacks mechanical integrity he/she shall give written notice of his/her determination to the owner or operator. Unless the Director requires immediate cessation, the owner or operator shall cease injection into the well within 48 hours of receipt of the Director's determination. The Director may allow plugging of the well pursuant to the requirements of 14.7.6. of this chapter or require the permittee to perform such additional construction, operation, monitoring, reporting and corrective action as is necessary to prevent the movement of fluid into or between USDWs caused by the lack of mechanical integrity. The owner or operator may resume injection upon written notification from the Director that the owner or operator has demonstrated mechanical integrity pursuant to 14.6.6. and 14.6.7. of this chapter. The Director may allow the owner or operator of a well which lacks mechanical integrity to continue or resume injection, if the owner or operator has made a satisfactory demonstration that there are no leaks in the casing/tubing/packer and no movement of fluid into or between USDWs.

14.7. Establishing UIC Permit Conditions. In addition to conditions required in all permits (subsections 14.6 and 14.12), the Director shall establish conditions in permits as required on a case-by-case basis, to provide for and assure compliance with all applicable requirements of the SDWA and State Act and rules. An applicable requirement is a State statutory or regulatory requirement which takes effect prior to final administrative disposition of a permit and is also any requirement which takes effect prior to the modification or revocation and reissuance of a permit. Each permit shall include conditions meeting the following requirements when applicable:

14.7.1. Construction requirements as set forth in subsections 8.2, 9.2., and 10.2. Existing wells shall achieve compliance with such requirements according to a compliance schedule established as a permit condition. The owner or operator of a proposed new injection well shall submit plans for testing, drilling, and construction as part of the permit application. Except as authorized by an area permit, no construction may commence until a permit has been issued containing construction requirements. New wells shall be in compliance with these requirements prior to commencing injection operations. Changes in construction plans during construction may be approved by the Director as minor modification. No such changes may be physically incorporated into construction of the well prior to approval of the modification by the Director.

14.7.2. Corrective action as set forth in subsections 6.1 and 14.9.

14.7.3. Operation requirements as set forth in subsections 8.4., 9.4., and 10.4. The permit shall establish any maximum injection volumes and/or pressure necessary to assure that fractures are not initiated in the confining zone, that injected fluids do not migrate into any underground source of drinking water, that formation fluids are not displaced into any underground source of drinking water, and to assure compliance with operation requirements.

14.7.4. Requirements for wells managing hazardous waste, as set forth in sections 7 and 11.

14.7.5. Monitoring and reporting requirements as set forth in subsections 8.4, 9.4 and 10.4. The permittee shall be required to identify types of tests and methods used to generate the monitoring data.

14.7.6. Plugging and abandonment. Any Class 1, 2, 3, or 6 permit shall include, and any Class 5 permit may include, conditions to ensure that plugging and abandonment of the well will not allow the movement of fluids either into an underground source of drinking water or from one underground source of drinking water to another. Any applicant for a UIC permit shall be required to submit a plan for plugging and abandonment. Where the plugging and abandonment plan meets the requirements of this paragraph, the Director shall incorporate it into the permit as a condition. Where the Director’s review of an application indicates that the permittee's plan is inadequate, the Director shall require the applicant to revise the plan, prescribe conditions meeting the requirements of this paragraph, or deny the application. For purposes of this paragraph, temporary intermittent cessation of injection operations is not abandonment. The owner or operator shall submit revisions to the method of closure no later than the date on which closure notification is required. The Director should be notified at least 45 days prior to the abandonment of any Class 5 injection well.

14.7.6.a. An owner or operator of a Class 1 hazardous waste injection well who ceases injection temporarily, may keep the well open provided he has received authorization from the Director and has described actions to be taken to ensure that the well will not endanger USDWs during disuse. These actions include compliance with the technical requirements applicable to active injection wells unless waived by the Director.

14.7.6.b. The owner or operator of a well shall plug and abandon their well(s) within 2 years of cessation, following their plan, unless:

14.7.6.b.1. The owner/operator provides notice to the Director;

14.7.6.b.2. Describes actions or procedures, satisfactory to the Director, that the owner or operator will take to ensure that the well will not endanger USDWs during the period of temporary abandonment. These actions and procedures shall include compliance with the technical requirements applicable to active injection wells unless waived by the Director.

14.7.6.c. Class 1 hazardous waste injection wells, the obligation to implement the closure plan survives the termination of a permit or the cessation of injection activities. The requirement to maintain and implement an approved plan is directly enforceable regardless of whether the requirement is a condition of the permit.

14.7.6.d. The owner or operator of a Class 1 hazardous waste injection well that has ceased operations for more than two years shall notify the Director 30 days prior to resuming operation of the well.

14.7.7. Financial responsibility. The permit shall require the permittee, including the transferor of a permit, to demonstrate and maintain financial responsibility and resources to close, plug, and abandon underground injection wells in a manner prescribed by the Director until: the well has been plugged and abandoned and the report submitted; or the well has been converted; or the transferor of the permit receives notice that the transferee has demonstrated financial responsibility. The permittee must show evidence of financial responsibility to the Director by submission of a surety bond, or other adequate assurance, such as a financial statement or other material acceptable to the Director. The owner or operator of a well injecting hazardous waste must comply with the financial responsibility requirements of subdivision 47-13-8.7 and 47-13-8.8 For Class 6 permits the following provisions also apply:

14.7.7.a. The permittee must show evidence of financial responsibility to the Director by submission of a surety bond, trust fund, insurance, irrevocable standby letter of credit, escrow account, or other adequate assurance, such as a financial statement or other material acceptable to the Director.

14.7.7.b. The qualifying instrument(s) must be sufficient to cover the cost of:

14.7.7.b.1. Corrective action (that meets the requirements of section 14.9.);

14.7.7.b.2. Injection well plugging (that meets the requirements of section 13.4.);

14.7.7.b.3. Post injection site care and site closure (that meets the requirements of 13.9.); and

14.7.7.b.4. Emergency and remedial response (that meets the requirements of 13.7.).

14.7.7.c. The financial responsibility instrument(s) must be sufficient to address endangerment of underground sources of drinking water.

14.7.7.d. The qualifying financial responsibility instrument(s) must comprise protective conditions of coverage.

14.7.7.d.1. Protective conditions of coverage must include at a minimum cancellation, renewal, and continuation provisions, specifications on when the provider becomes liable following a notice of cancellation if there is a failure to renew with a new qualifying financial instrument, and requirements for the provider to meet a minimum rating, minimum capitalization, and ability to pass the bond rating when applicable.

14.7.7.e. Cancellation - for purposes of this part, an owner or operator must provide that their financial mechanism may not cancel, terminate or fail to renew except for failure to pay such financial instrument. If there is a failure to pay the financial instrument, the financial institution may elect to cancel, terminate, or fail to renew the instrument by sending notice by certified mail to the owner or operator and the Director. The cancellation must not be final for 120 days after receipt of cancellation notice. The owner or operator must provide an alternate financial responsibility demonstration within 60 days of notice of cancellation, and if an alternate financial responsibility demonstration is not acceptable (or possible), any funds from the instrument being canceled must be released within 60 days of notification by the Director.

14.7.7.f. Renewal - for purposes of this part, owners or operators must renew all financial instruments, if an instrument expires, for the entire term of the geologic sequestration project. The instrument may be automatically renewed as long as the owner or operator has the option of renewal at the face amount of the expiring instrument. The automatic renewal of the instrument must, at a minimum, provide the holder with the option of renewal at the face amount of the expiring financial instrument.

14.7.7.g. Cancellation, termination, or failure to renew may not occur and the financial instrument will remain in full force and effect in the event that on or before the date of expiration: The Director deems the facility abandoned; or the permit is terminated or revoked or a new permit is denied; or closure is ordered by the Director or a U.S. district court or other court of competent jurisdiction; or the owner or operator is named as debtor in a voluntary or involuntary proceeding under Title 11 (Bankruptcy), U.S. Code; or the amount due is paid.

14.7.7.h. The qualifying financial responsibility instrument(s) must be approved by the Director.

14.7.7.h.1. The Director shall consider and approve the financial responsibility demonstration for all the phases of the geologic sequestration project prior to issue a Class 6 permit (13.8).

14.7.7.h.2. The owner or operator must provide any updated information related to their financial responsibility instrument(s) on an annual basis and if there are any changes, the Director must evaluate, within a reasonable time, the financial responsibility demonstration to confirm that the instrument(s) used remain adequate for use. The owner or operator must maintain financial responsibility requirements regardless of the status of the Director's review of the financial responsibility demonstration.

14.7.7.h.3. The Director may disapprove the use of a financial instrument if he determines that it is not sufficient to meet the requirements of this section.

14.7.7.i. The owner or operator may demonstrate financial responsibility by using one or multiple qualifying financial instruments for specific phases of the geologic sequestration project.

14.7.7.i.1. In the event that the owner or operator combines more than one instrument for a specific geologic sequestration phase (e.g., well plugging), such combination must be limited to instruments that are not based on financial strength or performance (i.e., self-insurance or performance bond), for example trust funds, surety bonds guaranteeing payment into a trust fund, letters of credit, escrow account, and insurance. In this case, it is the combination of mechanisms, rather than the single mechanism, which must provide financial responsibility for an amount at least equal to the current cost estimate.

14.7.7.j. When using a third-party instrument to demonstrate financial responsibility, the owner or operator must provide a proof that the third-party providers either have passed financial strength requirements based on credit ratings; or have met a minimum rating, minimum capitalization, and ability to pass the bond rating when applicable.

14.7.7.j.1. An owner or operator using certain types of third-party instruments must establish a standby trust to enable the Department and/or EPA to be party to the financial responsibility agreement without the Department and/or EPA being the beneficiary of any funds. The standby trust fund must be used along with other financial responsibility instruments (e.g., surety bonds, letters of credit, or escrow accounts) to provide a location to place funds if needed.

14.7.7.k. An owner or operator may deposit money to an escrow account to cover financial responsibility requirements; this account must segregate funds sufficient to cover estimated costs for Class 6 (geologic sequestration) financial responsibility from other accounts and uses.

14.7.7.l. An owner or operator or its guarantor may use self-insurance to demonstrate financial responsibility for geologic sequestration projects. In order to satisfy this requirement the owner or operator must meet a Tangible Net Worth of an amount approved by the Director, have a Net working capital and tangible net worth each at least six times the sum of the current well plugging, post injection site care and site closure cost, have assets located in the United States amounting to at least 90 percent of total assets or at least six times the sum of the current well plugging, post injection site care and site closure cost, and must submit a report of its bond rating and financial information annually. In addition the owner or operator must either: Have a bond rating test of AAA, AA, A, or BBB as issued by Standard & Poor's or Aaa, Aa, A, or Baa as issued by Moody's; or meet all of the following five financial ratio thresholds: A ratio of total liabilities to net worth less than 2.0; a ratio of current assets to current liabilities greater than 1.5; a ratio of the sum of net income plus depreciation, depletion, and amortization to total liabilities greater than 0.1; A ratio of current assets minus current liabilities to total assets greater than −0.1; and a net profit (revenues minus expenses) greater than 0.

14.7.7.l.a. An owner or operator who is not able to meet corporate financial test criteria may arrange a corporate guarantee by demonstrating that its corporate parent meets the financial test requirements on its behalf. The parent's demonstration that it meets the financial test requirement is insufficient if it has not also guaranteed to fulfill the obligations for the owner or operator.

14.7.7.m. An owner or operator may obtain an insurance policy to cover the estimated costs of geologic sequestration activities requiring financial responsibility. This insurance policy must be obtained from a third-party provider.

14.7.7.n. The requirement to maintain adequate financial responsibility and resources is directly enforceable regardless of whether the requirement is a condition of the permit.

14.7.7.n.1. The owner or operator must maintain financial responsibility and resources until:

14.7.7.n.1.A. The Director receives and approves the completed post-injection site care and site closure plan; and

14.7.7.n.1.B. The Director approves site closure.

14.7.7.n.2. The owner or operator may be released from a financial instrument in the following circumstances:

14.7.7.n.2.A. The owner or operator has completed the phase of the geologic sequestration project for which the financial instrument was required and has fulfilled all its financial obligations as determined by the Director, including obtaining financial responsibility for the next phase of the GS project, if required; or

14.7.7.n.2.B. The owner or operator has submitted a replacement financial instrument and received written approval from the Director accepting the new financial instrument and releasing the owner or operator from the previous financial instrument.

14.7.7.o. The owner or operator must have a detailed written estimate, in current dollars, of the cost of performing corrective action on wells in the area of review, plugging the injection well(s), post-injection site care and site closure, and emergency and remedial response.

14.7.7.o.1. The cost estimate must be performed for each phase separately and must be based on the costs to the regulatory agency of hiring a third party to perform the required activities. A third party is a party who is not within the corporate structure of the owner or operator.

14.7.7.o.2. During the active life of the geologic sequestration project, the owner or operator must adjust the cost estimate for inflation within 60 days prior to the anniversary date of the establishment of the financial instrument(s) used to comply with paragraph (a) of this section and provide this adjustment to the Director. The owner or operator must also provide to the Director written updates of adjustments to the cost estimate within 60 days of any amendments to the area of review and corrective action plan (6.1), the injection well plugging plan (13.4), the post-injection site care and site closure plan (13.9), and the emergency and remedial response plan (13.7).

14.7.7.o.3. The Director must approve any decrease or increase to the initial cost estimate. During the active life of the geologic sequestration project, the owner or operator must revise the cost estimate no later than 60 days after the Director has approved the request to modify the area of review and corrective action plan (6.1), the injection well plugging plan (13.4), the post-injection site care and site closure plan (13.9), and the emergency and response plan (13.7), if the change in the plan increases the cost. If the change to the plans decreases the cost, any withdrawal of funds must be approved by the Director. Any decrease to the value of the financial assurance instrument must first be approved by the Director. The revised cost estimate must be adjusted for inflation as specified at 14.7.7.o.2 of this section.

14.7.7.o.4. Whenever the current cost estimate increases to an amount greater than the face amount of a financial instrument currently in use, the owner or operator, within 60 days after the increase, must either cause the face amount to be increased to an amount at least equal to the current cost estimate and submit evidence of such increase to the Director, or obtain other financial responsibility instruments to cover the increase. Whenever the current cost estimate decreases, the face amount of the financial assurance instrument may be reduced to the amount of the current cost estimate only after the owner or operator has received written approval from the Director.

14.7.7.p. The owner or operator must notify the Director by certified mail of adverse financial conditions such as bankruptcy that may affect the ability to carry out injection well plugging and post-injection site care and site closure.

14.7.7.p.1. In the event that the owner or operator or the third-party provider of a financial responsibility instrument is going through a bankruptcy, the owner or operator must notify the Director by certified mail of the commencement of a voluntary or involuntary proceeding under Title 11 (Bankruptcy), U.S. Code, naming the owner or operator as debtor, within 10 days after commencement of the proceeding.

14.7.7.p.2. A guarantor of a corporate guarantee must make such a notification to the Director if he/she is named as debtor, as required under the terms of the corporate guarantee.

14.7.7.p.3. An owner or operator who fulfills the requirements of 14.7.7. of this section by obtaining a trust fund, surety bond, letter of credit, escrow account, or insurance policy will be deemed to be without the required financial assurance in the event of bankruptcy of the trustee or issuing institution, or a suspension or revocation of the authority of the trustee institution to act as trustee of the institution issuing the trust fund, surety bond, letter of credit, escrow account, or insurance policy. The owner or operator must establish other financial assurance within 60 days after such an event.

14.7.7.q. The owner or operator must provide an adjustment of the cost estimate to the Director within 60 days of notification by the Director, if the Director determines during the annual evaluation of the qualifying financial responsibility instrument(s) that the most recent demonstration is no longer adequate to cover the cost of corrective action (as required by section 6.1), injection well plugging (as required by section 13.4), post-injection site care and site closure (as required by section 13.9), and emergency and remedial response (as required by section 13.7).

14.7.7.r. The Director must approve the use and length of pay-in-periods for trust funds or escrow accounts.

14.7.8. Mechanical integrity. The permittee of a Class 1, 2, 3, or 6 well shall establish and maintain mechanical integrity. A permit for any Class 1, 2, 3, or 6 well or injection project which lacks mechanical integrity shall include, and for any Class 5 well may include, a condition prohibiting injection operations until the permittee shows to the satisfaction of the Director under subsection 6.2 that the well has mechanical integrity.

14.7.9. Additional conditions. The Director shall impose on a case-by-case basis such additional conditions as are necessary to prevent the migration of fluids into underground sources of drinking water.

14.8. Waiver of Requirements by the Director.

14.8.1. When injection does not occur into, through, or above an underground source of drinking water, the Director may authorize a well or project with less stringent requirements for area of review, construction, mechanical integrity, operation, monitoring, and reporting than required in section 8, 9, 10, and subsection 14.7 to the extent that the reduction in requirements will not result in an increased risk of movement of fluids into an underground source of drinking water.

14.8.2. For wells other than Class 6, when injection occurs through or above an underground source of drinking water, but the radius of endangering influence when computed under subdivision 5.3.1 is smaller or equal to the radius of the well, the Director may authorize a well or project with less stringent requirements for operation, monitoring, and reporting in sections 8, 10, and subsection 14.7 to the extent that the reduction in requirements will not result in an increased risk of movement of fluids into an underground source of drinking water.

14.8.3. When reducing requirements under subdivision 14.8.1 or 14.8.2 of this section, the Director shall explain the reason for the action by preparing a fact sheet under subsection 14.31.

14.8.4. When an owner or operator submits a waiver of the Class 6 injection depth requirements, the Director must consult with all affected Public Water System Directors and the Regional Administrator after considering the following:

14.8.4.a. Owner/Operator Requirements. In seeking a waiver of the requirement to inject below the lowermost USDW, the owner or operator must submit a supplemental report concurrent with permit application. The supplemental report must include the following,

14.8.4.a.1. A demonstration that the injection zone(s) is/are laterally continuous, is not a USDW, and is not hydraulically connected to USDWs; does not outcrop; has adequate injectivity, volume, and sufficient porosity to safely contain the injected carbon dioxide and formation fluids; and has appropriate geochemistry.

14.8.4.a.2. A demonstration that the injection zone(s) is/are bounded by laterally continuous, impermeable confining units above and below the injection zone(s) adequate to prevent fluid movement and pressure buildup outside of the injection zone(s); and that the confining unit(s) is/are free of transmissive faults and fractures. The report shall further characterize the regional fracture properties and contain a demonstration that such fractures will not interfere with injection, serve as conduits, or endanger USDWs.

14.8.4.a.3. A demonstration, using computational modeling, that USDWs above and below the injection zone will not be endangered as a result of fluid movement. This modeling should be conducted in conjunction with the area of review determination, as described in 5.4 and 14.9, and is subject to requirements, as described in 14.9.3., and periodic reevaluation, as described in 14.9.5.

14.8.4.a.4. A demonstration that well design and construction, in conjunction with the waiver, will ensure isolation of the injectate in lieu of requirements at 13.3.1.a. and will meet well construction requirements in 14.8.4. of this section.

14.8.4.a.5. A description of how the monitoring and testing and any additional plans will be tailored to the geologic sequestration project to ensure protection of USDWs above and below the injection zone(s), if a waiver is granted.

14.8.4.a.6. Information on the location of all the public water supplies affected, reasonably likely to be affected, or served by USDWs in the area of review.

14.8.4.a.7. Any other information requested by the Director to inform the Regional Administrator's decision to issue a waiver.

14.8.4.b. Consultation. The Director must inform the Regional Administrator of a pending decision on whether to grant a waiver of the injection depth requirements at section 4.6, 14.8.4.f., and 13.3.1.a. the Director must submit, to the Regional Administrator, documentation of the following:

14.8.4.b.1. An evaluation of the following information as it relates to siting, construction, and operation of a geologic sequestration project with a waiver:

14.8.4.b.1.A. The integrity of the upper and lower confining units;

14.8.4.b.1.B. The suitability of the injection zone(s) (e.g., lateral continuity; lack of transmissive faults and fractures; knowledge of current or planned artificial penetrations into the injection zone(s) or formations below the injection zone);

14.8.4.b.1.C. The potential capacity of the geologic formation(s) to sequester carbon dioxide, accounting for the availability of alternative injection sites;

14.8.4.b.1.D. All other site characterization data, the proposed emergency and remedial response plan, and a demonstration of financial responsibility;

14.8.4.b.1.E. Community needs, demands, and supply from drinking water resources;

14.8.4.b.1.F. Planned needs, potential and/or future use of USDWs and non-USDWs in the area;

14.8.4.b.1.G. Planned or permitted water, hydrocarbon, or mineral resource exploitation potential of the proposed injection formation(s) and other formations both above and below the injection zone to determine if there are any plans to drill through the formation to access resources in or beneath the proposed injection zone(s)/formation(s);

14.8.4.b.1.H. The proposed plan for securing alternative resources or treating USDW formation waters in the event of contamination related to the Class 6 injection activity; and,

14.8.4.b.1.I. Any other applicable considerations or information requested by the Director.

14.8.4.b.2. Consultation with the Public Water System Supervision Directors of all States and Tribes having jurisdiction over lands within the area of review of a well for which a waiver is sought.

14.8.4.b.2.A. Any written waiver-related information submitted by the Public Water System Supervision Director(s) to the (UIC) Director.

14.8.4.c. Procedures.

14.8.4.c.1. Pursuant to requirements at 47 CSR 10-12 and concurrent with the Class 6 permit application notice process, the Director shall give public notice that a waiver application has been submitted. The notice shall clearly state:

14.8.4.c.1.A. The depth of the proposed injection zone(s);

14.8.4.c.1.B. The location of the injection well(s);

14.8.4.c.1.C. The name and depth of all USDWs within the area of review;

14.8.4.c.1.D. A map of the area of review;

14.8.4.c.1.E. The names of any public water supplies affected, reasonably likely to be affected, or served by USDWs in the area of review; and,

14.8.4.c.1.F. The results of UIC-Public Water System Supervision consultation required under 14.8.4.b.2.

14.8.4.c.2. Following public notice, the Director shall provide all information received through the waiver application process to the Regional Administrator. Based on the information provided, the Regional Administrator shall provide written concurrence or non-concurrence regarding waiver issuance.

14.8.4.c.2.A. If the Regional Administrator determines that additional information is required to support a decision, the Director shall provide the information. At his or her discretion, the Regional Administrator may require that public notice of the new information be initiated.

14.8.4.c.3. In no case shall a Director of a State-approved program issue a waiver without receipt of written concurrence from the Regional Administrator.

14.8.4.c.4. If a waiver is issued, within 30 days of waiver issuance, the Director shall post the following information on the Department’s Division of Water and Waste Management’s website:

14.8.4.c.4.A. The depth of the proposed injection zone(s);

14.8.4.c.4.B. The location of the injection well(s);

14.8.4.c.4.C. The name and depth of all USDWs within the area of review;

14.8.4.c.4.D. A map of the area of review;

14.8.4.c.4.E. The names of any public water supplies affected, reasonably likely to be affected, or served by USDWs in the area of review; and

14.8.4.c.4.F. The date of waiver issuance.

14.8.4.d. Additional requirements. Upon receipt of a waiver of the requirement to inject below the lowermost USDW for geologic sequestration, the owner or operator of the Class 6 well must comply with:

14.8.4.d.1. All requirements at 6.2., 13.4., 13.5., 13.6., 13.6.3.a., 13.7., 14.7.7., and 14.9.2.e., of this rule;

14.8.4.d.2. All requirements at section 13.3. with the following modified requirements:

14.8.4.d.2.A. The owner or operator must ensure that Class 6 wells with a waiver are constructed and completed to prevent movement of fluids into any unauthorized zones including USDWs, in lieu of requirements at 13.3.1.a.

14.8.4.d.2.B. The casing and cementing program must be designed to prevent the movement of fluids into any unauthorized zones including USDWs in lieu of requirements at 13.3.2.a.1.

14.8.4.d.2.C. The surface casing must extend through the base of the nearest USDW directly above the injection zone and be cemented to the surface; or, at the Director's discretion, another formation above the injection zone and below the nearest USDW above the injection zone.

14.8.4.d.3. All requirements at 13.6.2. with the following modified requirements:

14.8.4.d.3.A. The owner or operator shall monitor the groundwater quality, geochemical changes, and pressure in the first USDWs immediately above and below the injection zone(s); and in any other formations at the discretion of the Director.

14.8.4.d.3.B. Testing and monitoring to track the extent of the carbon dioxide plume and the presence or absence of elevated pressure (e.g., the pressure front) by using direct methods to monitor for pressure changes in the injection zone(s); and, indirect methods (e.g., seismic, electrical, gravity, or electromagnetic surveys and/or down-hole carbon dioxide detection tools), unless the Director determines, based on site-specific geology, that such methods are not appropriate.

14.8.4.d.4. All requirements at 13.9. with the following, modified post-injection site care monitoring requirements:

14.8.4.d.4.A. The owner or operator shall monitor the groundwater quality, geochemical changes and pressure in the first USDWs immediately above and below the injection zone; and in any other formations at the discretion of the Director.

14.8.4.d.4.B. Testing and monitoring to track the extent of the carbon dioxide plume and the presence or absence of elevated pressure (e.g., the pressure front) by using direct methods in the injection zone(s); and indirect methods (e.g., seismic, electrical, gravity, or electromagnetic surveys and/or down-hole carbon dioxide detection tools), unless the Director determines based on site-specific geology, that such methods are not appropriate;

14.8.4.d.5. Any additional requirements requested by the Director designed to ensure protection of USDWs above and below the injection zone(s).

14.9. Corrective Action

14.9.1. Applicants for Class 1, 2 (other than existing wells) or 3 injection well permits shall identify the location of all known wells within the injection well's area of review which penetrate the injection zone (or for Class 2, all wells penetrating formations affected by an increase in pressure) and/or confining zone. For such wells which are improperly sealed, completed, or abandoned, the applicant shall also submit a plan consisting of such steps or modifications as are necessary to prevent movement of fluid into underground sources of drinking water ("corrective action") under subsection 6.1. Where the plan is adequate, the Director shall incorporate it into the permit as a condition. Where the Director’s review of an application indicates that the permittee's plan is inadequate, he or she shall require the applicant to revise the plan, prescribe a plan for corrective action as a condition of the permit under subdivision 14.9.2 of this section, or deny the application.

14.9.2. Requirements.

14.9.2.a. Existing injection wells. Any permit issued for an existing injection well (other than Class 2) requiring corrective action shall include a compliance schedule requiring any corrective action accepted or prescribed under subdivision 14.9.1 of this section to be completed as soon as possible.

14.9.2.b. New injection wells. No permit for a new injection well may authorize injection until all required corrective action has been taken.

14.9.2.c. Injection pressure limitation. The Director may require as a permit condition that pressure be so limited that pressure in the injection zone does not exceed hydrostatic pressure at the site of any improperly completed or abandoned well within the area of review. This pressure limitation shall satisfy the corrective action requirement. Alternatively, such injection pressure limitation can be part of a compliance schedule and last until all other required corrective action has been taken.

14.9.2.d. Class 3 wells only. When setting corrective action requirements, the Director shall consider the overall effect of the project on the hydraulic gradient in potentially affected USDW's, and the corresponding changes in potentiometric surface(s) and flow direction(s) rather than the discrete effect of each well. If a decision is made that corrective action is not necessary based on the determinations above, the monitoring program required in subdivision 10.4.2 shall be designed to verify the validity of such determinations.

14.9.2.e. Class 6 wells only. When setting corrective action requirements, the Director shall require the owner or operator of the well to prepare, maintain, and comply with a plan to delineate the area of review for a proposed geologic sequestration project, periodically reevaluate the delineation, and perform corrective action that meets the requirements of this section and is acceptable to the Director. The requirement to maintain and implement an approved plan is directly enforceable regardless of whether the requirement is a condition of the permit. As a part of the permit application for approval by the Director, the owner or operator must submit an area of review and corrective action plan that includes the following information:

14.9.2.e.1. The method for delineating the area of review that meets the requirements of 14.9.3. of this section, including the model to be used, assumptions that will be made, and the site characterization data on which the model will be based;

14.9.2.e.2. A description of:

14.9.2.e.2.A. The minimum fixed frequency, not to exceed 5 years, at which the owner or operator proposes to reevaluate the area of review;

14.9.2.e.2.B. The monitoring and operational conditions that would warrant a reevaluation of the area of review prior to the next scheduled reevaluation as determined by the minimum fixed frequency established in 14.9.2.e.2.A. of this section.

14.9.2.e.2.C. How monitoring and operational data (e.g., injection rate and pressure) will be used to inform an area of review reevaluation; and

14.9.2.e.2.D. How corrective action will be conducted to meet the requirements of 14.9.4. of this section, including what corrective action will be performed prior to injection and what, if any, portions of the area of review will have corrective action addressed on a phased basis and how the phasing will be determined; how corrective action will be adjusted if there are changes in the area of review; and how site access will be guaranteed for future corrective action.

14.9.3. Owners or operators of Class 6 wells must perform the following actions to delineate the area of review and identify all wells that require corrective action:

14.9.3.a. Predict, using existing site characterization, monitoring and operational data, and computational modeling, the projected lateral and vertical migration of the carbon dioxide plume and formation fluids in the subsurface from the commencement of injection activities until the plume movement ceases, until pressure differentials sufficient to cause the movement of injected fluids or formation fluids into a USDW are no longer present, or until the end of a fixed time period as determined by the Director. The model must:

14.9.3.a.1. Be based on detailed geologic data collected to characterize the injection zone(s), confining zone(s) and any additional zones; and anticipated operating data, including injection pressures, rates, and total volumes over the proposed life of the geologic sequestration project;

14.9.3.a.2. Take into account any geologic heterogeneities, other discontinuities, data quality, and their possible impact on model predictions; and

14.9.3.a.3. Consider potential migration through faults, fractures, and artificial penetrations.

14.9.3.b. Using methods approved by the Director, identify all penetrations, including active and abandoned wells and underground mines, in the area of review that may penetrate the confining zone(s). Provide a description of each well's type, construction, date drilled, location, depth, record of plugging and/or completion, and any additional information the Director may require; and

14.9.3.c. Determine which abandoned wells in the area of review have been plugged in a manner that prevents the movement of carbon dioxide or other fluids that may endanger USDWs, including use of materials compatible with the carbon dioxide stream.

14.9.4. Owners or operators of Class 6 wells must perform corrective action on all wells in the area of review that are determined to need corrective action, using methods designed to prevent the movement of fluid into or between USDWs, including use of materials compatible with the carbon dioxide stream, where appropriate.

14.9.5. At the minimum fixed frequency, not to exceed 5 years, as specified in the area of review and corrective action plan, or when monitoring and operational conditions warrant, owners or operators must:

14.9.5.a. Reevaluate the area of review in the same manner specified in 14.9.3.a. of this section;

14.9.5.b. Identify all wells in the reevaluated area of review that require corrective action in the same manner specified in 14.9.3. of this section;

14.9.5.c. Perform corrective action on wells requiring corrective action in the reevaluated area of review in the same manner specified in 14.9.4. of this section; and

14.9.5.d. Submit an amended area of review and corrective action plan or demonstrate to the Director through monitoring data and modeling results that no amendment to the area of review and corrective action plan is needed. Any amendments to the area of review and corrective action plan must be approved by the Director, must be incorporated into the permit, and are subject to the permit modification requirements at sections 14.18 or 14.20, as appropriate.

14.9.6. The emergency and remedial response plan (as required by section 13.7.) and the demonstration of financial responsibility (as described by 14.7.7.) must account for the area of review delineated as specified in 14.9.3.a. of this section or the most recently evaluated area of review delineated under 14.9.5. of this section, regardless of whether or not corrective action in the area of review is phased.

14.9.7. All modeling inputs and data used to support area of review reevaluations under 14.9.5. of this section shall be retained for 10 years.

14.10. Application for a Permit. This section shall apply in addition to the requirements of subsections 8.5, 9.5, 10.5, and 14.3.

14.10.1. Permit application. Any person who is required to have a permit (including new applicants and permittees with expiring permits) shall complete, sign, and submit an application to the Director as described in this section. Persons currently authorized with UIC authorization by rule shall apply for permits when required by the Director.

14.10.2. Who applies. When a facility or activity is owned by one person but is operated by another person, it is the operator's duty to obtain a permit.

14.10.3. Completeness. The Director shall not issue a permit under a program before receiving a complete application, except for an emergency permit. An application for a permit under a program is complete when the Director receives an application form and any supplemental information which are completed to his or her satisfaction.

14.10.4. Information requirements. All applicants for UIC permits shall provide the following information to the Director, using the application form provided by the Director. Class 6 applicants shall follow the requirements of 13.8.:

14.10.4.a. The activities conducted by the applicant which require it to obtain permits under UIC.

14.10.4.b. Name, mailing address, and location of the facility for which the application is submitted.

14.10.4.c. Up to 4 SIC codes which best reflect the principal products or services provided by the facility.

14.10.4.d. The operator's name, address, telephone number, ownership status, and status as Federal, State, private, public, or other entity.

14.10.4.e. A listing of all permits or construction approvals received or applied for under any of the following programs:

14.10.4.e.1. Hazardous Waste Management Program under RCRA and W. Va. Code §22-18-1 et seq.

14.10.4.e.2. NPDES program under CWA and State Act.

14.10.4.e.3. Prevention of Significant Deterioration (PSD) program under the Clean Air Act.

14.10.4.e.4. Nonattainment program under the Clean Air Act.

14.10.4.e.5. National Emission Standards for Hazardous Pollutants (NESHAPS) pre-construction approval under the Clean Air Act.

14.10.4.e.6. Dredge or fill permits under section 404 of CWA.

14.10.4.e.7. Other relevant environmental permits, including State permits.

14.10.4.f. A topographic map extending 1 mile beyond the property boundaries of the source, depicting the facility and each of its intake and discharge structures, each of its hazardous waste treatment, storage, or disposal facilities, each well where fluids from the facility are injected underground and those wells, springs, other surface water bodies, and drinking water wells listed in public records or otherwise known to the applicant in the map area.

14.10.4.f.1. Map requirements for Class 6 permits shall include the injection well for which a permit is sought and the applicable area of review consistent with 5.4 and 14.9.2.e. Within the area of review, the map must show the number or name, and location of all injection wells, producing wells, abandoned wells, plugged wells or dry holes, deep stratigraphic boreholes, State-or EPA-approved subsurface cleanup sites, surface bodies of water, springs, mines (surface and subsurface), quarries, water wells, other pertinent surface features including structures intended for human occupancy, State, Tribal, and Territory boundaries, and roads. The map should also show faults, if known or suspected. Only information of public record is required to be included on this map.

14.10.4.g. A brief description of the nature of the business.

14.10.5. Record keeping. Applicants shall keep records of all data used to complete permit applications and any supplemental information submitted under subsection 14.3 for a period of at least 3 years from the date the application is signed.

14.11. Signatories to Permit Applications and Reports.

14.11.1. Applications. All permit applications, except those submitted for Class 2 wells under the UIC program, shall be signed as follows:

14.11.1.a. For a corporation: by a principal officer of at least the level of vice-president;

14.11.1.b. For a partnership or sole proprietorship: by a general partner or the proprietor, respectively; or

14.11.1.c. For a municipality, State, Federal, or other public agency: by either a principal executive officer or ranking elected official.

14.11.2. Reports. All reports required by permits, other information requested by the Director, and all permit applications submitted for Class 2 wells shall be signed by a person described in subdivision 14.11.1 above in this section, or by a duly authorized representative of that person. A person is a duly authorized representative if:

14.11.2.a. The authorization is made in writing by a person described in subdivision 14.11.1. of this section;

14.11.2.b. The authorization specifies either an individual or a position having responsibility for the overall operation of the regulated facility or activity, such as the position of plant manager, operator of a well or a well field, superintendent, or position of equivalent responsibility. (A duly authorized representative may thus be either a named individual or any individual occupying a named position); and

14.11.2.c. The written authorization is submitted to the Director.

14.11.3. Changes to Authorization. If an authorization under subdivision 14.11.2 of this section is no longer accurate because a different individual or position has responsibility for the overall operation of the facility, a new authorization satisfying the requirements of subdivision 14.11.2 of this section must be submitted to the Director prior to or together with any reports, information, or applications to be signed by an authorized representative.

14.11.4. Certification. Any person signing a document under subdivision 14.11.1 or 14.11.2 of this section shall make the following certification:

"I certify under penalty of law that I have personally examined and am familiar with the information submitted in this document and all attachments and that, based on my inquiry of those individuals immediately responsible for obtaining the information, I believe that the information is true, accurate, and complete. I am aware that there are significant penalties for submitting false information, including the possibility of fine and imprisonment."

14.12. Conditions Applicable to All permits. The following conditions are applicable to all permits, and shall be incorporated into the permits either expressly or by reference. If incorporated by reference, a specific citation to this rule must be given in the permit.

14.12.1. Duty to comply. The permittee must comply with all conditions of this permit. Any permit noncompliance constitutes a violation of the SDWA and the State Act and is grounds for enforcement action; for permit suspension or revocation, revocation and reissuance, or modification; or for denial of a permit renewal application.

14.12.2. Duty to Reapply. If the permittee wishes to continue activity regulated by this permit after the expiration date of this permit, the permittee must apply for and obtain a new permit.

14.12.3. Duty to reduce or halt activity. It shall not be a defense for a permittee in an enforcement action that it would have been necessary to halt or reduce the permitted activity in order to maintain compliance with the conditions of this permit.

14.12.4. Duty to mitigate. The permittee shall take all reasonable steps to minimize or correct any adverse impact on the environment resulting from noncompliance with this permit.

14.12.5. Proper operation and maintenance. The permittee shall at all times, properly operate and maintain all facilities and systems of treatment and control (and related appurtenances) which are installed or used by the permittee to achieve compliance with the conditions of this permit. Proper operation and maintenance includes effective performance, adequate funding, adequate operator staffing and training, and quality assurance procedures. This provision requires the operation of back-up or auxiliary facilities or similar systems only when necessary to achieve compliance with the conditions of the permit.

14.12.6. Permit actions. This permit may be modified, revoked and reissued, suspended, or revoked for cause. The filing of a request by the permittee for a permit modification, revocation and reissuance, suspension or revocation, or notification of planned changes or anticipated noncompliance, does not stay any permit condition. All requests shall be in writing and shall contain facts or reasons supporting the request.

14.12.7. Property rights. This permit does not convey any property rights of any sort, or any exclusive privilege.

14.12.8. Duty to provide information. The permittee shall furnish to the Director within a reasonable time, any information which the Director may request to determine whether cause exists for modifying, revoking and reissuing, or revoking this permit, or to determine compliance with this permit. The permittee shall also furnish to the Director, upon request, copies of records required to be kept by this permit.

14.12.9. Inspection and entry. The permittee shall allow the Director, or an authorized representative, upon the presentation of credentials and other documents as may be required by law, to:

14.12.9.a. Enter upon the permittees premises where a regulated facility or activity is located or conducted, or where records must be kept under the conditions of this permit;

14.12.9.b. Have access to and copy, at reasonable times, any records that must be kept under the conditions of this permit;

14.12.9.c. Inspect at reasonable times any facilities, equipment (including monitoring and control equipment), practices, or operations regulated or required under this permit; and

14.12.9.d. Sample or monitor at reasonable times, for the purposes of assuring permit compliance or as otherwise authorized by the SDWA and State Act, any substances or parameters at any location.

14.12.10. Monitoring and records.

14.12.10.a. Samples and measurements taken for the purpose of monitoring shall be representative of the monitored activity.

14.12.10.b. The permittee shall retain records of all monitoring information, including all calibration and maintenance records and all original strip chart recordings for continuous monitoring instrumentation, copies of all reports required by this permit, and records of all data used to complete the application for this permit, for a period of at least 3 years from the date of the sample, measurement, report or application. This period may be extended by request of the Director at any time.

14.12.10.c. Records of monitoring information shall include:

14.12.10.c.1. The date, exact place, and time of sampling or measurements;

14.12.10.c.2. The individual(s) who performed the sampling or measurements;

14.12.10.c.3. The date(s) analysis(es) were performed;

14.12.10.c.4. The individual(s) who performed the analyses;

14.12.10.c.5. The analytical techniques or methods used; and

14.12.10.c.6. The results of such analyses.

14.12.11. Signatory requirement. All applications, reports, or information submitted to the Director shall be signed and certified, as required under subsection 14.11.

14.12.12. Reporting requirements.

14.12.12.a. Planned changes. The permittee shall give notice to the Director as soon as possible of any planned significant physical alterations or additions to the permitted facility, or any planned significant changes in the operation of the facility.

14.12.12.b. Anticipated noncompliance. The permittee shall give advance notice to the Director of any planned changes in the permitted facility or activity which may result in noncompliance with the permit requirements.

14.12.12.c. Transfers. This permit is not transferable to any person except after notice to the Director. The Director may require modification or revocation and reissuance of the permit to change the name of the permittee and incorporate such other requirements as may be necessary under the SDWA and the State Act and rules. In some cases, modification or revocation and reissuance is mandatory (see subsection 14.17).

14.12.12.d. Monitoring reports. Monitoring results shall be reported at the intervals specified elsewhere in this permit.

14.12.12.e. Compliance schedules. Reports of compliance or noncompliance with, or any progress reports on, interim and final requirements contained in any compliance schedule of this permit shall be submitted no later than 30 days following each schedule date.

14.12.12.f. Immediate reporting. The permittee shall report any noncompliance which may endanger health or the environment immediately after becoming aware of the circumstances by using the Water Resources Emergency Notification Number, 1-800-642-3074. Written submission shall also be provided within 5 days of the time the permittee becomes aware of the circumstances. The written submission shall contain a description of the noncompliance and its cause; the period of noncompliance, including exact dates and times, and if the noncompliance has not been corrected, the anticipated time it is expected to continue; and the steps taken or planned to reduce, eliminate, and prevent reoccurrence of the noncompliance.

14.12.12.g. Other noncompliance. The permittee shall report all instances of noncompliance not reported under paragraphs 14.12.12.a., 14.12.12.d., 14.12.12.e., and 14.12.12.f. of this section, at the time monitoring reports are submitted. The report shall contain the information listed in paragraph 14.12.12.f. of this section.

14.12.12.h. Other information. Where a permittee becomes aware that he/she failed to submit any relevant facts in a permit application, or submitted incorrect information in a permit application or in any report to the Director, he/she shall promptly submit such facts or information.

14.12.12.i. Owners or operators of Class 6 wells shall retain records as specified in 47 CSR 13, including subparts 14.4.4., 14.9.6., 14.9.7., and 14.10.5.

14.13. Duration of Permits. UIC permits for Class 1 and 5 wells shall be effective for a fixed term not to exceed 10 years. UIC permits for Class 2 and 3 wells shall be issued for a period up to the operating life of the facility. UIC permits for Class 6 wells shall be issued for the operating life of the facility and the post-injection site care period. The Director shall review each issued Class 2, 3, and 6 well UIC permit at least once every 5 years to determine whether it should be modified, revoked and reissued, terminated or a minor modification made.

14.13.1. The term of a permit shall not be extended by modification beyond the maximum duration specified in this section.

14.13.2. The Director may issue any permit for a duration that is less than the full allowable term under this section.

14.14. Schedules of Compliance.

14.14.1. The permit may, when appropriate, specify a schedule of compliance leading to compliance with the SDWA, the State Act and rules.

14.14.1.a. Time for compliance. Any schedules for compliance under this section shall require compliance as soon as possible.

14.14.1.b. In addition, a schedule of compliance shall require compliance no later than 3 years after the effective date of the permit.

14.14.1.c. Interim dates. Except as provided in subparagraph 14.14.2.a.2. of this section, if a permit establishes a schedule of compliance which exceeds 1 year from the date of permit issuance, the schedule shall set forth interim requirements and the dates for their achievement.

14.14.1.c.1. The time between interim dates shall not exceed 1 year.

14.14.1.c.2. If the time necessary for completion of any interim requirement (such as the construction of a control facility) is more than 1 year and is not readily divisible into stages for completion, the permit shall specify interim dates for the submission of reports of progress toward completion of the interim requirements and indicate a projected completion date.

14.14.1.d. Reporting. The permit shall be written to require that no later than 30 days following each interim date and the final date of compliance, the permittee shall notify the Director in writing of its compliance or noncompliance with the interim or final requirements.

14.14.2. Alternative schedules of compliance. A UIC permit applicant or permittee may cease conducting regulated activities (by plugging and abandonment) rather than continue to operate and meet permit requirements as follows:

14.14.2.a. If the permittee decides to cease conducting regulated activities at a given time within the term of a permit which has already been issued:

14.14.2.a.1. The permit may be modified to contain a new or additional schedule leading to timely cessation of activities; or

14.14.2.a.2. The permittee shall cease conducting permitted activities before noncompliance with any interim or final compliance schedule requirement already specified in the permit.

14.14.2.b. If the decision to cease conducting regulated activities is made before issuance of a permit whose term will include the termination date, the permit shall contain a schedule leading to termination which will ensure timely compliance with applicable requirements.

14.14.2.c. If the permittee is undecided whether to cease conducting regulated activities, the Director may issue or modify a permit to contain 2 schedules as follows:

14.14.2.c.1. Both schedules shall contain an identical interim deadline requiring a final decision on whether to cease conducting regulated activities no later than a date which ensures sufficient time to comply with applicable requirements in a timely manner if the decision is to continue conducting regulated activities.

14.14.2.c.2. One schedule shall lead to timely compliance with applicable requirements;

14.14.2.c.3. The second schedule shall lead to cessation of regulated activities by a date which will ensure timely compliance with applicable requirements; and

14.14.2.c.4. Each permit containing 2 schedules shall include a requirement that after the permittee has made a final decision under subparagraph 14.14.2.a.1. of this section it shall follow the schedule leading to compliance if the decision is to continue conducting regulated activities, and follow the schedule leading to termination if the decision is to cease conducting regulated activities.

14.14.2.d. The applicant's or permittee's decision to cease conducting regulated activities shall be evidenced by a firm public commitment satisfactory to the Director, such as a resolution of the board of directors of a corporation.

14.15. Requirements for Recording and Reporting of Monitoring Results. All permits shall specify:

14.15.1. Requirements concerning the proper use, maintenance, and installation, when appropriate, of monitoring equipment or methods (including biological monitoring methods when appropriate);

14.15.2. Required monitoring including type, intervals, and frequency sufficient to yield data which are representative of the monitored activity including, when appropriate, continuous monitoring; and

14.15.3. Applicable reporting requirements based upon the impact of the regulated activity and as specified elsewhere by this rule.

14.16. Effect of a Permit.

14.16.1. The issuance of a permit does not convey any property rights of any sort, or any exclusive privilege.

14.16.2. The issuance of a permit does not authorize any injury to persons or property or invasion of other private rights, or any infringement of State or local law or rules.

14.16.3. Except for Class 2 and 3 wells, compliance with a permit during its term constitutes compliance, for purposes of enforcement, with Part C of SDWA. However, a permit may be modified, revoked, and reissued, suspended or revoked during its term for cause as set forth in subsections 14.18 and 14.19.

14.17. Transfer of Permits.

14.17.1. Transfers by modification. Except as provided in subdivision 14.17.2. of this section, a permit may be transferred by the permittee to a new owner or operator only if the permit has been modified or revoked and reissued, or a minor modification made to identify the new permittee and incorporate such other requirements as may be necessary under the SDWA and the State Act and rules.

14.17.2. Automatic transfers. As an alternative to transfers under subdivision 14.17.1. of this section, any UIC permit for a well not injecting hazardous waste or injecting carbon dioxide may be automatically transferred to a new permittee if:

14.17.2.a. The current permittee notifies the Director at least 30 days in advance of the proposed transfer date in paragraph 14.17.2.b. of this section;

14.17.2.b. The notice includes a written agreement between the existing and new permittees containing a specific date for transfer of permit responsibility coverage, and liability between them and, in the case of UIC permits, the notice demonstrates that the financial responsibility requirements of subdivision 14.7.7., will be met by new permittee; and

14.17.2.c. The Director does not notify the existing permittee and the proposed new permittee of his or her intent to modify or revoke and reissue the permit. A modification under this section may also be a minor modification under subsection 14.20. If this notice is not received, the transfer is effective on the date specified in the agreement mentioned in paragraph 14.17.2.b. of this section.

14.18. Modification or Revocation and Reissuance of Permits. When the Director receives any information (for example, inspects the facility, receives information submitted by the permittee as required in the permit, receives a request for modification or revocation and reissuance, or conducts a review of the permit file) he or she may determine whether or not one or more of the causes listed in subdivisions 14.18.1., and 14.18.2. of this section for modification or revocation and reissuance or both exists. If cause exists, the Director may modify or revoke and reissue the permit accordingly, subject to the limitations of subdivision 14.18.3. of this section and request an updated application. When a permit is modified, only the conditions subject to modification are reopened. If a permit is revoked and reissued, the entire permit is reopened and subject to revision and the permit is reissued for a new term. If cause does not exist under this section or subsection 14.20, the Director shall not modify or revoke and reissue the permit. If a permit modification satisfies the criteria in subsection 14.20 for "minor modifications" the permit may be modified without a draft permit or public review. Otherwise, a draft permit must be prepared. Notice of intent to revoke a permit will require a draft permit.

14.18.1. Cause for modification. The following are causes for modification but not revocation and reissuance of permits, except for Class 1, 2 and 3 wells in which case the following may be causes for revocation and reissuance as well as modification.

14.18.1.a. Alterations. There are material and substantial alterations or additions to the permitted facility or activity which occurred after permit issuance which justify the application of permit conditions that are different or absent in the existing permit.

14.18.1.b. Information. The Director has received information. Permits other than for Class 2 and 3 wells may be modified during their terms for this cause only if the information was not available at the time of permit issuance (other than revised rules, guidance, or test methods) and would have justified the application of different permit conditions at the time of issuance. For UIC area permits, this cause shall include any information indicating that cumulative effects on the environment are unacceptable.

14.18.1.c. New rules. The standards or rules on which the permit was based have been changed by promulgation of amended standards or rules or by judicial decision after the permit was issued. Permits other than for Class 2 or 3 wells may be modified during their terms for this cause only as follows:

14.18.1.c.1. For promulgation of amended standards or rules, when:

14.18.1.c.1.A. The permit condition to be modified was based on a State regulation requiring compliance with 40 CFR Part 146; and

14.18.1.c.1.B. The State has revised, withdrawn, or modified that portion of the regulation on which the permit condition was based.

14.18.1.c.2. For judicial decisions, a court of competent jurisdiction has remanded and stayed State promulgated rules if the remand and stay concern that portion of the rules on which the permit condition was based.

14.18.1.d. Compliance schedules. The Director determines good cause exists for modification of a compliance schedule, such as an act of God, strike, flood, or materials shortage or other events over which the permittee has little or no control and for which there is no reasonably available remedy.

14.18.1.e. For Class 6 wells. Whenever the Director determines that permit changes are necessary based on area of review reevaluations or any amendments to the testing and monitoring plan, injection well plugging plan, post injection site care and site closure plan, or emergency and remedial response plan; or a review of monitoring and/or testing results conducted in accordance with permit requirements.

14.18.2. Cause for modification or revocation and reissuance. The following are causes to modify or, alternatively, revoke and reissue a permit:

14.18.2.a. Cause exists for revocation under subsection 14.19 and the Director determines that modification or revocation and reissuance is appropriate.

14.18.2.b. The Director has received notification of a proposed transfer of the permit. A permit may also be modified to reflect a transfer after the effective date of an automatic transfer under subdivision 14.17.2. but will not be revoked and reissued after the effective date of the transfer except upon the request of the new permittee unless the permit is up for reissuance or meets a qualification for revocation under 14.19.

14.18.3. Facility siting. Suitability of the facility location will not be considered at the time of permit modification or revocation and reissuance unless new information or standards indicate that a threat to human health or the environment exists which was unknown at the time of permit issuance.

14.19. Revocation and Suspension of Permits.

14.19.1. The Director may revoke or suspend a permit during its term or deny a permit renewal application for the following causes:

14.19.1.a. Noncompliance by the permittee with any condition of the permit;

14.19.1.b. The permittee's failure in the application or during the permit issuance process to disclose fully all relevant facts, or the permittee's misrepresentation of any relevant facts at any time; or

14.19.1.c. A determination that the permitted activity endangers human health or the environment and can only be regulated to acceptable levels by permit modification or revocation. Such as the waste being injected is now a hazardous waste.

14.20. Minor Modifications of Permits. Upon the consent of the permittee, the Director may modify a permit to make the corrections or allowances for changes in the permitted activity listed in this section. Any permit modification not processed as a minor modification under this section must be made for cause and with a draft permit and public notice as required in subsection 14.18. Minor modifications may only:

14.20.1. Correct typographical errors;

14.20.2. Require more frequent monitoring or reporting by the permittee;

14.20.3. Change an interim compliance date in a schedule of compliance, provided the new date is not more than 120 days after the date specified in the existing permit and does not interfere with attainment of the final compliance date requirement;

14.20.4. Allow for a change in ownership or operational control of a facility where the Director determines that no other change in the permit is necessary, provided that a written agreement containing a specific date for transfer of permit responsibility, coverage, and liability between the current and new permittees has been submitted to the Director; or

14.20.5. Allow the following:

14.20.5.a. Change quantities or types of fluids injected which are within the capacity of the facility as permitted, and in the judgement of the Director would not interfere with the operation of the facility or its ability to meet conditions prescribed in the permit, and would not change its classification;

14.20.5.b. Change construction requirements approved by the Director pursuant to subdivision 14.7.1., provided that any such alteration shall comply with the requirements of this rule; and

14.20.5.c. Amend a plugging and abandonment plan which has been updated under subdivision 14.6.5.

14.20.5.d. Amend a Class 6 injection well testing and monitoring plan, plugging plan, post-injection site care and site closure plan, or emergency and remedial response plan where the modifications merely clarify or correct the plan.

14.21. Confidentiality of Information.

14.21.1. Any information submitted to the State pursuant to this rule may be claimed as confidential by the submitter. Any such claim must be asserted at the time of submission in the manner prescribed on the application form or instructions or, in the case of other submissions, by stamping the words "CONFIDENTIAL BUSINESS INFORMATION" on each page containing such information. If no claim is made at the time of submission, the State may make the information available to the public without further notice.

14.21.2. Claims of confidentiality for the following information will be denied:

14.21.2.a. The name and address of any permit applicant or permittee.

14.21.2.b. Information which deals with the existence, absence, or level of contaminants in drinking water.

14.22. Identification of Underground Sources of Drinking Water and Exempted Aquifers.

14.22.1. The Director may identify (by narrative description, illustrations, maps, or other means) and shall protect, except where exempted under subdivision 14.22.2. of this section, as an underground source of drinking water, all aquifers or parts of aquifer which meet the definition of an "underground source of drinking water" in section 2. Even if an aquifer has not been specifically identified by the Director, it is an underground source of drinking water if it meets the definition in section 2 or an expansion to the areal extent of an existing Class 2 EOR/EGR aquifer exemption for the exclusive purpose of Class 6 injection for geologic sequestration. Other than EPA approved aquifer exemption expansions or exemptions following 40 CFR 144.7(a), new aquifer exemptions shall not be issued for Class 6 injection wells.

14.22.2. The Director may identify (by narrative description, illustrations, maps, or other means) and describe in geographic and/or geometric terms, such as vertical and lateral limits and gradient, which are clear and definite, all aquifers or parts thereof which the Director proposes to designate as exempted aquifers using the criteria in section 3.

14.22.3. No designation of an exempted aquifer submitted as a part of a UIC Program shall be final until approved by the Director of the U.S. EPA as part of the State program.

14.22.3.a. No designation of an expansion to the areal extent of a Class 2 EOR/EGR aquifer exemption for the exclusive purpose of Class 6 injection for geologic sequestration shall be final until approved by the Director of the U.S. EPA as part of the State Program.

14.22.3.b. In order to make a request to the Director to approve an expansion to the areal extent of existing Class 2 aquifer exemptions for Class 6 wells, the owner or operator of a Class 2 EOR/EGR must define and describe all aquifers that are requested to be designated as exempted in 40 CFR 146.4. Requests must be treated as a substantial program revision under the approved State UIC program and will not be final until approved by EPA. The Director must determine that the request meets the criteria in 40 CFR 146.4 and consider: 1 - Current and potential future use of the USDWs to be exempted as drinking water resources; 2 - The predicted extent of the injected CO2 plume and any mobilized fluids that may degrade of water quality, over the GS project lifetime, as informed by computational modeling in 14.9.3.a.; 3 - Whether the areal extent of the expanded aquifer exemption is of sufficient size to account for any possible revisions to the computational model during reevaluation of the area of review, pursuant to 14.9.5.d.; and 4 -Any information submitted to support a waiver request made by the owner or operator under 14.8.4., if appropriate.

14.22.4. For Class 3 wells, the Director shall require an applicant for a permit which necessitates an aquifer exemption under paragraph 3.1.2.a to furnish the data necessary to demonstrate that the aquifer is expected to be mineral or hydrocarbon producing. Information contained in the mining plan for the proposed project, such as a map and general description of the mining zone, general information on the mineralogy and geochemistry of the mining zone, analysis of the amenability of the mining zone to the proposed mining method, and a time-table of planned development of the mining zone shall be considered by the Director in addition to the information required by subsection 14.3.

14.22.5. For Class 2 wells, a demonstration of commercial producibility shall be made as follows:

14.22.5.a. For a Class 2 well to be used for enhanced oil recovery processes in a field or project containing aquifers from which hydrocarbons were previously produced, commercial productibility shall be presumed by the Director upon a demonstration by the applicant of historical production having occurred in the project area or field.

14.22.5.b. For Class 2 wells not located in a field or project containing aquifers from which hydrocarbons were previously produced, information such as logs, core data, formation description, formation depth, formation thickness and formation parameters such as permeability and porosity shall be considered by the Director, to the extent such information is available.

14.23. Public Access to Information.

14.23.1. Any records, reports, or information contained under this rule and any permits, permit applications, and related documentation shall be available to the public for inspection and copying in accordance with Series 8, West Virginia Legislative Rules (Freedom of Information Act); provided, however, that upon a satisfactory showing to the Director that such records, reports, permit documentation, or information (other than that listed in subdivision 14.21.2.), would, if made public, divulge methods or processes entitled to protection as trade secrets, the Director shall consider, treat and protect such records as confidential.

14.23.2. It shall be the responsibility of the person claiming information as confidential under the provisions of subdivision 14.23.1. above to clearly mark each page containing such information with the word "CONFIDENTIAL" and to submit an affidavit setting forth the reasons that said person believes that such information is entitled to protection.

14.23.3. Any document submitted to the Director which contains information for which claim of confidential information is made shall be submitted in a sealed envelope marked "CONFIDENTIAL" and addressed to the Director. The document shall be submitted in 2 separate parts. The first part shall contain all information which is not deemed by the person preparing the report as confidential and shall include appropriate cross-references to the second part which contains data, words, phrases, paragraphs, or pages and appropriate affidavits containing or relating to information which is claimed to be confidential.

14.23.4. No information shall be protected as confidential information by the Director unless it is submitted in accordance with the provisions of subdivision 14.23.3 above and no information which is submitted in accordance with the provisions of subdivision 14.23.3 above shall be afforded protection as confidential information unless the Director finds that such protection is necessary to protect trade secrets and that such protection will not hide from public view the characteristics of waste materials and probable effects of the introduction of such wastes or by-products into the environment. The person who submits information claimed as confidential shall receive written notice from the Director as to whether the information has been accepted as confidential or not.

14.23.5. All information which meets the tests of subdivision 14.23.4. above shall be marked with the term "ACCEPTED" and shall be protected as confidential information. If said person fails to satisfactorily demonstrate to the Director that such information in the form presented to him meets the criteria of subdivision 14.23.4. above, the Director shall mark the information "REJECTED" and promptly return such information to the person submitting such information.

14.23.6. Nothing contained herein shall be construed so as to restrict the release of relevant confidential information during situations declared to be emergencies by the Director or his designee.

14.23.7. Nothing in this section may be construed as limiting the disclosure of information by the Water Resources section to any officer, employee or authorized representative of the State or Federal government concerned with the State UIC program.

14.24. Public Participation in Permit Process.

14.24.1. Scope. Public notice shall be given that the following actions have occurred:

14.24.1.a. A draft permit has been prepared; or

14.24.1.b. A hearing time has been scheduled.

14.24.2. Timing.

14.24.2.a. Public notice of the preparation of the draft permit required under this section shall allow at least 30 days for public comment.

14.24.2.b. Public notice of a hearing shall be given at least 30 days before the hearing.

14.24.3. Methods. Public notice of activities described in this section shall be given by the following methods:

14.24.3.a. By mailing a copy of a notice to the following persons (any person otherwise entitled to receive notice under this paragraph may waive the right to receive notice for any classes and categories of permits):

14.24.3.a.1. The applicant;

14.24.3.a.2. Any other agency including EPA which the Director knows has issued or is required to issue a RCRA, PSD, NPDES permit for the same facility or activity;

14.24.3.a.3. Federal and State and interstate agencies with jurisdiction over fish and wildlife resources, public health, the State Historic Preservation Unit of the Department of Culture and History, and other appropriate government authorities, including any affected states;

14.24.3.a.4. Persons on a mailing list developed by:

14.24.3.a.4.A. Including those who request in writing to be on the list;

14.24.3.a.4.B. Soliciting persons for "area lists" from participants in past permit proceedings in that area; and

14.24.3.a.4.C. Notifying the public of the opportunity to be put on the mailing list through periodic publication in the public press and in appropriate publications of the State.

14.24.3.a.5. By mailing a copy to each agency having authority under State law with respect to the construction or operation of such facility and to any unit of local government having jurisdiction over the area where the facility is proposed to be located;

14.24.3.a.6. State and local oil and gas agencies for Class 6 UIC Permits.

14.24.3.b. For any permit, and all major permits, the Director shall send the public notice to the applicant who shall be responsible for publication of a Class 1 legal advertisement by a date, and in a paper specified by the Director. Upon publication, the applicant shall send the Director a copy of the certificate of publication. The costs of publication shall be borne by the applicant; and

14.24.3.c. Any other method reasonably calculated to give actual notice of the action in question to the persons potentially affected by it, including press releases or any other forum or medium to elicit public participation.

14.25. Contents of a Public Notice.

14.25.1. All public notices issued under this section shall contain the following minimum information:

14.25.1.a. Name and address of the office processing the permit action for which notice is being given.

14.25.1.b. Name and address of the permittee or permit applicant and, if different, of the facility or activity regulated by the permit.

14.25.1.c. A brief description of the business conducted at the facility described in the permit application or the draft permit.

14.25.1.d. The name, address, and telephone number of a person from whom interested persons may obtain further information, including copies of the draft permit or fact sheet, and the application.

14.25.1.e. A brief description of the comment procedures required by subsections 14.26 and 14.27 and the time and place of any hearing that will be held, including a statement of procedures to request a hearing unless already scheduled, and other procedures by which the public may participate in the final permit decision.

14.25.2. In addition to the general public notice described in subdivision 14.25.1., the public notice of a hearing shall contain the following information:

14.25.2.a. Reference to the date of previous public notices relating to the permit;

14.25.2.b. Date, time and place of the hearing; and

14.25.2.c. A brief description of the nature and purposes of the hearing, including the applicable rules and procedures.

14.25.3. In addition to the general public notice, all persons identified in subparagraphs 14.24.3.a.1., 14.24.3.a.2., and 14.24.3.a.3. shall be mailed a copy of the fact sheet, the permit application and the draft permit.

14.26. Public Comment and Requests for Public Hearings. During the public comment period provided, any interested person may submit written comments on the draft permit and may request a public hearing if no hearing has already been scheduled. A request for a public hearing shall be in writing and shall state the nature of the issues proposed to be raised in the hearing. All comments shall be considered in making the final decision and shall be answered as provided in subsection 14.30.

14.27. Public Hearings.

14.27.1. The Director shall hold a public hearing whenever he or she finds, on the basis of requests, a significant degree of public interest of issues relevant to the draft permit(s). The Director also may hold a public hearing at his or her discretion, whenever, for instance, such a hearing might clarify one or more issues involved in the permit decision.

14.27.2. Any person may submit oral or written statements and data concerning the draft permit. Reasonable limits may be set upon the time allowed for oral statements, and the submission of statements in writing may be required. The public comment period under paragraph 14.24.2.a., shall automatically be extended to 10 days after the close of any public hearing under this section.

14.27.3. A tape recording or written transcript of the hearing shall be made available to the public, upon request.

14.28. Obligation to Raise Issues and Provide Information During the Public Comment Period. All persons, including applicants, who believe any condition of a draft permit is inappropriate or that the Director tentative decision to prepare a draft permit is inappropriate, shall raise all reasonably ascertainable issues and submit all reasonably available arguments and factual grounds supporting their position, including all supporting material, by the close of the public comment period. All supporting materials shall be included in full and not be incorporated by reference, unless they are already part of the administrative record in the same proceeding, or consist of State or Federal statutes and rules, documents of general applicability, or other generally available reference materials. Submitters of comments shall make supporting material not already included in the administrative record available to the State as directed by the Director.

14.29. Reopening of the Public Comment Period.

14.29.1. If any data, information or arguments submitted during the public comment period appear to raise substantial new questions concerning a permit, the Director may take one or more of the following actions:

14.29.1.a. Prepare a new draft permit, appropriately modified;

14.29.1.b. Prepare a revised fact sheet and reopen the comment period under this section; or

14.29.1.c. Reopen or extend the comment period to give interested persons an opportunity to comment on the information or arguments submitted.

14.29.2. Comments filed during the reopened comment period shall be limited to the substantial new questions that caused its reopening. The public notice shall define the scope of the reopening.

14.30. Response to Comments.

14.30.1. Any time that any final permit is issued, the Director shall prepare a response to comments. This response shall:

14.30.1.a. Specify which provisions, if any, of the draft permit have been changed in the final permit decision, and the reasons for the change; and

14.30.1.b. Briefly describe and respond to all significant comments on the draft permit raised during the public comment period, or during any hearing.

14.30.2. The response to comments shall be available to the public.

14.31. Fact Sheet.

14.31.1. A fact sheet shall be prepared for every draft permit for a major facility or activity and for every draft permit which the Director finds is the subject of widespread public interest or raises major issues. The fact sheet shall briefly set forth the principal facts and the significant factual, legal, methodological and policy questions considered in preparing the draft permit. The Director shall send this fact sheet to the applicant and, on request, to any other person and to the persons required under subparagraphs 14.24.3.a.1., 14.24.3.a.2., and 14.24.3.a.3. A major facility is classified as such by the Regional Administrator in conjunction with the State Director.

14.31.2. The fact sheet shall include, when applicable:

14.31.2.a. A brief description of the type of facility or activity which is the subject of the draft permit;

14.31.2.b. The type and quantity of fluids, which are proposed to be or are being injected;

14.31.2.c. A brief summary of the basis for the draft permit conditions including references to applicable statutory or regulatory provisions;

14.31.2.c.1. Justified or unjustified variances;

14.31.2.d. A description of the procedures for reaching a final decision on the draft permit including:

14.31.2.d.1. The beginning and ending dates of the public comment period and the address where comments will be received;

14.31.2.d.2. Procedures for requesting a hearing and the nature of that hearing;

14.31.2.d.3. Any other procedures by which the public may participate in the final decision; and

14.31.2.d.4. Name and telephone number of a person to contact for additional information.

14.32. Draft Permits

14.32.1. Once an application is complete, the Director shall tentatively decide whether to prepare a draft permit or to deny the application.

14.32.2. If the Director decides to prepare a draft permit, it shall contain the following information:

14.32.2.a. All conditions under subsections 14.6, 14.7, and 14.12;

14.32.2.b. All compliance schedules; and

14.32.2.c. All monitoring requirements.

Figure 47-13-5 Zone of Endangering Influence where:

Series 26 Water Pollution Control Permit Fee Schedules

W. Va. Code R. § 47-26-1 General

1.1. Scope and Purpose. -- This legislative rule establishes schedules of permit application fees and annual permit fees for state water pollution control permits and national pollutant discharge elimination system permits issued by the Director of the Division of Water and Waste Management. This rule applies to any person who is required to apply for and obtain a permit from the Director in order to conduct an activity that is enumerated in W. Va. Code §22-11-8.

1.2. Authority. -- W. Va. Code §22-11-10.

1.3. Filing Date. -- May 09, 2025.

1.4. Effective Date. -- May 09, 2025.

1.5. Incorporation by Reference. -- Whenever federal or State statutes or regulations are incorporated into this rule by reference, the reference is to the statute or regulation in effect on the effective date of this rule.

W. Va. Code R. § 47-26-2 Definitions

2.1. “Activity” means an activity for which a permit is required pursuant to the provisions of W. Va. Code §22-11-8.

2.2. “Average Discharge Volume” or “ADV” means:

2.2.1. For a State water pollution control permit, the flow reported on the permit application.

2.2.2. For a national pollutant discharge elimination system permit for industrial wastes or for other wastes, the sum of the average flows reported on the permit application, as described in 47CSR10, paragraph 4.4.b.3.

2.2.3. For a national pollutant discharge elimination system permit for sewage, the design flow reported on the permit application.

2.3. “Closed System Facility” means a facility that is required by effluent limitation guidelines or other statutory or regulatory mandates to maintain no discharge or to maintain a recycle system or that otherwise maintains a closed system.

2.4. “Customer” means a person who is provided wastewater disposal services from a facility permitted under W. Va. Code §22-11-8. For the purpose of this rule, commercial customers and residential customers other than single family dwellings (e.g., apartment complexes, trailer parks) shall be translated into customer equivalents by dividing their total daily estimated volume of wastewater by 350 gallons per day.

2.5. “Director” means the Director of the Division of Water and Waste Management (formerly the Office of Water Resources) of the Department of Environmental Protection, as designated by the Secretary thereof.

2.6. “Existing Facility” means a facility for which a State water pollution control permit or a national pollutant discharge elimination system permit has been previously issued by the Director.

2.7. “Facility” means any plant, means, system, disposal field, lagoon, pumping station, constructed drainage ditch, surface water intercepting ditch, diversion ditch above or below the surface of the ground, settling tank or pond, earthen pit, incinerator, solid waste facility, or other works that is installed for the purpose of treating, neutralizing, stabilizing, holding, disposing, or controlling the quality and rate of flow of sewage, industrial wastes, or other wastes.

2.8. “Industrial Wastes” means any liquid, gaseous, solid, or other waste substance, or a combination thereof, resulting from or incidental to any process of industry, manufacturing, trade, or business, or from or incidental to the development, processing, or recovery of any natural resources. The term “industrial wastes” includes the admixture of industrial wastes with sewage or other wastes.

2.9. “Major Facility” means a facility or activity classified as a major facility by the Regional Administrator of the United States Environmental Protection Agency for Region III in joint consultation with the Director.

2.10. “Major Modification” means a modification of an issued permit made in accordance with the provisions of 47CSR10, subdivision 9.2.b.

2.11. “Minor Construction Activity” means any activity which disturbs an area equal to or greater than one acre of land but less than three acres.

2.12. “Minor Modification” means a modification of an issued permit made in accordance with the provisions of 47CSR10, subdivision 9.2.a.

2.13. “Minor POTW” means a POTW that is not a major facility.

2.14. “New Facility” means a facility for which a State water pollution control permit or a national pollutant discharge elimination system permit has not been issued previously by the Director. This definition includes a new entity at a site for which a previous entity may have held a water pollution control permit or a national pollutant discharge elimination system permit.

2.15. “Other Wastes” means garbage; refuse; decayed wood, sawdust, shavings, bark and other wood debris and residues resulting from secondary processing; sand; lime; cinders; ashes; offal; night soil; silt; oil; tar; dyestuffs; acids; chemicals; heat; and all other materials and substances that are not, by definition, sewage or industrial wastes which may cause or might reasonably be expected to cause or to contribute to the pollution of any of the waters of the State.

2.16. “Permit” means a State water pollution control permit or a national pollutant discharge elimination system permit issued by the Director.

2.17. “Person” means:

2.17.1. Any industrial user, public or private corporation, institution, association, firm, or company organized or existing under the laws of this or any other state or country;

2.17.2. The State of West Virginia;

2.17.3. Any governmental agency, including federal facilities;

2.17.4. Any political subdivision of this State, including a county commission, municipality, sanitary district, public service district, drainage district, soil conservation district, or watershed improvement district;

2.17.5. Any partnership, trust, or estate;

2.17.6. Any person or individual;

2.17.7. Any group of persons or individuals acting individually or as a group; or

2.17.8. Any other legal entity.

2.18. “Primary Industrial Category” means any industry category listed in Appendix A of 40 C.F.R. Part 122.

2.19. “Priority Pollutant” means any substance listed in 40 C.F.R. §401.15.

2.20. “Publicly-Owned Treatment Works” or “POTW” means any device or system used in the treatment (including recycling and reclamation) of municipal sewage or industrial wastes of a liquid nature which is owned by a state or municipality as defined by §502(4) of the Clean Water Act at 33 U.S.C. §1251, et seq. This definition includes sewers, pipes or other conveyances only if they convey wastewater to a POTW providing treatment.

2.21. “Secondary Industrial Category” means any industry category not listed in Appendix A of 40 C.F.R. Part 122.

2.22. “Sewage” means water-carried human or animal wastes from residences, buildings, industrial establishments, or other places together with such groundwater infiltration and surface waters as may be present.

2.23. “Solid Waste Facility” means any system, facility, land, contiguous land, improvements on the land, structures, or other appurtenances or methods used for processing, recycling, or disposing of solid waste including landfills, transfer stations, incinerators, resource recovery facilities, recycling facilities, and other such facilities not herein specified; provided, that a “Closed Solid Waste Facility” shall mean a ‘solid waste facility’ as defined herein which no longer accepts solid waste for disposal, but must still maintain a permit.

2.24. “Toxic Chemical” means:

2.24.1. Any substance listed in Table III, Appendix C of 47CSR10;

2.24.2. Any substance listed in Table V, Appendix C of 47CSR10;

2.24.3. Any substance listed in 40 C.F.R. §116.4;

2.24.4. Any substance listed in 40 C.F.R. §302.4;

2.24.5. Any substance listed in 40 C.F.R. §372.65;

2.24.6. Any substance listed in 40 C.F.R. §712.30 or 40 C.F.R. §716.120; or

2.24.7. Any substance for which replicated test data exist to indicate that exposure to that substance poses a risk of injury to human health or the environment.

W. Va. Code R. § 47-26-3 Fee Assessment and Collection

3.1. Assessment of Permit Application Fees. Any person who applies for a permit must pay the appropriate permit application fee in accordance with the provisions of sections 4 through 6 of this rule.

3.2. Assessment of Annual Permit Fees. Any person who holds a permit must pay an annual permit fee in accordance with the provisions of section 7 of this rule.

3.3. Method of Fee Payment. All fees assessed under this rule must be submitted to the Director by check or money order payable to the West Virginia Department of Environmental Protection.

3.4. Collection of Permit Application Fees. The permit application fee must be submitted to the Director with the permit application. No permit application will be processed until the appropriate fee has been received by the Director.

3.4.1. A person may seek verification of the correct amount of a permit application fee by submitting his or her calculation of the fee to the Director in writing. This calculation must be submitted sufficiently in advance of the permit application to meet the provisions of 47CSR10 subsection 4.3. Within 30 days of the receipt of this calculation, the Director shall notify the applicant of the accuracy of his calculation. If the applicant’s calculation is incorrect, the Director will advise him or her of the correct amount to be submitted as the permit application fee.

3.4.2. If the Director determines that a submitted application is incomplete and must be returned to the applicant for additional information, the permit application resubmission fee must accompany the refiled application. This fee will be either a sum equivalent to 5% of the permit application fee or $100, whichever is greater.

3.5. Collection of Annual Permit Fees. The annual permit fee must be submitted to the Director by no later than the anniversary of the date of permit issuance in each year of the term of the permit.

3.5.1. A permit will become void if the annual permit fee has not been paid within 90 days of the due date.

3.5.2. A permit will not be reissued until all annual permit fees due during the term of that permit have been paid in full.

3.5.3. A permit will not be issued to an entity at a new location until all annual permit fees due during the term of any permit held at any previous location by that entity have been paid in full.

3.5.4. A permit will not be transferred for a facility which has failed to pay all annual permit fees due during the term of the permit.

W. Va. Code R. § 47-26-4 Initial Permit Application Fees

4.1. Fee Calculation. Except as provided in subsections 4.2 through 4.6 of this rule, all initial permit application fees shall be calculated through the use of the following formula: the initial permit application fee shall equal the volume fee multiplied by the facility factor multiplied by the waste factor (i.e., Initial Permit Application Fee = Volume Fee x Facility Factor x Waste Factor).

4.1.1. The appropriate volume fee will be determined through the use of the “New Facility” column of Table A of this rule.

4.1.2. The appropriate facility factor will be determined through the use of Table B of this rule.

4.1.3. The appropriate waste factor will be determined through the use of Table C of this rule.

4.2. Publicly-Owned Treatment Works. The initial permit application fee for a POTW that operates a collection system only will be $2,500.

4.3. Closed System Facilities.

4.3.1. The initial permit application fee for a closed system facility where priority pollutants or toxic chemicals are present in the system will be $15,000.

4.3.2. The initial permit application fee for a closed system facility where no priority pollutants or toxic chemicals are present in the system will be $1,225.

4.4. Solid Waste Facilities. The initial permit application fee for a solid waste facility will be set and collected in accordance with the provisions of 33CSR1.

4.5. Minor Construction Activities. The initial permit fee for a minor construction activity requiring a permit will be $300.

4.6. Concentrated Animal Feeding Operations (CAFOs). The initial permit application fee for a CAFO shall be $50.

W. Va. Code R. § 47-26-5 Permit Renewal Application Fees

5.1. Fee Calculation. Except as provided in subsections 5.2 through 5.5 of this rule, all permit renewal application fees will be calculated through the use of the following formula: the permit renewal application fee shall equal the volume fee multiplied by the facility factor multiplied by the waste factor (i.e., Permit Renewal Application Fee = Volume Fee x Facility Factor x Waste Factor).

5.1.1. The appropriate volume fee will be determined through the use of the “Existing Facility” column of Table A of this rule.

5.1.2. The appropriate facility factor will be determined through the use of Table B of this rule.

5.1.3. The appropriate waste factor will be determined through the use of Table C of this rule.

5.2. Publicly-Owned Treatment Works. The permit renewal application fee for a POTW that operates a collection system only will be $1,000.

5.3. Closed System Facilities.

5.3.1. The permit renewal application fee for a closed system facility where priority pollutants or toxic chemicals are present in the system will be $5,000.

5.3.2. The permit renewal application fee for a closed system facility where no priority pollutants or toxic chemicals are present in the system will be $625.

5.4. Solid Waste Facilities. The permit renewal application fee for a solid waste facility will be set and collected in accordance with the provisions of 33CSR1.

5.5. Concentrated Animal Feeding Operations (CAFOs). The permit renewal application fee for a CAFO shall be $50.

W. Va. Code R. § 47-26-6 Permit Modification Application Fees

6.1. Fee Calculation. Except as provided in subsections 6.2 through 6.7 of this rule, all permit modification application fees will be calculated through the use of the following formula: the permit modification application fee shall equal the volume fee multiplied by the facility factor multiplied by the waste factor (i.e., Permit Modification Application Fee = Volume Fee x Facility Factor x Waste Factor).

6.1.1. The appropriate volume fee will be determined through the use of the “Existing Facility” column of Table A of this rule. Only the discharge volume of the activity affected by the modification shall be used in determining the appropriate volume fee.

6.1.2. The appropriate facility factor will be determined through the use of Table B of this rule.

6.1.3. The appropriate waste factor will be determined through the use of Table C of this rule.

6.2. Publicly-Owned Treatment Works.

6.2.1. The permit modification application fee for a POTW that operates a collection system only will be 10% of the initial permit application fee for an application seeking a major modification.

6.2.2. The permit modification application fee for a POTW that operates a collection system only will be 2% of the initial permit application fee or $50, whichever is greater, for an application seeking a minor modification.

6.3. Closed System Facilities.

6.3.1. The permit modification application fee for a closed system facility will be 10% of the initial permit application fee for an application seeking a major modification.

6.3.2. The permit modification application fee for a closed system facility will be 2% of the initial permit application fee or $100, whichever is greater, for an application seeking a minor modification.

6.4. Solid Waste Facilities. The permit modification application fee for a solid waste facility will be set and collected in accordance with the provisions of 33CSR1.

6.5. Non-Volume-Related Major Modifications. Except as provided in subsections 6.2 through 6.4 of this rule, the permit modification application fee will be 10% of the initial permit application fee for sewage facilities and 10% of the initial permit application fee, or $875 whichever is greater for industrial facilities for an application seeking a major modification where no discharge volume is involved.

6.6. Non-Volume-Related Minor Modifications. Except as provided in subsections 6.2 through 6.4 of this rule, the permit modification application fee will be $75 for sewage only facilities and $175 for industrial facilities for an application seeking a minor modification where no discharge volume is involved.

6.7. Concentrated Animal Feeding Operations. The permit modification application fee for a CAFO shall be $35 for an application seeking a major or minor modification.

W. Va. Code R. § 47-26-7 Annual Permit Fees

7.1. Facilities Discharging Sewage. The annual permit fee for a facility that discharges sewage will be determined through the use of Table D of this rule.

7.2. Facilities Discharging Industrial Wastes or Other Wastes. The annual permit fee for a facility that discharges industrial wastes or other wastes will be determined through the use of Table E of this rule.

7.3. Publicly-Owned Treatment Works. The annual permit fee for a POTW that operates a collection system only will be determined through the use of Table D of this rule.

7.4. Closed System Facilities.

7.4.1. The annual permit fee for a closed system facility where priority pollutants or toxic chemicals are present in the system will be $7,500: Provided, that if the Director determines that a facility is in substantial compliance with its existing permit, the fee will be $3,750.

7.4.2. The annual permit fee for a closed system facility where no priority pollutants or toxic chemicals are present in the system will be $175.

7.5. Solid Waste Facilities. The annual permit fee for a solid waste facility will be $5,000.

7.6. Facilities Discharging Stormwater. The annual permit fee for a facility that discharges stormwater only will be determined through the use of Table F of this rule.

7.7. Aquaculture facilities. The annual permit fees for aquaculture facilities that are subject to the provisions of the water pollution control regulations will be determined by Table G of this rule.

7.8. Concentrated Animal Feeding Operations (CAFOs). The annual permit fee for CAFOs will be $35. 7.9 Public Geothermal facilities. The annual permit fees for facilities that discharge geothermal wastewater, and no other type of wastewater (stormwater or process wastewater) shall be determined through the use of Table H of this rule. Public Geothermal facilities are defined as a municipalities’ or county government’s buildings implementing practices using geothermal energy for heating or cooling systems, which systems rely on temperature differentials between groundwater or spring fed streams and ambient air temperature to heat or cool a building or buildings.

TABLE A

Industrial Wastes Only Volume Fees Average Discharge Volume (gallons per day)

Existing Facility Volume Fee New Facility Volume Fee less than 1,001 $500 1,001 to 5,000 $350 $900 5,001 to 50,000 $525 50,001 to 100,000 $700 $2,100 100,001 to 500,000 $2,625 500,001 to 1,000,000 $1,250 $3,750 1,000,001 to 5,000,000 $1,500 $4,500 greater than 5,000,001 $5,250 Sewage Only Volume Fees Average Discharge Volume (gallons per day)

Existing Facility Volume Fee New Facility Volume Fee less than 1,001 $75 $300 1,001 to 5,000 $450 5,001 to 50,000 $275 50,001 to 100,000 $350 $1,050 100,001 to 500,000 $450 $1,300 500,001 to 999,999 $600 $1,800 1,000,000 to 4,999,999 $700 $2,100 greater than 5,000,000 $800 $2,400 Note: Stormwater runoff shall be included when calculating the average discharge volume of a facility that discharges industrial waste or other waste. Calculations of the average discharge volume for stormwater runoff shall be made in accordance with the provisions of Appendix A of these rules.

TABLE B

Facility Factors Type of Facility Facility Factor Major Facility 5.0 Primary Industry Category (Except Auto and Other Laundries) 5.0 Secondary Industry Category 3.0 Water Plants 3.0 Minor POTWs 2.0 Auto and Other Laundries Category Facility Covered Under a General Permit 0.9 All Other Facilities and Activities Home Aeration Units Replacing Failing Septic Systems 0.45 TABLE C Waste Factors Type of Waste Waste Factor Process Waste 2.0 Sewage1,2,3 1.7 Contact Cooling Water 1.5 Contaminated Stormwater 1.3 Blowdowns 1.1 Once-Through Cooling Water With Additives 1.1 Once-Through Cooling Water Without Additives Uncontaminated Stormwater Other Waste Note: When an industrial facility discharges more than one type of waste, the highest applicable waste factor shall be used in the calculation of the permit application fee. 1If a sewage facility has an approved pretreatment program or at least one significant industrial user identified in its permit or permit application, an additional 0.2 shall be added to the waste factor. 2If a sewage facility does not have an approved pretreatment program, does not have any significant industrial users, and has at least one non-significant industrial user identified in its permit or permit application, an additional 0.1 shall be added to the waste factor. 3If a sewage facility uses land application of sewage sludge as a means of sewage disposal in its permit or permit application, an additional 0.2 shall be added to the waste factor.

TABLE D

Annual Permit Fees for Facilities Discharging Sewage Number of Customers Annual Permit Fee less than 100 $75 100 to 499 500 to 999 1,000 to 1,499 1,500 to 1,999 $1,300 2,000 to 2,499 2,500 to 2,999 $2,200 3,000 to 3,499 $2,625 3,500 to 3,999 $3,100 4,000 to 4,499 $3,500 4,500 to 4,999 $4,000 5,000 to 6,999 $5,000 greater than 6,999 $6,000 TABLE E Annual Permit Fees for Facilities Discharging Industrial Wastes and Other Wastes Average Discharge Volume (gallons per day)

Annual Permit Fee less than 1,001 1,001 to 2,500 2,501 to 5,000 5,001 to 10,000 10,001 to 15,000 $2,625 15,001 to 50,000 $3,500 50,000 to 100,000 $7,500 100,001 to 500,000 $8,000 500,001 to 1,000,000 $8,500 1,000,001 to 5,000,000 $9,000 greater than 5,000,001 $10,000 TABLE F Schedule of Annual Permit Fees for Facilities Discharging Stormwater Average Discharge Volume (gallons per day)

Annual Permit Fee less than 5,001 5,001 to 15,000 15,001 to 50,000 50,001 to 100,000 $1,775 greater than 100,000 $2,625 TABLE G Schedule of Annual Permit Fees for Aquaculture Facilities # Feed/Month Annual Fee Application Fee (Initial and Reissuance) 5,000 to 9,999 10,000 to 14,999 15,000 to 19,999 $1,300 20,000 to 24,999 25,000 to 29,999 $2,100 greater than 30,000 $3,100 Table H Schedule of Annual Permit Fees for Public Geothermal Facilities Average Discharge Volume (gallons per day)

Annual Permit Fee less than 50,001 $100 50,001 – 100,000 $250 100,001 – 1,000,000 $500 greater than 1,000,000 $750 PERMIT FEE SCHEDULE FOR STORMWATER CONSTRUCTION Minor Modifications: Date-Change Certification, Co-Applicant Signature Page, Name Change, Acreage Reduction Fee - $100.

Permit Transfer Application Fee - $100 NOI, Minor Construction Modification Fees for disturbance between 1-2.99 Acres - $300 Reissuance Certifications Fee - $100 The Major Modification Fees are based on final permit acreage as follows.

New Permit Registration or Major modification Fee shall be calculated as follows:

Base Fee = $750 + $25/ACRE OF DISTURBANCE = Permit Registration Fee ALL EXPEDITED REVIEW FEES WILL BE 1.5 X PERMIT REGISTRATION FEE

APPENDIX A

Calculation of the Average Discharge Volume for Stormwater Runoff The following formula shall be used to determine the average discharge volume for stormwater runoff:

Average Discharge Volume Annual Stormwater Runoff Volume for Stormwater Runoff = _______________________________ (gallons per day) 366 days per year where Annual Stormwater Runoff Volume (gallons) = Annual Drainage 7.48 Rainfall X Area X gallons X Runoff Coefficient (ft/yr) (ft-sq) per ft-cu where the Runoff Coefficient shall be 0.90 for areas covered by concrete or asphalt and 0.25 for areas covered by vegetation.

Note: An alternative method of stormwater runoff calculation may be substituted for this formula upon approval from the Director.

Series 30 WV/NPDES Rule for Coal Mining Facilities

W. Va. Code R. § 47-30-1 General

1.1. Scope. -- This rule establishes requirements implementing the powers, duties, and responsibilities of W. Va. Code § 22-11-1 with respect to all coal mines and preparation plants and all refuse and waste therefrom in the State.

1.2. Authority. -- W. Va. Code § 22-11-4(a)(16)

1.3. Filing Date. -- April 30, 2015

1.4. Effective Date. -- July 1, 2015

1.5. Applicability. -- This rule applies to all facilities covered under the “West Virginia Surface Coal Mining and Reclamation Act.”

1.6. Incorporation by Reference. -- Whenever federal statutes or regulations are incorporated into this rule, the reference is to the statute or regulation in effect on July 1, 2006.

1.7. Promulgation History. -- This rule originally became effective on May 30, 1985. Amendments to this rule were made effective on April 24, 1986; May 29, 1987; May 15, 1997; June 1, 2004; July 1, 2009; and July 1, 2013.

1.8. Conflict of Interest. -- The Secretary or his or her authorized representative who has or shares authority to approve all or portions of permits, either in the first instance or as modified and reissued, shall not be a person who receives or has during the previous two (2) years received, a significant portion of income directly or indirectly from permit holders or applicants for a permit.

1.8.a. For the purposes of this paragraph:

1.8.a.1. “Significant portion of income” means five thousand dollars ($5,000) or ten percent (10%) or more of gross personal income for a calendar year, whichever is less, except that it means fifty percent (50%) or more of gross personal income for a calendar year if the recipient is over sixty (60) years of age and is receiving that portion under retirement, pension or similar arrangement.

1.8.a.2. “Permit holders or applicants for a permit” does not include any department or agency of the State.

1.8.a.3. “Income” includes retirement benefits, consultant fees, and stock dividends.

1.8.a.4. Income is not received “directly or indirectly from permit holders or applicants for a permit” when it is derived from mutual fund payments or from other diversified investments for which the recipient does not know the identity of the primary sources of income.

W. Va. Code R. § 47-30-2 Definitions

The definitions set forth in W. Va. Code § 22-11-3 apply to this rule along with the following definitions, unless the context clearly indicates otherwise.

2.1. “Administrator” means the administrator of the United States Environmental Protection Agency or an authorized representative of the administrator.

2.2. “Applicable Standards and Limitations” means all State, interstate, and federal standards and limitations to which a discharge or a related activity is subject under Clean Water Act (CWA) §§301, 302, 303, 304, 306, 307, 308, 403, and 405 and Article 11 of Chapter 22 of the West Virginia Code, including effluent limitations, water quality standards, standards of performance, toxic effluent standards or prohibitions, best management practices, and pretreatment standards.

2.3. “Article 11” means the West Virginia Water Pollution Control Act, W. Va. Code § 22-11-1, et seq.

2.4. “Average Monthly Discharge Limitation” means the highest allowable average of daily discharges over a calendar month, calculated as the sum of all daily discharges measured during a calendar month divided by the number of daily discharges measured during that month.

2.5. “Best Management Practices” or “BMPs” means schedules of activities, prohibitions of practices, maintenance procedures, and other management practices to prevent or reduce the pollution of waters of the State. BMPs may include treatment requirements, operating procedures, and practices to control plant site runoff, spillage or leaks, sludge or waste disposal or drainage from raw material storage.

2.6. “Best Professional Judgment” or “BPJ” means the Secretary’s highest quality technical opinion forming the basis for the terms and conditions of the treatment level required after consideration of all reasonably available and pertinent data, including background water quality data. The treatment levels shall be established by the Secretary under the Clean Water Act (CWA) Sections 301 and 402.

2.7. “Clean Water Act” or “CWA” means Public Law 92-500, as amended by Public Law 95-217 Public Law 95-576; 33 U.S.C. §1251, et seq. (formerly referred to as the Federal Water Pollution Control Act or Federal Water Pollution Control Act Amendments of 1972).

2.8. “Continuous Discharge” means a discharge that occurs without interruption throughout the operating hours of the facility, except for infrequent shutdowns for maintenance, process changes, or other similar activities.

2.9. “Coal Mines and Preparation Plants and All Refuse and Waste Therefrom” means any point source covered under 40 C.F.R. Part 434 and any coal mine, coal preparation plant, coal preparation plant associated areas, refuse pile, coal waste pile or other related activity, including any related sewage treatment facilities and bath houses required to have a permit under CWA or Article 11, but excluding dredging operations or the extraction of coal incidental to the extraction of other minerals where coal does not exceed sixteen and two-thirds percent (16⅔%) of the tonnage of minerals removed for purposes of commercial use or sale.

2.10. “Coal Mine” or “Mine” means the area, and any related structures, on and beneath land used or disturbed in activity related to the extraction, removal or recovery of coal.

2.11. “Coal Preparation Plant” means a facility where coal is subjected to cleaning, concentrating, or other processing or preparation in order to separate coal from its impurities and is loaded for transit to a consuming facility.

2.12. “Coal Preparation Plant Associated Areas” means the coal preparation plant yards, immediate access roads, coal refuse piles, tipples, loadouts, and coal storage piles and facilities.

2.13. “Coal Remining Operation” means a coal mining operation at a site on which coal mining was previously conducted and where the site has been abandoned or the performance bond has been forfeited.

2.14. “Daily Discharge” means the discharge of a pollutant measured during a calendar day or within any specified period that reasonably represents the calendar day for purposes of sampling. For pollutants with limitations expressed in units of mass, the daily discharge is calculated as the total mass of the pollutant discharged over the day. For pollutants with limitations expressed in other units of measurement, the daily discharge is calculated as the average measurement of the pollutant over the day.

2.15. “Discharge” means, when used without qualification, the discharge of a pollutant.

2.16. “Discharge of a Pollutant” means:

2.16.a. Any addition of any pollutant or combination of pollutants to waters of the State from any point source; and

2.16.b. Additions of pollutants into waters of the State from: surface runoff that is collected or channeled by man; discharges through pipes, other conveyances owned by a person that do not lead to a treatment works; and discharges through pipes, sewers or other conveyances leading into privately owned treatment works. This term does not include an addition of pollutants by any indirect discharger.

2.17. “Discharge Monitoring Report” or “DMR” means the form(s) prescribed by the Secretary and approved by EPA for the reporting of self-monitoring results by permittees under WV/NPDES.

2.18. “Draft Permit” means a document prepared under subsection 10.1 of this rule indicating the Secretary’s tentative decision to issue, modify, reissue, suspend or revoke a permit.

2.19. “Effluent Limitation” means any restriction established by State or federal law on quantities, discharge rates, and concentrations of pollutants that are discharged from point sources into waters of the State.

2.20. “Effluent Limitations Guidelines” means a regulation published by the Administrator to adopt or revise effluent limitations under CWA Section 304(b) or to adopt or revise levels of effluent quality attainable through the application of secondary or equivalent treatment under CWA Section 301(b)(1)(B). For the coal industry, such regulations are published at 40 C.F.R. Part 434. Sewage facilities governed by this rule are covered under 40 C.F.R. Part 133.

2.21. “Environmental Protection Agency” or “EPA” means the United States Environmental Protection Agency.

2.22. “Existing Source” means any coal mine or preparation plant and all refuse or waste therefrom:

2.22.a. From which there is or may be a discharge of pollutants that commenced prior to September 19, 1977; and

2.22.b. That is not a new source.

2.23. “Facility” or “Activity” means any coal mine or preparation plant and all refuse and waste therefrom or any other facility or activity (including land or appurtenances thereto) that is subject to the provisions of this rule.

2.24. “General Permit” means a WV/NPDES permit authorizing a category of discharges within a geographical area.

2.25. “Hazardous Substance” means any substance designated under 40 C.F.R. Part 116 pursuant to CWA Section 311.

2.26. “Indirect Discharger” means a nondomestic discharger introducing pollutants into publicly owned treatment works.

2.27. “Interstate Agency” means an agency of two or more states, including West Virginia, established by an agreement or compact approved by Congress, or any other agency of two or more states including West Virginia having substantial powers or duties pertaining to the control of pollution as determined and approved by the Administrator under the CWA and rules promulgated thereunder.

2.28. “Major Facility” means any WV/NPDES facility or activity classified as such by the Secretary or by the Regional Administrator in conjunction with the Secretary.

2.29. “Maximum Daily Discharge Limitation” means the highest allowable daily discharge.

2.30. “National Pollutant Discharge Elimination System” or “NPDES” means the national program for issuing, denying, modifying, revoking and reissuing, suspending, revoking, monitoring and enforcing permits, and imposing and enforcing pretreatment requirements under CWA Sections 307, 318, 402, and 405, including any approved State program.

2.31. “New Source” means any coal mining facility covered under 40 C.F.R. Part 434, including an abandoned mine that is being remined, the construction of which is commenced after the date of promulgation of a new source performance standard (NSPS) or of the proposal of a NSPS that is subsequently promulgated in accordance with Section 306 of CWA.

2.31.a. In making the determination of major alteration, the Secretary shall take into account whether one or more of the following events resulted in a new, altered or increased discharge of pollutants after the date of a new source performance standard or of the proposal of a new source performance standard subsequently promulgated in accordance with Section 306 of the CWA:

2.31.a.1. Extraction of a coal seam not previously extracted by that mine;

2.31.a.2. Discharge into a drainage area not previously affected by wastewater discharge from the facility covered under 40 C.F.R. Part 434;

2.31.a.3. Extensive new surface disruption at the mining operation; or

2.31.a.4. Construction of a new shaft, slope or drift.

2.31.b. For a preparation plant or associated areas under 40 C.F.R. Part 434, a new source shall be a preparation plant or associated area, the construction of which is commenced after the date of promulgation of a new source performance standard (NSPS) or of the proposal of a NSPS that is subsequently promulgated in accordance with Section 306 of the CWA and that meets the criteria of subsection 12.3 of this rule.

2.31.c. No provision in this definition shall be deemed to affect the classification of a facility as a new source that was so classified under previous EPA regulations, but would not be classified as a new source under this definition. Nor shall any provision in this definition be deemed to affect the standards applicable to such facilities, except as provided in subsection 12.3 of this rule.

2.32. “Operator” means any person, firm, or company who is granted or who should obtain a WV/NPDES permit.

2.33. “Owner” means the owner of the facility subject to regulation.

2.34. “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 or vessel or other floating craft from which pollutants are or may be discharged.

2.35. “Privately Owned Treatment Works” means any device or system that is used to treat wastes other than the owner’s wastes and is not a POTW as defined in 47 C.S.R. 10 §2.43.

2.36. “Process Wastewater” means any water that, during manufacturing or processing, comes into direct contact with or results from the production or use of any raw material, intermediate product, finished product, byproduct or waste product.

2.37. “Proposed Permit” means a WV/NPDES permit prepared after the close of the comment period (and, when applicable, any public hearing) and that is sent to EPA for review before final issuance by the Secretary, pursuant to the Memorandum of Agreement between West Virginia and EPA dated May 10, 1982.

2.38. “Real Time Water Quality Control” means the establishment of an effluent limitation that is based upon a stream-flow-to-discharge-flow ratio, determined by the known characteristics of the stream and the discharge.

2.39. “Recommencing Discharger” means a source that recommences discharge after terminating operations.

2.40. “Regional Administrator” means the Regional Administrator of Region III of the Environmental Protection Agency or his or her authorized representative.

2.41. “Reissuance” means the issuance of a permit to a facility that has a previously issued effective permit and includes automatic revocation of the previously issued permit.

2.42. “Schedule of Compliance” means a schedule of remedial measures in a WV/NPDES permit, including an enforceable sequence of interim requirements (for example, actions, operations, or milestone events) leading to compliance with the CWA, Article 11, and rules promulgated thereunder.

2.43. “Secretary” means the Secretary of the West Virginia Department of Environmental Protection and his or her authorized representative.

2.44. “Site” means the land or water area where any facility or activity is physically located or conducted, including adjacent land used in connection with the facility or activity.

2.45. “State” means the State of West Virginia.

2.46. “Total Dissolved Solids” (TDS) means the total dissolved filterable solids as determined by the use of the method specified in 40 C.F.R. Part 136.

2.47. “Toxic Pollutant” means any pollutant listed as a toxic under CWA Section 307(a)(1) (see Appendix A of this rule).

2.48. “Variance” means any mechanism or provision under CWA Sections 301 or 316 or under 40 C.F.R. Part 125 or in the applicable effluent limitations guidelines that allows modification to or waiver of the generally applicable effluent limitation requirements or time deadlines of the CWA. This includes provisions that allow the establishment of alternative limitations based on fundamentally different factors or on CWA Sections 301(c), 301(g), 301(i), 302(b)(2), and 316(a) where appropriate.

2.49. “West Virginia Surface Coal Mining and Reclamation Act” or “WVSCMRA” means W. Va. Code § 22-3-1, et seq.

2.50. “WV/NPDES Application” or “Application” means the forms prescribed by the Secretary and approved by the EPA for applying for a permit or permit modification, including any additions, revisions or modifications to the WV/NPDES forms.

2.51. “WV/NPDES Permit” or “Permit” means an authorization issued by the Secretary to implement the requirements of Article 11 and this rule, including modifications to permits.

2.52. “Wetlands” means those areas that are inundated or saturated by surface or ground water at a frequency and duration sufficient to support, and under normal conditions do support, a prevalence of vegetation typically adapted for life in saturated soil conditions. Wetlands generally include swamps, marshes, bogs, and similar areas.

W. Va. Code R. § 47-30-3 Permits

3.1. Permit Requirements; Exemptions:

3.1.a. Permit Requirements. Except as authorized by a WV/NPDES permit, no person shall:

3.1.a.1. Discharge pollutants from a point source associated with any coal mine or preparation plant, or any refuse and waste therefrom;

3.1.a.2. Make, cause or permit to be made any outlet or substantially enlarge or add to the load of any existing outlet from a facility for the discharge of pollutants or the effluent therefrom into the waters of the State;

3.1.a.3. Acquire, construct, install, modify or operate a disposal system or part thereof for the direct or indirect discharge or deposit of treated or untreated waste or effluent from any facility into the waters of the State, or any extension to or addition to such disposal system;

3.1.a.4. Extend, modify, add to or increase in volume or concentration any pollutants or effluent from any point source associated with any facility in excess of the discharges or disposition specified or permitted under any existing permit; or

3.1.a.5. Construct, install, modify, open, reopen, operate or abandon any coal mine, coal preparation plant or coal preparation plant associated areas whenever such facilities have associated with them or might reasonably be expected to have associated with them a discharge into or pollution of waters of the State, except that a WV/NPDES permit shall be required for any coal preparation plant regardless of whether it has, may have or might reasonably be expected to have a discharge.

3.1.a.6. Conduct activities consisting of discharges of storm water runoff or snow melt composed entirely of flows that are from conveyances used for collecting and conveying precipitation runoff, unless meeting the following requirements:

3.1.a.6.A. The facility shall have a valid WV/NPDES permit;

3.1.a.6.B. The storm water activity shall not involve any mineral removal, pumping of storm water or storm water commingled with mine drainage or refuse drainage;

3.1.a.6.C. The storm water activity shall be constructed and maintained in accordance with the issued Article 3 Permit Revision including incidental boundaries revisions and with the best management practices and performance standards contained in 38 C.S.R. 2 and W. Va. Code § 22-3-1, et seq.;

3.1.a.6.D. Any request for coverage under this rule shall be submitted on forms prescribed by the Secretary for an Article 3 Permit Revision;

3.1.a.6.E. Authorization to discharge storm water is effective upon the issuance of the corresponding Article 3 Permit Revision;

3.1.a.6.F. Application for reissuance of the WV/NPDES Permit shall include application information on all storm water discharges authorized under this rule; and

3.1.a.6.G. The Secretary may require any storm water discharger authorized by this rule to submit a WV/NPDES modification when the Secretary determines that the receiving stream may be better protected by an individual WV/NPDES modification.

3.1.a.7. A WV/NPDES permit issued pursuant to Section 3 of this rule shall be deemed to be a permit issued in accordance with Article 11 and the CWA.

3.1.a.8. No facility may be an indirect discharger.

3.1.b. Exemptions

3.1.b.1. Discharges of dredged or fill material into waters of the State that are regulated under Section 404 of CWA do not require a WV/NPDES permit for the activities regulated under section 404 of the CWA. This exemption shall not relieve any person of any requirement imposed by W. Va. Code § 22-11-1, et seq., or other rules, including permit requirements.

3.2. Prohibition Against Issuing a WV/NPDES Permit.

3.2.a. A WV/NPDES permit may not be issued:

3.2.a.1. When the conditions of the permit do not provide for compliance with the applicable requirements of CWA and Article 11;

3.2.a.2. By the Secretary where the Regional Administrator has objected to issuance of the WV/NPDES permit;

3.2.a.3. When, in the judgment of the Secretary of the United States Army Corps of Engineers, anchorage and navigation in or on any waters of the State would be substantially impaired by the discharge;

3.2.a.4. For the discharge of any radiological, chemical or biological warfare agent or high level radioactive waste;

3.2.a.5. For any discharge inconsistent with a plan or plan amendment approved under CWA Section 208(b);

3.2.a.6. To a new source or a new discharger, if the discharge from its construction or operation will cause or contribute to the violation of water quality standards, unless the applicant has met the requirements of subdivision 4.5.e. of this rule or has met the requirements for a variance under subdivision 4.5.f. of this rule;

3.2.a.7. When the imposition of conditions cannot ensure compliance with the applicable water quality requirements of all affected states; or

3.2.a.8. To any facility that is an indirect discharger.

3.3. Denial of Permits. WV/NPDES permits may be denied for noncompliance with Article 11 or this rule, including the reasons specified in subsection 8.4 of this rule, or when a surface mining permit under WVSCMRA has been denied. In the case of an application for reissuance, an outstanding violation of any existing environmental permit is grounds for denial. Any denial of the WV/NPDES permit is appealable to the West Virginia Environmental Quality Board in accordance with the procedures and authority of W. Va. Code § 22-11-21.

3.4. Effect of a Permit.

3.4.a. Except for any toxic effluent standards and prohibitions imposed by CWA Section 307 for toxic pollutants injurious to human health, compliance with a permit during its term constitutes compliance, for purposes of enforcement, with CWA Sections 301, 302, 306, 307, 318, 403, and 405 and Article 11. However, a permit may be modified, reissued or revoked during its term for cause as set forth in Section 8 of this rule.

3.4.b. Issuance of a WV/NPDES permit does not convey any property rights of any sort or any exclusive privilege.

3.5. Duration and Transferability of Permits.

3.5.a. Duration. WV/NPDES permits shall be effective for a fixed term not to exceed five (5) years. The Secretary may shorten the term of a WV/NPDES permit to ensure that expiration dates of WV/NPDES permits in the same watershed coincide, but a WV/NPDES permit may not be shortened to less than three (3) years for the sole purpose of reconciling expiration dates of WV/NPDES permits, unless the permittee agrees.

3.5.b. Extension. An extension of a WV/NPDES permit may be initiated by either the permittee or the Secretary. Permits extended under subdivision 3.5.b. of this rule remain fully effective and enforceable. When a WV/NPDES permit is reissued the existing permit is automatically void.

3.5.b.1. Reissuance Extensions. Prior to the expiration date of the permit, the permittee may request an extension of its WV/NPDES permit for the purpose of compiling or processing a reissuance application. Such requests must be in writing to the Secretary and shall not be granted for more than 12 months beyond the expiration date. The request for extension shall be signed as required by subsection 4.7. of this rule. After receiving the reissuance application, the Secretary may extend any WV/NPDES permit for the purpose of ensuring coverage of a facility during processing of the reissuance. The Secretary may grant successive extensions for periods not to exceed 12 months if he or she determines additional time is necessary in order to process the application for reissuance.

3.5.b.2. Watershed Framework Extensions. The Secretary may grant a one-time extension of a WV/NPDES permit for up to 24 months for the purpose of adjusting expiration dates to coincide with the West Virginia Watershed Management Framework initiative cycle dates of the watershed groups.

3.5.c. Transfer of Permits. Permits may be transferred from a permittee to a new operator by either modifying an existing permit pursuant to subparagraph 8.2.c.1.D. of this rule, reissuing the permit under paragraph 8.3.c.3. of this rule or by an automatic transfer under subdivision 3.5.d. of this rule. The proposed permittee shall demonstrate that he or she has accepted all necessary permit responsibilities. 3.5.c.1 The Secretary may grant advanced approval of the transfer of the WV/NPDES Permit to temporarily allow the new owner or operator to operate and discharge under the conditions of the WV/NPDES permit. Approval will be contingent upon the corresponding Article 3 approval granted under the terms and conditions specified in 38 C.S.R. 2 § 23.25.a.4.

3.5.d. Automatic Transfer of Permits. Any permit may be automatically transferred to a new permittee if:

3.5.d.1. The current permittee notifies the Secretary on the forms prescribed, at least 30 days in advance of the proposed transfer date;

3.5.d.2. The notice includes a written agreement between the existing and proposed permittee containing a proposed date for transfer of the permit and explaining the extent of permit responsibility, coverage, and liability between them; and

3.5.d.3. The Secretary does not notify the existing permittee and the proposed new permittee of his or her intent:

3.5.d.3.A. To deny the transfer request;

3.5.d.3.B. To require the transfer through permit modification;

3.5.d.3.C. To require the transfer through reissuance and require a new application to be filed rather than approving the transfer; or

3.5.d.3.D. The permittee and the proposed new permittee do not receive notification under paragraph 3.5.d.3. of this rule within 45 days after receipt of the current permittee’s notification under paragraph 3.5.d.1. of this rule.

3.5.e. Permits Issued After July 1, 1984. A permit may be issued to expire on or after the statutory deadline set forth in CWA Sections 301(b)(2)(A), 301(b)(2)(C), and 301(b)(2)(E) (July 1, 1984) if the permit includes effluent limitations to meet the requirements of CWA Sections 301(b)(2)(A), 301(b)(2)(C), 301(b)(2)(D), 301(b)(2)(E), and 301(b)(2)(F), whether or not the applicable effluent limitations guidelines have been promulgated or approved. A determination that a particular discharger falls within a given industrial category for purposes of setting a permit expiration date under this subdivision is not conclusive as to the discharger’s inclusion in the industrial category for any other purposes, and does not prejudice any rights to challenge or change that inclusion at the time that a permit based on that determination is formulated.

3.6. NPDES Permits Issued by EPA and the Secretary.

3.6.a. The Secretary shall issue, administer and enforce all WV/NPDES or Article 11 permits relating to coal mines, preparation plants, and all refuse and waste therefrom.

3.6.b. The Secretary may adopt as WV/NPDES permits all NPDES permits relating to coal mines, preparation plants, and all refuse and waste therefrom issued by the Regional Administrator that are transferred by the Regional Administrator and accepted by the Secretary. Acceptance of a NPDES permit from the Regional Administrator shall not supersede any permit previously issued under Article 11. All provisions of both permits shall be in force, except that, in the event of a conflict, the more stringent provisions shall apply. All permits relating to the same facility shall be deemed consolidated and considered as a single permit for the purposes of reporting, administration and enforcement.

3.6.c. Unexpired permits previously issued under Article 11 shall be void whenever a new WV/NPDES permit is issued for the same facility. Any unexpired NPDES permit issued by the EPA shall not be enforceable by the Secretary upon the issuance of a new WV/NPDES permit for the same facility.

W. Va. Code R. § 47-30-4 Application For Permits

4.1. Duty to Apply. Unless covered under a general permit issued in accordance with section 13 of this rule, any person discharging pollutants, proposing to discharge pollutants, or proposing to undertake any activity listed in subdivision 3.1.a. of this rule who does not have an effective permit for such discharge or activity shall submit a complete application in the manner and form prescribed by the Secretary and in accordance with the provisions of section 4 of this rule.

4.2. Responsible Party Applies. When a facility or activity is owned by one person but is operated by another, the operator shall be the applicant. The Secretary may require documentation of the WV/NPDES permit responsibility and liability of the owner and operator and may propose and issue the WV/NPDES permit to the responsible person(s), but only after notice to the responsible person(s), or the Secretary may refuse to issue the WV/NPDES permit until the responsible person applies for the WV/NPDES permit.

4.3. Completeness. Any person who requires a WV/NPDES permit shall complete, sign, and submit to the Secretary a WV/NPDES application. An application for a permit is complete when the Secretary receives an application form and any supplemental information including maps, plans, designs, and other application materials that are completed to the Secretary’s satisfaction. The completeness of any application for a WV/NPDES permit shall be judged independently of the status of any other permit application or permit for the same facility or activity. The Secretary shall not begin the processing of a permit until the applicant has fully complied with the application requirements.

4.4. Time to Apply.

4.4.a. Reissuance. Any person with an existing WV/NPDES permit shall submit an application for reissuance of that permit at least one hundred twenty (120) days before the expiration date of the existing WV/NPDES, NPDES or Article 11 permit.

4.4.b. Permit to Abandon. Any person proposing to abandon a deep mine facility under W. Va. Code § 22-11-8(b)(6) and paragraph 3.1.a.5. of this rule shall apply for an abandonment permit at least one hundred eighty (180) days prior to sealing of the deep mine. A Phase II bond release request under WVSCMRA shall be considered an application to abandon a surface mine facility under W. Va. Code § 22-11-8(b)(6) and paragraph 3.1.a.5. of this rule.

4.5. Information Required From Applicants.

4.5.a. Information Required From All Applicants. All applicants for WV/NPDES permits shall provide the Secretary with a complete application in the manner and on a form prescribed by the Secretary. The form may require information in addition to that specified in subsection 4.5. of this rule. Additionally all applicants for WV/NPDES permits must submit a complete application for a surface mining permit under WVSCMRA. Incorporation by reference of material supplied in the WVSCMRA application is permissible in consolidated applications.

4.5.a.1. The activities conducted by the applicant that require it to obtain a permit.

4.5.a.2. Name, mailing address, and location of the facility for which the application is submitted.

4.5.a.3. Up to four (4) Standard Industrial Classification (SIC) Codes that best reflect the principal products or services provided by the facility.

4.5.a.4. The operator’s name, address, telephone number, ownership status, including the name and address of the owner if different, and status as federal, state, private, public or other entity.

4.5.a.5. All relevant environmental permits necessary for the construction or operation or both of the facility, such as dredge and fill permits under CWA Section 404 and permits issued under WVSCMRA.

4.5.a.6. A topographic map drawn to a reasonable scale including, but not limited to, the following:

4.5.a.6.A. The facility boundary and extending at least one thousand (1,000) feet beyond to include the boundary of each WVSCMRA permit (appropriately labeled) being covered by the application.

4.5.a.6.B. Any adjacent deep and strip mines and auger holes and the thickness of barriers between the proposed mine and adjacent mine or auger holes;

4.5.a.6.C. Water level and its elevation in any adjacent deep mines;

4.5.a.6.D. Proposed location of all mine seals and sectional dams if any;

4.5.a.6.E. All proposed mine portals and boreholes;

4.5.a.6.F. Surface and seam elevations of all mine openings;

4.5.a.6.G. The north line;

4.5.a.6.H. General strike and dip direction of the mineral bed and the average dip;

4.5.a.6.I. Each of its appropriately labeled monitoring, intake and discharge points;

4.5.a.6.J. Each of its hazardous waste treatment, storage or disposal facilities;

4.5.a.6.K. Each well where fluids from the facility are injected underground and those wells, springs, other surface water bodies, and drinking water wells listed in public records or otherwise known to the applicant in the map area.

4.5.a.6.L. The map must be notarized and certified by a registered professional engineer or professional surveyor.

4.5.a.7. Outlet and Monitoring Point Location. For each point source and monitoring point, the latitude and longitude to the nearest second, elevation, and the name of the immediate receiving/sampling water and river mile point.

4.5.a.8. Line Drawing. A line drawing of the water flow through the facility with a water balance showing operations contributing influent to the treatment units and effluent. Similar processes, operations or production areas may be indicated as a single unit, labeled to correspond to the more detailed identification under paragraph 4.5.a.9. of this rule. The water balance must show approximate average flows at intake and discharge points and between units, including treatment units. If a water balance cannot be determined through historic record, the applicant may instead provide the flows used to design the treatment unit.

4.5.a.9. Average Flows and Treatment. On the line drawing or in a narrative, identify each type of process, operation or production area that contributes wastewater to the effluent for each outlet, including process wastewater and stormwater runoff (including material storage area runoff), the average flow each process contributes, and a description of the treatment, if any, the wastewater receives, including the ultimate disposal of any solid or fluid wastes other than by discharge. Processes, operations or production areas may be described in general terms.

4.5.a.10. Intermittent Flows. If any of the discharges described in paragraph 4.5.a.9. of this rule are intermittent or seasonal, a description of the frequency, duration, and flow rate of each discharge occurrence (except for stormwater runoff, spillage or leaks).

4.5.a.11. Improvements. If the applicant is subject to any present requirements or compliance schedules for construction, upgrading or operation of waste treatment equipment, an identification of the abatement project and a listing of the required and projected final compliance dates.

4.5.a.12. Biological Information. An identification of any biological monitoring data that the applicant knows or has reason to believe have been made within the last three (3) years on any of the applicant’s discharges or on a receiving water in relation to a discharge.

4.5.a.13. Contract Analyses. If a contract laboratory or consulting firm performed any of the analyses required by paragraph 4.5.b.1. of this rule, the identity of each laboratory or firm and the analyses performed.

4.5.a.14. Plan for Abandonment. The information required in a plan for abandonment pursuant to subdivision 4.5.d. of this rule.

4.5.a.15. Discharges into Non-complying Waters. Compliance with subdivision 4.5.e. of this rule.

4.5.a.16. Existing Source Variances. Compliance with subdivisions 4.5.f. and 4.5.g. of this rule if applicable and meets the definition of “existing source”.

4.5.a.17. Used or Manufactured Toxics. A listing of any toxic pollutant that the applicant does or expects to use or manufacture as an intermediate or final product or by-product. The Secretary may waive or modify this requirement for any applicant if the applicant demonstrates that it would be unduly burdensome to identify each toxic pollutant, and the Secretary has adequate information to issue the permit.

4.5.b. Information Required For Pre-Existing Discharges and Reissuance Applications. All applicants (including all applicants for reissuance) for WV/NPDES permits whose facilities have pre-existing discharges shall also provide the following information to the Secretary:

4.5.b.1. Effluent Characteristics. Information on the discharge of pollutants specified in subparagraphs 4.5.b.1.A. through 4.5.b.1.F. of this rule. When “quantitative data” (concentration and mass) for a pollutant is required, the applicant must collect a sample of effluent and analyze it for the pollutant in accordance with analytical methods approved by 40 C.F.R. Part 136. When no analytical method is approved, the applicant may use any suitable method but must provide a description of the method. Grab samples must be used for pH, temperature, cyanide, total phenols, total residual chlorine, oil and grease, and fecal coliform. For all other pollutants, 24-hour composite samples must be used. However, a minimum of one (1) grab sample may be taken for effluents from holding ponds or other impoundments with a retention period greater than 24 hours, and a minimum of one (1) to four (4) grab samples may be taken for stormwater discharges depending on the duration of the discharge. One grab sample shall be taken in the first hour (or less) of discharge with one additional grab sample taken in each succeeding hour of discharge up to a minimum of four (4) grab samples for discharges lasting four (4) or more hours. In addition, the Secretary may waive composite sampling for any outfall for which the applicant demonstrates that the use of an automatic sampler is unfeasible and that the minimum of four (4) grab samples will be a representative sample of the effluent being discharged. When an applicant has two (2) or more outlets with substantially identical effluents, the Secretary may allow the applicant to test only one outfall and report that the quantitative data also applies to the substantially identical outlet.

4.5.b.1.A. Mandatory Testing:

4.5.b.1.A.1. Every applicant must report quantitative data for every outlet for the following pollutants. All levels must be reported as concentration and as total mass except for temperature, pH, and flow: 4.5.b.1.A.1.(a) Biochemical Oxygen Demand (BOD-5day); 4.5.b.1.A.1.(b) Chemical Oxygen Demand (COD); 4.5.b.1.A.1.(c) Total Organic Carbon (TOC); 4.5.b.1.A.1.(d) Total Suspended Solids (TSS); 4.5.b.1.A.1.(e) Ammonia (as N); 4.5.b.1.A.1.(f) Temperature (both winter and summer); 4.5.b.1.A.1.(g) pH; 4.5.b.1.A.1.(h) Discharge Flow; 4.5.b.1.A.1.(i) Fecal Coliform (if believed present or if sanitary waste is or will be discharged); 4.5.b.1.A.1.(j) Total Residual Chlorine (if chlorine is used); and 4.5.b.1.A.1.(k) Oil and grease.

4.5.b.1.A.2. The Secretary may waive the testing and reporting requirements for any of the pollutants or flow listed in part 4.5.b.1.A.1. of this rule, if the applicant submits a request for a waiver before or with its application that demonstrates that information adequate to support issuance of a permit can be obtained through less stringent requirements.

4.5.b.1.B. Each applicant contributing to a discharge must report quantitative data for the pollutants listed in Appendix B of this rule in each outlet.

4.5.b.1.C. Potentially Required Testing. Each applicant must indicate whether the applicant knows or has reason to believe that the pollutant is discharged from the outlet (see subparagraph 4.5.b.1.F. of this rule) and must report for each outlet quantitative data for the following pollutants:

4.5.b.1.C.1. All pollutants listed in Appendix B or Appendix C of this rule for which quantitative data is not otherwise required under subparagraph 4.5.b.1.B. of this rule. For every pollutant listed in Appendix B or Appendix C expected to be discharged in concentrations of ten parts per billion (10 ppb) or greater, the applicant must report quantitative data. Where acrolein, acrylonitrile, 2, 4-dinitrophenol, or 2-methyl-4,6-dinitrophenol is expected to be discharged in concentrations of 100 ppb or greater, the applicant must report quantitative data. For every pollutant expected to be discharged in concentrations less than 10 ppb, the applicant must either submit quantitative data or briefly describe the reasons the pollutant is expected to be discharged. Where acrolein, acrylonitrile, 2,4-dinitrophenol, or 2-methyl-4,6-dinitrophenol is expected to be discharged in concentrations less than 100 ppb, the applicant must either submit quantitative data or briefly describe the reasons the pollutant is expected to be discharged. An applicant qualifying for a small business exemption under paragraph 4.5.b.2. of this rule is not required to analyze for pollutants listed in Appendix C of this rule.

4.5.b.1.C.2. All pollutants in Appendix D of this rule. If an applicable effluent limitations guideline either directly limits the pollutant listed in Appendix D or, by its express terms, indirectly limits the pollutant listed in Appendix D through limitations of an indicator, the applicant must report quantitative data. For every pollutant discharged that is not so limited in an effluent limitations guideline, the applicant must either report quantitative data or briefly describe the reasons the pollutant is expected to be discharged.

4.5.b.1.D. Each applicant must indicate whether it knows or has reason to believe that any of the pollutants in Appendix E of this rule are discharged from each outlet (see subparagraph 4.5.b.1.E. of this rule). For every pollutant listed in Appendix E that is expected to be discharged, the applicant must briefly describe the reasons the pollutant is expected to be discharged and report any quantitative data it has for any pollutant.

4.5.b.1.E. Each applicant must report quantitative data generated using a screening procedure not calibrated with analytical standards for TCDD (2,3,7,8-tetrachlorodibenzo-p-dioxin) if:

4.5.b.1.E.1. The applicant uses or manufactures 2, 4, 5,-trichlorophenoxyacetic acid (2,3,5-T); 2-(2,4,5,-trichlorophenoxy) propanoic acid (Silvex or 2,4,5-TP); 2-(2,4,5,-trichlorophenoxy) ethyl 2,2-dichloropropionate (Erbon); O,O-dimethyl O-(2,4,5-trichlorophenyl) phosphorothioate (Ronnel); 2,4,5-trichlorophenol (TCP); or hexachlorophene (HCP); or

4.5.b.1.E.2. The applicant knows or has reason to believe that TCDD is or may be present in an effluent. 4.5.b.1.F The requirements in subparagraphs 4.5.b.1.C. and 4.5.b.1.D. of this rule that an applicant must provide quantitative data for certain pollutants known or believed to be present, does not apply to pollutants present in a discharge solely as the result of their presence in intake water; however, an applicant must report such pollutants as present. An applicant is expected to “know or have reason to believe” that a pollutant is present in an effluent based on an evaluation of the expected use, production, or storage of the pollutant, or on any previous analyses for the pollutant.

4.5.b.2. Small Business Exemption. Coal mines or preparation plants with a probable total annual production of less than one hundred thousand (100,000) tons per year per mine or plant are exempt from the requirements of part 4.5.b.1.C.1. of this rule to submit quantitative data for the pollutants listed in Appendix C of this rule.

4.5.c. Additional Information.

4.5.c.1. In addition to the information reported on the application form, applicants shall provide to the Secretary, at his or her request, other information the Secretary may reasonably require to assess the facility and discharges from the facility and to determine whether to issue a WV/NPDES permit. The additional information may include additional quantitative data and bioassays to assess the relative toxicity to aquatic life of the discharges and requirements to determine the cause of the toxicity.

4.5.d. Plan for Abandonment and Application to Abandon a Mine.

4.5.d.1. Deep Mines. The plan for abandonment may incorporate information contained in the surface mining permit under WVSCMRA. Unless waived in writing in whole or in part by the Secretary, an applicant for a deep mine under subdivision 4.5.b. of this rule shall provide a plan for abandonment that contains the following information:

4.5.d.1.A. A deep mine development map to scale showing among other things:

4.5.d.1.A.1. The proposed mine boundary for the initial five (5) years of the mine and the proposed final limits of mining (to be shown in different colors) and thickness of barriers against outcrop;

4.5.d.1.A.2. Any adjacent deep and strip mines and auger holes and the thickness of barriers between the proposed mine and adjacent mines or auger holes;

4.5.d.1.A.3. Predicted final water elevation in the proposed mine;

4.5.d.1.A.4. Water level and its elevation in any adjacent mines;

4.5.d.1.A.5. Seam structural contours at ten (10) feet intervals and surface elevation contours at an interval not to exceed those available on the latest U.S.G.S. 7.5-minute quadrangle, fault plane or weak plane;

4.5.d.1.A.6. Proposed location of all mine seals and sectional dams if any;

4.5.d.1.A.7. All proposed mine portals and boreholes;

4.5.d.1.A.8. Surface and seam elevations of all mine openings;

4.5.d.1.A.9. The north line;

4.5.d.1.A.10. General strike and dip direction of the mineral bed and the average dip; and

4.5.d.1.A.11. The map must be notarized and certified by a registered professional engineer or professional surveyor.

4.5.d.1.B. If there are mine workings either below or above the mine workings to be abandoned, information on whether they are active, inactive or abandoned; the final limits of mining (to be shown in different colors on the mine map as stated in part 4.5.d.1.A.1. of this rule); elevation of water pools in these mines; the thickness and nature of parting between the workings; whether water from the mine to be abandoned will flow through the adjacent mines or the mines above or below; and whether water from adjacent mines or mines below or above will flow through the mine to be abandoned and, if it will, the quality of the water.

4.5.d.1.C. The type and number of permanent seals proposed, their design details and drawings, and the materials to be used for construction.

4.5.d.1.D. Whether there will or might reasonably be expected to be a discharge from the mine after abandonment; the maximum rate of discharge expected; whether the discharge, if any, will need treatment; if treatment is required, the type of treatment proposed and its details; and, if treatment will not be required, the reasons for assuming so.

4.5.d.1.E. Provisions that shall be made for assuring acceptable water quality from any discharges after abandonment of the mine. Should the mine become filled with water, the effect on groundwater quality and plans to eliminate or minimize the adverse effects, if any, on groundwater quality.

4.5.d.1.F. Any other information that the Secretary may deem necessary to evaluate the water pollution potential of the facility.

4.5.d.1.G. The information required in 38 C.S.R. 2 §3.13.

4.5.d.2. Other facilities requiring plans for abandonment. For all coal mines other than deep mines, preparation plants, and preparation plant associated areas, the reclamation plan required under the WVSCMRA permit shall be the plan for abandonment.

4.5.d.3. Plan for Abandonment; Reissuance. Unless waived in writing in whole or in part by the Secretary, in addition to the information required by subdivision 4.5.a. of this rule, an applicant for the reissuance of a WV/NPDES permit shall provide information to update or add to the information required in paragraphs 4.5.d.1. and 4.5.d.2. of this rule.

4.5.d.4. Application for Permit to Abandon.

4.5.d.4.A. For Deep Mines. An application for a permit to abandon shall contain the information required under paragraphs 4.5.d.1. and 4.5.d.2. of this rule, updated to show final determinations that reflect current knowledge on each item: Provided, That where the information submitted under paragraphs 4.5.d.1. and 4.5.d.2. of this rule has not significantly changed, further updating will not be required, and the following:

4.5.d.4.A.1. A statement from the applicant that predicts the likelihood of a discharge from the abandoned mine;

4.5.d.4.A.2. At least one representative cross section map across the coal seam and overburden along a line parallel to the dip of the mineral bed showing the name and thickness of each strata above and the strata ten (10) feet below the lowest mineral bed being mined, the position of the water table and the direction of the flow of water, the final likely level of water in the mineral bed on abandonment, and the likely extent of fracturing in the overburden due to mining. The line of cross section shall be shown on the mine map submitted under paragraph 4.5.a.6. or 4.5.d.1. of this rule; and

4.5.d.4.A.3. A report on the quality of water being discharged from the mine during the past year or, if the data is unavailable, an analysis of current discharge quality and a prediction of expected discharge quality should a discharge occur.

4.5.d.4.B. For facilities other than deep mines, the application for a permit to abandon shall be the application for a Phase II bond release under WVSCMRA.

4.5.e. Discharges into Non-complying Waters. The owner or operator of a facility proposing to discharge into a water segment that does not meet applicable water quality standards for the pollutants to be discharged or is not expected to meet those standards even after the application of effluent limitations required by CWA Sections 301(b)(2)(A)2, 301(b)(2)(E), or 306, and for which the State has performed a pollutant load allocation for the pollutants to be discharged, must demonstrate before the close of the comment period either that:

4.5.e.1. There are sufficient remaining pollutant load allocations to allow for the discharge;

4.5.e.2. The existing dischargers into that segment are subject to compliance schedules designed to bring the segment into compliance with applicable water quality standards; or

4.5.e.3. The applicant qualifies for an alternate water quality based effluent limitation by making an adequate demonstration to the Secretary pursuant to 47 C.S.R. 2.

4.5.f. Variance Requests. A facility may request a variance from effluent limitations under any of the following statutory or regulatory provisions within the times specified. Requests must explain how the requirements of EPA variance regulations have been met. EPA regulations governing the variances under paragraphs 4.5.f.1. through 4.5.f.4. of this rule are promulgated at 40 C.F.R. Part 125.

4.5.f.1. Fundamentally Different Factors. A request for a variance based on the presence of “fundamentally different factors” from those on which the effluent limitations guideline was based shall be made by the close of the public comment period under subsection 10.2 of this rule. The request shall explain how the requirements of 40 C.F.R. Part 125, Subpart D have been met.

4.5.f.2. Non-conventional Pollutants. A request for a variance from the best available technology (BAT) requirements for CWA Section 301(b)(2)(F) pollutants (commonly called “non-conventional” pollutants) pursuant to CWA Section 301(c) because of the economic capability of the owner or operator, or pursuant to CWA Section 301(g) because of certain environmental considerations, when those requirements were based on effluent limitation guidelines, must be made by:

4.5.f.2.A. Submitting an initial request to the EPA Region III Administrator, as well as to the Secretary, stating the name of discharger, the permit number, the outlet number(s), the applicable effluent guideline, and whether the discharger is requesting a CWA Section 301(c) modification or a CWA Section 301(g) modification or both. This request must be filed not later than two hundred seventy (270) days after promulgation of an applicable effluent limitation guideline for guidelines promulgated after December 27, 1977; or

4.5.f.2.B. Submitting a completed request no later than the close of the public comment period under subsection 10.2. of this rule demonstrating that the applicable requirements of 40 C.F.R. Part 125 have been met, unless an extension is granted under paragraph 4.5.g.2. of this rule.

4.5.f.2.C. Requests for variance from effluent limitations not based on effluent limitation guidelines need only comply with subparagraph 4.5.f.2.B. of this rule and need not be preceded by an initial request under subparagraph 4.5.f.2.A. of this rule.

4.5.f.3. Innovative Technology. An extension under CWA Section 301(k) from the statutory deadline of July 1, 1984 under CWA Section 301(b)(2)(A) for best available technology based on the use of innovative technology may be requested no later than the close of the public comment period under subsection 10.2. of this rule for the discharger’s initial permit requiring compliance with CWA Section 301(b)(2)(A). The request shall demonstrate that the requirements of 40 C.F.R. Part 124.13 and Part 125, Subpart C have been met.

4.5.f.4. Water Quality Related Effluent Limitations. A modification to any water quality related effluent limitation under CWA Section 302(b)(2) of requirements under CWA Section 302(a) for achieving water quality related effluent limitations may be requested no later than the close of the public comment period under subsection 10.2. of this rule on the permit from which the modification is sought.

4.5.g. Expedited Variance Procedures and Time Extensions.

4.5.g.1. Notwithstanding the time requirements in subdivision 4.5.f. of this rule, the Secretary may notify a permit applicant before a draft permit is issued that the draft permit will likely contain limitations that are eligible for variance. In the notice, the Secretary may require the applicant, as a condition of consideration of any potential variance request, to submit information explaining how the requirements applicable to the variance have been met and may require its submission within a specified reasonable time after receipt of the notice. The notice may be sent before the permit application has been submitted. The draft or final permit may contain the alternative limitations that may become effective upon final grant of the variance.

4.5.g.2. A discharger who cannot file a complete request required under subparagraph 4.5.f.2.B. of this rule may request an extension. The extension may be granted or denied at the discretion of the Secretary. Extensions shall be no more than six (6) months in duration.

4.6. Record Keeping by Applicant. Applicants shall keep records of all data used to complete permit applications and any supplemental information submitted for a period of at least three (3) years from the date the application is signed.

4.7. Signatories to Permit Applications and Reports.

4.7.a. Applications. All permit applications shall be signed as follows:

4.7.a.1. For a corporation: by a responsible corporate officer. For the purpose of this section, a responsible corporate officer means:

4.7.a.1.A. A president, secretary, treasurer or vice-president of the corporation in charge of a principal business function or any other person who performs similar policy or decision-making functions for the corporation; or

4.7.a.1.B. The manager of one or more manufacturing, production or operating facilities employing more than two hundred fifty (250) persons or having gross annual sales or expenditures exceeding twenty-five million dollars ($25,000,000), if authority to sign documents has been assigned or delegated to the manager in accordance with corporate procedures.

4.7.a.2. For a partnership or sole proprietorship: by a general partner or the proprietor.

4.7.b. Reports. All reports required by WV/NPDES permits and other information requested by the Secretary for compliance with Article 11 shall be signed by a person described in subdivision 4.7.a. of this rule or by a duly authorized representative of that person. A person is a duly authorized representative only if:

4.7.b.1. The authorization is made in writing by a person described in subdivision 4.7.a. of this rule;

4.7.b.2. The authorization specifies either an individual or a position having responsibility for the overall operation of the regulated facility or activity, such as the position of plant manager, superintendent, an individual or position having overall responsibility for environmental matters for the company, or position of equivalent responsibility. A duly authorized representative may thus be either a named individual or any individual occupying a named position; and

4.7.b.3. The written authorization is submitted to the Secretary.

4.7.c. Changes to Authorization. If an authorization under subdivision 4.7.b. of this rule is no longer accurate because a different individual or position has responsibility for the overall operation of the facility, a new authorization satisfying the requirements of subdivision 4.7.b. of this rule must be submitted to the Secretary prior to or together with any reports, information or applications to be signed by an authorized representative.

4.7.d. Certification. Any person signing a document under subdivision 4.7.a. or 4.7.b. of this rule shall make the following certification:

“I certify under penalty of law that this document and all attachments were prepared under the direction or supervision in accordance with a system designed to assure that qualified personnel properly gather and evaluate the information submitted. Based on my inquiry of the person or persons who manage the system, or those persons directly responsible for gathering the information, the information submitted is, to the best of my knowledge and belief, true, accurate, and complete. I am aware that there are significant penalties for submitting false information, including the possibility of fine and imprisonment for knowing violations.”

4.7.e. The Secretary may establish a means by which documents can be signed by a person using a digital signature. When a person affixes his or her digital signature to a document, the digital signature shall have the same effect as a signature affixed to that document by other means.

W. Va. Code R. § 47-30-5 Conditions Applicable To All Permits

The following conditions apply to all WV/NPDES permits. All conditions shall be incorporated into the WV/NPDES permits either expressly or by reference. If incorporated by reference, a specific citation to this rule must be given in the permit.

5.1. Duty to Comply; Penalties.

5.1.a. The permittee must comply with all conditions of a WV/NPDES permit. Permit noncompliance constitutes a violation of the CWA and Article 11 and is grounds for enforcement action, WV/NPDES permit modification, suspension or revocation, or for denial of a WV/NPDES permit reissuance application.

5.1.b. The permittee shall comply with all effluent standards or prohibitions established under CWA Section 307(a) for toxic pollutants within the time provided in the regulations that establish these standards or prohibitions, even if the permit has not yet been modified to incorporate the requirement.

5.1.c. The Clean Water Act and Article 11 provide that any person who violates a permit condition implementing CWA Sections 301, 302, 306, 307, 308, 318 or 405 or any provision of a WV/NPDES permit or any rule or regulation promulgated under Article 11 is subject to a civil penalty not to exceed twenty-five thousand dollars ($25,000) per day of such violation. Any person who willfully or negligently violates permit conditions implementing CWA Sections 301, 302, 306, 307 or 308 or any provision of Article 11 or a WV/NPDES permit is subject to a fine of not less than two thousand five hundred dollars ($2,500) per day of violation nor more than twenty-five thousand dollars ($25,000) per day of violation or by imprisonment for not more than one (1) year or both.

5.1.d. Any person who falsifies, tampers with or knowingly renders inaccurate any monitoring device or method required to be maintained under a WV/NPDES permit shall, upon conviction, be punished by a fine of not less than one thousand dollars ($1,000) nor more than ten thousand dollars ($10,000) per violation or by imprisonment for not more than six (6) months per violation or both.

5.1.e. The Clean Water Act and Article 11 provide that any person who knowingly makes any false statement, representation or certification in any record or other document submitted or required to be maintained under the permit, including monitoring reports or reports of compliance or noncompliance, shall, upon conviction, be punished by a fine of not less than one thousand dollars ($1,000) nor more than ten thousand dollars ($10,000) per violation or by imprisonment for not more than six (6) months per violation or by both.

5.1.f. Any activities covered under a WV/NPDES permit shall not lead to pollution of the groundwater of the State as a result of the disposal or discharge of such wastes covered herein. However, as provided by subdivision 3.4.a. of this rule, except for any toxic effluent standards and prohibitions imposed under CWA Section 307 for toxic pollutants injurious to human health, compliance with a permit during its term constitutes compliance for purposes of enforcement with CWA Sections 301, 302, 306, 307, 318, 403, and 405 and Article 11.

5.1.g. Nothing in subsection 5.1. of this rule shall be construed to limit or prohibit any other authority the Secretary may have under Article 3 or Article 11 of Chapter 22 of the West Virginia Code or to relieve the permittee from any responsibilities, liabilities or penalties for not complying with 47 C.S.R. 2 and 47 C.S.R. 11.

5.2. Duty to Reapply. If the permittee wishes to continue an activity regulated by the WV/NPDES permit after the expiration date of the permit, the permittee must apply for reissuance of the permit at least one hundred twenty (120) days prior to expiration of the permit.

5.3. Duty to Halt or Reduce Activity Not a Defense. Upon reduction, loss or failure of the treatment facility, the permittee shall, to the extent necessary to maintain compliance with the WV/NPDES permit, control production or all discharges or both until the facility is restored or an alternative method of treatment is provided. This requirement applies, for example, when the primary source of power to the treatment facility fails or is reduced or lost. It shall not be a defense for a permittee in an enforcement action that it would have been necessary to halt or reduce the permitted activity in order to maintain compliance with the conditions of the permit.

5.4. Duty to Mitigate. The permittee shall take all reasonable steps to minimize, correct or prevent any discharge in violation of the WV/NPDES permit that has a reasonable likelihood of adversely affecting human health or the environment.

5.5. Proper Operation and Maintenance. The permittee shall at all times properly operate and maintain all facilities and systems of treatment and control (and related appurtenances) that are installed or used by the permittee to achieve compliance with the conditions of the WV/NPDES permit. Proper operation and maintenance includes effective performance, adequate funding, adequate operator staffing and training, and adequate laboratory and process controls, including appropriate quality assurance procedures. This provision requires the operation of backup auxiliary facilities or similar systems only when necessary to achieve compliance with the conditions of the permit.

5.6. Permit Actions. The WV/NPDES permit may be modified, reissued, suspended or revoked for cause (see section 8 of this rule). The filing of a request by the permittee for a permit modification, reissuance, termination or a notification of planned changes or anticipated non-compliance does not stay any permit condition.

5.7. Transfer. The WV/NPDES permit is not transferable to any person except after notice to the Secretary and by following one of the procedures listed in subdivision 3.5.c. of this rule.

5.8. Property Rights. The WV/NPDES permit does not convey any property rights of any sort or any exclusive privilege.

5.9. Duty to Provide Information. The permittee shall furnish to the Secretary, within a specified time, any information that the Secretary may request to determine whether cause exists for modifying, reissuing, suspending or revoking the WV/NPDES permit or to determine compliance with the permit. The permittee shall also furnish to the Secretary, upon request, copies of records required to be kept by the permit.

5.10. Inspection and Entry. The permittee shall allow the Secretary or the Secretary’s authorized representative, upon the presentation of credentials and other documents as may be required by law, to:

5.10.a. Enter upon the permittee’s premises where a regulated facility or activity is located or conducted or where records must be kept under the conditions of the WV/NPDES permit;

5.10.b. Have access to and copy, at reasonable times, any records that must be kept under the conditions of the permit;

5.10.c. Inspect, at reasonable times, any facilities, equipment (including monitoring and control equipment), practices or operations regulated or required under the permit; and

5.10.d. Sample or monitor, at reasonable times, any substances or parameters at any location for the purposes of assuring permit compliance or as otherwise authorized by Article 11.

5.11. Monitoring and Records.

5.11.a. Monitoring must be conducted according to test procedures approved under 40 C.F.R. Part 136, unless other test procedures have been specified in the WV/NPDES permit.

5.11.b. Samples and measurements taken for the purpose of monitoring shall be representative of the monitored activity.

5.11.c. The permittee shall retain records of all monitoring information, including all calibration and maintenance records and all original chart recording for continuous monitoring instrumentation, copies of all reports required by the WV/NPDES permit, and records of all data used to complete the application for the permit for a period of at least three (3) years from the date of the sample, measurement, report or application. This period may be extended by request of the Secretary at any time.

5.11.d. Records of monitoring information shall include:

5.11.d.1. The date, exact place, and time of sampling or measurements;

5.11.d.2. The individual(s) who performed the sampling or measurements;

5.11.d.3. The date(s) analyses were performed;

5.11.d.4. The individual(s) who performed the analyses; if a commercial laboratory is used, the name and address of the laboratory;

5.11.d.5. The analytical techniques or methods used; and

5.11.d.6. The results of such analyses.

5.11.d.7. This information need not be submitted to the Secretary, unless requested, but should be retained in accordance with subdivision 5.11.c. of this rule.

5.11.e. Monitoring results shall be reported on DMRs and at the intervals specified in the permit. DMRs should be sent to the person designated in the permit so that they are received no later than twenty (20) days following the end of the reporting period.

5.11.f. If the permittee monitors any pollutant at any monitoring point specified in the permit more frequently than required by the permit, using approved test procedures under 40 C.F.R. Part 136 or as specified in the permit, the results of this monitoring shall be included in the calculation and reporting of the data submitted in the DMR. Such increased frequency shall also be indicated.

5.11.g. Calculations for all limitations that require averaging of measurements shall utilize an arithmetic mean, unless otherwise specified by the Secretary in the permit.

5.12. Signatory Requirement. All applications, reports or information submitted to the Secretary shall be signed and certified as required in subsection 4.7. of this rule.

5.13. Reporting Requirements.

5.13.a. Planned Changes. The permittee shall give notice to the Secretary as soon as possible but no later than thirty (30) days prior to any planned physical alterations or additions to the permitted facility or any planned changes in the method of operating the facility that may affect the nature of quantity of the discharge or qualify that facility for designation as a new source under subsection 2.32. of this rule.

5.13.b. Anticipated Noncompliance. The permittee shall give advance notice to the Secretary of any planned changes in the permitted facility or activity that may result in noncompliance with permit requirements.

5.13.c. Compliance Schedules. Reports of compliance or noncompliance with, or any progress reports on, interim and final requirements contained in any compliance schedule of the permit shall be submitted no later than fourteen (14) days following each schedule date.

5.13.d. Immediate Reporting.

5.13.d.1. The permittee shall report any noncompliance with the WV/NPDES permit or Article 11 that may endanger public health or the environment immediately, but not later than twenty-four (24) hours after becoming aware of the circumstances by using the Department of Environmental Protection’s Emergency Notification Number 1-800-642-3074. A written submission shall be provided to the person designated in the permit within five (5) days of the time the permittee becomes aware of the circumstances. The written submission shall contain a description of the noncompliance and its cause; the period of noncompliance, including exact dates and times; if the noncompliance has not been corrected, the anticipated time the noncompliance is expected to continue; and steps taken or planned to reduce, eliminate, and prevent reoccurrence of the noncompliance.

5.13.d.2. The following shall also be reported immediately but not later than twenty-four (24) hours after:

5.13.d.2.A. Any unanticipated bypass (see subdivision 5.14.a. of this rule) that exceeds any effluent limitation in the permit;

5.13.d.2.B. Any spill or accidental discharge (upset), as defined in subsection 5.15. of this rule, shall be reported by using the Department of Environmental Protection’s Emergency Notification Number: 1-800-642-3074. The notification shall set forth the time and place of the spill or discharge, type and quantities of pollutants, any actions taken to stop or mitigate the spill or accidental discharge, and any other information as may be requested. A written verification of the notification shall be submitted upon request of the person designated in the permit; and

5.13.d.2.C. Violation of a maximum daily discharge limitation for any of the pollutants that the Secretary has required in the permit to be reported immediately.

5.13.d.3. The Secretary may waive the written report required by paragraph 5.13.d.2. of this rule on a case-by-case basis, if the oral report has been received in accordance with the above.

5.13.d.4. Notification Levels. The permittee must notify the Secretary in writing as soon as it knows or has reason to believe:

5.13.d.4.A. That any activity has occurred or will occur that would result in the discharge, on a routine or frequent basis, of any toxic pollutant that is not limited in the permit, if that discharge will exceed the highest of the following “notification levels:”

5.13.d.4.A.1. One hundred micrograms per liter (100 µg/l);

5.13.d.4.A.2. Two hundred micrograms per liter (200 µg/l) for acrolein and acrylonitrile; five hundred micrograms per liter (500 µg/l) for 2,4-dinitrophenol and for 2-methyl-4, 6-dinitrophenol; and one milligram per liter (1 mg/l) for antimony;

5.13.d.4.A.3. Five (5) times the maximum concentration value reported for that pollutant in the permit application in accordance with paragraph 4.5.b.1. of this rule; and

5.13.d.4.A.4. The level established by the Secretary in accordance with subdivision 6.2.h. of this rule.

5.13.d.4.B. That any activity has occurred or will occur that would result in any discharge, on a nonroutine or infrequent basis, of a toxic pollutant that is not limited in the permit, if that discharge will exceed the highest of the following “notification levels:”

5.13.d.4.B.1. Five hundred micrograms per liter (500 µg/l);

5.13.d.4.B.2. One milligram per liter (1 mg/l) for antimony;

5.13.d.4.B.3. Ten (10) times the maximum concentration value reported for that pollutant in the permit application in accordance with paragraph 4.5.b.1. of this rule; or

5.13.d.4.B.4. The level established by the Secretary in accordance with subdivision 6.2.h. of this rule.

5.13.d.4.C. That they have begun or expect to begin to use or manufacture, as an intermediate or final product or byproduct, any toxic pollutant that was not reported in the permit application under paragraph 4.5.a.17. of this rule.

5.13.e. Other Noncompliance. The permittee shall report all instances of noncompliance not reported under subdivisions 5.11.e., 5.11.f., 5.11.g., 5.13.c., and 5.13.d. of these rules at the time monitoring reports are submitted. The reports shall contain the information listed in paragraph 5.13.d.1. of this rule.

5.13.f. Net Limitations. If net limitations are established, then the permittee shall notify the Secretary if eligibility for such limitations has been altered or no longer exists.

5.13.g. Other Information. Where the permittee becomes aware that it failed to submit any relevant facts in a permit application, or submitted incorrect information in a permit application or in any report to the Secretary, it shall promptly submit such facts or information.

5.14. Bypass.

5.14.a. Definitions.

5.14.a.1. “Bypass” means the intentional temporary diversion of waste streams from any portion of a treatment facility.

5.14.a.2. “Severe Property Damage” means substantial physical damage to property, damage to the treatment facilities that causes them to become inoperable or substantial and permanent loss of natural resources that can reasonably be expected to occur in the absence of a bypass. Severe property damage does not mean economic loss caused by delays in production.

5.14.b. Bypass Not Exceeding Limitations. The permittee may allow any bypass to occur, for reasons other than sediment control, that does not cause effluent limitations to be exceeded, but only if it is for essential maintenance to assure efficient operation. These bypasses are not subject to the provisions of subdivisions 5.14.c. and 5.14.d. of this rule.

5.14.c. Notice.

5.14.c.1. Anticipated Bypass. If the permittee knows in advance of the need for a bypass, he or she shall submit prior written notice, if possible, at least ten (10) days before the date of the bypass.

5.14.c.2. Unanticipated Bypass. If the permittee does not know in advance of the need for a bypass, notice shall be submitted as required in subdivision 5.13.d. of this rule.

5.14.d. Prohibition of Bypass Exceeding Limitations.

5.14.d.1. Bypass exceeding limitations is permitted only under the following conditions, and the Secretary may take enforcement action against a permittee for bypass, unless:

5.14.d.1.A. Bypass exceeding limitations was unavoidable to prevent loss of life, personal injury or severe property damage;

5.14.d.1.B. There were no feasible alternatives to the bypass, such as the use of auxiliary treatment facilities, retention of untreated wastes or maintenance during normal periods of equipment downtime. This condition is not satisfied if adequate backup equipment should have been installed in the exercise of reasonable engineering judgment to prevent a bypass that occurred during normal periods of equipment downtime or preventive maintenance; and

5.14.d.1.C. The permittee submitted notices as required under subdivision 5.14.c. of this rule.

5.14.e. Approval of Bypass Exceeding Limitations. The Secretary may approve an anticipated bypass exceeding limitations, after considering its adverse effects, if the Secretary determines that it will meet the three conditions listed in paragraph 5.14.d.1. of this rule.

5.15. Upset.

5.15.a. Definition. “Upset” means an exceptional incident in which there is unintentional and temporary noncompliance with technology-based permit effluent limitations because of factors beyond the reasonable control of the permittee. An upset does not include noncompliance to the extent caused by operational error, improperly designed treatment facilities, inadequate treatment facilities, lack of preventive maintenance or careless or improper operation.

5.15.b. Effect of an Upset. An upset constitutes an affirmative defense to an action brought for noncompliance with such technology-based permit effluent limitations if the requirements of subdivision 5.15.c. of these rules are met. No determination made during administrative review of claims that noncompliance was caused by upset, and before an action for noncompliance, is final administrative action subject to judicial review.

5.15.c. Conditions Necessary for a Demonstration of Upset. A permittee who wishes to establish the affirmative defense of upset shall demonstrate through properly signed, contemporaneous operating logs or other relevant evidence that:

5.15.c.1. An upset occurred and that the permittee can identify the cause(s) of the upset;

5.15.c.2. The permitted facility was at the time being properly operated;

5.15.c.3. The permittee submitted notice of the upset as required in subparagraph 5.13.d.2.B. of this rule; and

5.15.c.4. The permittee complied with any remedial measures required under subsection 5.4. of this rule.

5.15.d. Burden of Proof. In any enforcement proceeding, the permittee seeking to establish the occurrence of an upset has the burden of proof.

5.16. Reopener Clause. In accordance with W. Va. Code § 22-11-20, the Secretary may reopen the WV/NPDES permit through modification or by reissuance to incorporate an applicable effluent standard or limitation under CWA Sections 301(b)(2)(C) and W. Va. Code § 22-11-11(b) (Water Quality Based Effluent Limitations and Standards), CWA Section 301(b)(2)(D) (Toxics), CWA Section 304(b)(2) (Best Available Treatment) and CWA Section 307(a)(2) (Toxics), which is promulgated or approved after the WV/NPDES permit is issued, if that effluent standard or limitation is more stringent than any effluent limitation in the permit or controls a pollutant not limited in the permit.

5.17. Removed Substances. Where removed substances are not otherwise covered by the terms and conditions of the WV/NPDES permit or other existing permit issued by the Department, any solids, sludges, filter backwash or other pollutants removed in the course of treatment or control of wastewaters that are intended for disposal within the State shall be disposed of only in a manner and at a site subject to the approval by the Department. If such substances are intended for disposal outside the State or for reuse (that is, as a material used for making another product, which in turn has another use), the permittee shall notify the Department in writing of the proposed disposal or use of such substances, the identity of the prospective disposer or users, the intended place of disposal or use, as appropriate, and shall take reasonable measures to ensure that the use does not cause pollution of the waters of the State.

5.18. New Sources.

5.18.a. The owner or operator of a new source or a recommencing discharger shall install, have in operating condition, and “start up” all pollution control equipment required to meet the conditions of the WV/NPDES permit before beginning to discharge.

5.18.b. After the effective date of new source performance standards, it shall be unlawful for any owner or operator of any new source to operate the source in violation of those standards applicable to the source.

5.18.c. Notwithstanding section 8 of this rule, any new source classified as such under previous EPA regulations may apply to have the WV/NPDES permit modified to incorporate the revised new source performance standards.

5.18.d. When a WV/NPDES permit is issued to a new source, the protection period of subdivision 12.2.a. of this rule shall apply. After expiration of such protection period, the permittee must immediately comply with any more stringent technology-based limitations promulgated under CWA Section 301. If, however, the more stringent technology-based limitations are promulgated less than three (3) years before the expiration of the WV/NPDES permit, the permittee has three (3) years from the date of their promulgation to comply with the stricter limits.

5.19. Definitions. When used in WV/NPDES permits, the definitions in section 2 of this rule shall apply and the following terms shall mean:

5.19.a. “Daily Average Fecal Coliform Bacteria” means the geometric average of all samples collected during the month.

5.19.b. “Measured Flow” means any method of liquid volume measurement, the accuracy of which has been previously demonstrated in engineering practice or for which a relationship to absolute volume has been obtained.

5.19.c. “Composite Sample” means a combination of individual samples obtained at regular intervals over a time period. Either the volume of each individual sample is proportional to discharge flow rates or the sampling interval (for constant volume samples) is proportional to the flow rates over the time period used to produce the composite. The maximum time period between individual samples shall be two (2) hours.

5.19.d. “Grab Sample” means an individual sample collected in less than fifteen (15) minutes.

W. Va. Code R. § 47-30-6 Establishing WV/NPDES Permit Conditions

6.1. General. In addition to conditions required in all WV/NPDES permits, the Secretary shall establish conditions in WV/NPDES permits as required on a case-by-case basis to provide for and assure compliance with all applicable requirements of the CWA, Article 11, and section 6 of this rule.

6.1.a. An applicable requirement is a State or federal or interstate compact, statutory or regulatory requirement that takes effect prior to final administrative disposition of a permit, or it is any requirement that takes effect prior to final administrative disposition and is also any requirement that takes effect prior to the modification or reissuance of a permit. Subdivision 10.2.b. of this rule provides a means for reopening a WV/NPDES permit proceeding at the discretion of the Secretary where new requirements become effective during the permitting process. An applicable requirement is also any requirement that takes effect prior to a modification or reissuance of a permit.

6.2. Effluent Limitations. Each WV/NPDES permit shall include conditions meeting the following requirements when applicable:

6.2.a. Technology based effluent limitations and standards for existing sources based on effluent limitation guidelines and standards under CWA Section 301 or new source performance standards promulgated under CWA Section 306, or case-by-case effluent limitations determined under CWA Section 402(a)(1) (Best Professional Judgment or BPJ), or a combination of the two in accordance with 40 C.F.R. Part 125. For new sources or new discharges, these technology-based limitations and standards are subject to the provisions of section 12 of this rule (Protection Period).

6.2.b. Other Effluent Limitations and Standards under CWA Sections 301, 302, 303, 307, and 318. If any applicable toxic effluent standard or prohibition (including any schedule of compliance specified in such effluent standard or prohibition) is promulgated under CWA Section 307(a) for a toxic pollutant and that standard or prohibition is more stringent than any limitation on the pollutant in the permit, the Secretary shall institute proceedings under this rule to modify or reissue the permit to conform to the toxic effluent standard or prohibition.

6.2.c. Water Quality Standards. Any more stringent requirements necessary to achieve water quality standards established pursuant to CWA or Article 11 or rules promulgated thereunder, including requirements of other affected states. Nothing in this subdivision precludes the application of Real Time Water Quality Control in achieving water quality standards. In the permit review and planning process, or upon the request of a permit applicant or permittee, the Secretary may utilize Real Time Water Quality Control on a case-by-case basis when establishing permit conditions when the applicant demonstrates that the use of Real Time Water Quality Control will not violate water quality standards. In order to facilitate a determination or assessment of the applicability of Real Time Water Quality Control, the Secretary may require a permit applicant or permittee to submit such information as deemed necessary.

6.2.d. Effluent Limitations for Coal Remining Operations.

6.2.d.1. An operator shall be eligible for the effluent limitations under this subdivision if the operator has not caused or contributed to the pollutional discharges associated with the coal remining operation.

6.2.d.2. Technology-based effluent limitations. In the case of coal remining operations, the Secretary shall include the provisions of 40 CFR Part 434, Subpart G in a WV/NPDES permit to satisfy the requirements of subdivision 6.2.a.

6.2.d.3. Water quality-based effluent limitations. In the case of coal remining operations, where water quality standards under 47 C.S.R. 2 require more stringent limitations than those established under paragraph 6.2.d.2. or address parameters not included in 40 C.F.R. Part 434, Subpart G, the Secretary may grant a remining variance for any parameter of concern. A remining variance shall apply the best available technology economically achievable on a case-by-case basis, using best professional judgment, and shall not be issued unless the applicant demonstrates that the remining operation will result in the potential for improved in-stream water quality as a result of the remining operation. The variance shall be issued in accordance with the Secretary’s procedural rule at 47 C.S.R. 6.

6.2.e. Reopener Clause. Any WV/NPDES permit issued shall include effluent limitations to meet the requirements of CWA Sections 301(b)(2)(A), 301(b)(2)(C), 301(b)(2)(D), 301(b)(2)(E), and 301(b)(2)(F), whether or not applicable effluent limitations guidelines have been promulgated or approved. These permits shall also include a reopener condition (see subsection 5.16. of this rule) stating that, if an applicable standard or limitation is promulgated under CWA Sections 301(b)(2)(C), 301(b)(2)(D), 304(b)(2), and 307(a)(2) and that effluent standard or limitation is more stringent than any effluent limitation in the permit or controls a pollutant not limited in the permit, the permit may be modified or revoked and reissued to conform to that effluent standard or limitation.

6.2.f. Water Quality Management Plans. Any requirements necessary to ensure consistency with the requirements of a water quality management plan approved by EPA under CWA Section 208(b).

6.2.g. Alternate Limits that incorporate alternate effluent limitations or standards where warranted by “fundamentally different factors” under 40 C.F.R. Part 125, Subpart D (see subdivision 4.5.f. of this rule).

6.2.h. Toxic pollutants limitations established under subdivisions 6.2.a., 6.2.b., or 6.2.c. of this rule to control pollutants meeting the criteria listed in paragraph 6.2.h.1. of this rule. Limitations will be established in accordance with paragraph 6.2.h.2. of this rule. An explanation of the development of these limitations shall be included in the fact sheet, if required.

6.2.h.1. Limitations must control all toxic pollutants that:

6.2.h.1.A. The Secretary determines, based on information reported in a permit application under paragraphs 4.5.b.1. and 4.5.a.17. of this rule or in a notification under paragraph 5.13.d.4. of this rule or on other information are or may be discharged at a level greater than the level that can be achieved by the technology-based treatment requirements appropriate to the permittee; or

6.2.h.1.B. The discharger does or may use or manufacture as an intermediate, final product or by-product.

6.2.h.2. The requirement that the limitations control the pollutants meeting the criteria of paragraph 6.2.h.1. of this rule will be satisfied by:

6.2.h.2.A. Limitations on those pollutants; or

6.2.h.2.B. Limitations on other pollutants that, in the judgment of the Secretary, will provide the necessary treatment of the pollutants.

6.2.i. Notification Level. A “notification level” that exceeds the notification level of paragraph 5.13.d.4. of this rule, upon a petition from the permittee or on the Secretary’s initiative. This new notification level may not exceed the level that can be achieved by the technology-based treatment requirements appropriate to the permittee.

6.2.j. Immediate Reporting. Pollutants for which the permittee must report violations of maximum daily discharge limitations under subparagraph 5.13.d.2.C. of this rule shall be listed in the permit. This list shall include any toxic pollutant or hazardous substance, or a pollutant specifically identified as the method to control a toxic pollutant or hazardous substance.

6.2.k. Monitoring Requirements. In addition to the requirements of subsection 5.11. of this rule, all WV/NPDES permits shall specify:

6.2.k.1. Requirements concerning the proper use, maintenance, and installation, when appropriate, of monitoring equipment or methods (including biological monitoring methods);

6.2.k.2. Required monitoring including type, intervals, and frequency sufficient to yield data that are representative of the monitored activity including, when appropriate, continuous monitoring;

6.2.k.3. Applicable reporting requirements based upon the impact of the regulated activity and as specified in paragraph 6.2.k.4. of this rule. Reporting shall be no less frequent than specified in the paragraph 6.2.k.5. of this rule; and

6.2.k.4. To assure compliance with permit limitations, requirements to monitor:

6.2.k.4.A. The volume of effluent discharged from each outlet; and

6.2.k.4.B. Other measurements as appropriate, including pollutants in internal waste streams under subsection 7.8. of this rule; pollutants in intake water for net limitations under subsection 7.7. of this rule; frequency rate of discharge for noncontinuous dischargers under subsection 7.4. of this rule; and pollutants subject to notification requirements under paragraph 5.13.d.4. of this rule.

6.2.k.5. Requirements to report monitoring results with a frequency dependent on the nature and effect of the discharge, but in no case less than once a year.

6.2.l. Best Management Practices to control or abate the discharge of pollutants when:

6.2.l.1. Authorized under CWA Section 304(e) for the control of toxic pollutants and hazardous substances from ancillary activities;

6.2.l.2. Numeric effluent limitations are unfeasible; or

6.2.l.3. The practices are reasonably necessary to achieve effluent limitations and standards or to carry out the purposes and intent of CWA.

6.2.m. Reissued Permits.

6.2.m.1. When a permit is reissued, interim limitations, standards or conditions shall be set that are at least as stringent as the final limitations, standards or conditions in the previous permit, unless the circumstances on which the previous permit was based have materially and substantially changed since the time the permit was issued and would constitute cause for permit modification or revocation and reissuance.

6.2.m.2. When effluent limitations were imposed under CWA Section 402(a)(1) in a previously issued permit and these limitations are more stringent than the subsequently promulgated effluent guidelines, this paragraph shall apply unless:

6.2.m.2.A. The discharger has installed the treatment facilities required to meet the effluent limitations in the previous permit and has properly operated and maintained the facilities, but has nevertheless been unable to achieve the previous effluent limitations. In this case, the limitations in the reissued permit may reflect the level of pollutant control actually achieved (but shall not be less stringent than required by the subsequently promulgated effluent limitation guidelines);

6.2.m.2.B. The subsequently promulgated effluent guidelines are based on best conventional pollutant control technology (CWA Section 301(b)(2)(E));

6.2.m.2.C. The circumstances on which the previous permit was based have materially and substantially changed since the time the permit was issued and would constitute cause for permit modification or revocation and reissuance; or

6.2.m.2.D. There is increased production at the facility that results in significant reduction in treatment efficiency, in which case the permit limitations will be adjusted to reflect any decreased production and raw waste loads, but in no event shall permit limitations be less stringent than those required by subsequently promulgated standards and limitations.

6.2.n. Navigation. Any conditions that the Secretary of the United States Army (Corps of Engineers) considers necessary to ensure that navigation and anchorage will not be substantially impaired.

6.2.o. Schedules of Compliance. The permit may, when appropriate, specify a schedule of compliance leading to compliance with the CWA, Article 11, and rules promulgated thereunder.

6.2.o.1. Any schedule of compliance shall require compliance as soon as possible, but in no case later than the applicable statutory deadline. In the case of permit conditions based on water quality standards established after July 1, 1977, a schedule of compliance may be used that shall assure that the discharge will not cause a violation of applicable water quality standards.

6.2.o.2. The first WV/NPDES permit issued to a new source or a new discharger shall contain a schedule of compliance only when necessary to allow a reasonable opportunity to attain compliance with requirements issued or revised after commencement of construction but less than three (3) years before commencement of the relevant discharge. For recommencing dischargers, a schedule of compliance shall be available only when necessary to allow a reasonable opportunity to attain compliance with requirements issued or revised less than three (3) years before recommencement of discharge.

6.2.o.3. Interim Dates. If a permit establishes a schedule of compliance that exceeds one (1) year from the date of permit issuance, the schedule shall set forth interim requirements (for example, actions, operations or milestone events) and the dates for their achievement, but the time between interim dates shall not exceed one (1) year.

6.2.o.4. If the time necessary for completion of any interim requirement is more than one (1) year and is not readily divisible into stages for completion, the permit shall specify interim dates for the submission of reports of progress toward completion of the interim requirements and indicate a projected completion date.

6.2.o.5. Alternative schedules of compliance. A permit applicant or permittee may cease conducting regulated activities rather than continue to operate and meet permit requirements as follows:

6.2.o.5.A. If the permittee decides to cease conducting regulated activities at a given time within the term of a permit that has already been issued the permit may be modified to contain a new or additional schedule leading to timely cessation of activities or the permittee shall cease conducting permitted activities before noncompliance with any interim or final compliance schedule requirement already specified in the permit.

6.2.o.6. If the decision to cease conducting regulated activities is made before issuance of a permit whose term will include the termination date, the permit shall contain a schedule leading to termination that will ensure timely compliance with applicable requirements for compliance not later than statutory deadline.

6.2.o.7. If the permittee is undecided whether to cease conducting regulated activities, the Secretary may issue or modify a permit to contain two (2) schedules as follows:

6.2.o.7.A. Both schedules shall contain an identical interim deadline requiring a final decision on whether to cease conducting regulated activities no later than a date that ensures sufficient time to comply with applicable requirement in a timely manner if the decision is to continue conducting regulated activities;

6.2.o.7.B. One (1) schedule shall lead to timely compliance with applicable requirements and compliance no later than the statutory deadline;

6.2.o.7.C. The second schedule shall lead to cessation of regulated activities by a date that will ensure timely compliance with applicable requirements or compliance no later than the statutory deadline; and

6.2.o.7.D. Each permit containing two (2) schedules shall include a requirement that, after the permittee has made a final decision under subparagraph 6.2.o.7.A., it shall follow the schedule leading to compliance if the decision is to cease conducting regulated activities.

6.2.o.8. The applicant’s or permittee’s decision to cease conducting regulated activities shall be evidenced by a firm public commitment satisfactory to the Secretary.

W. Va. Code R. § 47-30-7 Calculating WV/NPDES Conditions

7.1. Outlets and Discharge Points. All permit effluent limitations, standards, and prohibitions shall be established for each outlet or discharge point of the permitted facility, except as otherwise provided under paragraph 6.3.k.2. and subsection 7.8. of this rule. Where a person has a number of outlets emerging into the waters of this State in close proximity to one another, such outlets may be treated as a unit for the purposes of section 7 of this rule.

7.2. Metals. All permit effluent limitations, standards or prohibitions for a metal shall be expressed in terms of the “total recoverable metal” as defined in 40 C.F.R. Part 136 unless:

7.2.a. An applicable effluent standard or limitation has been promulgated under the CWA and specifies the limitation for the metal in the dissolved or valent form;

7.2.b. In establishing permit limitations on a case-by-case basis, it is necessary to express the limitation on the metal in the dissolved or valent form in order to carry out the provisions of the CWA; or

7.2.c. All approved analytical methods for the metal inherently measures its dissolved form.

7.3. Continuous Discharges. For all continuous discharges, all permit effluent limitations, standards, and prohibitions, including those necessary to achieve water quality standards, shall be stated as maximum daily and average monthly discharge limitations.

7.4. Noncontinuous Discharges. Discharges that are not continuous shall be particularly described and limited, considering the following factors, as appropriate:

7.4.a. Frequency;

7.4.b. Total mass;

7.4.c. Maximum rate of discharge of pollutants during the discharge; and

7.4.d. Prohibition or limitation of specified pollutants by mass, concentration or other appropriate measure.

7.5. Mass Limitations. Any pollutants limited in terms of mass additionally may be limited in terms of other units of measurement, and the permit shall require the permittee to comply with both limitations.

7.6. Pollutants in Intake Water. Except as provided in subsection 7.7. of this rule, effluent limitations imposed in permits shall not be adjusted for pollutants in the intake water.

7.7. Net Limitations.

7.7.a. Upon request of the discharger, technology-based effluent limitations or standards shall be adjusted to reflect credit for pollutants in the discharger’s intake water if:

7.7.a.1. The applicable effluent limitations and standards contained in 40 C.F.R. Subchapter N specifically provide that they shall be applied on a net basis; or

7.7.a.2. The discharger demonstrates that the control system it proposes or uses to meet applicable technology-based limitations and standards would, if properly installed and operated, meet the limitations and standards in the absence of pollutants in the intake waters.

7.7.b. Credit for generic pollutants such as biochemical oxygen demand or total suspended solids should not be granted unless the permittee demonstrates that the constituents of the generic measure in the effluent are substantially similar to the constituents of the generic measure in the intake water or unless appropriate additional limits are placed on process water pollutants either at the outfall or elsewhere.

7.7.c. Credit shall be granted only to the extent necessary to meet the applicable limitation or standard, up to a maximum value equal to the influent value. Additional monitoring may be necessary to determine eligibility for credits and compliance with permit limits.

7.7.d. Credit shall be granted only if the discharger demonstrates that the intake water is drawn from the same body of water into which the discharge is made. The Secretary may waive this requirement if he or she finds that no environmental degradation will result.

7.7.e. The provisions of subsection 7.7. of this rule do not apply to the discharge of raw water clarifier sludge generated from the treatment of intake water.

7.8. Internal Waste Streams.

7.8.a. When permit effluent limitations or standards imposed at the point of discharge are impractical or unfeasible, effluent limitations or standards for discharges of pollutants may be imposed on internal waste streams before mixing with other waste streams or cooling water streams. In those instances the monitoring requirements under subsection 5.11. of this rule shall also be applied to the internal waste streams.

7.8.b. Limits on internal waste streams will be imposed only when the fact sheet under section 11 of this rule sets forth the exceptional circumstances that make such limitations necessary, such as when the final discharge point is inaccessible (for example, a point that is beneath ten (10) meters of water), the wastes at the point of discharge are so diluted as to make monitoring impractical, or the interferences among pollutants at the point of discharge would make detection or analysis impracticable.

7.9. Disposal of Pollutants into Wells or Underground Mines or by Land Application.

7.9.a. Calculations of Effluent Limitations (General). When part of a discharger’s process wastewater is not being discharged into surface waters of the State because it is disposed into a well, underground mine or by land application thereby reducing the flow or level of pollutants being discharged into surface waters of the State, the Secretary may establish limits on the concentration and quantity of such discharge and applicable effluent standards and the limitations for the surface discharge in a WV/NPDES permit shall be adjusted to reflect the reduced raw waste resulting from such disposal.

7.9.b. Calculations of Effluent Limitations (Specified). The provisions of subdivision 7.9.a. of this rule shall not apply to the extent that promulgated effluent limitations guidelines specify a different specific technique for adjusting effluent limitations to account for well injection underground, mine disposal or land application.

7.9.c. The provisions of subdivision 7.9.a. of this rule do not alter a discharger’s obligation to meet any more stringent requirements established under sections 5 or 6 of this rule.

W. Va. Code R. § 47-30-8 Modification, Reissuance, Suspension, Release, and Revocation of Permits

8.1. General.

8.1.a. WV/NPDES permits may be modified, reissued, suspended, released or revoked either at the request of any interested person (including the permittee) or upon the Secretary’s initiative. However, permits may be modified, reissued, suspended, released or revoked only for the reasons specified in section 8 of this rule. All requests shall be submitted to the Secretary in writing and shall contain facts or reasons supporting the request. The Secretary may require additional information that may require submission of an updated permit application.

8.1.b. If the Secretary decides the request is not justified, he or she shall send the requester a brief written response giving a reason for the decision. Denials of requests for modification, suspension, release or revocation are not subject to public notice, comment or hearings.

8.2. Modifications.

8.2.a. General. All requests for modification shall be submitted in writing to the Secretary, citing facts or reasons supporting the request for modification and indicating under which section of this rule the request is made. The Secretary may request additional information and may require the submission of an updated permit application. When a permit modification is requested, only the conditions subject to modification are reopened. All other conditions of the permit shall remain in effect for the duration of the permit.

8.2.b. If the Secretary tentatively decides to modify a permit and the modification is made under paragraph 8.2.c.2. of this rule, he or she shall prepare a draft permit under subsection 10.1. of this rule, follow the public notice procedures in subsection 10.2. of this rule, and follow the procedural requirements in W. Va. Code § 22-11-12. The draft permit shall fulfill the requirement of notice under W. Va. Code § 22-11-12. When a draft permit is prepared for the modification, only those conditions to be modified shall be reopened when a new draft permit is prepared.

8.2.c. Causes for Modification.

8.2.c.1. Minor Modifications. Upon the consent of the permittee, the Secretary may modify a permit to make the corrections or allowances for changes in the permitted activity listed in subparagraphs 8.2.c.1.A .through 8.2.c.1.J. of this rule without preparing a draft permit under subsection 10.1. of this rule or following the procedures of section s 10 or 11 of this rule or the procedures in W. Va. Code § 22-11-12. Minor modifications may:

8.2.c.1.A. Correct typographical errors;

8.2.c.1.B. Require more or less frequent monitoring or reporting by the permittee;

8.2.c.1.C. Change an interim compliance date in a schedule of compliance: Provided, That the new date is not more than one hundred twenty (120) days after the date specified in the existing permit and does not interfere with attainment of the final compliance date requirement;

8.2.c.1.D. Allow for a change in ownership or operational control of a facility where the Secretary determines that no other change in the permit is necessary: Provided, That any forms prescribed by the Secretary, including a written agreement containing a specific date for transfer of permit responsibility, coverage, and liability between the current and new permittees have been submitted to the Secretary;

8.2.c.1.E. Change the construction schedule for a discharger that is a new source. No such change shall affect a discharger’s obligation to have all pollution control equipment installed and in operation prior to discharge;

8.2.c.1.F. Delete a point source outfall when the discharge from that outfall is terminated and does not result in discharge of pollutants from other outfalls except in accordance with permit limits;

8.2.c.1.G. Allow disposal system equipment substitution when the substituted equipment would not alter the degree of treatment required by the permit;

8.2.c.1.H. Allow rerouting of discharging lines when the rerouted line would not discharge to a different receiving stream and would not require new or different permit conditions;

8.2.c.1.I. Allow relocation of elements of treatment facilities or disposal systems, due to topography or equipment failures; or

8.2.c.2. Major Modifications. The following are causes for major modification, but not reissuance of a permit, unless the permittee requests or agrees, and require the preparation of a draft permit under subsection 10.1. of this rule and the public notice procedures of subsection 10.2. of this rule. If the permittee requests or agrees, then the following causes can be reason for a permit reissuance that will open the entire permit for comment and change:

8.2.c.2.A. Alterations. There are material and substantial alterations or additions to the permitted facility or activity that occurred after permit issuance that justify the application of permit conditions that are different or absent in the existing permit.

Note: Certain reconstruction activities may cause the new source provisions of 40 C.F.R. Section 122.29 and Part 434 to be applicable. See also subsection 2.31 and section 12 of this rule.

8.2.c.2.B. Information. The Secretary has received new information. Permits may be modified during their terms for this cause only if the information was not available at the time of permit issuance (other than revised regulations, guidance or test methods) and would have justified the application of different permit conditions at the time of issuance. This cause shall include any information indicating that cumulative effects on the environment are unacceptable.

8.2.c.2.C. New Rules or Judicial Decision. The standards or rules on which the permit was based have been changed by promulgation of amended standards or rules or by judicial decision after the permit was issued. Permits may be modified during their terms for this cause only as follows:

8.2.c.2.C.1. For promulgation of amended standards or rules, when: 8.2.c.2.C.1.(a). The permit condition to be modified was based on a promulgated effluent limitation guideline or water quality standard; 8.2.c.2.C.1.(b). The EPA or State has revised, withdrawn, or modified that portion of the effluent limitation guideline or water quality standard on which the permit condition was based; and 8.2.c.2.C.1.(c). If a modification request is made by the permittee, such request is within ninety (90) days of Federal Register or State Register notice of the action on which the request is based, unless the effluent limitations guidelines allow for a different time period.

8.2.c.2.C.2. For judicial decisions, when a court of competent jurisdiction has remanded and stayed State or federal promulgated rules or if the remand and stay concern that portion of the rules on which the permit condition was based and if the permittee is requesting the change, and the request is filed by the permittee within ninety (90) days of judicial remand.

8.2.c.2.D. Compliance Schedules. The Secretary determines good cause exists for modification of a compliance schedule, such as an act of God, strike, flood, materials shortage or other events over which the permittee has little or no control and for which there is no reasonably available remedy. However, in no case shall a compliance schedule be modified to extend beyond an applicable CWA statutory deadline: July 1, 1984 for technology-based effluent limits under CWA Section 301(b)(1)(B) or July 1, 1977 for water quality based effluent limits under CWA Section 301(b)(1)(C).

8.2.c.2.E. Variances. When the permittee has filed a timely request for a variance under CWA Sections 301(c), 301(g), 301(h), 301(i), 301(k), 302(b)(2) or 316(a) or for “fundamentally different factors” under paragraph 4.5.f.1. of this rule.

8.2.c.2.F. Toxics. When required to incorporate an applicable CWA Section 307(a) toxic effluent standard or prohibition.

8.2.c.2.G. Reopener. When required by the “reopener” conditions in a permit, which are established in the permit under subdivision 6.2.d. of this rule.

8.2.c.2.H. Net Limitations. Upon request of a permittee who qualifies for effluent limitations on a net basis or when a discharger is no longer eligible for net limitations as provided in subsection 7.7 of this rule.

8.2.c.2.I. Nonlimited Pollutants. When the level of discharge of any pollutant that is not limited in the permit exceeds the level that can be achieved by the technology-based treatment requirements appropriate to the permittee.

8.2.c.2.J. Use or Manufacture of Toxics. When the permittee begins or expects to begin to use or manufacture as an intermediate, final product or by-product any toxic pollutant that was not reported in the permit application.

8.2.c.2.K. Notification Levels. To establish a “notification level” as provided in paragraph 5.13.d.4. of this rule.

8.2.c.2.L. Failure to Notify Affected State. Upon failure of the Secretary to notify another state, as required by subdivision 10.2.d. of this rule, whose waters may be affected by a discharge from this State and different permit conditions are required to comply with the other state’s water quality standards.

8.2.c.2.M. Correction of Mistakes. To correct technical mistakes, such as errors in calculation or mistaken interpretations of law made in determining permit conditions.

8.2.c.2.N. Unable to Meet BPJ Limits. When the discharger has installed the treatment technology considered by the permit writer in setting effluent limitations imposed under CWA Section 402(a)(1) and has properly operated and maintained the facilities, but nevertheless has been unable to achieve those effluent limitations. In this case, the limitations in the modified permit may reflect the level of pollutant control actually achieved but shall not be less stringent than required by a subsequently promulgated effluent guideline.

8.2.c.2.O. BPJ Limits Too Costly. When the permittee’s effluent limitations were imposed under CWA Section 402(a)(1) and the permittee demonstrates operation and maintenance costs that are totally disproportionate from the operation and maintenance costs considered in the development of a subsequently promulgated effluent limitations guideline, but in no case may the limitation be less stringent than the subsequent guideline.

8.3. Reissuance.

8.3.a. General.

8.3.a.1. The Secretary may reissue WV/NPDES permits prior to their expiration date for any cause specified in subsection 8.3. of this rule. When a permit is to be reissued, the entire permit is reopened, and the Secretary shall require submission of a permit reissuance application.

8.3.a.2. During any reissuance proceeding, the permittee shall comply with all conditions of the existing permit until a new final permit is issued. Reissuance requires a draft permit under subsection 10.1. of this rule and the public notice procedures of subsection 10.2. of this rule. Processing of a reissuance application does not exempt the permittee from compliance with any permit term or condition.

8.3.b. Reissuance Based on Permittee Request or Agreement. The following are causes for reissuance of a permit when the permittee requests or agrees:

8.3.b.1. All causes for modification listed under paragraph 8.2.c.2. of this rule.

8.3.b.2. The WV/NPDES permit will expire within eighteen (18) months, and the permittee has submitted an application for reissuance that is approvable.

8.3.c. Reissuance without Permittee Request or Agreement. The following are causes for reissuance of a permit:

8.3.c.1. Cause exists for suspension, release or revocation of the WV/NPDES permit under subsection 8.4. of this rule, and the Secretary determines reissuance is appropriate;

8.3.c.2. Conditions exist that allow reopening and reissuance of the permit under subsection 5.16. of this rule.

8.4. Suspension, Release and Revocation of Permits. Permits may be suspended, released or revoked in whole or in part. The following may be causes for revocation or suspension of a permit during its term or for denying a permit reissuance application:

8.4.a. Noncompliance by the permittee with any condition of the WV/NPDES permit or Article 11;

8.4.b. The permittee’s failure in the application or during the permit issuance process to disclose fully all relevant facts, or the permittee’s misrepresentation of any relevant facts at any time;

8.4.c. A determination that the permitted activity endangers human health or the environment and can only be regulated to acceptable levels by permit modification or revocation;

8.4.d. A change in any condition that requires either a temporary or a permanent reduction or elimination of any discharge controlled by the permit as defined in 47 C.S.R. 10 § 2.42 (for example, plant closure or termination of discharge by connection to a POTW); or

8.4.e. Revocation of a permit issued under WVSMRCA.

W. Va. Code R. § 47-30-9 Permits For Major Facilities

9.1. Designation of Major Facilities.

9.1.a. Because of their size of discharge, location in an environmentally sensitive area or for other reasons, certain facilities have been classified as major facilities by the EPA Region III Administrator. All such major facilities are facilities for which EPA has not waived the right to review, object to or comment upon pursuant to the Memorandum of Agreement. In addition, the Secretary may make additional designations of major facility status of facilities not already classified as such.

9.1.b. Facilities designated as major will be informed at the time of permit issuance.

9.1.c. Such facilities will be subject to special requirements as set forth in subsection 9.2. of this rule.

9.2. Special Requirements for Major Facilities.

9.2.a. All facilities designated as major facilities by the Region III Administrator in conjunction with the Secretary:

9.2.a.1. Will have a fact sheet prepared on them pursuant to section 11 of this rule whenever a draft permit is issued for them;

9.2.a.2. Must submit all discharge monitoring reports and reports of noncompliance required by their WV/NPDES or NPDES permit or under subsection 5.11 of this rule to both the Secretary and the Region III Administrator;

9.2.a.3. Will be annually subject to either a Compliance Sampling Inspection (CSI), Compliance Evaluation Inspection (CEI) or Performance Audit Inspection (PAI); and

9.2.a.4. Will have copies of compliance inspection reports and correspondence regarding noncompliance forwarded to EPA.

9.2.b. All facilities classified as major solely by the Secretary will be subject to an annual inspection under paragraph 9.2.a.3. of this rule.

W. Va. Code R. § 47-30-10 Procedure For Permit Issuance

10.1. General.

10.1.a. Once an application is complete, the Secretary shall tentatively decide whether to prepare a draft permit or to deny the application.

10.1.b. If the Secretary decides to prepare a draft permit, it shall contain the following information:

10.1.b.1. All applicable conditions under sections 5 and 6 of this rule;

10.1.b.2. All monitoring requirements; and

10.1.b.3. Effluent limitations, standards, prohibitions, and conditions and all variances under section 14 of this rule that are to be included.

10.1.c. All draft permits shall be accompanied by a fact sheet if required under section 11 of this rule and shall be publicly noticed and available for public comment in accordance with subsection 10.2. of this rule.

10.2. Public Notice, Comment, and Hearings.

10.2.a. Public Notice.

10.2.a.1. Scope.

10.2.a.1.A. Public notice shall be given that a draft permit has been prepared.

10.2.a.1.B. Public notices may describe more than one permit or permit action.

10.2.a.1.C. Public notice shall be given of any hearing granted under subsection 10.3. of this rule.

10.2.a.2. Timing.

10.2.a.2.A. Public notice of the preparation of a draft permit shall allow at least thirty (30) days for public comment. Extra time may be allowed if requested.

10.2.a.2.B. Public notice of a public hearing shall be given at least thirty (30) days before the hearing. Public notice of the hearing may be given at the same time as public notice of the draft permit and the two (2) notices may be combined.

10.2.b. Reopening of the Public Comment Period. If any data, information or arguments submitted during the public comment period appear to raise substantial new questions concerning a permit, the Secretary may reopen or extend the comment period to give interested persons an opportunity to comment on the information or arguments submitted. The Secretary may also extend the comment period for good cause.

10.2.c. Proof of Publication. The applicant shall be responsible for publication of a legal advertisement in a qualified newspaper of general circulation in the location of the proposed permit area. Before the expiration of the WV/NPDES notice period provided in subparagraph 10.2.a.2.A. of this rule, the applicant shall send the Secretary a copy of the advertisement and proof of publishing, along with an affidavit certifying that the notice and a fact sheet, if required, were sent to all persons listed in subparagraphs 10.2.d.1.A. and 10.2.d.1.B. of this rule. A WV/NPDES permit may not be issued until that affidavit is received.

10.2.d. Methods. In addition to the requirements of subdivision 10.2.c. of this rule, public notice of the draft permit shall be given by the following methods:

10.2.d.1. By the applicant mailing a copy of a notice to the following persons:

10.2.d.1.A. Federal, State, and interstate agencies with jurisdiction over fish and wildlife resources, including the United States Fish and Wildlife Service and the Wildlife Resources Section of the West Virginia Division of Natural Resources; United States Army Corps of Engineers; the Historic Preservation Unit of the West Virginia Department of Culture and History; the Advisory Council on Historic Preservation; and other appropriate government authorities, including any affected states.

10.2.d.1.B. Any other State or Federal agency that the Secretary knows has issued or is required to issue a permit for the same facility or activity under any of the following federal programs:

10.2.d.1.B.1. For RCRA: The Division of Water and Waste Management and the Division of Air Quality of the West Virginia Department of Environmental Protection;

10.2.d.1.B.2. For UIC: The Division of Water and Waste Management of the West Virginia Department of Environmental Protection;

10.2.d.1.B.3. For 404: The United States Army Corps of Engineers, Pittsburgh District or Huntington District; and

10.2.d.1.B.4. For PSD: The Division of Air Quality of the West Virginia Department of Environmental Protection.

10.2.d.1.C. To any unit of local government having jurisdiction over the area where the facility is proposed to be located.

10.2.d.1.D. Any other method reasonably calculated to give actual notice of the action in question to the persons potentially affected by it, including press releases or any other forum or medium to elicit public participation.

10.2.d.1.E. Any person otherwise entitled to receive notice under paragraph 10.2.d.1. of this rule may waive his or her rights to receive notice for any classes and categories of permits.

10.2.d.2. The Secretary shall send the public notice to persons on a mailing list, which is developed by:

10.2.d.2.A. Including those who request in writing to be on the list;

10.2.d.2.B. Soliciting persons for “area lists” from participants in past permit proceedings in that area; and

10.2.d.2.C. Notifying the public of the opportunity to be put on the mailing list through periodic publication in the public press and in such publications as regional and State funded newsletters or environmental bulletins. The list may be updated from time to time by requesting written indication of continued interest from those listed. Persons may be deleted from the list if they fail to respond to such a request.

10.2.d.3. In addition to the general public notice described in subdivision 10.2.e. of this rule, all persons identified in subparagraphs 10.2.d.1.A. and 10.2.d.1.B. of this rule shall be mailed a copy of the fact sheet, if any, and the draft permit and application unless the person requests, in writing, that these documents not be sent.

10.2.e. Contents.

10.2.e.1. All Public Notices. All public notices issued under subsection 10.2. of this rule shall contain the following minimum information:

10.2.e.1.A. Name and address of the office processing the permit action for which notice is being given;

10.2.e.1.B. Name and address of the permittee or permit applicant and a location map of the proposed area, except in the case of general permits;

10.2.e.1.C. A brief description of the business conducted at the facility or activity described in the permit application or in the draft permit, except in the case of general permits;

10.2.e.1.D. Name, address and telephone number of a person from whom interested persons may obtain further information, including copies of the draft permit or draft general permit, fact sheet, and application;

10.2.e.1.E. A brief description of the comment procedures required and the time and place of any hearing that will be held, including a statement of procedures to request a hearing (unless a hearing has already been scheduled) and other procedures by which the public may participate in the final permit decision;

10.2.e.1.F. A general description and map of the location of the facility and the name of the receiving water(s). For draft general permits, this requirement will be satisfied by a map or description of the permit area; and

10.2.e.1.G. Any other information considered necessary or proper by the Secretary.

10.2.e.2. Public Notices for Hearings. In addition to the general public notice requirements of paragraph 10.2.e.1. of this rule, a public notice of a public hearing shall contain the following information:

10.2.e.2.A. Reference to the date of previous public notices relating to the permit;

10.2.e.2.B. Date, time, and place of the hearing; and

10.2.e.2.C. A brief description of the nature and purpose of the hearing, including applicable rules and procedures.

10.2.f. Public Comments and Requests for Public Hearings. During the public comment period provided in subdivision 10.2.a. of this rule, any interested person may submit written comments on the draft permit and may request a public hearing, if a public hearing has not been already scheduled. A request for a public hearing shall be in writing and shall state the nature of the issues proposed to be raised in the hearing. All comments shall be considered in making the final decision and shall be answered as provided in subsection 10.4. of this rule.

10.3. Public Hearings.

10.3.a. A public hearing shall be held whenever the Secretary finds, on the basis of requests, a significant degree of public interest on issues relevant to the draft permit(s). The Secretary also may hold a public hearing at his or her discretion whenever such a hearing might clarify one or more issues involved in the permit decision.

10.3.b. Any person may submit oral or written statements and data concerning the draft permit. Reasonable limits may be set upon the time allowed for oral statements, and the submission of statements in writing may be required. The public comment period under subparagraph 10.2.a.2.A. of this rule shall automatically be extended to the close of any public hearing held under the provisions of subsection 10.3. of this rule.

10.3.c. A tape recording or written transcript of the hearing shall be made available to the public, upon request.

10.4. Response to Comments.

10.4.a. At the time that any final permit is issued, the Secretary shall issue a response to comments. This response shall:

10.4.a.1. Specify which provisions of the draft permit have been changed in the final permit decision and the reasons for the change; and

10.4.a.2. Briefly describe and respond to all significant comments on the draft permit raised during the public comment period or during any hearing.

10.4.b. The response to comments shall be available to the public.

10.5. Public Comment by Government Agencies.

10.5.a. If during the comment period for a draft permit, the District Engineer of the United States Army Corps of Engineers advises the Secretary in writing that anchorage and navigation of any of the waters of the State would be substantially impaired by the granting of a permit, the permit shall be denied and the applicant so notified. If the District Engineer advises the Secretary that imposing specified conditions upon the permit is necessary to avoid any substantial impairment of anchorage or navigation, then the Secretary shall include the specified conditions in the permit. Review or appeal of denial of a permit under section 10 of this rule or of conditions specified by the District Engineer shall be made through the applicable procedures of the Corps of Engineers and may not be made under the provisions of this part. If the conditions are stayed by a court of competent jurisdiction or by applicable procedures of the Corps of Engineers, those conditions shall be stayed in the WV/NPDES permit for the duration of that stay.

10.5.b. If during the comment period, any other State or federal agency with jurisdiction over fish, wildlife or public health advises the Secretary in writing that the imposition of specified conditions upon the permit is necessary to avoid substantial risk to public health or impairment of fish, shellfish or wildlife resources, the Secretary may include the specified conditions in the permit to the extent they are determined necessary to carry out the provisions of the CWA and Article 11.

10.5.c. In appropriate cases the Secretary may consult with one or more of the agencies referred to in section 10 of this rule before issuing a draft permit and may reflect their views in the fact sheet or the draft permit.

10.6. Public Access to Information. Public access to information shall be governed by West Virginia’s Freedom of Information Act, W. Va. Code § 29B-1-1, et seq.

W. Va. Code R. § 47-30-11 Fact Sheet

11.1. Fact Sheet Preparation. A fact sheet shall be prepared for every draft permit for:

11.1.a. A major facility or activity;

11.1.b. Every general permit;

11.1.c. Every draft permit that incorporates a variance;

11.1.d. Every draft permit that the Secretary finds is the subject of widespread public interest or raises major issues; and

11.1.e. The fact sheet shall briefly set forth the principal facts and the significant factual, legal, methodological, and policy questions considered in preparing the draft permit. The Secretary shall send this fact sheet to the applicant and, on request, to any other person.

11.2. Fact Sheet Contents. The fact sheet shall include, when applicable:

11.2.a. A brief description of the type of facility or activity that is the subject of the draft permit;

11.2.b. The type and quantity of wastes, fluids or pollutants that are proposed to be or are being discharged;

11.2.c. A brief summary of the basis for the draft permit conditions, including references to applicable statutory or regulatory provisions;

11.2.d. Reasons why any requested variances or alternatives to required standards do or do not appear justified;

11.2.e. A description of the procedures for reaching a final decision on the draft permit including:

11.2.e.1. The beginning and ending dates of the comment period under subsection 10.2. of this rule and the address where comments will be received;

11.2.e.2. Procedures for requesting a hearing and the nature of that hearing; and

11.2.e.3. Any other procedures by which the public may participate in the final decision.

11.2.f. Name and phone number of a person to contact for additional information;

11.2.g. Any calculations or other necessary explanation of the derivation of specific effluent limitations and conditions, including a citation to the applicable effluent limitation guideline or performance standard provisions and reasons why they are applicable or an explanation of how the alternate effluent limitations were developed; and

11.2.h. When the draft permit contains any of the following conditions, an explanation of the reasons why such conditions are applicable:

11.2.h.1. Limitations to control toxic pollutants under subdivision 6.2.g. of this rule;

11.2.h.2. Limitations on internal waste streams under subsection 7.8. of this rule;

11.2.h.3. Limitations on indicator pollutants under 40 C.F.R. Section 125.3(g);

11.2.h.4. Limitations set on a case-by-case basis under 40 C.F.R. Section 125.3(c)(2) or 125.3(c)(3); or

11.2.h.5. When appropriate, a sketch or detailed description of the location of the discharge described in the application.

W. Va. Code R. § 47-30-12 New Sources

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

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

12.1.b. “Facilities” or “Equipment” means buildings, structures or process or production equipment or machinery that form a permanent part of the new source and that will be used in its operation, if these facilities or equipment are of such value as to represent a substantial commitment to construct. It excludes facilities or equipment used in connection with feasibility, engineering, and design studies regarding the source or water pollution treatment for the source.

12.2. Effect of Compliance with New Source Performance Standards.

12.2.a. Except as provided in subdivision 12.2.b. of this rule, any new source that meets the applicable new source performance standards promulgated before the commencement of discharge may not be subject to any more stringent new source performance standards or to any more stringent technology-based standards under CWA Section 301(b)(2) for the shortest of the following periods:

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

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

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

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

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

12.2.b.2. Additional permit conditions controlling pollutants listed as toxic under CWA Section 307(a) or as hazardous substances under CWA Section 311 and that are not controlled by new source performance standards. This includes permit conditions controlling pollutants other than those identified as toxic pollutants or hazardous substances when control of these pollutants has been specifically identified as the method to control the toxic pollutants or hazardous substances; or

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

12.2.c. When a WV/NPDES permit is issued to a source with a “protection period” under subdivision 12.2.a. of this rule that will expire on or after the expiration of the protection period, such permit shall require the owner or operator of the source to comply with the requirements of CWA Section 301 and any other applicable CWA requirements immediately upon the expiration of the protection period. No additional period for achieving compliance with these requirements shall be allowed except when necessary to achieve compliance with requirements promulgated less than three (3) years before the expiration of the protection period.

12.2.d. The owner or operator of a new source or a recommencing discharger shall install, have in operating condition, and “start up” all pollution control equipment required to meet the conditions of the WV/NPDES permit before beginning to discharge. Within the shortest feasible time, not to exceed thirty (30) days, the permittee must meet all permit conditions. These requirements do not apply if the owner or operator is issued a permit containing a compliance schedule under paragraph 6.2.n.2. of this rule.

12.2.e. After the effective date of new source performance standards, it shall be unlawful for any owner or operator of any new source to operate the source in violation of those standards applicable to the source.

12.3. Criteria for New Source Determination.

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

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

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

12.3.a.3. Its processes are substantially independent of an existing source at the same site. In determining whether these processes are substantially independent, the Secretary shall consider such factors as the extent to which the new facility is integrated with the existing plant and the extent to which the new facility is engaged in the same general type of activity as the existing source.

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

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

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

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

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

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

12.3.d.2. Entered into a binding contractual obligation for the purchase of facilities or equipment, which are intended to be used in its operation within a reasonable time. Options to purchase or contracts that can be terminated or modified without a substantial loss and contracts for feasibility engineering and design studies do not constitute such a contractual obligation.

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

W. Va. Code R. § 47-30-13 General Permits

13.1. Coverage. The Secretary may issue a general permit in accordance with the following:

13.1.a. Area. The general permit may be written to cover a category of discharges described in the permit under subdivision 13.1.b. of this rule, except those covered by individual permits, within a geographic area. The area shall correspond to existing geographic or political boundaries, such as:

13.1.a.1. Designated planning areas under CWA Sections 208 and 303;

13.1.a.2. City, county or state political boundaries;

13.1.a.3. State highway systems;

13.1.a.4. Standard metropolitan statistical area as defined by the United States Office of Management and Budget; or

13.1.a.5. Any other appropriate division or combination of boundaries.

13.1.b. Sources. The general permit may be written to regulate, within the area described in subdivision 13.1.a. of this rule, a category of point sources from coal mines, preparation plants, and refuse areas that:

13.1.b.1. Involve the same or substantially similar types of operations;

13.1.b.2. Discharge the same types of wastes;

13.1.b.3. Require the same effluent limitations or operation conditions;

13.1.b.4. Require the same or similar monitoring; and

13.1.b.5. In the opinion of the Secretary, are more appropriately controlled under a general permit than under individual permits.

13.1.c. If the Secretary tentatively decides to issue a general permit, he or she shall prepare a draft general permit under subdivision 10.1.a. of this rule.

13.2. Administration.

13.2.a. General. General permits may be modified, reissued, suspended or revoked in accordance with the applicable requirements of section 8 of this rule for either individual dischargers or for a category of point sources.

13.2.b. Requiring an Individual Permit. The Secretary may require any person authorized by a general permit to apply for and obtain an individual permit. Any interested person adversely affected or aggrieved may petition the Secretary to take action under subsection 13.2. of this rule. Cases where an individual permit may be required include the following:

13.2.b.1. The discharger is not in compliance with the conditions of the general permit;

13.2.b.2. A change has occurred in the availability of demonstrated technology or practices for the control or abatement of pollutants applicable to the point source;

13.2.b.3. Effluent limitation guidelines are promulgated for point sources covered by the general permit;

13.2.b.4. A water quality management plan containing requirements applicable to such point sources is approved; or

13.2.b.5. The requirements of subsection 13.1. of this rule are not met.

W. Va. Code R. § 47-30-14 Decision On Variance

14.1. Actions by the Secretary.

14.1.a. The Secretary may grant or deny requests for the following variances:

14.1.a.1. After consultation with the Regional Administrator, extensions under CWA Section 301(k) based on the use of innovative technology; or

14.1.a.2. Variances under CWA Section 316(a) for thermal pollution.

14.1.b. The Secretary may deny, forward to the Regional Administrator with a written concurrence or submit to EPA without recommendation a completed request for:

14.1.b.1. A variance based on the economic capability of the applicant under CWA Section 301(c); or

14.1.b.2. A variance based on water quality related effluent limitations under CWA Section 302(b)(2).

14.1.c. The Secretary may deny or forward to the Administrator (or his or her delegate) with a written concurrence or submit to the Administrator (or his or her delegate) without recommendation, a completed request for:

14.1.c.1. A variance based on the presence of “fundamentally different factors” from those on which an effluent limitations guideline was based; or

14.1.c.2. A variance based upon certain water quality factors under CWA Section 301(g).

14.2. Actions by EPA.

14.2.a. The Regional Administrator may deny, forward or submit to the EPA Deputy Assistant Administrator for Water Enforcement with a recommendation for approval a request for a variance listed in subdivision 14.2.b. of this rule that is forwarded by the Secretary.

14.2.b. The EPA Deputy Assistant Administrator for Water Enforcement may approve or deny any variance request submitted under subdivision 14.2.a. of this rule. If the Deputy Assistant Administrator approves the variance, the Secretary may prepare a draft permit incorporating the variance. Any public notice of a draft permit for which a variance or modification has been approved or denied shall identify the applicable procedures for appealing that decision under 40 C.F.R. Section 124.64.

14.2.c. The Administrator (or his or her delegate) may grant or deny a request for a variance listed in subdivision 14.1.c. of this rule that is forwarded by the Secretary. If the Administrator (or his or her delegate) approves the variance, the Secretary may prepare a draft permit incorporating the variance. Any public notice of a draft permit for which a variance or modification has been approved or denied shall identify the applicable procedures for appealing that decision under 40 C.F.R. Section 124.64.

W. Va. Code R. § 47-30-15 Enforcement

15.1. General. The provisions of this rule may be enforced by all of the applicable provisions in W. Va. Code § 22-11-3, including:

15.1.a. Orders or notices issued by the Secretary in accordance with W. Va. Code §§ 22-11-11, 12, 15 and 19;

15.1.b. Civil penalties appropriate to the violation and injunctive relief in accordance with W. Va. Code § 22-11-22; and

15.1.c. Criminal penalties in accordance with W. Va. Code § 22-11-24.

15.2. Citizen Participation. The Secretary shall provide for public participation in enforcement by the following:

15.2.a. Investigating and providing a written response to all signed, written complaints from citizens;

15.2.b. Not opposing intervention by any citizen in an Article 11 proceeding when permissive intervention is authorized by statute or rule; and

15.2.c. Publishing notice in a newspaper of general circulation in the county in which the discharge is located at least thirty (30) days prior to the final settlement of any civil action under Article 11 or consent order issued by the West Virginia Environmental Quality Board. This notice will identify the person discharging, the specific enforcement action to be taken, and the name and address where information on the proposed settlement can be obtained. The Secretary shall consider all comments received during the thirty-day period.

APPENDIX A

Toxic Pollutants under CWA Section 307(a)

1. Acenaphthene 2. Acrolein 3. Acrylonitrile 4. Aldrin and Dieldrin 5. Antimony and compounds 6. Arsenic and compounds 7. Asbestos 8. Benzene 9. Benzidine 10. Beryllium and compounds 11. Cadmium and compounds 12. Carbon tetrachloride 13. Chlorodane (technical mixture and metabolites)

2. Chlorinated benzenes except dichlorobenzenes 15. Chlorinated ethanes: 1,2-Dichloroethane 1,1,1-Trichloroethane Hexachloroethane 16. Chloroalkyl ethers:

Chloromethyl ether Chloroethyl ether Mixed ethers 17. Chlorinated naphthalene 18. Chlorinated phenols:

Trichlorophenols Chlorinated cresols 19. Chloroform 20. 2-Chlorophenol 21. Chromium and compounds 22. Copper and compounds 23. Cyanides 24. DDT and metabolites 25. Dichlorobenzenes: 1,2-Dichlorobenzene 1,3-Dichlorobenzene 1,4-Dichlorobenzene 26. Dichlorobenzidine 27. Dichloroethylenes: 1,1-Dichloroethylene 1,2-Dichloroethylene 28. 2,4-Dichlorophenol 29. Dichloropropane and Dichloropropene 30. 2,4-Dimethylphenol 31. Dinitrotoluene 32. Diphenylhydrazine 33. Endosulfan and metabolites 34. Endrin and metabolites 35. Ethylbenzene 36. Fluoranthene 37. Haloethers:

Chlorophenylphenyl ethers Bromophenylphenyl ether Bis (chloroethoxy) methane Polychlorinated dephenyl ethers 38. Halomethanes:

Methylene chloride Methylchloride Methylbromide Bromoform Dichlorobromomethane Trichlorofluoromethane Dichlorodifluoromethane

APPENDIX A (continued)

Toxic Pollutants under CWA Section 307(a)

39. Heptachlor and metabolines 40. Hexachlorobutadiene 41. Hexachlorocyclohexane 42. Hexachlorocyclopentadiene 43. Isophorone 44. Lead and compounds 45. Mercury and compounds 46. Naphthalene 47. Nickel and compounds 48. Nitrobenzene 49. Nitrophenols: 2,4-Dinitrophenol Dinitrocresol 50. Nitrosamines 51. Pentachlorophenol 52. Phenol 53. Phthalate ester 54. Polychlorinated biphenyls (PCBs)

40. Polynuclear aromatic hydrocarbons:

Benzanthracenes Benzopyrenes Benzofluoranthene Chrysenes Dibenzathracenes Indenopyrenes 56. Selenium and compounds 57. Silver and compounts 58. 2,3,7,8-Tetrachloro-dibenzo-p-dioxin (TCDD)

59. Tetrachloroethylene 60. Thallium and compounds 61. Toluene 62. Toxaphene 63. Trichloroethylene 64. Vinyl chloride 65. Zinc and compounds

APPENDIX B

Other Toxic Pollutants (Metals, Cyanide, and Total Phenols)

1. Total Antimony 2. Total Arsenic 3. Total Beryllium 4. Total Cadmium 5. Total Chromium 6. Total Copper 7. Total Lead 8. Total Mercury 9. Total Nickel 10. Total Selenium 11. Total Silver 12. Total Thallium 13. Total Zinc 14. Total Cyanide 15. Total Phenols

APPENDIX C

Organic Toxic Pollutants - Volatiles - 1V. Acrolein 2V. Acrylonitrile 3V. Benzene 5V. Bromoform 6V. Carbon tetrachloride 7V. Chlorobenzene 8V. Chlorodibromomethane 9V. Chloroethane 10V. 2-Chloroethylvinyl ether 11V. Chloroform 12V. Dichlorobromomethane 14V. 1,1-Dichloroethane 15V. 1,2-Dichloroethane 16V. 1,1-Dichloroethylene 17V. 1,2-Dichloropropane 18V. 1,3-Dichloropropylene 19V. Ethylbenzene 20V. Methyl bromide 21V. Methyl chloride 22V. Methylene chloride 23V. 1,1,2-Tetrachloroethane 24V. Tetrachloroethylene 25V. Toluene 26V. 1,2-Trans-dichloroethylene 27V. 1,1,1-Trichloroethane 28V. 1,1,2-Trichloroethane 29V. Trichloroethylene 31V. Vinyl chloride

APPENDIX C (continued)

Organic Toxic Pollutants - Acids - 1A. 2-Chlorophenol 2A. 2,4-Dichlorophenol 3A. 2,4-Dimethylphenol 4A. 4,6-Dinitro-o-cresol 5A. 2,4-Dinitrophenol 6A. 2-Nitrophenol 7A. 4-Nitrophenol 8A. p-Chloro-m-cresol 9A. Pentachlorophenol 10A. Phenol 11A. 2,4,6-Trichlorophenol Organic Toxic Pollutants - Pesticides - 1P. Aldrin 2P. alpha-BHC 3P. beta-BHC 4P. gamma-BHC 5P. delta-BHC 6P. Chlordane 7P. 4,4’-DDT 8P. 4,4’-DDE 9P. 4,4’-DDD 10P. Dieldrin 11P. alpha-Endosulfan 12P. beta-Endosulfan 13P. Endosulfan sulfate 14P. Endrin 15P. Endrin aldehyde 16P. Heptachlor 17P. Heptachlor epoxide 18P. PCB-1242 19P. PCB-1254 20P. PCB-1221 21P. PCB-1232 22P. PCB-1248 23P. PCB-1260 24P. PCB-1016 25P. Toxaphene

APPENDIX C (continued)

Organic Toxic Pollutants - Bases/Neutral - 1B. Acenaphthene 2B. Acenaphythylene 3B. Anthracene 4B. Benzidine 5B. Benzo(a)anthracene 6B. Benzo(a)pyrene 7B. 3,4-Benzofluoranthene 8B. Benzo(ghi)perylene 9B. Benzo(k)fluoranthene 10B. Bis(2-chloroethoxy)methane 11B. Bis(2-chloroethyl)ether 12B. Bis(2-chloroisopropyl)ether 13B. Bis(2-ethylhexyl)phthalate 14B. 4-Bromophenyl phenyl ether 15B. Butylbenzyl phthalate 16B. 2-Chloronphthalene 17B. 4-Chlorophenyl phenyl ether 18B. Chrysene 19B. Dibenzo(a,h)anthracene 20B. 1,2-Dichlorobenzene 21B. 1,3-Dichlorobenzene 22B. 1,4-Dichlorobenzene 23B. 3,3’-Dichlorobenzidine 24B. Diethyl phthalate 25B. Dimethyl phthalate 26B. Di-n-butyl phthalate 27B. 2,4-Dinitrotoluene 28B. 2,6-Dinitrotoluene 29B. Di-n-octyl phthalate 30B. 1,2-Diphenylhydrazine (as azobenzene)

31B. Fluoranthene 32B. Fluorene 33B. Hexachlorobenzene 34B. Hexachlorobutadiene 35B. Hexachlorocyclopentadiene 36B. Hexachloroethane 37B. Indeno(1,2,3-cd)pyrene 38B. Isophorone 39B. Naphthalene 40B. Nitrobenzene 41B. N-nitrosodimethylamine 42B. N-nitrosid-n-propylamine 43B. N-nitrosodiphenylamine 44B. Phenanthrene 45B. Pyrene 46B. 1,2,4-Trichlorobenzene

APPENDIX D

Conventional and Nonconventional Pollutants Required to be Tested by Existing Dischargers if Expected to be Present Bromide Total Residual Chlorine Color Fecal Coliform Fluoride Nitrate-Nitrite Total Organic Nitrogen Oil and Grease Total Phosphorus Radioactivity Sulfate Sulfide Sulfite Surfactants Total Aluminum Total Barium Total Boron Total Cobalt Total Iron Total magnesium Total Molydenum Total Manganese Total Tin Total Titanium

APPENDIX E

Toxic Pollutants and Hazardous Substances Required to be Identified by Existing Dischargers if Expected to be Present Acetaldehyde Allyl alcohol Allyl chloride Amyl acetate Aniline Asbestos Benzonitrile Benzl chloride Butyl acetate Butylamine Captan Carbaryl Carbofuran Carbon disulfide Chlorpyrifos Coumaphos Cresol Crotonaldehyde Cyclohexane 2,3-Dichlorophenoxyacetic acid (2,4-D)

Diazinon Dicamba Dichlobenil Diclone 2,2-Dichloropropionic acid Dichlorvos Diethyl amine Dimethyl amine Dinitrobenzene Diquat Disulfoton Diuron Epichlorohydrin Ethion Ethylene Diamine Ethylene dibromide Formaldehyde Furfural Guthion Isoprene Isopropanolamine dodecylbenzenesulfonate Kelthane Kepone Malthion Mercaptodimethur Methoxychlor Methyl mercaptan Methyl methacrylate Methyl parathion Mevinphos

APPENDIX E (continued)

Toxic Pollutants and Hazardous Substances Required to be Identified by Existing Dischargers if Expected to be Present Mexacarbate Monoethyl amine Monomethyl amine Naled Naththenic acid Nitrotoluene Parathion Phenolsulfanate Phosgene Propargite Propylene oxide Pyrethrins Quinoline Resorcinol Strontium Strychnine Styrene 2,4,5-Trichlorophenoxyacetic acid (2,4,5-T)

Tetrachlorodiphenylethane 2,4,5-Trichlorophenoxy propanoic acid (2,4,5-TP)

Trichlorogon Triethanolamine dodecylbenzenesulfonate Triethylamine Trimethylamine Uranium Vanadium Vinyl acetate Xylene Xylenol Zirconium 47CSR30 47CSR30

Series 30B Administrative Proceedings and Civil Penatly Assessment

W. Va. Code R. § 47-30B-1 General

1.1. Scope. – This rule establishes a procedure for the resolution of enforcement actions and the assessment of civil penalties in lieu of the institution of a civil action as provided in W. Va. Code § 22-11-22a(a).

1.2. Authority. – W. Va. Code § 22-11-22a(b) and (d).

1.3. Filing Date. – February 28, 2022

1.4. Effective Date. – February 28, 2022

1.5. Nothing in this rule shall be construed as limiting or altering the authority of the Secretary to enforce the provisions of the West Virginia Water Pollution Control Act (“the Act”), W. Va. Code § 22-11-1, et seq. This enforcement provision is in addition to any and all other enforcement provisions set forth in the Act.

W. Va. Code R. § 47-30B-2 Definitions

2.1. This rule hereby incorporates by reference the definitions of all terms as contained in the Act at W. Va. Code § 22-11-3 and in the WV/NPDES Rule for Coal Mining Facilities, 47 CSR 30 (“the Mining NPDES Rule”).

2.2. “Administrative proceedings” means those proceedings undertaken pursuant to this rule by the Secretary upon his or her decision to attempt to resolve alleged violations of the Act and the Mining NPDES Rule.

2.3. “Assessment officer” means a person appointed by the Secretary to carry out the review, assessment, and hearing procedures outlined in this rule. Any person(s) initiating the notice of violation that resulted in the proposed civil administrative penalty is prohibited from being the assessment officer for the violation in question.

2.4. “Base penalty” means that amount assessed for a violation of the Act or the Mining NPDES Rule based solely upon the extent of the permittee’s deviation therefrom and the potential for harm to human health or the environment resulting from the violation.

2.5. “Responsible party” means the permittee or any person alleged to have violated the Act or the Mining NPDES Rule.

2.6. “Toxicity” means the degree to which any substance is potentially harmful to human health or the environment.

2.7. “Secretary” means the Secretary of the Department of Environmental Protection or his or her designee.

W. Va. Code R. § 47-30B-3 Applicability of the Rule

3.1. Upon discovery of a violation, regardless of the means of discovery, of the Act or the Mining NPDES Rule, the Secretary may, at his or her discretion, choose to institute administrative proceedings pursuant to the Act and this rule to resolve the alleged violation.

3.2. Not a Waiver. – Nothing in this rule shall be construed as limiting the ability of the Secretary to pursue a civil action for any violation of the Act or the Mining NPDES Rule should the agency and the responsible party be unable to reach settlement of the alleged violations pursuant to the procedures set forth in this rule. The Secretary is not required to institute administrative proceedings prior to taking any other lawful action pursuant to the Act or the Mining NPDES Rule.

W. Va. Code R. § 47-30B-4 Notice

4.1. The Secretary shall notify any responsible party of his or her decision to institute administrative proceedings pursuant to the Act and this rule by sending written notice of the same to the responsible party by certified mail or personal service.

4.2. Notice shall include a proposed consent order initially containing, at a minimum, findings of fact and conclusions of law outlining the alleged violation(s), any remedial work to be performed by the responsible party, a proposed civil penalty assessment based on the procedure set forth in this rule, and a statement of the responsible party’s right to an informal hearing prior to finalization of the proposed consent order.

W. Va. Code R. § 47-30B-5 Administrative Proceedings

5.1. The responsible party shall have the opportunity to participate in an administrative hearing. The parties shall schedule an informal hearing to be held within 30 days of the initial notice.

5.2. The administrative proceeding may consist of an informal hearing amongst the parties and may continue until the parties reach a satisfactory resolution of the alleged violation(s). If the parties are unable to reach a satisfactory resolution of the alleged violation(s) during the administrative proceeding, the secretary may assess a civil administrative penalty unilaterally in accordance with W. Va. Code §22-11-22A(b).

5.3. If the parties are able to reach an agreement, resolution of the alleged violation(s) contained in the notice shall be by consent order entered into by the responsible party and the Secretary.

W. Va. Code R. § 47-30B-6 Hearings and Appeals

6.1. Right to an Informal Hearing. – The responsible party has 30 calendar days from receipt of the notice of civil administrative penalty within which to request, in writing, an informal hearing before the assessment officer. If the responsible party requests an informal hearing, the assessment officer will hold the hearing to deduce the actual facts and circumstances regarding the violation and, based thereon, will make a final recommendation of a civil administrative assessment to the Secretary. If the responsible party does not request an informal hearing, the notice of civil administrative penalty becomes a final order after the expiration of the 30-day period, and the civil administrative penalty becomes due and payable.

6.2. Notice and Scheduling of Informal Hearing. – If the responsible party requests an informal hearing within the 30-day period, the assessment officer shall schedule the informal hearing and provide written notice of its time, place, and location, at least 15 calendar days in advance, to the responsible party and the inspector or other authorized representative of the Secretary who filed a notice of violation resulting in the proposed consent order. The assessment officer may continue the informal hearing upon request of either party and for good cause shown.

6.3. Informal Hearing Procedures. – An informal hearing, as provided by this rule, is intended to be an informal discussion of the facts that gave rise to the issuance of a notice of violation and shall be conducted in the following manner:

6.3.a. The West Virginia Rules of Civil Procedure and the West Virginia Rules of Evidence shall not apply.

6.3.b. A record of the informal hearing is not required, but may be made by any party to the hearing at that party’s expense. Any other party to the hearing may obtain copies of the record at the expense of the party requesting a copy.

6.3.c. At any formal review proceedings that may ensue (i.e. appeal to the Environmental Quality Board or the Kanawha County Circuit Court), no evidence as to any statement made by one party at the informal hearing may be introduced as evidence by another party, nor may any statement be used to impeach a witness, unless the statement is or was available as competent evidence independent of its introduction during the informal hearing.

6.3.d. During the course of the informal hearing, a responsible party may request that the assessment officer evaluate its ability to pay a civil administrative penalty. The assessment officer can only evaluate the request if the responsible party provides all required financial information within ten calendar days of the date of the informal hearing. The assessment officer shall not consider incomplete information or information received more than ten days after the date of the informal hearing. If the assessment officer receives complete information in a timely manner, he or she shall evaluate it in accordance with United States Environmental Protection Agency guidance.

6.4. Written Decision. – Within 30 calendar days following the informal hearing, the Secretary shall issue and furnish to the responsible party a written decision affirming, modifying or dismissing the proposed consent order or initial civil administrative penalty assessment and giving the reasons for the decision.

6.5. Request for Formal Hearing. – Within 30 calendar days after issuance of the Secretary’s written decision, the responsible party may appeal to the Environmental Quality Board in accordance with the provisions of the Act. If the responsible party does not appeal to the Environmental Quality Board within 30 calendar days, the proposed consent order shall become a final order, and the civil administrative penalty shall become due and payable.

6.6. At the request of the responsible party and for good cause shown, the assessment officer may establish a schedule for payment of the civil administrative penalty based on all relevant factors.

W. Va. Code R. § 47-30B-7 Civil Penalty Assessment

7.1. Determination of base penalty:

7.1.a. Potential for harm to human health or the environment –

7.1.a.1. The potential for harm to human health or the environment from a violation may be determined by the likelihood and degree of exposure of persons or the environment to pollution, or the degree of adverse effect of noncompliance on statutory or regulatory purposes or procedures for implementing the regulatory program.

7.1.a.2. Emphasis shall be placed on the potential harm posed by a violation rather than the actual harm that occurred. There need not be any showing of actual harm to human health or the environment to support a finding of potential harm.

7.1.a.3. The Secretary shall determine whether the potential for harm was major, moderate or minor depending on factors to be considered on a case-by-case basis.

7.1.b. Extent of Deviation from Requirements –

7.1.b.1. The extent of deviation from the statutory or regulatory requirements may be determined by the degree to which the requirement is violated.

7.1.b.2. The Secretary shall determine whether the extent of deviation from the statutory or regulatory requirement was either major, moderate or minor depending on factors to be considered on a case-by-case basis.

7.1.c. Factors the Secretary may consider in determining potential for harm to human health and the environment and the extent of deviation from a regulatory requirement may include, but are not limited to, the amount of pollutants released, the toxicity of the pollutant(s), the sensitivity of the environment potentially affected by the release, the length of time the violation took place, the actual human and environmental exposure and resultant effects upon human health and the environment, and the degree of the permittee’s non-compliance.

7.1.d. Civil Penalty Matrix – Each of the above factors (potential for harm and extent of deviation from a requirement) forms one of the axes of the civil penalty matrix from which the base penalty is calculated. The selection of the exact penalty amount is within the discretion of the Secretary. In determining the base penalty, the Secretary shall not consider the reasons for the violation, the intent of the responsible party or other factors not listed in this subdivision. The civil penalty matrix is set forth in Appendix A of this rule.

7.2. Penalty Adjustment Factors:

7.2.a. The base penalty may be adjusted at the discretion of the Secretary after consideration of factors presented by the responsible party or by Inspection & Enforcement personnel of the Division of Mining and Reclamation. These adjustments may raise or lower the base civil penalty.

7.2.b. The Secretary may consider the following factors in determining whether an adjustment in the base civil penalty assessment is justified:

7.2.b.1. Degree of or absence of willfulness or negligence;

7.2.b.2. Good faith efforts to comply by the permittee both before and after an alleged violation;

7.2.b.3. Cooperation with the Secretary;

7.2.b.4. History of prior compliance or non-compliance;

7.2.b.5. Ability of the responsible party to pay a civil penalty;

7.2.b.6. Economic benefits derived by the responsible party;

7.2.b.7. Public interest;

7.2.b.8. Loss of enjoyment of the environment due to the violations;

7.2.b.9. Staff investigative costs; and

7.2.b.10. Other factors deemed relevant by the Secretary that may be present on a case-by-case analysis.

7.3. In cases of an ongoing or continuing violation, each day of violation is one distinct violation for which a calculation must be made.

W. Va. Code R. § 47-30B-8 Entry of Consent Order

8.1. Before a responsible party and the Secretary sign any consent order resolving an alleged violation of the Act or the Mining NPDES Rule, the proposed consent order is subject to the public notice and comment requirements of the Mining NPDES Rule at 47 CSR 30 § 15.2 and the public hearing provisions of W. Va. Code § 22-11-22a(b)(4).

8.2. Based upon the public comments or information received during the public hearing, the Secretary may determine either to modify the proposed consent order or to execute it as drafted.

APPENDIX A

CIVIL PENALTY MATRIX

Potential for Harm to Human Health or the Environment Extent of Deviation from Requirement Major Moderate Minor Major $8,000 - $10,000 $6,000 - $8,000 $5,000 - $6,000 Moderate $4,000 - $5,000 $3,000 - $4,000 $2,000 - $3,000 Minor $1,500 - $2,000 $1,000 - $1,500 Up to $1,000 45CSR16 47CSR30B

Series 31 State Water Pollution Control Revolving Fund

W. Va. Code R. § 47-31-1 General

1.1. Scope and Purpose. -- This legislative rule establishes requirements to govern the disbursement and use of loans from moneys held in the state Water Pollution Control Revolving Fund. Such loans shall be made to local entities for the planning, design, acquisition, or construction of wastewater treatment works, for the implementation of point and nonpoint source control management programs, and for the development and implementation of water conservation and management plans.

1.2. Authority. -- W. Va. Code §§22C-2-3(b) and 22C-2-7(a).

1.3. Filing Date. -- May 14, 2009. 1.4 . Effective Date. -- June 1, 2009.

W. Va. Code R. § 47-31-2 Definitions

2.1. "Act" means the Water Pollution Control Revolving Fund Act, W. Va. Code

§22C-2-1 et seq.

2.2. "Applicant" means a local entity that applies for a loan pursuant to the provisions of this rule.

2.3. "Authority" means the West Virginia Water Development Authority.

2.4. "Bond Purchase Agreement" means an agreement entered into among the Authority, the Instrumentality, and a disadvantaged community pertaining to the Authority's purchase of the disadvantaged community’s bonds evidencing a loan.

2.5. "Clean Water Act" or "CWA" means the federal Water Pollution Control Act, as amended by the Water Quality Act of 1987, 33 U.S.C. §1251, et. seq.

2.6. "Contract" means a legally binding obligation between the applicant and a private contractor or supplier to provide construction services, materials, equipment, or supplies for construction.

2.7. "Cost" means the total of all costs incurred by a local entity that are reasonable and necessary for carrying out all works and undertakings necessary or incidental to the accomplishment of any project including:

2.7.a. The costs of developmental, planning, and feasibility studies, surveys, plans, and specifications;

2.7.b. The costs of architectural, engineering, financial, legal, or other special services;

2.7.c. The costs of acquisition of land and any buildings and improvements thereon, including the discharge of any obligations of the sellers of such land, buildings, or improvements;

2.7.d. The costs of site preparation and development, including demolition or removal of existing structures, construction and reconstruction, labor, materials, machinery, and equipment;

2.7.e. The reasonable costs of financing incurred by the local entity in the course of the development of the project, carrying charges incurred before placing the project in service, interest on funds borrowed to finance the project to a date subsequent to the estimated date the project is to be placed in service, necessary expenses incurred in connection with placing the project in service, and the funding of accounts and reserves as required by the Authority and the Instrumentality; and

2.7.f. Such other items as are deemed reasonable and necessary by the Instrumentality.

2.8. "Disadvantaged Community" means an applicant as defined in the annual Intended Use Plan.

2.9. "Disbursement" means the transfer of cash from the Fund to an applicant.

2.10. "EPA" means the United States Environmental Protection Agency.

2.11. "Fund" or "SRF" means the state Water Pollution Control Revolving Fund.

2.12. "Instrumentality" means the West Virginia Department of Environmental Protection.

2.13. "Intended Use Plan" means a plan developed in conformance with the provisions of CWA Section 606(c) that identifies the intended uses of moneys available for loans in the Fund for each fiscal year.

2.14. "Loan" means a loan made by or bonds purchased by the Authority, pursuant to section 4 of this rule for funding all or part of a project's costs.

2.15. "Loan Agreement" means an agreement entered into among the Authority, the Instrumentality, and an applicant pertaining to a loan.

2.16. "Local Entity" means any county, city, town, municipal corporation, authority, district, public service district, commission, banking institution, political subdivision, regional governmental authority, state government agency, interstate agency, or not-for-profit association or corporation in West Virginia.

2.17. "Major Procurement Action" means a procurement action involving an aggregate amount in excess of the amount specified in 148CSR1.

2.18. "Minor Procurement Action" means a single procurement action involving an aggregate amount that does not exceed the amount specified in 148CSR1, including all extraneous charges.

2.19. "NPDES" means National Pollutant Discharge Elimination System.

2.20. "Project" means any wastewater treatment facility located or to be located in or outside this State by a local entity and includes:

2.20.a. Sewage and wastewater collection, treatment, and disposal facilities;

2.20.b. Drainage facilities and projects;

2.20.c. Administrative, maintenance, storage, and laboratory facilities related to the facilities delineated in subdivisions 2.20.a. through 2.20.b.;

2.20.d. Interests in land related to the facilities delineated in subdivisions 2.20.a through 2.20.c.; and

2.20.e. Other projects allowable under federal law.

2.21. "Project Completion" means the date on which operation of the project is initiated or is capable of being initiated, whichever is earlier.

2.22. "Recipient" means a local entity that has received a loan from or sold a bond to the Authority pursuant to the provisions of this rule.

2.23. "Secretary" means the Secretary of the West Virginia Department of Environmental Protection or his or her designee.

2.24. "State Project Priority List" means the list of projects that may qualify for SRF loan assistance.

2.25. "Subagreement" means a contractual obligation between the applicant and a professional firm/organization to provide services other than construction work.

2.26. "Treatment Works" means any device or system for the storage, collection, treatment, recycling, and reclamation of municipal sewage, domestic sewage, or liquid industrial waste used to implement CWA Section 201 or necessary to recycle or reuse water at the most economical cost over the design life of the works.

W. Va. Code R. § 47-31-3 State Priority System and Project Priority List

3.1. Annual Priority List. -- An annual state Project Priority List shall be developed in conformance with the provisions of CWA Section 216. The list shall contain those projects that are eligible for SRF loan assistance.

3.2. Priority Rating System. -- The state Project Priority List shall be developed utilizing a priority rating system designed and approved by the Instrumentality.

W. Va. Code R. § 47-31-4 Fund Establishment and Administration

4.1. Establishment of the Fund. -- The Authority and Instrumentality have established a permanent and perpetual fund in the State Treasury known as the "West Virginia Water Pollution Control Revolving Fund." The Fund shall be kept separate and apart from all other funds or programs of the Authority and the Instrumentality.

4.2. Sources of Moneys for the Fund. -- The Fund shall be comprised of moneys appropriated by the Legislature, moneys allocated to the state by the federal government for the purposes of establishing and maintaining the Fund, all receipts from loans made from the Fund to local entities, all income from the investment of moneys held in the Fund, and all other sums designated for deposits to the Fund from any source, public or private.

4.3. Use of Moneys in the Fund. -- Moneys in the Fund shall be used solely to make loans to local entities to finance or refinance the costs of a project and to defray the costs incurred by the Authority and the Instrumentality in administering the Fund and the programs created by the Instrumentality, the Act, and this rule.

4.4. Investment of Moneys in the Fund. -- The Authority and the Instrumentality shall invest the moneys in the Fund that are not needed for immediate disbursement or use in obligations or securities that are lawful investments for public funds of the state, including the Board of Treasury Investments.

4.5. Disbursement of Moneys from the Fund. -- Moneys shall be disbursed from the Fund only upon a written authorization from either the Instrumentality or the Authority.

4.6. Loans from the Fund. -- Moneys in the Fund shall be loaned to local entities for projects that are in compliance with provisions of the Clean Water Act and this rule. Each loan shall be in an amount that covers those costs of a project for which funds are sought by the applicant from the Instrumentality or the Authority and which are not provided by other available sources.

4.7. Evidence of and Security for Loans. -- Each loan shall be evidenced by revenue bonds or notes or other debt instruments issued by the applicant and purchased by either the Instrumentality or the Authority, at par or at a discount to reflect the costs of the Authority and the Instrumentality incurred relating to financing, in whole or in part, the costs of a project, and shall be secured by a pledge of the fees, charges, and all other revenues of the project to be constructed, in whole or in part, with the proceeds of the loan and any other collateral as may be required by the Authority or the Instrumentality.

4.8. Applications for Loans or for the Purchase of Bonds. -- A local entity, or a combination of local entities, that has the authority under applicable law to undertake a project and that has been approved by the Instrumentality may apply for a loan or for the purchase of its revenue bonds. An applicant desiring a loan shall make a separate application to the Instrumentality, on approved forms, for each project for which a loan is desired. Following approval by the Authority and the Instrumentality and when moneys are available for loan the Authority and the Instrumentality shall provide the local entity with a loan agreement or bond purchase agreement setting forth the specific terms of the loan or bond purchase. The loan agreement or bond purchase agreement, following execution by the local entity, constitutes a binding commitment for moneys from the Fund.

4.9. Loan Agreements/Bond Purchase Agreements. -- Prior to providing a loan to an applicant or purchasing the bonds of a disadvantaged community, the Authority and Instrumentality shall execute and enter into a loan agreement or bond purchase agreement, as applicable, with the applicant or disadvantaged community which shall be binding under the laws of the state and which shall contain such provisions as may be required by the Authority and the Instrumentality under the Act and the Clean Water Act including:

4.9.a. The cost of the project, the amount of the loan or the bonds, and the terms of repayment of the loan or bonds and the security therefore, which may include - in addition to a pledge of the fees, charges, and other revenues from such project after a reasonable allowance for operation, maintenance, renewal, and replacement expenses - a deed of trust or other appropriate security instrument creating a lien on such project provided that the annual repayment of principal and payment of interest begins not later than one (1) year after project completion and that the final payment date shall not exceed twenty (20) years from said completion date; provided that in the case of a disadvantaged community that the final payment for the bonds shall not exceed the earlier of the useful life of the project or forty (40) years from said completion date;

4.9.b. The specific purposes for which the proceeds of the loan shall be expended, the procedures as to the disbursement of loan proceeds including an estimated monthly draw schedule, and the duties and obligations imposed upon the applicant in regard to the acquisition or construction of the project;

4.9.c. The agreement of the applicant to impose, collect, and, if required to repay the obligations of such applicant under the loan agreement/bond purchase agreement, increase service charges from persons utilizing the project. Service charges shall be pledged for the repayment of the loan or bonds together with all interest, fees, and charges thereon and all other financial obligations of the applicant under the loan agreement/bond purchase agreement;

4.9.d. If notes or other interim obligations are being issued by the applicant, the agreement of the applicant to issue the revenue bonds and take such other actions as are required of the applicant under the loan agreement/bond purchase agreement;

4.9.e. The agreement of the applicant to accept the Authority's remedies in the event of any default under the loan as specifically set forth in section 5 of the Act; and

4.9.f. The agreement of the applicant to comply with all applicable federal and state statutes and regulations and all applicable local ordinances pertinent to the financing, acquisition, construction, operation, maintenance, and use of the project.

4.10. Payment of Principal and Interest on Loans or Bonds. -- Payments of the principal or any interest on a loan or bond shall be made by the applicant in accordance with the provisions of the loan agreement/bond purchase agreement.

4.11. Computation of Interest on Loans or Bonds. -- Each loan or bond shall bear interest from the date of the delivery of the bonds or notes of the applicant evidencing the loan to the applicant (or such other date as is determined by the Authority and the Instrumentality) at a rate or rates per annum, either fixed or variable, as determined by the Authority and the Instrumentality provided that said rate or rates shall be made at or below the market rate as defined in the Clean Water Act; and further provided that, pursuant to the provisions of the loan agreement/bond purchase agreement, the interest rate or rates shall reflect the costs of the Authority incurred in issuing its obligations, if any, and other costs relating to the making of the loan or purchasing the bonds.

4.12. Fees and Charges. -- In addition to payments of principal and interest on a loan or bond, each applicant shall agree in the loan agreement/bond purchase agreement to pay fees and charges equal to the applicant's share of the administrative expenses of the Instrumentality relating to the loan program described in Section 4 of this rule including the fees and expenses of the trustee and paying agents for any bonds or notes to be issued by the Authority for contribution to the Fund and the fees and expenses of any corporate trustee for the Fund.

4.13. Loans or Bond Purchase. Conditioned Upon Availability of Moneys in the Fund. - - The obligation of the Instrumentality or Authority to make any loan or purchase any bonds shall be conditioned upon the availability of moneys in the Fund in such amounts and on such terms and conditions as, in the judgement of the Instrumentality or Authority, will enable it to make the loans or purchase bonds.

4.14. Disbursement of Loan Moneys.

4.14.a. On a monthly basis, there shall be disbursed to each recipient the amount certified as costs incurred for the project. Said certification shall be made in the approved form. The funds will be dispensed from the Fund upon presentation of an executed payment request form.

4.14.b. Each recipient shall comply with all terms and conditions of the loan agreement or the bond purchase agreement, the resolution or ordinance authorizing the issuances of revenue bonds or notes or other debt instruments evidencing the loan.

4.15. Loans for Other Projects allowed under Federal Law. -- The Instrumentality may from time to time create other loan programs for other projects allowed by federal law and make loans from the Fund to local entities for such projects. The Instrumentality shall set the terms and conditions for such loans and may enter into loan agreements, or direct the Authority to enter into loan agreements, for such loans. All payments on such loans shall be deposited to the Fund.

W. Va. Code R. § 47-31-5 Program Requirements

5.1. General Requirements.

5.1.a. The applicant shall request a pre-application meeting with the Secretary to discuss the requirements of the program. A pre-application package, in a form prescribed by the Instrumentality, shall be completed and submitted to the Secretary prior to this meeting.

Note: The review and approval by the Secretary of facilities plans, design drawings and specifications, or other documents is for administrative purposes only and does not relieve the applicant or his agents and employees from properly planning, designing, constructing, operating, and maintaining the project as required under applicable federal and state statutes and regulations.

5.1.b. The applicant shall demonstrate to the Secretary that he has the financial, institutional, legal, and managerial capabilities to ensure adequate construction, operation, and maintenance of the treatment works. As a part of this demonstration, the applicant shall complete and submit to the Secretary financial capability worksheets supplied by the Instrumentality.

5.1.c. If the project will serve or involve two (2) or more legal entities, the applicant shall submit an intermunicipal agreement to the Secretary in a form prescribed by the Instrumentality.

5.1.d. An adequate user charge system shall be developed by the applicant and submitted to the Secretary for approval.

5.1.e. A sewer use ordinance shall be developed by the applicant and submitted to the Secretary for approval.

5.2. Procurement Standards.

5.2.a. Procurement Responsibilities.

5.2.a.1. The local entity is responsible for the settlement and satisfactory completion of all contractual obligations in accordance with sound business judgment and good administrative practices.

5.2.a.2. The local entity shall maintain a system to assure that contractors perform in accordance with the terms, conditions, and specifications of their contracts.

5.2.a.3. The local entity shall review its proposed procurement actions in order to avoid unnecessary or duplicated actions.

5.2.a.4. The local entity shall follow all applicable procurement procedures set forth in the West Virginia Code.

5.2.b. Minor Procurement Actions.

5.2.b.1. The recipient may use small purchase procedures set forth in the West Virginia Code in lieu of the procedures set forth in subdivision 5.2.c of this rule when undertaking a minor procurement action.

5.2.b.2. If the recipient chooses to use the small purchase procedures, he shall contact no fewer than three (3) vendors with a request for proposals. This request may be tendered by letter or by telephone; however, all requests made via telephone calls shall be documented in writing.

5.2.b.3. The recipient shall not divide a procurement action into smaller parts in order to avoid compliance with the procedures set forth in subdivision 5.2.c of this rule.

5.2.b.4. The awarding of the contract in a minor procurement action shall be made to the lowest, responsive, responsible bidder.

5.2.c. Major Procurement Actions.

5.2.c.1. Applicability. -- The requirements of subdivision 5.2.c of this rule apply to all major procurement actions except as provided in subdivisions 5.2.d and 5.2.e of this rule.

5.2.c.2. Formal Advertising. -- The formal advertising method shall be used in major procurement actions. At a minimum, formal advertising shall include a complete, adequate, and realistic specification or purchase description of what is required.

5.2.c.3. Public Notice. -- Public notice of the solicitation of bids shall be provided for major procurement actions.

5.2.c.3.A. The public notice shall be provided by means of a Class II legal advertisement. Publication in a professional journal, direct letter solicitation, or a combination of these methods is also recommended.

5.2.c.3.B. The public notice shall include a statement of when and how the bidding documents may be obtained or examined.

5.2.c.3.C. A minimum of thirty (30) days shall be provided between the date on which the public notice was initially published and the date on which bidding closes.

5.2.c.3.D. The local entity shall publicly open bids at the place, date, and time announced in the bidding documents.

5.2.c.4. Bidding Documents. -- Bidding documents shall include:

5.2.c.4.A. A complete statement detailing the work to be performed including, where appropriate, design drawings and specifications and the required performance schedule;

5.2.c.4.B. The terms and conditions of the contract to be awarded including payment terms, delivery schedules, point of delivery, and acceptance criteria;

5.2.c.4.C. A clear explanation of the method of bidding, the method of evaluating bid prices, and the basis and method for awarding the contract;

5.2.c.4.D. All other responsibility requirements or evaluation criteria which will be used in the evaluation of the bids received;

5.2.c.4.E. The prevailing wage determination made under the West Virginia Division of Labor: and

5.2.c.4.F. The deadline for the receipt of bids and the address to which bids are to be submitted.

5.2.c.4.G. Reference to the provisions in W.Va. Code §21-11-11; and

5.2.c.4.H. All other federal verbage required.

5.2.c.5. Awarding of Contracts. -- All bids shall be evaluated in accordance with the methods and criteria set forth in the bidding documents. The awarding of a contract shall be made to the lowest, responsive, responsible bidder. All of the tendered bids may be rejected only when sound, documented business reasons exist in support of that rejection.

5.2.d. Competitive Negotiation for Subagreements.

5.2.d.1. Applicability. -- The requirements of subdivision 5.2.d.4.of this rule apply to all subagreements in excess of the amount specified in 148CSR1.

5.2.d.2. Request for Proposals. -- A request for proposals shall be provided for competitively- negotiated subagreements.

5.2.d.2.A. The request for proposals shall be provided by means of a Class II legal advertisement. Publication in a professional journal, direct letter solicitation, or a combination of these methods are also recommended.

5.2.d.2.B. The request for proposals shall include a statement of when and how the documents associated with the subagreement may be obtained or examined.

5.2.d.2.C. The request for proposals shall contain sufficient information to enable a prospective offeror to prepare a proposal.

5.2.d.2.D. The request for proposals shall contain all criteria that will be used to evaluate submitted proposals and the relative importance of each criterion.

5.2.d.2.E. The request for proposals shall include the deadline for the receipt of proposals and the address to which proposals are to be submitted.

5.2.d.3. Evaluation of Proposals. -- All acceptable proposals from qualified offerors shall be objectively evaluated under the criteria set forth in the request for proposals.

5.2.d.4. Negotiation and Awarding of Subagreements. -- Unless stated in the request for proposals that the awarding of the subagreement will be based upon initial offer, meaningful negotiations shall be conducted with the most qualified offerors who have tendered acceptable proposals. The subagreement shall be awarded to the responsible offeror whose written proposal is most advantageous, considering price and the established criteria. Unsuccessful offerors shall be promptly notified. Documentation of the procurement process shall be available for review by the Secretary.

5.2.d.5. Professional Services. -- In the competitive negotiation for a subagreement for professional services related to a project, the requirements of W.Va. Code §5G-1-1 et. seq. must be followed.

5.2.e. Noncompetitive Negotiation. -- Noncompetitive negotiation may be used to award a contract if the procurement methods described in subdivision 5.2.c of this rule are inappropriate because:

5.2.e.1. The item is available only from a single source; or

5.2.e.2. A public exigency or emergency exists and urgency will not permit competitive procurement.

5.2.f. Subagreement Forms. -- A standard form of agreement as prescribed by the Secretary shall be utilized for all subagreements.

5.3. Financial Management and Record Keeping.

5.3.a. Financial Management. -- The recipient shall establish and maintain a financial management system to account for all costs incurred related to a project. This system shall assure that generally accepted accounting principles and practices are consistently applied in all financial matters related to the project.

5.3.a.1. Financial management shall include the following elements:

5.3.a.1.A. The establishment of appropriate controls over project funds, property, and other assets;

5.3.a.1.B. The maintenance of ledgers containing accurate, current, and complete records of all financial actions related to the project;

5.3.a.1.C. The maintenance of records that identify the source and amount of all moneys used for the project and document how such moneys were used;

5.3.a.1.D. The maintenance of records that allow a comparison of actual project costs with budgeted costs; and

5.3.a.1.E. The establishment of procedures that assure a timely resolution of audit findings and recommendations.

5.3.a.2. In maintaining the accounting system, the recipient shall:

5.3.a.2.A. Establish a separate account for the project;

5.3.a.2.B. Record all transactions in ledgers (i.e., double entry accounting);

5.3.a.2.C. Record all transactions in a timely and verifiable manner;

5.3.a.2.D. Designate one (1) person who is not responsible for project operations to account for all project funds; and

5.3.a.2.E. Prepare and submit as directed, financial reports of the project.

5.3.b. Records. -- The recipient shall maintain official records for each loan received that include:

5.3.b.1. The loan application and loan approval documents;

5.3.b.2. All contracts and subagreements related to the project;

5.3.b.3. All documents related to financial management prescribed under subdivision 5.3.a of this rule;

5.3.b.4. All documents requiring action by the state (e.g., sewer use ordinances, intermunicipal agreements, water pollution control permits, operation and maintenance manuals);

5.3.b.5. A documentation of compliance with applicable federal and state statutes and regulations;

5.3.b.6. A documentation of the amount of moneys received and expended for the project;

5.3.b.7. A documentation of all property that was purchased for the project; and

5.3.b.8. Time records related to the project.

5.3.c. Inspections.

5.3.c.1. All records maintained pursuant to the provisions of this rule shall be made available for inspection by the Secretary upon request and where appropriate by the authority.

5.3.d. Force Account. -- The recipient may use its own work force to plan, design, or construct minor segments of the project or administer parts of the project if prior approval has been granted by the Secretary.

W. Va. Code R. § 47-31-6 Environmental Review of Funded Projects

6.1. General Requirements. -- The Instrumentality shall conduct or cause to be conducted, an environmental review for each project funded, in whole or in part, from the Fund. Any adverse environmental impacts that may occur on a project, as determined by the Secretary, shall be mitigated by the local entity. The local entity shall implement all measures, as stipulated by the Secretary, that are necessary to prevent adverse impact to the public health, safety, or welfare or to the environment.

6.2. In accordance with 40 CFR Part 35, Subpart K (§35.3140), projects must undergo a State environmental review process (SERP) that conforms generally to the National Environmental Policy Act (NEPA), 42 U.S.C.§4321 et. seq.

6.3. The applicant should consult with the State early in the facilities planning stage to determine whether a project is eligible for a categorical exclusion, to determine alternatives to the proposed project for evaluation, and to identify potential environmental issues and opportunities for public recreation and open space.

6.3.a. All requests for a categorical exclusion shall conform to 40 CFR Part 6, subpart B (§6.204).

6.3.b. One public meeting must be held by the local entity prior to the Instrumentality’s issuance of the categorical exclusion to discuss the chosen alternative as well as the reasons for rejecting other alternatives and to allow for comments.

6.4. Environmental Review Procedures. – The applicant shall prepare and submit an environmental information document in conjunction with the facilities plan. The facilities plan must comply with the Instrumentality’s policies and procedures. The environmental information document must include the following information:

6.4.a. Correspondence with and responses from the West Virginia Division of Culture and History concerning possible impacts to historic, architectural, archaeological, and cultural sites.

6.4.b. Correspondence with and responses from the United States Army Corp of Engineers concerning possible impacts to floodplains and wetlands.

6.4.c. Correspondence with and responses from the U.S. Department of the Interior (Fish and Wildlife Service) and the West Virginia Division of Natural Resources concerning possible impacts to wetlands, wild and scenic rivers, fish and wildlife, and endangered or threatened species.

6.4.d. Correspondence with and responses from the U. S. Department of Agriculture concerning possible impacts to important farmlands.

6.4.e. Evaluation of possible impacts to air quality, development, and noise levels.

6.5. Environmental Assessment. – An environmental assessment shall be prepared by the Instrumentality to provide sufficient data and analysis to determine whether a finding of no significant impact (FNSI) can be issued. The environmental assessment will address the concerns and impacts listed in 40 CFR Part 6, subpart B (§6.205(d) - (§6.205(e)(4)).

6.6. Finding of No Significant Impact (FNSI) – When the environmental review indicates no significant impacts are anticipated or when the project is altered to eliminate any significant adverse impacts, a FNSI shall be issued and made available to the public. The environmental assessment shall be included as a part of the FNSI. The FNSI shall list all mitigation measures as defined in 40 CFR §1508.20, and specifically identify the measures necessary to make the recommended alternative environmentally acceptable. 6.6.a The Instrumentality is responsible for monitoring mitigation measures identified in the FNSI. The Instrumentality will not close on a loan until the applicant complies with all conditions of the FNSI.

6.6.b. If it is not possible to mitigate or eliminate significant impacts caused by the project and allow the issuance of a FNSI, funds from the SRF will not be used to fund the project.

6.7. Public Involvement – The Instrumentality shall make diligent efforts to involve the public in the environmental review process and shall allow for sufficient public review of a FNSI before a facilities plan is approved. A period of at least 30 calendar days for comments will be allowed before administrative action will be taken after the release and publication of the FNSI. Comments will be submitted as directed in the FNSI. The FNSI will be posted at the applicant’s office location or other locations as directed and mailed to appropriate agencies and interested parties. One public meeting must be held by the local entity prior to FNSI issuance to discuss the chosen alternative as well as the reasons for rejecting other alternatives and to allow for comments.

6.8. All environmental assessment/FNSI determinations shall be re-evaluated in accordance with 40 CFR §6.200(h)

6.9. Public Notification – The public notification requirements of this section shall be fulfilled and consistent with 40 CFR §1506.6. The Instrumentality may institute such additional NEPA-related public participation procedures as are deemed necessary during the environmental review process.

6.9.a. Public notification options from 40 CFR §1506.6 include, but are not limited to, publication in local newspapers (in papers of general circulation rather than legal papers), publication in local newsletters that may be expected to reach potentially interested persons, direct mailing to owners and occupants of nearby or affected property, and posting of notice on and off site in the area where the action is to be located.

W. Va. Code R. § 47-31-7 Facilities Planning

7.1. Facilities Plan Preparation. -- The applicant shall prepare a facilities plan as one component of its application for SRF loan assistance. The facilities plan shall establish the need for the project, evaluate alternative solutions, and select a cost-effective, environmentally sound project. The facilities plan also represents a public record of decision making and shall be written to provide the general public, municipal officials, and regulatory officials with a clear understanding of the problem, solutions, and consequences of the project. The applicant shall submit its completed facilities plan to the Secretary for review and approval.

7.1.a. Facilities Plan Guidance. -- Prior to the submission of a facilities plan with an application for SRF loan assistance, a local entity should seek guidance from the Secretary concerning the preparation of an acceptable facilities plan. The local entity should seek this guidance during the early stages of project planning.

7.1.b. Facilities Plan Contents. -- The facilities plan shall include or address:

7.1.b.1. The requirements set forth in Appendix A of this rule.

7.2. Facilities Plan Review and Approval.

7.2.a. Facilities Plan Review. -- The Secretary shall review an applicant's facilities plan for completeness and conformance with the requirements of this rule and the Clean Water Act. During the review, the Secretary shall give special attention to the requirements set forth in the following sections of the Clean Water Act:

7.2.a.1. CWA Section 201(g)(1), which delineates the projects for which SRF loan assistance may be provided by the state;

7.2.a.2. CWA Section 201(n)(1), which provides that funds under CWA Section 205 may be used for water quality problems due to discharges from combined sewer overflows if such discharges are a major state priority;

7.2.a.3. CWA Section 201(o), which calls on the state to encourage and assist communities in the development of capital financing plans;

7.2.a.4. CWA Sections 204(a)(1) and 204(a)(2), which require that an applicant's project be included in plans developed pursuant to CWA Sections 208 and 303(e);

7.2.a.5. CWA Section 211, which requires that a major rehabilitation or replacement of collectors is not eligible for SRF loan assistance unless the collector is necessary to assure the total integrity of the treatment works or, for a new collector, that adequate capacity exists at the facility; and

7.2.a.6. CWA Section 511(c), which requires that the state conduct an environmental review of the applicant's project as provided in section 6 of this rule.

7.2.a.7. Facilities Plans shall be signed and sealed by a Professional Engineer licensed by the State of West Virginia.

7.2.b. Facilities Plan Approval. -- The Secretary shall approve a facilities plan only after the applicant has satisfied all requirements contained in section 7 of this rule and an environmental review has been conducted in accordance with the provisions of section 6 of this rule.

W. Va. Code R. § 47-31-8 Project Design and Construction

8.1. Pre-Design Conference. -- It is recommended that the applicant hold a pre-design conference with the Secretary in order to review the activities which shall take place during the design of the project.

8.2. Project Design Guidance. -- During the design phase of a project, the applicant should seek additional guidance from the Secretary concerning acceptable project design and shall arrange to periodically meet with the Secretary to review the progress of the project design work.

8.3. Project Plans and Specifications. -- The applicant shall submit completed project plans and specifications to the Secretary for review and approval. The Secretary shall approve the project plans and specifications only after it has been determined that the minimum technical and administrative requirements of this rule and applicable federal statutes and regulations have been met. If project plans and specifications are submitted prior to the facilities plan approval, they will be subject to change based upon final facilities plan recommendations. Plans and specifications will not be approved prior to facilities plan approval.

8.3.a. Technical Requirements for Project Plans and Specifications.

8.3.a.1. The project design shall follow the recommendations contained in the approved facilities plan. Failure to follow the facilities plan shall be grounds for the rejection of the project plans and specifications by the Secretary.

8.3.a.2. The project design shall ensure that the project shall be both biddable and constructable. Failure to produce a design that is both biddable and constructable, as determined by the Secretary, shall be grounds for the rejection of the project plans and specifications by the Secretary.

8.3.a.3. The project design shall ensure that NPDES discharge requirements set by the state are achieved.

8.3.a.4. All project plans and specifications shall be sealed and signed by a registered professional engineer who holds a current certificate of registration issued by the state in accordance with the provisions of W. Va. Code §30-13-1 et seq..

8.3.b. Project Plans.

8.3.b.1. All project plans submitted to the Secretary shall conform with the standards set forth in Appendix B of this rule.

8.3.b.2. Unless otherwise approved by the Secretary, all project plan drawings shall be submitted on blue-line or black-line prints that are twenty-four inches by thirty-six inches (24" x 36") in size. Upon approval from the Secretary, construction details shall be included on the drawings for all work that cannot be adequately represented on the scale specified by this rule. No half size or paper size drawings will be accepted for submittal.

8.3.b.3. Geotechnical information, including boring logs and the groundwater level at each borehole, shall be included either on the project plan drawings or in the project specifications submitted with the project plans. Borings shall be taken at the proposed location of each pumping station that will be ten (10) or more feet deep and at the proposed location of all structures on the treatment works site. Geotechnical information for collector lines may be required by the Secretary on a case-by-case basis.

8.3.b.4. Plans for a treatment works shall include:

8.3.b.4.A. An index;

8.3.b.4.B. A comprehensive legend;

8.3.b.4.C. A location map of the project site showing the location, dimensions, and elevations of all existing and proposed structures and facilities;

8.3.b.4.D. A hydraulic profile for both liquids and solids streams of treatment plants. Profiles must indicate elevations for both average and maximum daily flows.

8.3.b.4.E. A piping plan showing all facility piping in complete detail at a scale of one inch equal to ten feet (1" = 10') and including profiles for all in-plant piping and drainage systems;

8.3.b.4.F. A site grading plan showing existing and final grades;

8.3.b.4.G. A site erosion and sedimentation control plan; and

8.3.b.4.H. Sufficient drawings to describe every element of construction including, but not limited to, structural, mechanical, reinforcing, and architectural drawings, detail sheets, and a complete set of electrical drawings.

8.3.b.5. Plans for pumping or vacuum stations shall be drawn on a horizontal scale of one inch equal to ten feet (1" = 10') and a vertical scale of one inch equal to five feet (1" = 5') with 25-year and 100-year flood elevations noted and shall show facility piping and electrical systems in complete detail.

8.3.b.6. Plans for collection systems shall be drawn on topographic base sheets using a two-foot contour interval, a minimum horizontal scale of one inch equal to fifty feet (1" = 50'), and a vertical scale of one inch equal to ten feet (1" = 10') with plan and profile views on the same plan sheet. A plan sheet shall include a key, an index of property owners, and a general project map drawn on a scale of approximately one inch equal to four hundred feet (1" = 400'). Alternative mapping scales may be approved by the Secretary on a case-by-case basis.

8.3.b.6.A. Drawings of collector lines shall be of sufficient detail to completely describe the required construction, shall show the flow direction for each collector line, and shall include a profile view of each collector line. Lateral connections must be shown.

8.3.b.6.B. Drawings of the collection system shall show all property lines and public utility easements, all West Virginia Division of Highways rights-of-ways, the location of existing sewers and buildings, and the limits of construction.

8.3.b.7. In addition to meeting the applicable requirements of paragraph 8.3.b.6 of this rule, plans for alternative collection systems -- vacuum, grinder pump/pressure, variable grade sewers (VGSs), septic tank effluent pumps (STEPs), or other systems requiring construction of devices other than a collector line on or through a customer's property -- shall show the proposed location and elevation of each device.

8.3.c. Project Specifications.

8.3.c.1. General conditions mandated by the Secretary shall be incorporated into the project specifications.

8.3.c.2. The project specifications shall include complete technical specifications to govern the construction of collector lines, pumping stations, treatment works, and all other appurtenances. The technical specifications shall include complete information related to:

8.3.c.2.A. Requirements for the quality of materials and workmanship, size, operating characteristics, rating of equipment, and testing of materials and equipment for all mechanical and electrical equipment (e.g., machinery, valves, piping, joining of pipes, electrical motors, wiring, instrumentation and meters, laboratory fixtures and equipment, manholes, force mains, and gravity lines);

8.3.c.2.B. Requirements for the quality and testing of construction materials; and

8.3.c.2.C. Requirements for performance tests of completed works, testing of soils and concrete, and warranty provisions.

8.3.c.3. If required by the Secretary, a bypass prevention plan shall be included in the project specifications. The bypass prevention plan shall provide detailed instructions on how the contractor shall keep existing facilities in operation and prevent the discharge of raw or partially treated sewage during construction.

8.3.c.4. The project specifications shall not be used to direct the purchase of equipment from a single manufacturer or to preclude other bidders. If the name of a manufacturer for a specific piece of equipment is included in a project specification, a second manufacturer must also be supplied. A minimum of two (2) manufacturers shall be listed for all major pieces of equipment. A list of approved equipment shall be included with each specification. Exceptions shall be evaluated on a case-by-case basis by the Secretary.

8.3.d. Modification of Approved Project Plans and Specifications.

8.3.d.1. Changes to the approved project plans and specifications shall be submitted to the Secretary for review and approval before being incorporated into change orders or addenda.

8.3.d.2. A complete and updated estimate of project costs and a financial affordability analysis shall be submitted to the Secretary along with the proposed changes to the approved project plans and specifications.

8.3.d.3. Changes that affect capacity, flow, operation, process, or point of discharge shall receive written approval from the Secretary before such changes are initiated.

8.3.e. Implementation of Approved Project Plans and Specifications.

8.3.e.1. A complete report detailing all land and right-of-way acquisitions related to the project -- including the names of property owners, tax numbers, and all other pertinent information -- shall be submitted to the Secretary if deemed necessary by the Secretary.

8.3.e.2. The Secretary’s approval of project plans and specifications shall be valid for only one (1) calendar year from the date of approval.

8.3.e.3. All project bidding shall follow the two-envelope bidding system. All bids must comply with W. Va. Code §21-11-11.

8.3.e.4. All contracts shall be bid as unit price or lump sum proposals.

8.3.e.5. Change orders shall be negotiated on the basis of unit price, lump sum, or time and materials. All change orders must receive prior approval from the Secretary and have complete price documentation, including a memorandum of negotiation.

8.4. Pre-Construction Conference. -- Prior to initiating construction, the recipient shall hold a pre-construction conference with the Instrumentality, contractor, and the recipient’s engineer in order to review the activities which shall take place during the construction of the project.

8.5. Project Inspections. -- Interim inspections of the project shall be conducted by the Secretary periodically during construction. Monthly progress meetings will be held if deemed necessary by the Secretary. A final inspection shall be conducted by the Secretary after construction has been substantially completed and before the final construction loan payment is disbursed.

8.6. Certified Operator. -- A certified operator of the class required by the WV/NPDES permit shall have been hired by the recipient prior to the time when construction of the treatment plant is fifty percent (50%) complete.

8.7. Operation and Maintenance Manual. -- An operation and maintenance manual (O & M manual) shall be compiled and submitted to the Secretary for approval prior to the time when construction is ninety percent (90%) complete.

8.8. Record Drawings. -- The project engineer shall submit record drawings to the recipient within sixty (60) days of project completion.

8.9. Project Certification. -- Within sixty (60) days after the end of the first year after project completion, the recipient shall certify that the project meets the design specifications and effluent limitations included in the permit in accordance with the provisions of CWA Section 204(d)(2). If the recipient cannot certify that the project meets the design specifications, and effluent limits in the permit then a corrective action plan must be submitted.

APPENDIX A

REQUIRED CONTENTS OF A FACILITIES PLAN

A facilities plan shall be prepared for inclusion with each application for SRF loan assistance. The format of a facilities plan shall follow this outline:

I. Introduction II. Current Situation III. Future Situation IV. Alternatives V. Plan Selection and Public Participation VI. Environmental Information VII. Project Summary VIII. Appendices I. Introduction.

A brief review of the project including a description of the planning area, the implementing authority, and the project history shall be provided in this section of the plan.

II. Current Situation.

A. Information related to current wastewater disposal practices (e.g., septic tanks, direct discharges, public sewers) and the names of all streams currently receiving effluent shall be provided in this section of the plan.

B. Population and probable customer counts, with nonresidential customers shown as equivalent dwelling units (EDUs), and the source of this data shall be included in this section of the plan. The data should also include water sales to sewer customers in gallons per day.

C. A complete infiltration/inflow (I/I) analysis for existing collection systems shall at the Secretary’s discretion be included in this section of the plan. This analysis shall be obtained through a physical inspection of the system, flow monitoring of major subsystems, and smoke testing. A summary of analysis findings shall show domestic waste production, average and peak infiltration rates, and inflow rates for each subsystem as well as for the system as a whole.

D. A complete sewer map, a calculation of the percentage of homes not currently sewered, a potential/certified health hazards certification, an excessive/nonexcessive infiltration/inflow determination, and any recommendations for project work resulting from the I/I analysis may be provided in this section of the plan.

E. A complete description of existing wastewater treatment facilities, including layout maps and schematic diagrams, shall be provided in this section of the plan. This description of existing facilities shall include the physical condition, capacities, maintenance data, and other pertinent information for each component of the facility.

F. A discussion of whether the collection system is combined or separate and the receiving stream of each outfall shall be provided in this section of the plan. If the system is combined, include a discussion of how the project complies with the long-term control plan (LTCP).

G. Existing NPDES permit requirements, new waste load allocation (WLA), or both shall be provided in this section of the plan.

H. Other documentation of need, including septic tank failure rates and West Virginia Bureau for Public Health reports, shall be included in this section of the plan.

I. The name of each stream receiving effluent and its the effluent limitations for each discharge in the planning area, stream designation, (as defined in 47 CSR2), and major river basin shall be included in this section of the plan. Also include a discussion of whether each stream impacted is on the CWA §303(d) list and if a total maximum daily load (TMDL) has been completed.

III. Future Situation.

A. Population projections, including historic growth rates for the project area and any other supporting arguments for the growth rate selected, shall be provided in this section of the plan. Population figures shall be translated into a customer count. Commercial/industrial flows shall be converted to equivalent dwelling units (EDUs) and then included in the customer count.

B. Waste flow projections, including the domestic water consumption of customers not currently connected to collection systems, shall be provided in this section of the plan. Both average flow and peak daily flow shall be included in these projections.

C. A waste load allocation for the selected discharge alternative and any NPDES permit requirements shall be included in this section of the plan.

IV. Alternatives.

A. Alternatives for the type of treatment, type of collection system, and location of the treatment works shall be evaluated in this section of the plan. Unless otherwise allowed by the Secretary, this evaluation shall include both a present-worth cost analysis and a discussion of other, nonmonetary factors (e.g., maintenance requirements, flexibility, public acceptance) for each alternative. The no-action alternative shall also be discussed in this evaluation.

Note: In general, only the most cost-effective alternative will be considered for SRF loan assistance in accordance with CWA Section 218. Furthermore, SRF loan assistance will normally be limited to projects proposing secondary treatment, advanced treatment, new interceptors and appurtenances, or the correction of infiltration/inflow problems; however, up to twenty percent (20%) of the state's annual allotment of SRF funds can be used to fund other projects within the definition of treatment works contained in CWA Section 212 and for certain nonpoint source control and groundwater protection purposes, as defined in CWA Section 319.

1. In the evaluation of treatment alternatives, a complete cost-effectiveness analysis shall be made of at least two alternatives that will comply with the discharge limits in the wasteload allocation (WLA). The evaluation of other processes may be required by the Secretary on a case-by-case basis. A separate subsection of this evaluation shall be devoted to sludge processing and its final disposal.

2. In the evaluation of collection system alternatives, the utilization of existing systems as well as new gravity, and grinder-pump/pressure, sewers shall be discussed. Maps of the selected alternative collection system, drawn on a scale of one inch equal to five hundred feet (1" = 500'), shall be included in this evaluation; these maps shall also identify existing and projected customers. The evaluation of other alternatives may be required by the Secretary on a case-by-case basis.

3. In the evaluation of alternative locations for the proposed treatment works, special consideration shall be given to the aesthetics and costs associated with each alternative site. A map of each alternative site, drawn on a scale of one inch equal to one hundred feet (1" = 100') and showing the 25-year and 100-year flood elevations, shall be included in this evaluation.

Note: The treatment works shall remain accessible during a 25-year flood and be completely protected from damage during a 100-year flood. Sites not meeting these criteria shall be eliminated from consideration. Sites that cannot conform with the buffer zone distances outlined in Table E of Appendix B of this rule shall also be eliminated from consideration.

V. Plan Selection and Public Participation.

A brief discussion of the factors influencing the choice of the selected alternatives shall be provided in this section of the plan. The minutes of public meetings held to discuss the proposed project and a ranking of the various alternatives shall also be included in this section of the plan.

VI. Environmental Information.

An assessment of the impacts of the proposed project upon archaeological and historical sites, endangered species, farmland, wetlands, and 25-year and 100-year flood elevations shall be provided in this section of the plan. A list of contacts for each Federal or State agency that requires consultation on these topics shall be obtained from the Secretary. Unavoidable adverse impacts of the project, and the measures that will be taken to mitigate or minimize those impacts, shall be addressed in this assessment. Other potential impacts to the project area, such as substantially increased development that will result due to the project, shall be also discussed in this section of the plan.

VII. Project Summary.

A summary of the proposed project, including detailed descriptions of all project facilities, systems, and appurtenances (e.g., the length and size of pipes, pumping station capacities) shall be provided in this section of the plan.

VIII. Appendices.

A. A project cost summary appendix shall be included in the facilities plan to detail:

1. Preliminary cost estimates for treatment works and collection system construction, ten percent (10%) contingency reserve, basic engineering design and construction, special engineering services, resident inspection, administrative and legal services, land acquisitions, financing, and SRF loan assistance required.

2. Projected annual costs for operation and maintenance, personnel, utilities, supplies, administration, billing and collection, outside services, and capital improvements.

3. Existing debt information including debt costs for the proposed project, loan conditions (specify funding agency), term of loan in years, interest payments, capital recovery factor, coverage, debt service per year, and total annual costs.

4. User charge information including the cost per one thousand (1,000) gallons (uniform rate), the minimum bill at two thousand (2,000) gallons per month, and the typical bill at four thousand (4,000) gallons per month.

B. A project schedule appendix shall be included in the facilities plan to detail the anticipated dates of:

1. Approval of facilities plan;

2. Initiation of project design work;

3. Submission of project plans and specifications;

4. Approval of project plans and specifications;

5. Submission of Certificate of Public Convenience and Necessity to the Public Service Commission of West Virginia for approval;

6. Advertisement for bids;

7. Receipt of bids;

8. Loan application acceptance;

9. Loan receipt;

10. Awarding of contracts;

11. Commencement of project construction; and 12. Completion of project construction.

C. A project documents appendix shall be included in the facilities plan to provide copies of:

l. A resolution of acceptance if needed from the applicant;

2. All governmental agreements;

3. A copy of the current NPDES permit or waste load allocation or both;

4. A statement of availability of proposed wastewater treatment works site; and 5. All other pertinent correspondence and documents.

APPENDIX B

DESIGN STANDARDS FOR COLLECTION SYSTEMS

AND TREATMENT WORKS

PART A. SEWAGE COLLECTION SYSTEMS.

1. Approvable Systems.

1.1. New collection systems or extensions to an existing collection system designed to carry sanitary sewage flows plus an allowance for nonexcessive infiltration are approvable.

1.2. Modifications to existing collection systems designed to carry sanitary sewage flows plus an allowance for nonexcessive infiltration and inflow are approvable.

1.3. Overflows shall be reviewed by the Secretary on a case-by-case basis.

1.4. No new combined sanitary/storm systems shall be approved by the Secretary.

1.5. In determining the required capacities of sanitary sewers, the following design factors shall be considered:

1.5.1. Maximum hourly quantity of sewage;

1.5.2. Additional maximum wastewater flow from industrial plants; and

1.5.3. Groundwater infiltration.

1.6. New collection systems shall be designed based upon:

1.6.1. Estimates from a fully-documented analysis of water use records adjusted for consumption and losses; or

1.6.2. An assumed wastewater flow of seventy gallons per capita per day (70 gpcd) for residential customers added to a calculated wastewater flow from all nonresidential customers derived through the use of the values set forth in Table A of this appendix.

2. Gravity Collection Systems.

2.1. Design Life. -- The maximum allowable design life for gravity sewers is fifty (50) years for the estimated tributary area. Phasing of collection systems will be allowed.

2.2. Infiltration Allowance and Industrial Flows. -- An infiltration allowance of two hundred (200) gallons per inch diameter per mile per day and a reasonable allowance for future industries may be added to the per capita design flows to arrive at the average daily flow.

2.3. Peak Flows. -- Gravity sewers shall be designed to carry a peak flow, when flowing full, of:

2.3.1. Four (4) times the average daily flow for lateral sewers; and

2.3.2. Three and one-half (3.5) times the average daily flow for trunk, interceptor, and outfall sewers.

2.4. Alternate Method. -- When deviations from the peak design flows set forth in subsection 2.3 of Part A of this appendix are desired, a brief justification and description of the procedure used for sewer design shall be submitted to the Secretary with the project plans.

2.5. Calculations. -- Computations and other design data shall be presented in an appropriate form for all proposed sewage collection systems. These computations shall include the peak daily flow at critical points (e.g., where a change in the size of the sewer occurs) and the velocity at peak flows in the sewers.

2.6. Minimum Size. -- Gravity sewers shall be no less than eight inches (8") in diameter with the exception that six inch (6") diameter pipe may be used for collector sewers where no possibility of future extension exists and no more than thirty (30) residences can be served, or where the slope exceeds twenty percent (20%).

Note: Small-diameter gravity sewers, of a minimum size of four inches (4") in diameter, may be utilized for sanitary sewage collection. Cleanouts may be used instead of manholes and shall be installed at all changes in direction and at all connections. Pretreatment to prevent clogging is required prior to discharge into small-diameter gravity sewers.

2.7. Cover. -- The minimum allowable earth cover on sewers shall be three feet (3') unless otherwise approved by the Secretary. Gravity sewers shall be placed sufficiently deep to drain basement fixtures and to prevent freezing.

2.8. Slopes.

2.8.1. All new gravity sewers shall be so designed and constructed to give velocities, when flowing full, of not less than two feet per second (2.0 fps) based on Kutter's or Manning's formula using an "n" value of 0.013. An "n" value of 0.015 is recommended for the determination of existing sewer capacities. Other practical "n" values may be used if deemed justifiable on the basis of research or field data presented by the consulting engineer.

2.8.2. Minimum allowable slopes for gravity sewers are delineated in Table B of this appendix.

2.8.3. Under special conditions, slopes slightly less than those required to provide the prescribed two feet per second (2.0 fps) velocity may be used. Whenever such decreased slopes are selected, computations of the depth of flow in such pipes at minimum, average, and peak rates of flow shall be submitted to the Secretary with the project plans.

Note: Such decreased slopes may result in additional sewer maintenance.

2.8.4. Gravity sewers shall generally be laid in a straight line, with a uniform slope between manholes or cleanouts. Gravity sewers laid on a slope of twenty percent (20%) or greater may follow the ground slope but shall be anchored securely with concrete anchors, or an approved equal, and spaced as follows:

2.8.4.a. Not over thirty-six feet (36') center to center on slopes between twenty to thirty-five percent (20% to 35%);

2.8.4.b. Not over twenty-four feet (24') center to center on slopes between thirty-five to fifty percent (35% to 50%); and

2.8.4.c. Not over sixteen feet (16') center to center on slopes of fifty percent (50%) or greater.

2.9. Alignment. -- Gravity sewers of twelve inches (12") or less in diameter shall be laid with straight alignment between manholes. Variable grade sewers will be allowed by the Secretary on a case-by-case basis.

2.10. Increasing Size. -- When a smaller sewer joins a larger one, the invert of the larger sewer shall be lowered sufficiently to maintain the same energy gradient. An approximate method for securing these results is to place the eight-tenths (0.8) depth of both sewers at the same elevation.

2.11. High Velocity Protection. -- Where velocities greater than fifteen feet per second (15.0 fps) are attained, special provisions shall be made to protect against displacement by erosion and shock.

2.12. Materials. -- The material selected for gravity sewer pipes should be adapted to local conditions such as the character of industrial wastes, the possibility of septicity, soil characteristics, exceptionally heavy external loadings, abrasion, and similar problems.

2.13. Loadings. -- All gravity sewers shall be designed to prevent damage from superimposed loads. Proper allowance for loads on the sewer shall be made according to the width and depth of trench. Gravity sewer lines shall be constructed of plastic, cast iron, ductile iron, or concrete sewer pipe that conforms to the specifications set forth in Table C of this appendix. All other pipe materials will be considered on a case-by-case basis.

2.14. Bedding. -- Class "A", Class "B", or Class "C" bedding in accordance with the American Society of Civil Engineers (ASCE) "Manual & Report on Engineering Practice No. 37" may be used for gravity sewers. The class of bedding shall be determined by the engineer to provide the strength necessary for the soil load conditions that will be encountered.

2.15. Inverted Siphons. -- The use of inverted siphons is not an approvable design.

2.16. Other Siphons. -- The use of other siphons is not an approvable design.

2.17. Stream Crossings. -- Whenever gravity sewers must cross under a perennial stream or watercourse, a minimum separation of three feet (3') between the stream bed and the top of the sewer pipe shall be provided. Ductile iron pipe or an approved equal shall be used when crossing a stream. If the minimum separation cannot be maintained for the entire crossing, mechanical joint ductile iron pipe or an approved equal shall be used.

2.18. Aerial Sewers. -- The use of aerial sewers shall only be approved on a case-by-case basis. In no case shall the invert of the sewer be constructed below the 50 year flood elevation.

2.19. Water Supply Interconnections. -- There shall be no physical connection between a public or private drinking water supply system and a sewer or its appurtenance.

2.20. Relation to Water Works Structures. -- Unless otherwise approved by the Secretary, gravity sewers shall not be located within ten horizontal feet (10') of a drinking water reservoir.

2.21. Relation to Public Wells. -- Unless otherwise approved by the Secretary, gravity sewers shall not be located within fifty feet (50') of any well or spring utilized for a public drinking water system.

2.22. Relation to Private Wells. -- Unless otherwise approved by the Secretary, gravity sewers shall not be located within fifty feet (50') of a private or individual homeowner's drinking water system. Under no circumstances shall a sewer line be constructed within ten feet (10') of a homeowner's well.

2.23. Relation to Water Lines.

2.23.1. Standard Horizontal Separation. -- Routinely, gravity sewers shall not be located within ten horizontal feet (10') of any existing or proposed water lines. If it is not possible to maintain this separation, the sewer line shall be constructed and tested as prescribed in paragraph 2.23.3 of Part A of this appendix. Under no circumstances shall a sewer line be constructed within three horizontal feet (3') of a water line when the sewer line is parallel to the water line.

2.23.2. Standard Vertical Separation. -- Gravity sewers that must cross water lines shall be constructed so that the top of the sewer line is at least eighteen inches (18") beneath the bottom of the water line. If it is not possible to maintain this separation, the sewer line shall be constructed and tested as prescribed in paragraph 2.23.4 of Part A of this appendix.

2.23.3. Variant Horizontal Separation. -- In cases where water and sewer lines must be laid closer than ten horizontal feet (10') apart, the sewer line shall be at least eighteen inches (18") lower than the water line unless otherwise approved by the Secretary. These sewer lines shall be constructed using a pressure-type pipe that meets American Water Works Association (AWWA) requirements for water lines and shall be pressure tested to assure water tightness. Maximum possible horizontal distance between the lines shall be maintained. Water lines shall be placed upon an undisturbed earth shelf or bench; backfilling to create the bench is not permissible. When the lines are placed within five feet (5') of each other, each line shall have a metallic-impregnated permanent identification tape buried directly above it denoting either "Sewer Line" or "Potable Water Line."

2.23.4. Variant Vertical Separation. -- In cases where water and sewer lines must be laid closer than eighteen vertical inches (18") apart, the sewer line shall be located so that it crosses under the water line at mid-joint. A sewer line shall not be constructed over the top of a water line. These sewer lines shall be constructed using a pressure-type pipe that meets American Water Works Association (AWWA) requirements for water lines and shall be pressure tested to assure water tightness. A minimum vertical clearance of six inches (6") between water and sewer lines shall be maintained. If it is not possible to meet these conditions, the sewer line shall be encased so that said casing extends at least ten feet (10') on each side of the crossing.

3. Manholes.

3.1. Location. -- Manholes shall be provided at all changes in sewer line slope, size, or alignment and at all intersections. Manholes shall be provided at distances not greater than four hundred feet (400') for sewers that are fifteen inches (15") in diameter or less and at distances of five hundred feet (500') for sewers that are eighteen to thirty inches (18" to 30") in diameter. Greater spacing may be used in larger sewers and in sewers carrying settled effluent upon approval from the Secretary. Cleanouts may be constructed at the upper end of all lines. Cleanouts may be substituted for manholes in some special situations upon approval from the Secretary.

3.2. Materials. -- Manholes shall be made of precast concrete, poured-in-place concrete, or polyethylene.

3.3. Drop Pipes. -- An outside drop pipe shall be provided for a sewer entering a manhole at an elevation of twenty-four inches (24") or more above the manhole invert. The entire drop connection shall be encased in concrete. If an inside drop is necessary, the pipe shall be fastened to the manhole and access provided for cleaning. Where the difference in elevation between the incoming sewer and manhole invert is less than twenty-four inches (24"), the invert shall be filled.

3.4. Manhole Diameters. -- The minimum inside diameter of manholes shall be forty-eight inches (48"); larger diameters are preferable for large-diameter sewers. The minimum size for manhole openings shall be - twenty-two inches (22").

3.5. Manhole Steps. -- Noncorrosive steps embedded in the walls, offset and spaced twelve to eighteen inches (12" to 18") apart, shall be provided in each manhole.

3.6. Flow Channel. -- The inside base of the manhole shall be filled with concrete to form a bench sloping toward the flow channel. Both the flow channel and the bench shall be troweled to a smooth surface.

3.7. Water tightness. -- Solid, gasketed manhole covers shall be used wherever manhole covers may be flooded by street runoff or high water. Concrete manholes shall be waterproofed on the exterior wherever groundwater conditions are unfavorable. Pipe connections to manholes and joints on manholes shall be watertight.

3.8. Cleanouts And Lampholes.-- Cleanouts or lampholes shall be permitted in lieu of manholes at the ends of collector lines.

4. Pumping Stations.

4.1. General Designs Standards.

4.1.1. Flood Protection. -- Pumping stations and their attendant electrical equipment shall either be located at an elevation not subject to a 100-year flood or be adequately protected against damage from a 100-year flood.

4.1.2. Station Location. -- Pumping stations shall be readily accessible structures, preferably located off the right-of-way of streets and alleys, and shall be located as far as possible from the nearest dwelling. Fencing shall be provided around each station to prevent the entry of unauthorized persons. Other methods of locking may be approved by the Secretary on a case-by-case basis.

4.1.3. Overflows. -- No overflows or bypasses from pumping stations shall be allowed at new facilities, unless otherwise approved by the Secretary.

4.1.4. Pumping Rates and Number of Pumping Units. -- At a minimum, dual pumps shall be provided at all pumping stations, with each pump capable of providing the maximum design flow. Pumping units shall be sized to provide the minimum cleaning velocity of two feet per second (2.0 fps) at the rated capacity, assuming a C=120 for PVC pipe, a C=140 for HDPE pipe, and a C=100 for all other pipe materials in the Hazen-Williams Formula.

4.1.5. Station Type. -- Either the wet well or wet well/dry well type of pumping station is an approvable design.

4.2. Specific Design Standards.

4.2.1. Long Drive Shaft Pumps. -- A wet well installation in which the pump is mounted in the wet well and connected by a drive shaft to the motor above the wet well is not an approvable design.

4.2.2. Separation. -- Wet wells and dry wells, including their superstructures, shall be completely separated. Common walls must be gas tight.

4.2.3. Pump Removal. -- Provisions shall be made to facilitate the removal of pumps and motors.

4.2.4. Access. -- Suitable and safe means of access shall be provided to all dry wells and shall be provided to wet wells containing mechanical equipment requiring inspection or maintenance.

4.2.5. Size. -- The effective capacity of the wet well shall provide a detention time not exceeding thirty (30) minutes for the design average flow.

4.2.6. Floor Slope. -- The wet well floor shall have a minimum slope of one vertical to one horizontal (1:1) towards the hopper bottom. The horizontal area of the hopper bottom shall be no greater than necessary for proper installation and function of the inlet. Bottoms shall have a smooth finish.

4.2.7. Protection Against Clogging. -- Pumps handling raw sewage shall be capable of passing a minimum solid of three inches (3") in diameter, unless the requirement of 4.2.8 are met.

4.2.8. Pump Openings. -- Pumps capable of passing two inch (2") solids shall be protected by a screening device or be of the grinder pump type.

4.2.9. Priming. -- Except as specified for suction lift pumps, all pumps shall be so placed that, under normal operating conditions, they will operate under a positive suction head.

4.2.10. Electrical Equipment. -- Electrical systems and components (e.g. motors, lights, cables, conduits, switch boxes, control circuits) in enclosed or partially enclosed spaces shall be made of materials that are resistant to the environment in which they are used. The conduit must be sealed so no ground water or moisture can enter controls.

4.2.11. Intake. -- Each pump shall have an individual intake. The wet well shall be designed to avoid turbulence near the intake.

4.2.12. Dry Well Dewatering. -- A separate pump shall be provided in the dry well to remove leakage or drainage, with the discharge above the overflow level of the wet well. A connection to pump suction is recommended as an auxiliary feature in the dry well design. Water ejectors connected to a drinking water supply is not an approvable design. All floor and walkway surfaces shall be sloped to a point of drainage.

4.2.13. Controls. -- Control float cables shall be so located as not to be affected by the flows entering the wet well or by the suction of pumps. Float tubes in dry wells shall extend high enough to prevent overflow. Provisions shall be made to automatically alternate the pump in use. Pump stations with motors or controls below grade shall be equipped with a secure external disconnect switch. All wiring/cable shall be supported and clear from entanglement. Supports shall be constructed of non-corrosive and non- abrasive materials.

4.2.14. Valves and Piping. -- Except on submersible and vacuum-primed pumps, all pumps shall be equipped with a full closing valve on the suction piping. A check valve, followed by a gate or plug valve, shall be installed on the discharge piping. Valves shall not be located in a wet well. All hardware located in a wet well (e.g., guide rails, chains, mounting brackets) shall be made of stainless steel or other corrosion-resistant materials approved by the Secretary (i.e., the use of hardware made of galvanized steel is not an approvable design). Provisions to install pressure gauges shall be provided on the discharge piping of all pumps.

4.2.14.a. Valve pits shall be dewatered to a wet well through a drain line with a gas and water tight valve.

4.2.15. Wet Well Ventilation. -- Wet well ventilation may be either continuous or intermittent. If continuous, the ventilation shall provide at least twelve (12) complete air changes per hour. If intermittent, the ventilation shall provide at least thirty (30) complete air changes per hour. Portable ventilation equipment shall be acceptable to meet this requirement.

4.2.16. Dry Well Ventilation. -- Mechanical ventilation shall be provided for all dry well installations. Dry well ventilation may be either continuous or intermittent. If continuous, the ventilation shall provide at least six (6) complete air changes per hour. If intermittent, the ventilation shall provide at least thirty (30) complete air changes per hour.

4.2.17. Flow Measurement. -- The capability for installing suitable devices for measuring sewage flow shall be provided at all pumping stations. Such devices shall be installed at all critically-located pumping stations as determined by the Secretary.

4.2.18. Water Supply. -- No physical connection shall exist between any potable water supply and a pumping station.

4.2.19. Alarm Systems. -- A high water alarm light shall be installed at all pumping stations. Additional alarm systems, such as telemetry, may be required by the Secretary.

4.2.20. Portable Equipment. -- Upon approval from the Secretary, portable equipment may furnish service to more than one (1) pumping station; however, where such equipment is utilized, it shall have the capability to operate between the wet well and the discharge side of the station. The station shall be provided with permanent fixtures which will facilitate rapid and easy connection of lines.

4.2.21. Emergency Power Generation. -- Emergency power generation capability may be required under special circumstances (e.g., above water intakes or recreational waters) as determined by the Secretary.

4.3. Suction Lift Pumps.

4.3.1. Type. -- Suction lift pumps shall be of the self-priming or vacuum-priming type.

4.3.1.a. Self-Priming Pumps. -- Self-priming pumps shall be capable of rapid priming and repriming at the "lead pump on" elevation automatically under design operating conditions. Suction piping should not exceed the size of the pump suction, shall not exceed twenty-five feet (25') in total length, and shall be ductile iron or stainless steel. Priming lift at the "lead pump on" elevation shall include a safety factor of at least four feet (4') from the maximum allowable priming lift for the specific equipment at design operating conditions. The combined total of dynamic suction lift at the "pump off" elevation and required net positive suction head at design operating conditions shall not exceed twenty-two feet (22').

4.3.1.b. Vacuum-Priming Pumps. -- Vacuum-priming pumping stations shall be equipped with dual vacuum pumps capable of automatically and completely removing air from the suction lift pump. The vacuum pumps shall be adequately protected from damage due to sewage. The combined total of dynamic suction lift at the "pump off" elevation and required net positive suction head at design operating conditions shall not exceed twenty-two feet (22').

4.3.2. Capacity. -- The capacity of a suction lift pumping station shall be limited by the net positive suction head and specific speed requirements as stated on the manufacturer's pump curve under the most severe operating conditions.

4.3.3. Location. -- Suction lift pumps shall not be located within the wet well.

4.3.4. The pump equipment compartment shall be above grade or offset and shall be effectively isolated from wet well to prevent a hazardous and corrosive sewer atmosphere from entering the equipment compartment. Wet well access shall not be through the equipment compartment and shall be at least 24 inches (610 mm) in diameter. Gasketed replacement plates shall be provided to cover the opening to the wet well for pump units removed for servicing. Valving shall not be located in the wet well. (10 States Standards, 1997 edition).

4.4. Submersible Pumps.

4.4.1. Pump Removal. -- Submersible pumps shall be readily removable and replaceable without dewatering the wet well or disconnecting any piping in the wet well.

4.4.2. Hoist Provision. -- A station with a submersible pump shall have a hoist for removing the pump from the wet well.

4.4.3. Electrical Controls. -- Electrical controls shall be located in a suitable housing outside the wet well that provides protection against weather and vandalism.

4.5. Pneumatic Ejectors.

4.5.1. The use of pneumatic ejectors is not an approvable design.

4.6. Force Mains.

4.6.1. Size. -- At design pumping rates, a cleansing velocity of at least two feet per second (2 fps) shall be maintained. The minimum force main diameter shall not be less than three inches (3”).

4.6.2. Air Relief Valves. -- Air relief valves shall be placed at high points in the force mains.

4.6.3. Termination. -- A force main shall enter the receiving manhole with its centerline horizontal and with an invert elevation which will insure a smooth laminar flow transition to the gravity flow section. In no case shall a force main enter a gravity sewer at a point more than two feet (2') above the flow line of the receiving manhole. Inside drop connections shall be required for force mains entering manholes more than two (2) feet above the manhole invert.

4.6.4. Materials of Construction. -- Force mains shall be constructed of plastic, cast iron, or ductile iron bearing the National Sanitation Foundation (NSF) seal of the pressure class required by the total dynamic head. All nonmetallic pipe shall have a metallic-impregnated identification tape buried directly above it that identifies that pipe as a sewer line.

4.6.5. Anchoring. -- Force mains shall be sufficiently anchored within the pumping station and throughout the line length. The number of bends shall be as few as possible. Thrust blocks, restrained joints, or tie rods shall be provided where restraint is needed.

4.6.6. -- Cleanouts shall be provided at a maximum of every seven hundred feet (700’) on force mains four inches (4”) or less and at a maximum of one thousand (1,000’) on force mains six inches (6”) or greater.

5. Vacuum Collection Systems. -- Not an acceptable design unless specifically approved by the Secretary.

5.1. Main Lines.

5.1.1. Schedule 40, Class 200, or SDR 21 PVC or ABS plastic pipe shall be used for main lines. All nonmetallic pipe shall have a metallic-impregnated identification tape buried directly above it that identifies that pipe as a sewer line.

5.1.2. Joints shall be solvent-welded, "O"-ring, or heat-fusion joints that have been specifically designed to seal against vacuum.

5.1.3. The minimum diameter pipe size shall be three inches (3") in the collection system.

5.1.4. Cleanouts shall be provided at a maximum of every two hundred feet (200') on straight runs and at every change in direction.

5.1.5. Main lines shall be buried as deeply as dictated by frost depth or load condition but in no instance shall be less than three feet (3') deep unless otherwise approved by the director.

5.1.6. All vacuum system designs shall be certified, in writing, by the system manufacturer.

5.1.7. The manufacturer's recommendation for reform pockets and lifts shall be utilized.

5.1.8. The total available head loss from any input point shall not exceed eighteen feet (18') of water. Five feet (5') of water shall be reserved for valve operation.

5.1.9. During installation, the collection system shall be vacuumed to twenty-four inches (24") of mercury vacuum pressure, allowed fifteen (15) minutes to stabilize, and thereafter shall not lose more than one percent (1%) vacuum pressure per hour over a minimum of a four (4) hour period. This testing shall be done prior to the installation of valves.

5.2. House Connections.

5.2.1. The minimum valve size shall be three inches (3"). Valves shall be actuated by pneumatic controllers; an electrically controlled valve system is not an approvable design.

5.2.2. Valves shall be located outside the dwelling. Either the pipe between the dwelling and the valve shall provide ten to fifteen (10 to 15) gallons storage or a thirty (30) gallon tank shall be located between the dwelling and the valve. A permanent maintenance easement for the valve and its appurtenances shall be obtained.

5.2.3. Valve boxes shall have a solid bottom and be counter weighted to prevent flotation when located in an area subject to flooding or high groundwater. The cover and valve box material shall be of adequate strength to withstand the expected maximum dynamic and static loading conditions. Valve boxes shall be well vented to reduce condensation and shall be constructed of corrosion-resistant material.

5.2.4. The vent system for the house shall have a diameter of three inches (3") or greater to prevent evacuation of traps during vacuum valve operation. The vent pipe shall be extended above the eaves of the house. Alternative venting methods may be approved by the director on a case-by-case basis.

5.2.5. Those systems using a pneumatic controller shall have adequate protection of the sensor controllers. Any portion of the controller apparatus vented to atmosphere shall be protected from flooding, screened from insect entry, and provided with rain covers.

5.3. Sewage Collection Tanks.

5.3.1. Sewage collection tanks shall be either epoxy-coated, anodically-protected welded steel or fiberglass and shall be vacuum-tight.

5.3.2. Each inlet to the tank shall have its own shutoff valve.

5.3.3. Liquid level sensors shall be installed to operate the discharge sewage pumps and the high level alarm and to interrupt the electrical power to the vacuum pumps.

5.3.4. The collection tank shall be sized to hold a maximum of ten (10) minutes design flow. Collection tanks shall be sized at one and one-half (1.5) times the operating volume or four hundred (400) gallons, whichever is greater.

5.4. Vacuum Pumps.

5.4.1. Vacuum reserve tanks shall be installed in series between the sewage collection tank and the vacuum pumps.

5.4.2. Either liquid ring or sliding vane vacuum pumps shall be used as long as they are compatible with pumping moist air containing some sewer gases.

5.4.3. A check valve shall be installed between the vacuum reservoir tank and the vacuum pumps.

5.4.4. Dual vacuum pumps, each capable of handling the load, shall be provided.

5.4.5. Emergency backup power shall be provided to operate the vacuum pumps and all pumping station equipment under the maximum load.

5.4.6. The vacuum pump exhaust shall be vented to the outside of the building. The evacuation line from the vacuum reserve shall utilize carbon absorption if there is a possibility of objectionable odors reaching nearby occupied structures.

5.5. Sewage Pumps.

5.5.1. Dual pumps, each capable of handling three and one-half (3.5) times the average daily flow, shall be provided.

5.5.2. Emergency backup power shall be provided to operate the sewage pumps and all pumping station equipment under the maximum load.

5.5.3. The sewage pumps shall be capable of meeting net positive suction head requirements as directed by the vacuum conditions in the sewage collection tanks.

5.5.4. Shutoff valves shall be provided so that each pump may be isolated for repairs.

5.5.5. The discharge piping shall incorporate the check valve - gate valve arrangement prescribed under paragraph 4.2.14 of Part A of this appendix.

5.5.6. High level alarms and loss-of-vacuum alarms shall be capable of alerting three (3) or more responsible parties.

5.6. Maintenance and Operation.

5.6.1. Maintenance personnel employed by a local entity operating a vacuum collection system shall attend a factory training course on maintenance and operation of the proposed units. Maintenance personnel shall be available around-the-clock in order to correct any operational problem that may arise.

5.6.2. Spare parts (e.g., valves, controllers, valve pits, and other vital parts) shall be kept in inventory. Spare controllers, valves, and sensors shall be retained on a basis of one (l) per every fifteen (15) units installed.

5.6.3. The mixing of equipment (i.e., different makes and models) for a specific project is prohibited.

5.7. Miscellaneous Design Requirements.

5.7.1. Collection stations shall be supplied with ventilators, heaters, and dehumidifiers.

5.7.2. Branch lines shall have individual cutoff valves to allow isolation of the line for repair. Main line sections shall have isolation valves no less than two thousand feet (2,000') apart.

5.7.3. In new systems where water-saving devices such as vacuum toilets are used, some lessening in the size of the treatment units may be approved by the director.

5.7.4. Manufacturer recommendations shall be followed in the design of vacuum collection systems whenever the standards set forth in Section 5 of Part A of this appendix are not applicable.

5.8. Design Submissions.

5.8.1. Hydraulic calculations for the vacuum mains and force mains shall be submitted to the director with the project plans.

5.8.2. Plans and profiles of all vacuum mains shall be submitted to the director with the project plans. Profiles shall indicate depth to mains and all valves shall be indicated on the plans.

6. Pressure Collection Systems.

6.1. Approvable Systems.

6.1.1. Simplex units shall serve no more than three (3) residences. Duplex units shall serve no more than ten (10) residences. Other multiple source applications shall be approved by the Secretary on a case-by-case basis.

6.1.2. Grinder pump pressure systems and septic tank effluent pumping pressure systems are approvable pressure collection systems.

6.1.3. Submersible centrifugal grinder pumps or semipositive displacement grinder pumps shall be used in grinder pump pressure systems. Grinder pumps shall be readily removable and replaceable without dewatering the wet well. Pressure relief valves shall be used with semi-positive displacement grinder pumps unless other means of pressure relief are approved by the Secretary. Nonclogging submersible centrifugal effluent pumps shall be used in septic tank effluent pumping systems.

6.1.4. Wet wells shall be constructed of concrete, fiberglass, plastic, or epoxy-coated, anodically-protected welded steel. Interior hardware shall be made of rigid, corrosion-resistant metallic materials (e.g., plastic guide rails are not an approvable design).

6.2. Pressure Mains.

6.2.1. Schedule 40 PVC, SDR 21 PVC, SDR 26 PVC, polyethylene, or ductile iron pipe shall be used for pressure mains. All nonmetallic pipe shall have a metallic-impregnated identification tape buried directly above it that identifies that pipe as a sewer line.

6.2.2. The minimum diameter service line from the grinder pump to the collection main shall be one and one-quarter inches (1 1/4").

6.2.3. Mains shall be valved at junctions so that segments of the system may be taken out of service for maintenance. Cleanouts shall be provided at junctions so that lines may be cleaned. A method of providing continuity of service shall be provided for main collector lines.

6.2.4. Cleanouts with valves shall be provided every four hundred to six hundred feet (400' to 600') on straight runs.

6.2.5. Air release valves shall be provided at high points in the line. Ball or gate valves with cleanouts shall be provided at the ends of lines.

6.2.6. Concrete thrust blocks shall be provided at changes in direction and at "T" junctions.

6.2.7. One of the following flushing methods shall be provided:

6.2.7.a. Flush tanks with a capacity of one thousand (1,000) gallons with pumps at the ends of lines;

6.2.7.b. Water hydrants with nonremovable, reduced-pressure type backflow preventers at the ends of lines; or

6.2.7.c. A water tank truck with pumps.

6.2.8. The relation of pressure mains to water lines shall conform to the separations prescribed under subsection 2.23 of Part A of this appendix.

6.3. Grinder Pump Pressure System.

6.3.1. Station Location. -- The pumping station shall generally be located outside of the building served by the system. The control box for a single pump unit shall be located on the outside of the building served, preferably with the pumping station. For dual pump units, the control box shall be located with the pumping station.

6.3.2. Electrical Controls. -- Control panels shall be of the National Electrical Manufacturers Association (NEMA) Type 4 enclosure. The pump and float electrical controls shall be designed for disconnection without the need for entry into the main control box. The conduit must be sealed so no ground water or moisture can enter controls.

6.3.3. Electrical Service. -- Electrical service shall be provided either by service from the customer's power drop or by cluster service. Service from the customer's power drop shall include the installation of a lockable NEMA Type 4 enclosure located between the customer's electrical meter and service panel. This control panel shall contain two (2) circuit breakers, one for the service panel and the other for the pump installation. Cluster service shall consist of metered drops serving multiple pumping units and providing power via conduit and conductors, direct burial cable, or both.

6.3.4. Alarms. -- Where a single pump unit is utilized, a high water alarm light shall be placed outside of the building served. Where a dual pump unit is utilized, an alarm light shall be placed at the control box.

6.3.5. Emergency Holding Tanks. -- A septic tank may be used as an emergency holding tank. In areas of frequent power outages of a duration of more than four (4) hours each, an emergency holding tank with a capacity of at least two hundred (200) gallons shall be installed.

6.3.6. Sequence of Connections. -- The sequence of connections from the building served to the collection force main shall be as follows: a four inch (4") sewer line, a gate valve, the pump, a check valve, and a connection line with a forty-five degree (45°) bend in the direction of flow.

6.3.7. Check and Gate Valves. -- Check and gate valves shall be made of either plastic or bronze. Check valves shall be either swing or ball type; if swing type check valves are used, a one to two foot (1' to 2') horizontal run of straight pipe shall be constructed on the downstream side of the check valve.

6.3.8. Level Controls. -- Level controls in the pump station shall be either mercury-magnetic switches, mercury switches, or pressure switches.

6.4. Septic Tank Effluent Pressure Systems.

6.4.1. Station Location. -- The pumping station shall be located outside of the building served by the system. The control box for a single pump unit shall be located on the outside of the building served, preferably with the pumping station. For dual pump units, the control box shall be located with the pumping station.

6.4.2. Electrical Controls. -- Control panels shall be of the National Electrical Manufacturers Association (NEMA) Type 4 enclosure. The pump and float electrical controls shall be designed for disconnection without the need for entry into the main control box.

6.4.3. Alarms. -- Where a single pump unit is utilized, a high water alarm light shall be placed outside of the building served. Where a dual pump unit is utilized, an alarm light shall be placed at the control box.

6.4.4. Sequence of Connections. -- The sequence of connections from the building served to the collection force main shall be as follows: a four inch (4") sewer line, the septic tank, a pumping chamber with the pump, a check valve, a gate valve, and a connection line with a forty-five degree (45N) bend in the direction of flow.

6.4.5. Check and Gate Valves. -- Check and gate valves shall be made of either plastic or bronze. Check valves shall be either swing or ball type; if swing type check valves are used, a one to two foot (1' to 2') horizontal run of straight pipe shall be constructed on the downstream side of the check valve.

6.4.6. Level Controls. -- Level controls in the pump station shall be either mercury-magnetic switches, mercury switches, or pressure switches.

6.4.7. Miscellaneous Requirements. -- Provisions for the treatment of septage shall be provided at the treatment works. A septic tank pumping vehicle shall be available for use.

6.5. Maintenance and Operation.

6.5.1. Maintenance personnel employed by a local entity operating a pressure collection system shall attend a factory training course on maintenance and operation of the proposed units.

6.5.2. Permanent maintenance easements shall be obtained if pumping equipment and other appurtenances are located on private property.

6.5.3. A truck with a hoist shall be available for use.

6.5.4. Spare parts (e.g., air relief valves, gate valves, relay switches, and other vital parts) shall be kept in inventory.

6.5.5. Spare pumps shall be provided in the initial design in accordance with the requirements set forth in Table D of this appendix.

6.5.6. The mixing of equipment (i.e., different makes and models) for a specific project is prohibited.

6.6. Design Submissions. 6.6.1 Hydraulic calculations for the pressure mains shall be submitted to the Secretary with the project plans.

6.6.1.a. Peak flows shall be determined using manufacturer recommendations for the pumping equipment used.

6.6.1.b. Head losses due to valves and fittings shall be included in the hydraulic calculations.

6.7. Miscellaneous Requirements.

6.7.1. Manufacturer recommendations shall be followed in the design of pressure collection systems whenever the standards set forth in Section 6 of Part A of this appendix are not applicable.

PART B. SEWAGE TREATMENT WORKS.

1. General Design Standards.

1.1. Design Life. -- Treatment works shall be designed to provide for an estimated population twenty (20) years hence. Except where circumstances preclude the probability of expansion, all treatment works shall be designed so that they can readily be increased in capacity.

1.2. Plant Location.

1.2.1. The site selected for a treatment works shall be as far as practicable from any present built-up area or any area likely to become built-up within a reasonable future period.

1.2.2. A buffer zone as prescribed in Table E of this appendix shall be provided between the treatment works site and any occupied structure.

1.2.3. The direction of prevailing winds shall be considered when selecting the treatment works site.

1.2.4. Treatment units shall either be located at an elevation which is not subject to a 100-year flood or be adequately protected against damage from a 100-year flood. The treatment works shall be designed to remain fully operational during a 25-year flood and be readily accessible in all seasons.

1.2.5. The site selected for a treatment works shall be of sufficient size to accommodate expansion or addition of facilities to increase the degree of treatment.

1.3. New Processes, Methods, and Equipment. -- The Secretary encourages the development of new processes, methods, and equipment for sewage treatment that are not delineated in the standards set forth in Part B of this appendix. Such innovative or alternative technologies shall be approved by the Secretary on a case-by-case basis. If new processes, methods, or equipment are incorporated in the design of a treatment works:

1.3.1. Monitoring observations, including test results and engineering evaluations, demonstrating the efficiency of such processes may be required by the Secretary.

1.3.2. Testing, including a detailed description of the test methods used, under various ranges of strength and flow rates (including daily variations) and waste temperatures over a sufficient length of time to demonstrate performance under climatic and other conditions which may be encountered in the area of the proposed installations may be required by the Secretary. The Secretary may require that appropriate testing be conducted and evaluations made under the supervision of a competent process engineer other than those employed by the manufacturer or developer; and

1.3.3. A performance bond may be required for all new processes or equipment. l.4. Design Considerations.

1.4.1. Industrial Wastes. -- When treating industrial and institutional wastes at a treatment works, consideration shall be given to the character of the wastes in the design of the treatment works. In such cases, treatability studies on the composite wastewater may be required by the Secretary.

1.4.2. Hydraulic Loading. -- Generally, the design of operational units of a treatment works shall be based upon the peak rate of sewage flow over twenty-four (24) hours or by other criteria as approved by the Secretary.

1.4.3. Existing Sewage Systems. -- Where there are existing sewers, the treatment works shall be designed based upon the characteristics, volume, and strength of the present flow of sewage, the additional volume that may result from the estimated increase in the service area population, and the presence of nonexcessive infiltration or inflow. The volume and strength of sewage flow shall be determined from actual flow measurements for both wet and dry weather periods.

1.4.4. New Sewage Systems. -- Where new sewers are to be constructed, the treatment works shall be designed based upon:

1.4.4.a. Estimates from a fully-documented analysis of water use records adjusted for consumption and losses; or

1.4.4.b. An assumed wastewater flow of seventy gallons per capita per day (70 gpcd) for residential customers added to a calculated wastewater flow from all nonresidential customers derived through the use of the values set forth in Table A of this appendix.

1.4.5. Organic Loading. -- The design organic loading of a treatment works shall either be determined by means of laboratory analyses made on flow proportional composite samples taken over twenty-four (24) hour periods for both wet and dry weather periods for existing systems. For new systems an assumed minimum biochemical oxygen demand (BOD) of 0.17 pounds per person per day and an assumed total Kjeldahl nitrogen (TKN) of 0.04 pounds per person per day.

1.4.6. Conduits. -- All piping and channels shall be designed to carry the maximum expected flows. The incoming sewer shall be designed for free discharge. Bottom corners of the channels shall be filleted. Pockets and corners where solids can accumulate shall be eliminated. Suitable gates shall be placed in channels to seal off unused sections which might accumulate solids. The use of shear gates or stop planks is permitted where they can be used in place of gate valves or sluice gates.

1.4.7. Arrangement of Units. -- Component parts of a treatment works shall be arranged for the greatest operating convenience, flexibility, and economy in order to facilitate the installation of future units. Multiple treatment units shall be provided for all treatment works.

1.5. Miscellaneous Requirements.

1.5.1. Provisions for Taking Units Out of Service. -- Appurtenances shall be provided in such a manner that any treatment unit or units may be temporarily taken out of service while the remainder of the treatment works remains operational. In the case of oxidation ditches, this requirement is satisfied if multiple mixing units are provided. Properly located and arranged diversion piping and structures shall be provided so that either dual or multiple units of the treatment works can be removed from service independently for inspection, maintenance, and repairs.

1.5.2. Dewatering. -- Means shall be provided to easily dewater each unit. Consideration shall be given to the possible need for hydrostatic pressure relief devices.

1.5.3. Construction Materials. -- Consideration shall be given to the selection of materials, particularly metals and paints, which are to be used in treatment works in light of the possible presence of hydrogen sulfide, other corrosive gases, greases, oils, and similar constituents in sewage. Dissimilar metals shall be avoided to minimize galvanic action. Cathodic or anodic protection shall be provided for all steel tanks. Concrete and glass-lined steel tanks shall be used wherever possible to ensure a design life of at least twenty (20) years.

1.5.4. Treatment Unit Covers. -- Properly vented covers may be used.

1.5.5. Painting. -- In order to facilitate the identification of piping, different lines should be color-coded. The color scheme presented in Table F of this appendix is recommended for the purposes of standardization; this color scheme shall be used at all treatment works that have a capacity of greater than one hundred thousand gallons per day (100,000 gpd).

1.5.6. Operating Equipment. -- The design specifications for a treatment works shall include a complete outfit of tools and accessories for the operator's use (e.g., rakes, shovels, squeegees, valve keys, wrenches). A portable pump shall be provided. Readily accessible storage space and work bench facilities shall be provided and consideration shall be given to the provision of a garage area which would also provide space for large equipment and maintenance or repair work.

1.5.7. Grading and Landscaping. -- Concrete, asphalt, or gravel walkways shall be provided for access to all units. Where possible, steep slopes shall be avoided to prevent erosion. Surface water shall not be permitted to drain into any unit. Particular care shall be taken to protect sludge beds and intermittent sand filters from surface water. Provisions shall be made for landscaping, particularly when a treatment works must be located near residential areas.

1.6. Plant Outfalls.

1.6.1. Outlet. -- Where practicable, the outfall sewer shall be extended to the low water level of the receiving body of water in such a manner to insure satisfactory dispersion of the effluent. Headwalls may be used where adequate dispersion is obtained without carrying the outfall into the stream. The outlet shall be marked with a permanent sign stating the owner's name, outlet number, and NPDES permit number.

1.6.2. Design and Construction. -- The outfall sewer shall be so constructed and protected against the effects of flood water, ice, or other hazards to reasonably ensure its structural stability and freedom from stoppage.

1.7. Essential Facilities.

1.7.1. Emergency Power.

1.7.1.a. Continuity of Operation. -- All treatment works shall be provided with an alternate source of electric power to allow continuity of operation during power failures. Methods of providing alternate sources include:

1.7.1.a.A. The connection of at least two (2) independent public utility substations. A power line from each substation is required unless documentation is received and approved by the Secretary verifying that a duplicate line is not necessary to minimize water quality violations;

1.7.1.a.B. Portable or in-place internal combustion engine equipment which will generate electrical or mechanical energy; or

1.7.1.a.C. Portable pumping equipment when only emergency pumping is required.

1.7.1.b. Power for Aeration. -- Standby generating capacity normally is not required for aeration equipment used in the activated sludge process; however, in areas where power outages of a duration of four (4) hours or more are common, auxiliary power for minimum aeration of the activated sludge shall be provided. Full power generating capacity may be required by the Secretary on certain critical stream segments.

1.7.1.c. Power for Disinfection. -- Continuous disinfection shall be provided during all power outages.

1.7.2. Electrical Equipment. -- All electrical equipment and electrical conduits shall either be of waterproof design or be located above the 100-year flood elevation. All outdoor equipment shall be adequately protected from the weather. Motors located indoors near liquid handling piping and equipment shall be of splash-proof design. All electrical wires in underground conduits or in conduits that can be flooded shall have water-resistant insulation that conforms to National Electrical Code specifications.

1.7.3. Water Supply.

1.7.3.a. General Requirements. -- An adequate supply of drinking water shall be provided for use in the laboratory of and for general cleanliness around a treatment works. No piping or other connections shall exist in any part of a treatment works which, under any condition, might cause the contamination of a drinking water supply. The chemical quality of the water shall be checked for suitability for the intended use (e.g., in heat exchangers, chlorinators).

1.7.3.b. Direct Connections. -- The drinking water supply line to each treatment works shall be equipped with an approved reduced-pressure type backflow preventer. The backflow preventer shall be installed in such a location as to prevent flooding or corrosion and to allow for adequate, quick service and periodic inspections. Installation in below grade meter type vaults is not an approvable design; however, installation in manholes or concrete valve vaults is acceptable. All water supply take-off points shall follow the backflow preventer. No extension of the water supply line to serve the public shall be allowed. Drinking water from a municipal or separate supply may be used directly at points above grade for lavatory sinks, water closets, laboratory sinks which are equipped with approved vacuum breakers, showers, drinking fountains, eye wash units, outside hydrants, hose bibbs which are equipped with nonremovable vacuum breakers, and chlorinators provided with suitable vacuum breakers or other appropriately installed approved backflow preventers. Hot water for any of the above units shall not be taken directly from a boiler used for supplying hot water to a sludge heat exchanger or digester heating coils.

1.7.3.c. Indirect Connections. -- Where a potable water supply is to be used at a treatment works for any purpose not enumerated in subparagraph 1.7.3.b of Part B of this appendix, a break tank, pressure pump, and pressure tank shall be provided. Water shall be discharged to the break tank through an air gap that is at least six inches (6") above the maximum flood line or the spill line of the tank, whichever is higher. A sign shall be permanently posted at every hose bibb, faucet, or stop cock located on the water system beyond the break tank to indicate that the water is not safe to drink.

1.7.3.d. Separate Drinking Water Supply. -- Where it is not possible to provide drinking water from a public water supply to a treatment works, a separate well may be provided upon approval from the Secretary Such a well shall be constructed in conformance with the provisions of 64 C.S.R. 19 and the requirements set forth in Paragraphs 1.7.3.b and 1.7.3.c of Part B of this appendix shall govern the use of its water.

1.7.3.e. Separate Nonpotable Water Supply. -- Where a separate nonpotable water supply is to be provided at a treatment works, a permanent sign shall be posted at every hose bibb, stop cock, or other water outlet to indicate that the water is not safe to drink. All nonpotable water supplies must be disinfected prior to use.

1.7.4. Sanitary Facilities. -- A treatment works equipped with laboratory facilities shall be provided with shower, toilet, lavatory, and locker facilities.

1.7.5. Sewage Flow Measurement. -- All treatment works shall be provided with facilities for measuring the volume of sewage flows. All treatment works that have a capacity of greater than one hundred thousand gallons per day (100,000 gpd) shall be equipped with indicating, recording, and totalizing equipment for effluent flow measurement.

1.7.6. Floor Slope. -- Floor surfaces shall be sloped to a point of drainage.

1.7.7. Stairways. -- Stairways shall be installed with a slope of thirty to forty degrees (30º to 40º) from the horizontal to facilitate the carrying of samples or tools. All stairways shall be provided with handrails. All risers in a stairway shall be of equal height.

1.8. Safety Requirements.

1.8.1. All treatment works shall comply with the provisions of the federal Occupational Safety and Health Act.

1.8.2. All treatment works shall be enclosed by a chain link fence at least six feet (6') high with a locked entrance gate designed to discourage the entrance of animals or unauthorized persons.

1.8.3. All treatment works shall be provided with handrails, grating, and guardrail wherever necessary (e.g., open basins, screen channels, around mechanical equipment). All safety devices shall be made of a noncorroding material such as aluminum or fiberglass; painted steel is not acceptable. Manhole steps shall have slip-proof rungs. Grating shall be provided for extended aeration units that have a capacity of fifty thousand gallons per day (50,000 gpd) or less.

1.8.4. All electrical wiring at a treatment works shall be properly grounded and insulated. No part of the treatment works piping may be used for grounding.

1.8.5. "No Smoking" signs shall be posted in all locations where flammable materials or gases may be present. Explosion-proof electrical equipment and nonsparking tools shall be provided in work areas where hazardous conditions may exist, such as digester vaults and other locations where potentially explosive atmospheres of flammable gas or vapor accumulate. Separate storage located remotely from the treatment works shall be provided for flammable and hazardous materials. Heating devices with open flames shall be located at or above grade in separate rooms with outside entrances.

1.8.6. Adequate ventilation shall be provided in all facilities at a treatment works. Special safety precautions shall be installed for gas collection piping. Chlorinator rooms and chemical storage areas shall be equipped with heat, lighting, and a ventilation fan, all of which can be turned on from outside of the room. Chlorinator rooms and chemical storage areas shall be located at or above grade and shall have an accessible viewing window. All other chemicals shall be stored in accordance with their MSDS sheets.

1.8.7. All treatment works shall be provided with:

1.8.7.a. Protective clothing and equipment such as self-contained breathing apparatus, gloves, hard hats, and rubber boots;

1.8.7.b. Appropriate first-aid equipment;

1.8.7.c. Portable lighting equipment;

1.8.7.d. A portable, gasoline-powered suction and discharge blower;

1.8.7.e. A portable, gasoline-powered trash pump;

1.8.7.f. Sufficient hose to pump between manholes or treatment units; and

1.8.7.g. A tripod, hoist, and body harness for accessing manholes.

1.9. Laboratory Space.

1.9.1. All treatment works shall have facilities, either on-site or on a contractual basis, for making all necessary analytical determinations and operating control tests. Whenever an on-site laboratory is utilized, isolation shall be such as to render the laboratory reasonably free from the adverse effects of dust, heat, noise, and vibration.

1.10. Laboratory Equipment.

1.10.1. All activated sludge treatment works shall be equipped with: l.10.l.a. A comparator type kit for pH and chlorine residual testing (if chlorine disinfection is utilized); l.10.l.b. Three (3) one-liter graduated beakers with stirring paddle and timer; l.10.l.c. A Secchi disk;

1.10.1.d. A squeegee with a handle of suitable length, a five (5) quart bucket, and rubber gloves.

1.10.1.e. A clinical centrifuge with swing-out head, six (6) centrifuge tubes, 12.5 ml, graduated 0-100%;

1.10.1.f. A dissolved oxygen meter with adequate line to reach aeration basin bottom using a weighted mixing probe; and

1.10.1.g. A core sampler.

1.10.2. All other treatment works shall be equipped with laboratory equipment suitable for performing all necessary tests associated with the type and complexity of the treatment processes. Lists of laboratory equipment for on-site facilities shall be compiled from the most current EPA approved edition of "Standard Methods for the Examination of Water and Wastewater," American Public Health Association, Washington, District of Columbia.

1.11. Testing and Start-Up. -- All new or rebuilt basins, mechanical equipment, piping, and similar units shall be tested and then brought on-line using clean water; testing or start-up using untreated or partially-treated sewage is prohibited.

2. Screening Devices and Comminutors.

2.1. Screens.

2.1.1. Type. -- Screening shall be provided at all treatment works.

2.1.2. Location.

2.1.2.a. Indoor Screens. -- Screening devices installed in a building where offices are located shall be accessible only through a separate outside entrance and shall provide protection against freezing.

2.1.2.b. Outdoor Screens. -- Screening devices installed outside shall be protected from freezing.

2.1.2.c. Access to Screens. -- Screening areas shall be provided with stairway access, lighting, ventilation, and a convenient means for removing the screenings.

2.1.3. Design and Installation.

2.1.3.a. Bar Spacing. -- Clear openings between bars for secondary screens shall be no larger than one-half inch (1/2"). Clear openings for mechanically-cleaned screens shall be no larger than one-quarter inch (1/4").

2.1.3.b. Channels. -- Treatment works that have mechanical screens shall be provided with dual channels and equipped with the necessary gates to isolate flow from any screening unit. Provisions shall be made to facilitate the dewatering of each channel. The channel preceding and following the screen shall be shaped to eliminate stranding and settling of solids. Channels shall be three to six inches (3" to 6") below the invert of the incoming sewer.

2.1.3.c. Slope. -- Manually-cleaned screens, except those for emergency use, shall be placed on a slope of thirty to forty-five degrees (30º to 45º) from the horizontal.

2.1.3.d. Velocities. -- At normal operating flow conditions, approach velocities shall be no less than one and one-quarter feet per second (1.25 fps), to prevent settling, and no greater than three feet per second (3.0 fps) through the bar screen, to prevent forcing material through the openings.

2.1.3.e. Mechanical Devices. -- A positive means of locking-out each mechanical device shall be provided.

2.1.3.f. Backwater Effect on Flow Metering.-- The effect of changes in backwater elevation due to intermittent cleaning of screens shall be considered in locating flow measurement equipment.

2.1.4. Control Systems.

2.1.4.a. Timing Devices. -- All mechanical units without timing devices shall be run continuously. All mechanical units which are operated by timing devices shall be provided with auxiliary controls that will set the cleaning mechanism in operation at predetermined high water elevations.

2.1.4.b. Electrical Controls. -- Electrical fixtures and controls in screening areas where explosive gases may accumulate shall meet the requirements of the National Electrical Code for Class 1, Group D, Division 1 locations.

2.1.4.c. Manual Override. -- Automatic controls shall be supplemented by a manual override.

2.1.5. Auxiliary Screens. -- Where mechanically-operated screening devices are used, auxiliary manually-cleaned screens shall be provided. The treatment works design shall provide for the automatic diversion of the entire sewage flow through the auxiliary screens should the regular units fail. Provisions shall be made to pass the peak flow should the manually-cleaned screens become plugged.

2.1.6. Fine Screens. -- The use of fine screens in lieu of sedimentation is not an approvable design except in special cases where it can be demonstrated that the features peculiar to fine screens may be advantageous.

2.1.7. Disposal of Screenings. -- Facilities shall be provided for the removal, handling, storage, and disposal of screenings in a sanitary manner. Manually-cleaned screening facilities shall include an accessible platform from which the operator may rake screenings easily and safely. Suitable drainage shall be provided both for the platform and for storage areas. Screenings shall be disposed in a manner approved by the Secretary. Grinding of screenings and return to the sewage flow is prohibited. Open area disposal is prohibited.

2.2. Comminutors.

2.2.1. The use of comminutors is not an approvable design.

3. Grit Removal.

3.1. Necessity. -- Grit removal facilities shall be provided for all treatment works serving combined sewer systems and for all treatment works that have anaerobic digesters. Where a new collection system will serve a treatment works that has a capacity of greater than one hundred thousand gallons per day (100,000 gpd), provisions shall be made for the installation of grit removal facilities. Grit removal facilities may be required by the Secretary for new treatment works served by existing or new collection systems.

3.2. Location. -- Screens shall be placed ahead of mechanically-cleaned grit removal facilities.

3.3. Type and Number of Units. -- Grit removal facilities for treatment works serving combined sewer systems shall have at least two (2) manually-cleaned units or one (1) mechanically-cleaned unit and a bypass channel. Grit removal facilities other than channel types are desirable for treatment works that have a capacity of greater than one hundred thousand gallons per day (100,000 gpd); if utilized, such facilities shall be provided with grit removal equipment and flexible controls for agitation or mixing (e.g., aerators, paddles, or pumps).

3.4. Velocity-Controlled Grit Removal.

3.4.1. Inlets. -- Inlet turbulence shall be minimized.

3.4.2. Velocity and Detention. -- Channel type chambers shall be designed to provide a velocity of one foot per second (1.0 fps). The detention time shall be based upon the size of particles (usually 0.21 mm) to be removed. The design shall take into consideration undesirable turbulence and velocities at inlets and outlets. Channels shall be trapezoidal and controlled by a Parshall flume or other suitable control device.

3.4.3. Grit Washing. -- Grit washing shall be considered to control odors, insects and rodents for all mechanical grit removal installations.

3.4.4. Drains. -- Provisions shall be made for the dewatering of each unit.

3.4.5. Water. -- An adequate supply of water under pressure shall be provided for cleanup.

3.4.6. Deep Pits. -- Grit removal facilities located in deep pits shall be provided with mechanical equipment for pumping or hoisting grit to ground level. Such pits shall have a stairway, an elevator or manlift, lighting, ventilation, and a means of drainage.

3.5. Aerated Grit Removal.

3.5.1. Air Diffusers. -- Air diffusers shall be located on one side of the tank and two to three feet (2' to 3') above the tank bottom.

3.5.2. Air Supply Rate. -- Air supply rate shall be 3-8 scfm per foot of channel length.

3.5.3. Inlet and Outlet. -- Aerated grit chambers shall be designed to prevent short-circuiting at the inlet and outlet. The inlet to the chamber shall introduce the wastewater directly into the circulation pattern caused by the air diffusers. The outlet shall be at a right angle to the inlet. A baffle shall be installed near the outlet.

3.5.4. Mechanical Equipment. -- Aerated grit chambers shall be provided with mechanical grit removal equipment.

3.6. Vortex-Type Grit Chambers. -- Devices using a vortex flow pattern are approvable. Units of this type shall provide means of grit removal from the hopper.

3.7. Storage of Grit Waste. -- Grit waste shall be stored in an area that is drained and vented.

4. Pre-Aeration.

4.1. The pre-aeration of sewage or other means of septicity reduction may be required by the Secretary on a case-by-case basis.

5. Flow Equalization.

5.1. Necessity. -- Flow equalization shall be provided where large daily variations in organic or hydraulic loadings are expected.

5.2. Type. -- Flow equalization shall be provided either by using separate basins or on-line treatment units such as aeration tanks. Equalization basins may be designed as either in-line or side-line units.

5.3. Design Standards.

5.3.1. Mixing. -- Mixing requirements for normal raw domestic wastewaters shall range from two-hundredths to four-hundredths (0.02 to 0.04) horsepower per one thousand (l,000) gallons of maximum storage volume.

5.3.2. Aeration. -- A minimum of one milligram per liter (1.0 mg/l) of dissolved oxygen shall be maintained in the mixing basin at all times. The air supply rate shall be a minimum of one and one-quarter (1.25) cubic feet per minute per one thousand (1,000) gallons of storage capacity.

5.3.3. Storage. -- Sufficient storage shall be provided to allow those sections of the treatment works which follow the storage to operate at or below their rated design capacity.

5.3.4. Detention/Equalization. -- Basins designed for a combination of storage of wet weather flows and equalization shall be compartmentalized to allow utilization of a portion of the basins for dry weather flow equalization.

5.3.5. Flow Discharge Control. -- Multiple pumping units capable of delivering the desired flow rate from the equalization basin with the largest pumping unit out of service shall be provided.

5.3.6. Aeration Support. -- When floating surface aerators are provided, provisions shall be made to protect the units when the tank is dewatered.

5.3.7. Basin Cleaning. -- Facilities shall be provided to flush solids and grease accumulations from the basin walls.

6. Settling Tanks.

6.1. Inlets. -- Inlets shall be designed to dissipate the inlet velocity, to distribute the flow equally, and to prevent short-circuiting. Channels shall be designed to maintain a velocity of at least one foot per second (1.0 fps) at one-half (1/2) design flow. Corner pockets and dead ends shall be eliminated and corner fillets or channeling used where necessary. Provisions shall be made for elimination or removal of floating materials in inlet structures having submerged ports.

6.2. Dimensions. -- The minimum length of flow from inlet to outlet shall be ten feet (10') unless special provisions are made to prevent short-circuiting. The liquid depth of mechanically cleaned settling tanks shall be as shallow as practicable but not less than seven feet (7'). Side water depth for final clarifiers for activated sludge shall be not less than twelve feet (12') for treatment works that have a capacity of greater than one hundred thousand gallons per day (100,000 gpd).

6.3. Scum Removal. -- Effective scum collection and removal facilities, including baffling, shall be provided ahead of the outlet weirs on all settling tanks. Provisions may be made for discharge of scum with the sludge; other provisions may be necessary to dispose of floating materials which may adversely affect sludge handling and disposal.

6.4. Weirs.

6.4.1. Overflow weirs shall be adjustable.

6.4.2. Weir loadings shall not exceed twenty thousand (20,000) gallons per day per linear foot at peak hourly flow for treatment works that are designed for average flows of one million gallons per day (1.0 mgd) or less.

6.4.3. Weir loadings shall not exceed thirty thousand (30,000) gallons per day per linear foot at peak hourly flow for treatment works that are designed for average flows in excess of one million gallons per day (l.0 mgd).

6.4.4. If pumping is required, the pump capacity shall be related to the tank design in order to avoid excessive weir loading.

6.5. Submerged Surfaces. -- The tops of beams and similar construction features which are submerged shall have a minimum slope of one and four-tenths vertical to one horizontal (1.4:1). The underside of such features shall have a slope of one vertical to one horizontal (1:1) to prevent the accumulation of scum or solids.

6.6. Multiple Units. -- Multiple units capable of independent operation shall be provided at all treatment works.

6.7. Protective and Servicing Facilities. -- All settling tanks shall be designed for easy access for maintenance; stairways, walkways, and handrails shall be provided for access and safety purposes. If side walls are extended for some distance above the liquid level to provide flood protection or for other purposes, walkways shall be provided to facilitate housekeeping and maintenance of weirs.

6.8. Surface Settling Rates.

6.8.1. Primary Settling Tanks. -- Surface settling rates for primary tanks shall not exceed one thousand (1,000) gallons per day per square foot at design average flow or one thousand five hundred (1,500) gallons per square foot for peak hourly flows, whichever is larger, for treatment works that have a design flow of one million gallons per day (1.0 mgd) or less. Higher surface settling rates may be approved by the Secretary for larger treatment works.

6.8.2. Intermediate Settling Tanks. -- Surface settling rates for intermediate settling tanks, where used following fixed film reactors, shall not exceed one thousand five hundred (1,500) gallons per square foot based upon design peak hourly flow.

6.8.3. Fixed Film Biological Reactors. -- Surface settling rates for settling tanks following trickling filters or rotating biological contactors shall not exceed one thousand two hundred (1,200) gallons per square foot based upon peak hourly flow.

6.8.4. Activated Sludge.

6.8.4.a. The hydraulic design of intermediate and final settling tanks following the activated sludge process shall be based upon the anticipated peak hourly flow for the area downstream of the inlet baffle.

6.8.4.b. Hydraulic loading shall not exceed one thousand two hundred (1,200) gallons per square foot per day for conventional processes, step aeration, contact stabilization, and the carbonaceous stage of the second-stage nitrification process. Hydraulic loading shall not exceed one thousand (1,000) gallons per square foot per day for extended aeration. Hydraulic loading shall not exceed eight hundred (800) gallons per square foot per day following the second-stage nitrification process.

6.8.4.c. The solids loading for all activated sludge processes shall not exceed fifty (50) pounds of solids per square foot per day at peak flow rate.

6.9. Freeboard. -- Settling tanks walls shall extend at least six inches (6") above the surrounding ground surface and shall provide not less than twelve inches (12") of freeboard. Extra freeboard or the use of wind screens is recommended where larger settling tanks are subject to high velocity winds that may cause tank surface waves and inhibit effective scum removal.

6.10. Sludge Removal. -- Provisions shall be made to permit continuous sludge removal from settling tanks. Final clarifiers at activated sludge treatment works that have a capacity of greater than two hundred fifty thousand gallons per day (250,000 gpd) shall be provided with positive scraping devices. Each sludge withdrawal line shall be at least four inches (4") in diameter, if pumped, and at least six inches (6") in diameter, if gravity flow. Each sludge withdrawal line shall be individually valved. Air lift methods of sludge removal shall utilize piping that is sized appropriately for the design withdrawal rate. At least thirty inches (30") of head shall be available for the withdrawal of sludge by gravity. Provisions shall be made for rodding or backflushing individual pipe runs.

6.11. Sludge Hopper. -- The minimum slope of the side walls of a sludge hopper shall be one and seven-tenths vertical to one horizontal (1.7:1). Hopper wall surfaces shall be smooth and have rounded corners to aid in sludge removal. Hopper bottoms shall have a maximum dimension of two feet (2') in either direction.

7. Activated Sludge.

7.1. Settling Tanks. -- Activated sludge treatment works shall conform to the settling tank requirements set forth in Section 6 of Part B of this appendix.

7.2. Bypass. -- When a primary settling tank is used at an activated sludge treatment works, provisions shall be made for discharging raw sewage directly to the aeration tanks in order to facilitate both start-up and operation during the initial stages of the treatment works design life.

7.3. Aeration.

7.3.1. Aeration Tanks.

7.3.1.a. Tank Capacities. -- Multiple aeration tanks capable of independent operation shall be utilized at all activated sludge treatment works. Aeration tank size for any particular adaptation of the activated sludge process shall be based upon such factors as the size of the treatment works, degree of treatment desired, sludge age, mixed liquor suspended solids concentration, biochemical oxygen demand loading, and food to microorganism (F/M) ratio. Calculations related to these factors shall be submitted to the Secretary with the project plans in order to justify the tank size selected. The aeration tank capacities and permissible loadings set forth in Table G of this appendix shall be used in making these calculations.

7.3.1.b. Arrangement of Tanks. -- The dimensions of each independent mixed liquor aeration tank shall be such as to maintain effective mixing and utilization of air. Liquid depths shall not be less than ten feet (10') for activated sludge treatment works that have a capacity of greater than one hundred thousand gallons per day (100,000 gpd). For a very small tank or a tank with special configurations, the shape of the tank and the installation of aeration equipment shall assure the elimination of short-circuiting through the tank.

7.3.2. Inlets and Outlets. -- Inlets and outlets for each aeration tank unit shall be appropriately equipped with valves, gates, stop plates, weirs, or other devices to permit control of the flow and to maintain a reasonably constant liquid level. The hydraulic properties of the system shall permit the maximum instantaneous hydraulic load to be carried with any single aeration tank unit out of service.

7.3.3. Conduits. -- Channels and pipes carrying liquids with solids in suspension shall either be designed to maintain self-cleaning velocities or be agitated to keep such solids in suspension at all rates of flow within the design limits.

7.3.4. Measuring Devices. -- All activated sludge treatment works shall have devices installed for indicating flow rates of air, influent sewage, and return sludge to each aeration tank. For activated sludge treatment works that have a capacity of greater than one million gallons per day (1.0 mgd), devices shall be installed for totalizing, indicating, and recording influent sewage and returned sludge to each aeration tank. Where the design of an activated sludge treatment works provides for all returned sludge to be mixed with the raw sewage or primary effluent at one location, the mixed liquor flow rate to each aeration unit shall be measured.

7.3.5. Freeboard and Foam Control. -- Aeration tanks shall have a freeboard of at least eighteen inches (18"). Foam control devices shall be provided for aeration tanks at all activated sludge treatment works that have a capacity of greater than ten thousand gallons per day (10,000 gpd). Provisions shall be made for draining spray lines to prevent damage by freezing.

7.3.6. Scum Control. -- All treatment works that have a capacity of greater than one hundred thousand gallons per day (100,000 gpd) shall be provided with a high water level takeoff for withdrawing floating material where subsurface diffusers are used.

7.3.7. Controls. -- All treatment works that have a capacity of greater than one hundred thousand gallons per day (100,000 gpd) shall be provided with inlets and outlets for all basin compartments that are suitably equipped with accessible external valves, stop plates, weirs, or other devices to permit flow control, level control, and the removal of an individual unit from service.

7.4. Aeration Equipment.

7.4.1. Oxygen Requirements.

7.4.1.a. Aeration equipment shall be designed to supply sufficient oxygen to maintain a minimum dissolved oxygen concentration of two milligrams per liter (2.0 mg/l) throughout the mixed liquor at all times.

7.4.1.b. Aeration equipment shall be capable of transferring one and one-tenth (1.1) pounds of oxygen per pound of peak biochemical oxygen demand applied to the aeration tank.

7.4.1.c. Aeration equipment for the extended aeration process shall be capable of transferring one and one-half (1.5) pounds of oxygen per pound of peak biochemical oxygen demand applied to the aeration tank.

7.4.1.d. Aeration equipment for carbonaceous biochemical oxygen demand removal in the nitrification process shall be capable of meeting the oxygen requirements set forth in subparagraph 7.4.1.b of Part B of this appendix plus the oxygen requirements for oxidizing ammonia. In calculating this additional oxygen demand, the nitrogenous oxygen demand shall be assumed to be four and six-tenths (4.6) times the daily peak total Kjeldahl nitrogen (TKN) content of the influent. Oxygen demands due to recycle flows (e.g., heat treatment supernatant, vacuum filtrate, elutriates) shall also be considered.

7.4.1.e. Oxygen requirement calculations shall be submitted to the Secretary with the project plans in order to justify the aeration equipment selected.

7.4.2. Controls. -- Variable air controls to aeration tanks shall be provided. Time clocks, variable speed devices, or variable depth weirs for rotor aerators may be used. A twenty-four (24) hour time clock graduated in fifteen (15) minute intervals shall be provided at activated sludge treatment works that utilize extended aeration.

7.4.3. Diffused Air Systems.

7.4.3.a. The aeration equipment for diffused air systems shall be designed to meet the requirements set forth in Table H of this appendix.

7.4.3.b. The specified capacity of blowers or air compressors, particularly centrifugal blowers, shall take into account that the air intake temperature may reach forty six degrees centigrade (46 º C) or higher and the pressure will be less than atmospheric.

7.4.3.c. Blowers shall be provided in multiple units. The blowers shall be so arranged and in such capacities as to meet the maximum air demand with the largest single unit out of service. Provisions shall be made for varying the volume of air delivered in proportion to the load demand of the treatment works.

7.4.3.d. Diffusers shall be spaced in accordance with the oxygenation requirements through the length of the channel or tank and shall be designed to facilitate adjustments of their spacing without a major revision to air header piping. The arrangement of diffusers shall permit their removal for inspection maintenance and replacement without dewatering the tank and without shutting off the air supply to other diffusers in the tank, if dual basins are not provided.

7.4.3.e. Individual assembly units of diffusers shall be equipped with control valves, preferably with indicator markings for throttling or for complete shutoff. Diffusers in any single assembly shall have substantially uniform pressure loss.

7.4.3.f. Air filters shall be provided to prevent clogging of the diffuser system and to protect the blowers.

7.4.4. Mechanical Aeration Systems.

7.4.4.a. The mechanism and drive unit of a mechanical aeration system shall be designed for the expected conditions in the aeration tank in terms of power performance. Certified testing shall verify mechanical aerator performance. In the absence of specific design information, oxygen requirements shall be calculated using a transfer rate not to exceed two pounds (2 lbs.) of oxygen per horsepower per hour.

7.4.4.b. A mechanical aeration system shall be designed to maintain all biological solids in suspension, meet the maximum oxygen demand and maintain process performance with the largest single unit out of service, and provide for varying the amount of oxygen transferred in proportion to the load demand on the treatment works. Where a single unit installation is proposed, a spare aeration mechanism shall be provided.

7.5. Return Sludge Equipment.

7.5.1. Return Sludge Rate. -- The rate of sludge return expressed as a percentage of the average design flow of sewage shall generally be variable between the limits set forth in Table I of this appendix.

7.5.2. Return Sludge Pumps. -- If motor-driven return sludge pumps are used, the maximum return sludge capacity shall be obtained with the largest pump out of service. A positive head shall be provided on pump suctions. Pumps shall have at least three inch (3") suction and discharge openings. If air lifts are used for returning sludge from each settling tank hopper, a standby unit need not be provided if the design of the air lifts facilitates rapid, easy cleaning and removal and other standby measures are provided. Air lifts shall be at least two and one-half inches (2½”) in diameter.

7.5.3. Return Sludge Piping. -- Discharge piping shall be at least three inches (3") in diameter and shall be designed to maintain a velocity of not less than two feet per second (2.0 fps) when return sludge facilities are operating at normal return sludge rates.

7.5.4. Waste Sludge Facilities. -- Waste sludge control facilities should have a capacity of at least twenty-five percent (25%) of the design average rate of wastewater flow and function satisfactorily at rates of five-tenths percent (0.5%) percent of design average wastewater flow or a minimum of ten gallons per minute (10 gpm), whichever is larger. Means for observing, measuring, sampling, and controlling waste activated sludge flow shall be provided. Waste sludge may be discharged to the concentration or thickening tank, primary settling tank, sludge digestion tank, vacuum filters, or any practical combination of these units.

7.6. Sequential Batch Reactor and Intermittent Wastewater Treatment Systems.

7.6.1. Batch reactor and intermittent treatment technologies shall utilize an alternating two-tank system.

7.6.2. Blowers shall be provided in multiple units for treatment works that have a capacity of greater than twenty thousand gallons per day (20,000 gpd). The blowers shall be so arranged and in such capacities as to meet the maximum air demand with the largest single unit out of service.

7.6.3. Individual assembly units of diffusers shall be equipped with control valves, preferably with indicator markings for throttling or for complete shutoff.

7.6.4. Five-day biochemical oxygen demand loading and aeration requirements shall be no less than the requirements specified by the manufacturer for each particular proprietary sequencing batch reactor (SBR) process. Written concurrence with the proposed design and specifications for a particular installation shall be obtained from the manufacturer of a proprietary system or technology and provided with the project plans.

7.6.5. Each unit shall be capable of independent operation during low, average, peak, and storm flows.

7.6.6. Provisions shall be made to insure that decant or discharge valves cannot in any way be in an open position during any phase of operation except at the end of the "settle" or the "idle" phase or period.

7.6.7. Each unit shall have a means of excluding scum and other floatables from entering the decanter.

7.6.8. The design of downstream piping and treatment units shall be based on the decanter maximum flow rate, not the design flow of the treatment works unless flow equalization of the decanted effluent is provided.

8. Trickling Filters. -- Not an acceptable design unless specifically approved by the Secretary.

8.1. Loadings. -- Trickling filters shall be designed to provide the necessary reduction in carbonaceous and nitrogenous oxygen demand and to properly condition the sewage for subsequent treatment processes. The hydraulic loading on standard rate trickling filters shall be between two million and four million (from 2,000,000 to 4,000,000) gallons per acre per day with an organic loading equal to or less than four hundred (400) pounds of biochemical oxygen demand per acre foot per day.

8.2. Dosing Equipment.

8.2.1. Distribution. -- Sewage shall be distributed over the filter by rotary distributors or other suitable devices which will permit reasonably uniform distribution to the surface area. At design average flow, the deviation from a calculated uniformly distributed volume per square foot of the filter surface shall not exceed plus or minus ten percent (+/-10%) at any point.

8.2.2. Dosing. -- Sewage shall be applied to the filter by siphons, pumps, or gravity discharge preceding treatment units when suitable flow characteristics have been developed. Application of sewage shall be practically continuous. Consideration shall be give to a piping system which will permit recirculation.

8.2.3. Hydraulics. -- All hydraulic factors involving proper distribution of sewage on the filters shall be carefully calculated. For reaction-type distributors, a minimum head of twenty-five inches (25") between the low water level in the siphon chamber and the center of the arms shall be provided. Surge relief, to prevent damage to distributor seals, shall be provided where sewage is pumped directly to the distributors.

8.2.4. Clearance. -- A minimum clearance of six inches (6") between the media and the distributor arms shall be provided. Greater clearance shall be provided in locales where icing occurs.

8.3. Filter Media.

8.3.1. Quality. -- The filter media shall be crushed rock, slag, field stone, or a specially manufactured material. The media shall be durable, resistant to spalling or flaking, and relatively insoluble in sewage. The top eighteen inches (18") of the media shall have a loss by the twenty-cycle sodium sulfate soundness test of not more than ten percent (10%), as prescribed by the American Society of Civil Engineers (ASCE) in its "Manual of Engineering Practice No. 13, Filtering Materials for Sewage Treatment Plants." The balance of the media shall pass a ten-cycle test using the same criteria. Slag media shall be free from iron. Manufactured media shall be structurally stable and chemically and biologically inert.

8.3.2. Depth.

8.3.2.a. Rock, Slag, Field Stone, or Similar Media. -- Rock, slag, or field stone filter media shall have a minimum depth of five feet (5') above the underdrains and a maximum depth of ten feet (10').

8.3.2.b. Manufactured Media. -- Manufactured filter media shall have a minimum depth of ten feet (10') to provide adequate contact time with the wastewater and a maximum depth of thirty feet (30').

8.3.3. Size and Grading.

8.3.3.a. Rock, Slag, and Similar Media. -- Rock, slag, and similar media shall not contain more than five percent (5%) by weight of pieces whose longest dimension is three (3) times its shortest dimension. Such media shall be free of thin and elongated flat pieces, clay, dust, sand, or other fine material. Rock, slag, and similar media shall conform to the standards set forth in Table J of this appendix when mechanically graded over vibrating screens with square openings.

8.3.3.b. Hand-Picked Field Stone. -- Field stone used as filter media shall be selected by hand and have maximum dimensions of five inches (5") and minimum dimensions of three inches (3").

8.3.3.c. Manufactured Media. -- The use of manufactured media is acceptable.

8.3.4. Handling and Placing of Media. -- Media material delivered to the filter site shall be stored on wood planks or other clean, hard-surfaced areas. All media material shall be rehandled at the filter site and no material shall be dumped into the filter. Crushed rock, slag, and similar media shall be rescreened or forked at the filter site to remove all fines. The media material shall be placed by hand to a depth of twelve inches (12") above the tile so as not to damage the underdrains. The remainder of the material may be placed by machine. Manufactured media shall be handled and placed as approved by the engineer. Trucks, tractors, or other heavy equipment shall not be driven over the filter during or after construction.

8.4. Underdrainage System.

8.4.1. Arrangement. -- Underdrains with semicircular inverts shall be provided and the underdrainage system shall cover the entire floor of the filter. Inlet openings into the underdrains shall have an unsubmerged gross combined area equal to at least fifteen percent (15%) of surface area of the filter.

8.4.2. Slope. -- The underdrains shall have a minimum slope of one percent (1%). Effluent channels shall be designed to produce a minimum velocity of two feet per second (2.0 fps) at the average daily rate of application to the filter.

8.4.3. Flushing. -- Provisions shall be made for flushing the underdrains. The use of a peripheral head channel with vertical vents is acceptable for flushing purposes. Inspection facilities shall be provided.

8.4.4. Ventilation. -- The underdrainage system, effluent channels, and effluent pipe shall be designed to permit the free passage of air. The size of drains, channels, and pipe shall be such that not more than fifty percent (50%) of their cross-sectional area will be submerged under the design hydraulic loading. Provisions shall be made in the design of the effluent channels to allow the possibility of increased hydraulic loading.

8.5. Special Features.

8.5.1. Flooding. -- Provisions shall be made in the design of filter structures so that they may be flooded.

8.5.2. Maintenance. -- All distribution devices, underdrains, channels, and pipes shall be installed so that they can be properly maintained, flushed, or drained.

8.5.3. Freeboard. -- A minimum freeboard of four feet (4') shall be provided for tall, manufactured media filters in order to minimize windblown spray.

8.5.4. Flow Measurement. -- Devices shall be provided to permit the measurement of all flows to the filter, including recirculated flows.

8.6. Recirculation. -- Consideration shall be given to the merits of recirculation for various purposes (e.g, to prevent drying of a standard rate filter between dosings).

8.7. Two-Stage Filters. -- Consideration shall be given to the use of two-stage filters where single-stage filters may not accomplish the required removals.

8.8. Efficiencies. -- Expected filter efficiencies shall be calculated and documented in the project plans. Consideration shall be given to the effect of climatic conditions upon the overall filter performance.

8.9. Rotary Distributor Seals. -- The use of mercury seals is not an approvable design. Ease of seal replacement shall be considered in the filter design.

9. Sewage Stabilization Ponds. -- Not an acceptable design unless specifically approved by the Secretary.

9.1. Location.

9.1.1. Distance Requirements. -- Stabilization ponds shall be located a minimum distance of three hundred feet (300') from the nearest occupied structure.

9.1.2. Wind Sweep. -- Stabilization ponds shall be located in such a manner as to foster an unobstructed wind sweep across the ponds.

9.1.3. Water Supply. -- Stabilization ponds shall be located a minimum distance of three hundred feet (300') from public water supply wells or springs; this minimum distance shall be increased to six hundred feet (600') if the well or spring is down gradient from the pond or lower in elevation than the bottom of the pond.

9.2. Geology and Soils. -- Borings shall be made to determine surface and subsurface characteristics of the pond site. A soil report for the site shall be obtained from the Natural Resource Conservation Service of the U.S. Department of Agriculture.

9.3. Pond Shape. -- Stabilization ponds shall have a uniform perimeter, rounded corners, and no coves, islands, or peninsulas. The shape of stabilization ponds should be either round, square, or rectangular with the length not exceeding three (3) times the width.

9.4. Pond Design. -- Must be in accordance with the latest edition of EPA’s pond design manual.

9.4.1. Loading. -- Stabilization ponds shall be designed to handle an assumed loading of thirty-four (34) pounds of five day biochemical oxygen demand per surface acre per day.

9.4.2. Ponds in Series. -- If one (1) or more ponds are added in series with the primary pond, the primary pond shall be designed to handle the loading set forth in paragraph 9.4.1 of Part B of this appendix.

9.4.3. Pretreatment. -- Where stabilization ponds follow some type of conventional treatment facility, a reduction of the loading set forth in paragraph 9.4.1 of Part B of this appendix may be approved by the Secretary on a case-by-case basis. All ponds shall be preceded by a bar screen that conforms to the requirements set forth in Section 2 of Part B of this appendix.

9.4.4. Pond Depth. -- The liquid depth of stabilization ponds shall be no less than three and one-half feet (3 1/2') and no greater than five feet (5'). A minimum freeboard of three feet (3') shall be provided.

9.5. Influent Lines.

9.5.1. Location of Discharge. -- Influent lines shall discharge at a point that will prevent short circuiting of the pond. Ponds following the primary pond or secondary treatment facilities in multiple unit systems shall be edge-discharging.

9.5.2. Gravity Lines. -- Influent lines from a gravity collection system shall discharge at a point that is twelve to eighteen inches (12" to 18") above the pond surface.

9.5.3. Pressure Lines. -- Influent lines from a pressure collection system shall discharge either above the pond surface or at a point that is one foot (1') above the pond bottom. When discharging below the pond surface, the end of the pressure line shall rest upon a concrete apron that has an area of at least two (2) square feet.

9.5.4. Pipe Support. -- Influent lines shall be supported on piers or other open structures. The use of dikes for pipe support is not an approvable design.

9.6. Pond Details.

9.6.1. Embankments. -- Embankments shall be constructed of compacted impervious materials with a minimum top width of eight feet (8'). All vegetation shall be removed from the area upon which the embankment is to be placed. Dike walls exposed to wave action shall be provided with suitable protection such as riprap. The slopes of the embankment shall not be steeper than one vertical to two horizontal (1:2) or flatter than one vertical to four horizontal (1:4).

9.6.2. Pond Bottoms. -- Pond bottoms shall be level and cleared of all vegetation and debris.

9.6.3. Water tightness. -- Ponds shall be made watertight through the use of a liner of man-made materials. A synthetic liner shall be of the thickness and construction recommended by its manufacturer.

9.7. Effluent Lines.

9.7.1. Location of Discharge. -- Effluent lines shall be placed at the farthest point from the influent line discharge, and discharge onto a concrete slab or riprap.

9.7.2. Discharge Structure. -- Discharge structures capable of variable depth control shall be provided. Depth shall be adjustable between three and one-half and five feet (from 3 1/2' to 5') in increments of one-half foot (1/2') or less. Withdrawal points shall be spaced from eighteen inches (18") below the surface to twelve inches (12") above the pond bottom discharge structures. These structures shall be readily accessible from the bank.

9.8. Recirculation. -- Recirculation shall be considered for multiple pond facilities. Whenever recirculation is proposed, and pond size is thereby reduced, calculations justifying the proposed reduction shall be submitted to the Secretary with the project plans.

9.9. Dewatering. -- If more than one (1) pond is utilized in the facility design, provisions shall be made to allow for individual ponds to be taken out of service and dewatered. The use of drainage lines that discharge directly to a receiving stream is not an approvable design.

9.10. Miscellaneous Requirements.

9.10.1. Surface Runoff. -- Provisions shall be made to divert storm and surface water around stabilization ponds.

9.10.2. Fencing. -- Stabilization ponds shall be enclosed by a stock-tight fence at least six feet (6') high with a locked entrance gate designed to discourage the entrance of animals or unauthorized persons. Several signs stating the nature of the facility shall be installed on the fence.

9.10.3. Prefilling. -- Stabilization ponds shall be prefilled with clean water to a minimum depth of two feet (2') prior to use.

9.10.4. Access Road. -- An all-weather access road shall be provided to the pond site.

10. Anaerobic and Aerated Lagoons.

10.1. Anaerobic Lagoons. -- Anaerobic lagoons are not an acceptable design for municipal waste.

10.2. Aerated Lagoons.

10.2.1. Location. -- Aerated lagoons shall be located a minimum distance of one hundred feet (100') from the nearest occupied structure. Aerated lagoons shall be located a minimum distance of three hundred feet (300') from public water supply wells or springs; this minimum distance shall be increased to six hundred feet (600') if the well or spring is down gradient from the lagoon or lower in elevation than the bottom of the lagoon.

10.2.2. Geology and Soils. -- Borings shall be made to determine surface and subsurface characteristics of the lagoon site. A soil report for the site shall be obtained from the Natural Resource Conservation Service of the U.S. Department of Agriculture.

10.2.3. Lagoon Shape. -- Aerated lagoons shall have a uniform perimeter, rounded corners, and no coves, islands, or peninsulas. The shape of aerated lagoons should be either round, square, or rectangular with the length not exceeding three (3) times the width.

10.2.4. Pretreatment and Aeration. -- Aerated lagoon facilities shall include pretreatment, a settling basin, and if necessary supplementary treatment.

10.2.5. Lagoon Facility Design.

10.2.5.a. Method. -- Design must be in accordance with the latest edition of EPA’s pond design manual.

10.2.5.b. Depth. -- The aeration basin shall be a minimum of ten feet (10ft) deep. Air shall be supplied to the aeration basin by means of surface aerators or subsurface air diffusers. Basins shall be designed to distribute oxygen throughout in a partial mix or complete mix design.

10.2.5.c. Settling. -- A settling pond shall follow the aeration basin and shall be designed to handle an assumed loading of thirty-four (34) pounds of five-day biochemical oxygen demand per surface acre per day. The pond shall be at least six (6') feet deep and have a minimum detention time of two (2) days at average daily flow. A variable depth drawoff structure shall also be required.

10.2.5.d. Influent lines. -- Influent lines shall discharge at a point that will prevent short circuiting of the lagoon.

10.2.5.e. Freeboard. -- Lagoons must have a minimum of three feet (3’) freeboard.

10.2.6. Lagoon Details.

10.2.6.a. Embankments. -- Embankments shall be constructed of compacted materials with a minimum top width of eight feet (8'). All vegetation shall be removed from the area upon which the embankment is to be placed. Dike walls exposed to wave action shall be provided with suitable protection such as riprap. The slopes of the embankment shall not be steeper than one vertical to two horizontal (1:2) or flatter than one vertical to four horizontal (1:4).

10.2.6.b. Lagoon Bottoms. -- Lagoon bottoms shall be level and cleared of all vegetation and debris.

10.2.6.c. Water tightness. -- Lagoons shall be made watertight through the use of a liner of man-made materials. A synthetic liner shall be of the thickness and construction recommended by the manufacturer. The synthetic liners must be protected from UV degradation.

10.2.7. Effluent Lines. -- Effluent lines shall be placed at the farthest point from the influent line discharge, and shall discharge onto a concrete pad or riprap.

10.2.8. Discharge Structure. -- Settling pond discharge structures capable of variable depth control shall be provided. Depth shall be adjustable between three and one-half and five feet (from 3 1/2' to 5') in increments of one-half foot (1/2') or less. Withdrawal points shall be spaced from eighteen inches (18") below the surface to twelve inches (12") above the pond bottom discharge structures. These structures shall be readily accessible from the bank.

10.2.9. Dewatering. -- If more than one (1) lagoon is utilized in the facility design, provisions shall be made to allow for individual lagoons to be taken out of service and dewatered. The use of drainage lines that discharge directly to a receiving stream is not an approvable design.

10.2.10. Miscellaneous Requirements.

10.2.10.a. Surface Runoff. -- Provisions shall be made to divert storm and surface water around aerated lagoons.

10.2.10.b. Fencing. -- Aerated lagoons shall be enclosed by a stock tight fence at least six feet (6') high with a locked entrance gate designed to discourage the entrance of animals or unauthorized persons. Several signs stating the nature of the facility shall be installed on the fence.

10.2.10.c. Prefilling. -- Aerated lagoons shall be prefilled with clean water to a minimum depth of two feet (2') prior to use.

10.2.10.d. Access Road. -- An all-weather access road shall be provided to the lagoon site.

11. Alternative Treatment Systems.

11.1. Rotating Biological Contactors. -- The use of rotating biological contactors (RBCs) is not an approvable design for a new treatment works or as part of the upgrading of an existing treatment works.

11.2. Other Biological and Mechanical Systems. -- Alternative or innovative biological and mechanical treatment schemes with promising applicability in wastewater treatment may be approvable designs. The Secretary shall consider approval of such designs after a review of data provided with the project plans in accordance with the provisions of subsection 1.3 of Part B of this appendix.

11.3. Recirculating Sand Filters (RSF) - RSF systems can be designed to treat flows as small as those generated by the individual home, up to any size for which engineering considerations and economics would indicate the RSF system to be the optimum choice, when comparing the RSF technology to other candidate technologies.

11.3.1. Design Considerations - All piping used in RSF systems shall comply with collection system piping standards. Appropriate cleanouts or access ports shall be available in all piping, to allow operator access for inspection and maintenance purposes.

11.3.2. General Description - The recirculating sand filter treatment system consists of a septic tank, or Imhoff tank, followed by a recirculation tank, and then an open sand filter. A pumping system is provided with time clock control mechanisms to provide a recirculation rate which results in fresh liquid being dosed onto the surface of the sand filter. Float controls are provided to override the time clocks, should flows increase to the point where overflow is imminent but the time clock is not yet ready to provide power to the pumps.

11.3.3. Septic Tank/Imhoff Tank Design - Septic tanks or Imhoff tanks are to be designed in accordance with established design standards.

11.3.4. Recirculation Tank - Septic tank or Imhoff tank effluents are directed (by gravity if possible) to a recirculation tank. The tank is normally sized to be one-fourth (1/4) or one-half (1/2) the size of the septic or Imhoff tank. The primary purpose of the recirculation tank is to receive underdrain flows from the sand filter(s), to mix with the septic tank or Imhoff tank effluent. This maintains a positive dissolved oxygen concentration in the recirculation tank, thus eliminating any septic odors from being released when the filters are dosed. Pumps are provided in the recirculation tank to dose the filter(s) on an intermittent basis.

11.3.5. Dosing - Dosing of the filters can be provided by means of dosing troughs, spray nozzles, or a central splash pad in the middle of the filter. Spray nozzles are recommended to optimize distribution onto the filter. All exposed dosing lines shall be self draining to prevent freezing during cold weather periods.

Filter dosing is normally conducted for several minutes each hour, or half-hour periods. Dosing less frequently than once every two (2) hours is not recommended, although the dose interval and dose volume can be varied. Dosing should not occur for more than fifty percent (50%) of a dosing cycle, to allow aeration to occur between cycles. A recirculation ratio of at least 12:1 is recommended (i.e., recirculation ratio equals daily flow dosed onto the filter(s) divided by the average daily flow of sanitary wastes entering the treatment facility).

The recirculation pump(s) shall be activated by means of a time clock with not greater than fifteen (15) minute increment settings. A ninety-six (96) pin, twenty-four (24) hour clock, or other timer approved by the Secretary should be used.

A single recirculation pump is acceptable for a single family home or smaller RSF system. An RSF system serving a greater design load than a single family home shall be equipped with duplex pumps.

Volumes equal to one (1) to four (4) inches of depth over the filter are recommended during each dosing cycle.

Piping between the recirculation tank and filters shall allow dosing of any filter by either duplex pump, via actuation of appropriate valves.

11.3.6. Electrical Controls - All electrical wiring shall be in compliance with the National Electrical Code. A control panel is recommended in a NEMA IV housing to preclude damage due to inclement weather conditions (unless the controls are located inside a secure building).

High and low liquid level control switches (i.e., mercury float switches, or similar) shall be installed in the recirculation tank. The high level switch shall activate at least one (1) pump by overriding the timer control. The low level switch shall override the timer control to turn all pumps off. Placement of the high level switch should be several inches above the normal operating level in the recirculation tank. Placement of the low level switch should be several inches above the pump intake. Actuation of either the high or low level switches shall also cause activation of a visual and/or audible alarm indicator to notify the operator of a potential operational problem.

Pumps and electrical controls (i.e., high and low level switches, etc.) located in the recirculation tank, shall be easily removed via "quick disconnect" piping and electrical connections.

11.3.7. Discharge Valving - Treated sewage is only discharged from the filter underdrain piping. All underdrain piping is directed back into the recirculation tank. A floating ball valve is installed inside the recirculation tank. At the maximum operating liquid level in the recirculation tank, the ball valve shall close and filter effluents shall bypass the tank to disinfection. At lower operating liquid levels, filter effluents shall re-enter the recirculation tank for further treatment.

11.3.8. Filter - Except for a single-family home, all RSF systems shall include at least two (2) filters, with filter alternation accomplished manually. Overall filter area shall be based on a design of four (4) gallons per day per square foot, based on the average daily sewage flow entering the treatment facility.

The filter media shall be silica sand, Black Beauty, graded bottom ash from coal-fired power plants, or other media approved by the Secretary. Filter media shall have a uniformity coefficient of three and one-half (3.5) with an effective particle size of 0.3 mm to 1.5 mm.

The filter media depth shall be twenty-four (24) inches, with three (3) layers of support gravel in the underdrain. Support gravel layers shall be three (3) inches for each layer, with support gravel sizes as follows: bottom layer, one and one-half (1 1/2) inches to three-fourths (3/4) inch; middle layer, three-fourths (3/4) inch to one-fourth (1/4) inch; top layer one-fourth (1/4) inch to one-eighth (1/8) inch.

The use of a filter fabric between the filter media and support gravel, with one (1) size of support gravel, may be considered.

Perforated underdrain piping shall be placed at the bottom of the filter prior to placement of the gravel support material. Underdrain piping shall be four (4) inches in diameter, or sized based on system hydraulics. Underdrain piping shall be laid on a one percent (1%) slope, at a spacing of no greater than ten (10) feet apart. The upper ends of all underdrain piping shall contain an elbow and non-perforated riser pipe which shall terminate halfway between the top of the filter media and the top of the filter sidewalls. The riser pipe shall be available for inspection and maintenance to the underdrain without necessitating excavation of the filter.

A filter sidewall freeboard of twelve (12) inches above the filter media shall be provided. Filter sidewalls and bottoms shall be impermeable. Filter bottoms shall be sloped toward the perforated underdrain piping at a grade of one (1) inch vertical to one (1) foot horizontal.

Normal operation of a multiple filter RSF system would allow one (1) or more filter(s) to be "at rest," while the filter-in-use is operated until "ponding" occurs; after which the filter-in-use is manually alternated. If ponding of a filter does not occur within a one (1) to two (2) month period, manual alternation is recommended. After ponding occurs on a filter, the filter is allowed to rest, the clogging material is removed from the top of the filter, the media is raked, and then relevelled as necessary.

11.3.9. Disinfection - Disinfection of the RSF system effluent is required.

11.4. Constructed Wetlands Wastewater Treatment Systems

11.4.1. Constructed wetlands wastewater treatment systems shall be reviewed on a case by case basis. Recommend design be based on the latest edition of the Tennessee Valley Authority’s "General Design, Construction, and Operation Guidelines Constructed Wetlands Wastewater Treatment Systems for Small Users Including Individual Residences." Other acceptable designs are the USEPA and NASA wetlands designs.

12. Disinfection.

12.1. Necessity. -- The effluent from all treatment works shall be adequately disinfected prior to discharge.

12.2. Chlorination.

12.2.1. Equipment.

12.2.1.a. Feed Equipment Type. -- Solution-feed vacuum-type chlorinators are generally preferred for treatment works that have a capacity of greater than one hundred thousand gallons per day (100,000 gpd). The use of hypochlorite solution feeders of the positive displacement type may be considered. Tablet-type chlorinators may be used for treatment works that have a capacity of one hundred thousand gallons per day (100,000 gpd) or less.

12.2.1.b. Feed Equipment Capacity. -- Required chlorinator capacities will vary depending upon the use and the point of application of the chlorine. For disinfection, the chlorinator capacity shall be such to produce a residual of five-tenths milligram per liter (0.5 mg/l) maximum in the final effluent at peak flow rates.

12.2.1.c. Chlorination Equipment. -- If chlorination is the selected method of disinfection, dual chlorinators shall be used. Each chlorinator alone shall be able to provide the required chlorination at peak flow rates. An inventory of parts subject to wear and breakage shall be maintained on hand.

12.2.1.d. Water Supply. -- A supply of water shall be available for operating the chlorinators. Where a booster pump is necessary, duplicate pumping equipment shall be provided. When connection is made from domestic water supplies, equipment for backflow prevention shall be provided. Pressure gauges shall be provided on chlorinator water supply lines.

12.1.2.e. Measurement Equipment. -- Equipment for measuring the amount of chlorine used shall be provided.

12.1.2.f. Evaporators. -- Where manifolding of several cylinders will be required to feed sufficient chlorine, consideration shall be given to the installation of evaporators.

12.1.2.g. Leak Detection and Controls. -- A bottle of ammonium hydroxide solution shall be available for detecting chlorine leaks. Consideration shall be given to the provision of caustic soda solution reaction tanks for absorbing the contents of leaking chlorine cylinders where such cylinders are in use. Automatic leak detectors shall be installed wherever gas chlorination is used.

12.1.2.h. Piping and Connections. -- Piping systems shall be well supported, adequately sloped to allow drainage, and protected from mechanical damage. Suitable allowance shall be provided for pipe expansion due to changes in temperature. Where adequate superheat is not provided by a vaporizer, condensation shall be prevented by reducing the pressure by means of a pressure reducing valve. Chlorine solution piping shall be so arranged that both pre-chlorination and post-chlorination may be accomplished by any or all chlorinators.

12.1.3. Housing.

12.1.3.a. Fire Protection. -- Any building that will house chlorination equipment or containers shall be designed or modified to protect all elements of the chlorine system from fire hazards. If flammable materials are stored or processed in the same building with chlorination equipment that does not utilize hypochlorite solutions, a fire wall shall be erected to separate the flammable materials area from the chlorination equipment.

12.1.3.b. Gaseous Chlorine. -- If gas chlorination equipment and chlorine cylinders will be placed in a room of a building used for other purposes, a gas-tight partition shall separate this room from all other parts of the building. This room shall be at ground level, shall have doors equipped with panic hardware, and shall permit easy access to all equipment. The gaseous chlorine storage area shall be separated from the feed area.

12.1.3.c. Exits and Windows. -- A means of exit to the outside of the building shall be provided from each separate room or building in which chlorine, other than hypochlorite, is stored, handled, or used. A clear glass, gas-tight window shall be installed in an exterior door or an interior wall of the chlorinator room to permit the chlorinator to be viewed without entering the room.

12.1.3.d. Temperature Maintenance. -- Chlorinator rooms shall be provided with a means of heating so that a temperature of at least sixty degrees Fahrenheit (60ºF) can be maintained. Chlorinator rooms shall be protected from excess heat.

12.1.3.e. Ventilation. -- Forced, mechanical ventilation that will provide one (1) complete air change per minute shall be installed in all chlorine feed rooms and rooms where chlorine cylinders are stored. The entrance to the air exhaust duct from such rooms shall be near the floor and the point of discharge shall be so located as not to contaminate the air inlets to any building or inhabited area. Air inlets shall be so located as to provide cross-ventilation with air and at a temperature that will not adversely affect the chlorination equipment. The vent hose shall run without traps from the chlorinator and shall discharge to the outside atmosphere above ground level.

12.1.3.f. Electrical Controls. -- The controls for the fans and lights in all chlorine feed rooms and rooms where chlorine cylinders are stored shall be such that they will automatically operate when the door is opened and can also be manually operated from outside of the room without opening the door.

12.1.4. Respiratory Protection. -- Respiratory air-pac protection equipment meeting the requirements of the National Institute for Occupational Safety and Health (NIOSH) shall be available where chlorine gas is handled. Such equipment shall be stored at a convenient location near to but not inside any room where chlorine is used or stored. Instructions for using the equipment shall be posted. A minimum of two (2) air-pacs shall be available for use. These units shall use compressed air, have a capacity of at least thirty (30) minutes, and be compatible with the units used by the fire department responsible for the treatment works.

12.1.5. Application of Chlorine.

12.1.5.a. Mixing With Flow. -- Provisions shall be made to ensure uniform mixing of the chlorine solution with the wastewater flow near the point of application.

12.1.5.b. Contact Period. -- A minimum contact period of forty (40) minutes at average daily flow or fifteen minutes (15) at maximum daily flow, whichever is greater, shall be provided. Additional contact time may be required by the Secretary if the discharge point is in the proximity of a water supply intake, recreational area, or similar area.

12.1.5.c. Contact Tank. -- Chlorine contact tanks shall be designed to minimize any short-circuiting of flow. Either over-and-under or end-around baffling shall be provided. Air lift or submersible pumps and sludge returns from the contact tank shall be used unless preceded by a filter or polishing pond. Multiple units shall be used unless lamella or tube type settlers are utilized in conjunction with a sludge withdrawal system.

12.1.6. Dechlorination. -- The removal of all or part of the chlorine residual is necessary prior to final discharge in order to meet water quality standards or other requirements for particular streams.

12.2. Other Disinfection Methods.

12.2.1. Approvable Methods. -- The use of disinfection methods other than chlorination shall be approved by the Secretary on a case-by-case basis after a review of:

12.2.1.a. Data provided with the project plans in accordance with the provisions of subsection 1.3 of Part B of this appendix;

12.2.1.b. Data provided with the project plans related to minimum effluent conditions such as clarity, soluble organics, and pH required for adequate disinfection;

12.2.1.c. An evaluation provided with the project plans concerning the methods for dispersion and mixing with the waste stream; and

12.2.1.d. An evaluation provided with the project plans concerning other relevant factors such as equipment reliability, safety, and application rates required for varying waste flows.

12.2.2. Sodium Bromide. -- Sodium bromide shall be considered to be equivalent to gaseous chlorine when used as a disinfectant except that contact time shall be reduced to twenty (20) minutes at average daily flow.

12.2.3. Ultraviolet Disinfection -- The use of open channel systems is an approvable design. Closed vessel type systems are not approvable. Pilot testing of ultraviolet equipment may be required by the Secretary.

12.2.4. Evaluation of Disinfection Effectiveness.

12.2.4.1. Sampling. -- Facilities shall be provided for securing a sample prior to effluent discharge in order to determine the effectiveness of the disinfection.

12.2.4.2. Residual Chlorine Testing and Control. -- When chlorine is used for disinfection, equipment shall be provided for measuring chlorine residual. Where the discharge occurs in critical areas, the installation of facilities for continuous automatic chlorine residual analysis, recording, and proportioning systems may be required by the Secretary.

13. Supplementary Treatment.

13.1. Necessity. -- Supplementary treatment shall be provided when health considerations or waste load allocations and effluent limitations necessitate more effective treatment than secondary wastewater treatment can provide. Nutrient removal may be required to ensure compliance with state water quality criteria.

13.2. Alternating Surface Sand Filters.

13.2.1. Approvable Use. -- Alternating surface sand filters normally will be used for treatment works that have a capacity of one hundred thousand gallons per day (100,000 gpd) or less but may be approved by the Secretary on a case-by-case basis for works that have a capacity of greater than one hundred thousand gallons per day (100,000 gpd).

13.2.2. Filter Rate. -- An alternating surface sand filter shall be designed for a filter rate of not more than twenty (20) gallons per square foot per day.

13.2.3. Effluent Application. -- Effluent shall be applied by a pump or siphon chamber designed to dose all sections of the filter equally with three to four inches (3" to 4") of liquid within 20 minutes. Where elevation differences allow, application of effluent to the filter by gravity may be approved by the Secretary if an uniform distribution of effluent can be provided.

13.2.4. Location. -- Alternating surface sand filters shall be located a minimum distance of one hundred feet (100') from the nearest occupied structure. This distance requirement may be waived by the Secretary if acceptable screening techniques are employed.

13.2.5. Media. -- The sand used in alternating surface sand filters shall be coarse, clean sand of uniform grain size (i.e., an effective size of three-tenths of a millimeter to six-tenths of a millimeter (0.3 mm to 0.6 mm) in diameter with a uniformity coefficient of no greater than 4.0), and less than 1% fines passing a No. 100 sieve. Alternative media may be approved by the Secretary on a case-by-case basis.

13.2.6. Construction. -- The side walls and bottom of alternating surface sand filters shall be lined with an impervious plastic liner.

13.2.7. Disinfection. -- Disinfection of wastewater shall occur at a point that is after its passage through the alternating surface sand filters and before its discharge into a receiving stream.

13.3. High Rate Effluent Filtration.

13.3.1. Approvable Use. -- High rate gravity filters may be used at all treatment works. High rate pressure filters may be used at treatment works that have a capacity of greater than one hundred thousand gallons per day (100,000 gpd).

13.3.2. Filtration Rates. -- Filtration rates for high rate gravity filters shall not be greater than one (1) gallon per minute per square foot per day based upon the maximum flow rate applied. Filtration rates for pressure filters shall not be greater than five (5) gallons per minute per square foot per day based upon the maximum flow rate applied.

13.3.3. Number of Units. -- Total filter area shall be provided in two (2) or more units and the filtration rate shall be calculated based upon the total available filter area with one (1) unit out of service.

13.3.4. Backwash. -- Backwash shall include either air scouring or positive surface wash. Filtered effluent shall be used for backwash and waste filter backwash water shall be returned to the head of the treatment works.

13.3.4.a. Backwash Water Storage. -- Total backwash water storage capacity shall equal or exceed one (1) complete backwash cycle.

13.3.4.b. Backwash Rate. -- The backwash rate shall not exceed twenty (20) gallons per minute per square foot with a minimum backwash period of ten (10) minutes.

13.3.4.c. Pumps. -- Pumps for backwashing filter units shall be sized and interconnected to provide the required rate to any filter with the largest pump out of service.

13.3.5. Proprietary Equipment. -- Where proprietary filtration equipment not conforming to the requirements set forth in subsection 13.3 of Part B of this appendix is proposed, data which supports the capability of the equipment to meet effluent requirements under design conditions shall be provided with the project plans. Such equipment shall be approved by the Secretary on a case-by-case basis.

13.4. Total Kjeldahl Nitrogen (TKN) Removal.

13.4.1. Necessity. -- Total Kjeldahl nitrogen (TKN) removal shall be considered when the TKN limit, as stated in the discharge load allocation, is less than eighteen milligrams per liter (18.0 mg/l).

13.4.2. Approved Removal Methods. -- Methods which may be used to achieve TKN removal include additional aeration in extended aeration treatment works, second-stage nitrification, break-point chlorination, nitrification column, and alternating surface sand filters. Because TKN removal is temperature dependent, consideration shall be given to the use of winter-summer discharge load allocations or ammonia-based waste load allocations.

13.5. Microscreening. -- The use of microscreening units for the removal of residual suspended solids may be acceptable if provisions are made to pass the peak flow should the screens become plugged.

13.6. Polishing Ponds. -- Polishing ponds shall be designed in accordance with the requirements for stabilization ponds set forth in Section 9 of Part B of this appendix with the following exception:

13.6.1. Capacity. -- Polishing ponds shall either have a capacity of at least sixty-five thousand (65,000) gallons or a capacity for a detention time sufficient to handle ten (10) days of the design flow, whichever is greater.

13.7. Post-Aeration. -- Any permitted dissolved oxygen limitation shall be met by means of either cascade aeration or a post-aeration tank with air added by diffusion or mechanical means.

14. Sludge Handling and Disposal.

14.1. Anaerobic Sludge Digestion.

14.1.1. Digestion Tanks. -- Multiple tanks should be used for anaerobic sludge digestion. For those units that serve as supernatant separation tanks, tank depth shall be sufficient to allow for the formation of a reasonable depth of supernatant liquor. A side water depth of at least ten feet (10') shall be provided.

14.1.2. Tank Design.

14.1.2.a. Bottom Slope. -- Digestion tank bottom shall be sloped to drain toward the withdrawal pipe. For tanks equipped with a suction mechanism for the withdrawal of sludge, the bottom slope shall be not less than one vertical to twelve horizontal (1:12). Where the sludge is to be removed by gravity alone, the bottom slope shall be not less than one vertical to four horizontal (1:4).

14.1.2.b. Access Manholes. -- At least two (2) access manholes of at least thirty-six inches (36") in diameter shall be provided in the top of the tank in addition to the gas dome. Stairways to reach the access manholes shall be provided. A separate side wall manhole shall be provided with an opening large enough to permit the use of mechanical equipment to remove grit and sand.

14.1.2.c. Safety Equipment. -- Nonsparking tools, safety lights, rubber-soled shoes, safety harnesses, detectors for inflammable and toxic gases, and at least two (2) self-contained breathing units shall be provided for emergency use.

14.1.3. Sludge Inlets and Outlets.

14.1.3.a. Recirculation. -- Multiple recirculation withdrawal and return points shall be provided unless mixing facilities are incorporated within the digester. The return shall discharge above the liquid level and be located near the center of the tank.

14.1.3.b. Raw Sludge Discharge. -- Raw sludge discharge to the digester shall be either through the sludge heater and recirculation return piping or directly to the tank if internal mixing facilities are provided.

14.1.3.c. Withdrawal. -- Sludge withdrawal shall be from the bottom of the tank through a pipe that is interconnected with the recirculation piping.

14.1.4. Tank Capacity. -- The total digestion tank capacity shall be determined by calculations based upon such factors as volume of sludge added, its percent solids and character, the temperature to be maintained in the digestors, the degree or extent of mixing to be obtained, and the degree of volatile solids reduction required. When calculations are not based upon these factors, the minimum combined digestion tank capacity shall be calculated based upon the assumption that the raw sludge will be derived from ordinary domestic wastewater, that digestion temperature will be maintained in the range from thirty-two to thirty-eight degrees centigrade (32 ºC to 38 ºC), that from forty to fifty percent (40% to 50%) volatile matter will be maintained in the digested sludge, and that the digested sludge will be removed frequently from the system. Tank capacity calculations shall be submitted to the Secretary with the project plans to justify the digestion tank design selected.

14.1.4.a. Completely-Mixed Digestion Systems. -- Completely-mixed systems shall provide for effective mixing and may be loaded at a rate up to eighty (80) pounds of volatile solids per one thousand (1,000) cubic feet of volume per day in the active digestion units. When grit removal facilities are not provided, reduction of digester volume due to grit accumulation shall be considered.

14.1.4.b. Moderately-Mixed Digestion Systems. -- For digestion systems where mixing is accomplished only by circulating sludge through an external heat exchanger, the system may be loaded at a rate up to forty (40) pounds of volatile solids per one thousand (1,000) cubic feet of volume per day in the active digestion units. This loading may be modified upward or downward depending upon the degree of mixing provided.

14.1.5. Gas Collection, Piping, and Appurtenances.

14.1.5.a. Design. -- All portions of the digestion system; including the space above the tank liquor, the storage facilities, and the piping; shall be designed so that the gas will be maintained under positive pressure under all normal operating conditions including sludge withdrawal. All enclosed areas where gas leakage might occur shall be adequately ventilated.

14.1.5.b. Safety. -- All necessary safety facilities shall be provided where gas is produced. Pressure and vacuum relief valves, flame traps, and safety shutoff valves shall be provided. Gas safety equipment and gas compressors shall be housed in a separate room with an exterior entrance. 14.l.5.c. Gas Piping and Condensate. -- Gas piping shall slope to condensate traps at low points. The use of float-controlled condensate traps is not an approvable design.

14.1.5.d. Gas Utilization Equipment. -- Gas-fired boilers for heating digesters shall be located in a separate room not connected to the digester gallery.

14.1.5.e. Electrical Fixtures. -- Electrical fixtures and controls in places enclosing anaerobic digestion appurtenances where hazardous gases are normally contained in the tanks and piping shall comply with the National Electrical Code for Class l, Group D, Division 2 locations. Digester galleries shall be isolated from normal operating areas in order to avoid an extension of the hazardous location.

14.1.5.f. Waste Gas Burners. -- Waste gas burners shall be readily accessible and located at least twenty-five feet (25') away from any plant structure if placed at ground level. Waste gas burners may be located on the roof of the control building if sufficiently removed from the tank. All waste gas burners shall be equipped with automatic ignition (e.g., a pilot light or a device using a photoelectric cell sensor). Consideration shall be given to the use of natural or propane gas to insure reliability of the pilot light. If approved by the Secretary for a remote location, waste gas may be discharged to the atmosphere through a return-bend screened vent terminating at least ten feet (10') above the ground surface if the assembly incorporates a flame trap.

14.1.5.g. Ventilation. -- Underground enclosures connecting with digestion tanks or containing either sludge or gas piping or equipment shall be provided with forced ventilation. The piping gallery for digesters shall not be connected to other passages. Tight-fitting, self-closing doors shall be provided at connecting passageways and tunnels to minimize the spread of gas.

14.1.5.h. Meter. -- A gas meter with a bypass shall be provided to meter total gas production.

14.1.6. Digester Heating.

14.1.6.a. Insulation. -- Unless otherwise approved by the Secretary, tanks shall be constructed above the local water table and shall be suitably insulated to minimize heat loss.

14.1.6.b. Heating Facilities. -- Sludge may be heated by circulation through external heaters or by heating units located inside the digestion tank. Piping for external heating shall be designed to provide for the preheating of feed sludge before its introduction to the digesters. Provisions shall be made in the layout of the piping and valving to facilitate the cleaning of these lines. Heat exchanger sludge piping shall be sized to meet heat transfer requirements. Other types of heating facilities may be approved by the Secretary on a case-by-case basis.

14.1.6.c. Heating Capacity. -- Heating capacity sufficient to consistently maintain the design sludge temperature shall be provided. Where digester tank gas is used for sludge heating, an auxiliary fuel supply shall be provided.

14.1.6.d. Hot Water Internal Heating Controls. -- An automatic mixing valve shall be provided to temper the boiler water with return water so that the inlet water to the heat jacket can be held below a temperature at which caking will be accentuated. Manual control shall be provided by bypass valves. The boiler shall be provided with automatic controls to maintain boiler temperature at approximately one hundred eighty degrees Fahrenheit (180 ºF) and to shut off the main gas supply in the event of pilot burner, electrical failure, low boiler water level, or excessive temperature. Thermometers shall be provided to show temperatures of the sludge, hot water feed, hot water return, and boiler water.

14.1.7. Supernatant Withdrawal.

14.1.7.a. Piping Size. -- Supernatant piping shall be at least six inches (6") in diameter.

14.1.7.b. Withdrawal. -- Piping shall be arranged so that withdrawal can be made from three (3) or more levels in the digester. A positive, unvalved, vented overflow shall be provided. If a supernatant selector is provided, at least one (1) other drawoff level located in the supernatant zone of the tank shall be provided in addition to the unvalved emergency supernatant drawoff pipe. High-pressure backwash facilities shall be provided.

14.1.7.c. Sampling. -- Provisions shall be made for sampling at each supernatant drawoff level. Sampling pipes shall be at least one and one-half inches (1½”) in diameter and shall terminate at a suitably-sized sampling sink or basin.

14.1.7.d. Alternate Supernatant Disposal. -- Where appropriate, consideration shall be given to supernatant conditioning in relation to its effect on treatment works performance and effluent quality.

14.2. Aerobic Sludge Digestion.

14.2.1. Digestion Tanks. -- Multiple tanks designed to provide effective air mixing, reduction of organic matter, supernatant separation, and sludge concentration under controlled conditions shall be used for aerobic sludge digestion. A single digestion tank may be used at a small treatment works where a single unit will not adversely affect normal operations and provisions are made for sludge handling.

14.2.2. Mixing and Aeration Requirements. -- Aerobic digestion tanks shall be designed to keep solids in suspension and maintain dissolved oxygen levels of one to two milligrams per liter (1.0 to 2.0 mg/l). At least thirty (30) cubic feet of air per one thousand (1,000) cubic feet of tank volume shall be provided with the largest blower out of service. If diffusers are used, nonclogging diffusers shall be used in a design that permits continuity of service. If mechanical aerators are used, a minimum of one (1.0) horsepower per one thousand (1,000) cubic feet shall be provided.

14.2.3. Tank Capacity. -- The total digestion tank capacity shall be determined by calculations based upon such factors as quantity of sludge produced, sludge characteristics, time of aeration, and sludge temperature. Tank capacity calculations shall be submitted to the Secretary with the project plans to justify the digestion tank design selected.

14.2.3.a. Volatile Solids Loading. -- The volatile suspended solids loading shall not exceed one (100) hundred pounds per one thousand (1,000) cubic feet of volume per day in the digestion units. Lower loading rates may be necessary depending upon temperature, type of sludge, and other factors.

14.2.3.b. Solids Retention Time. -- Required minimum solids retention time for stabilization of biological sludges varies with the type of sludge. Unless otherwise approved by the Secretary, a minimum of ten (10) days retention time shall be provided for waste activated sludge and twenty (20) days retention time shall be provided for either a combination of primary and waste activated sludge or primary sludge alone. Where sludge temperature is lower than fifty degrees Fahrenheit (50 ºF), additional detention time shall be considered.

14.2.4. Supernatant Separation. -- Facilities shall be provided for the separation and withdrawal of supernatant and the collection and removal of scum and grease.

14.2.5. Sludge Thickening. -- Prior to placement on sludge drying beds, all sludge produced by the activated sludge process shall be conditioned to a minimum solids content of two percent (2%) by weight.

14.3. Sludge Pumps and Piping.

14.3.1. Sludge Pumps.

14.3.1.a. Type. -- Plunger pumps, screw feed pumps, recessed impeller centrifugal pumps, progressive cavity pumps, or other types of pumps capable of handling solids shall be provided for handling raw sludge. Duplicate pumps shall be provided regardless of the type selected.

14.3.1.b. Minimum Head. -- A minimum positive head of twenty-four inches (24") shall be provided at the suction side of centrifugal pumps and is desirable for all other types of sludge pumps. Maximum suction lifts shall not exceed ten feet (10') for plunger pumps.

14.3.1.c. Sampling Facilities. -- Unless sludge sampling valves are installed at the sludge pumps, valves and piping shall be at least one and one-half inches (1½”) in diameter.

14.3.2. Sludge Piping.

14.3.2.a. Size and Head. -- Sludge withdrawal piping shall have a minimum diameter of six inches (6") for gravity withdrawal and three inches (3") for pump suction and discharge lines. Where withdrawal is by gravity, the available head on the discharge pipe shall provide a velocity of at least three feet per second (3.0 fps).

14.3.2.b. Slope. -- Gravity piping shall be laid on an uniform grade and alignment at a slope of at least three percent (3%). Provisions shall be made for cleaning, draining, and flushing discharge lines.

14.3.2.c. Supports. -- Special consideration shall be given to the corrosion resistance and continuing stability of supporting systems located inside the digestion tank.

14.4. Sludge Dewatering.

14.4.1. Sludge Drying Beds.

14.4.1.a. Sizing. -- The size of sludge drying beds shall be based upon an assumed four (4) square feet per capita when the drying bed is the primary method of dewatering and one (1) square foot per capita when the drying bed is to be used as a backup dewatering unit.

14.4.1.b. Surface Water Intrusion. -- Sludge drying beds shall be designed so that surface water cannot enter the bed area.

14.4.1.c. Gravel Course. -- The lower course of sludge drying beds shall be composed of gravel that is graded and placed around the underdrains. The gravel shall be twelve inches (12") in depth and extend at least six inches (6") above the top of the underdrains . The gravel shall be placed in two (2) or more layers with a top layer that is at least three inches (3") in depth. This top layer shall be composed of gravel that is one-eighth of an inch to one-quarter of an inch (1/8" to 1/4") in size. Gravel shall be placed on a watertight membrane of concrete or plastic in order to prevent any contamination of groundwater.

14.4.1.d. Sand Course. -- The top course of sludge drying beds shall be composed of six to nine inches (6" to 9") of coarse, clean sand of uniform grain size (i.e., an effective size of three-tenths of a millimeter to six-tenths of a millimeter (0.3mm to 0.6 mm) in diameter with a uniformity coefficient of no greater than 4.0), with no more than 1 % fines passing a No. 100 sieve. The finished sand surface shall be level.

14.4.1.e. Underdrains. -- Underdrains shall be at least four inches (4") in diameter and spaced not more than twenty feet (20') apart.

14.4.1.f. Partially-Paved Beds. -- Partially-paved drying bed shall be designed with sufficient space for the operation of mechanical equipment for removing dried sludge.

14.4.1.g. Walls. -- Drying bed walls shall be watertight, extend fifteen to eighteen inches (15" to 18") above and at least six inches (6") below the bed surface, and be physically connected to the liner to prevent leakage. Outer walls shall be curbed to prevent soil from washing onto the beds.

14.4.1.h. Sludge Removal. -- Not less than two (2) drying beds shall be provided and so arranged to facilitate sludge removal.

14.4.1.i. Sludge Influent. -- Sludge pipes to drying beds shall terminate at least twelve inches (12") above the bed surface. Concrete splash plates for percolation-type drying beds shall be provided at sludge discharge points.

14.4.1.j. Protective Enclosure. -- A protective enclosure shall be provided for all drying beds.

14.4.1.k. Polymer Addition. -- Facilities for polymer addition shall be provided for sand drying beds.

14.4.2. Mechanical Dewatering Facilities. -- Provisions shall be made to maintain continuity of service so that sludge may be dewatered without accumulation beyond storage capacity. The number of vacuum filters, vacuum beds, centrifuges, filter presses, belt filters, or other mechanical dewatering facilities shall be sufficient to dewater the sludge produced with the largest unit out of service. Facilities for polymer addition shall be provided. Unless standby facilities are available, adequate storage facilities shall be provided. Storage capacity shall be sufficient to handle at least a three (3) month accumulation of sludge production.

14.4.2.a. Auxiliary Facilities for Vacuum Filters and Vacuum-Assisted Beds. -- Backup vacuum pumps and filtrate pumps shall be provided for vacuum filter and vacuum-assisted beds. An uninstalled backup vacuum or filtrate pump may be used for every three (3) or less vacuum filters provided the installed unit can easily be removed and replaced.

14.4.2.b. Ventilation. -- The dewatering area shall be properly ventilated and exhaust air shall be conditioned in order to avoid nuisance odors.

14.4.3. Drainage and Filtrate Disposal. -- Drainage from drying beds or filtrate from dewatering units shall be returned to the sewage treatment process at appropriate points.

14.4.4. Alternative Dewatering Facilities. -- The Secretary may approve alternative dewatering facilities on a case-by-case basis. A detailed description of the process and design data shall be submitted to the Secretary with the project plans.

15. Disposal of Sewage Sludge.

15.1. Sewage sludge shall be disposed in conformance with applicable State regulations.

16. Land Application of Sewage Effluent.

16.1. Approvable Use. -- Land application may be used as a means of disposing of sewage effluent which has received secondary wastewater treatment (i.e., land application of sewage effluent that has received primary treatment only is prohibited). Land application may be used in cases where the effluent of a treatment works contains pollutants that can be successfully removed through organic decomposition in the vegetation-soil complex and by absorptive, physical, and chemical reactions with earth materials. Effluent to be disposed by means of land application shall contain not more than thirty milligrams per liter (30 mg/l) of suspended solids or thirty milligrams per liter (30 mg/l) of five-day biochemical oxygen demand.

16.2. Preliminary Considerations. -- In selecting a site on which sewage effluent will be applied, consideration shall be given to the compatibility of the effluent with the organic and earth material content, percolation rates, and exchange capacity of the soils at the site. Land application of sewage effluent will eventually recharge the local groundwater; therefore, consideration shall be given to the quality, direction, rate of movement, present use, and future use of the groundwater beneath the site. Other factors that shall be considered when selecting an appropriate site include geology, hydrology, topography, local weather, agriculture practices, adjacent land use, and equipment selection and installation.

16.3. Site Plan and Report. -- A site plan and report shall be included with the project plans submitted to the Secretary.

16.3.1. Location Maps. -- A 72-minute United States Geological Survey topographic map and a West Virginia Division of Highways county map showing the property that contains the site on which sewage effluent will be applied shall be included in the site plan and report.

16.3.2. Site Plan. -- A topographic map of the land application property and surrounding area, drawn on a workable scale, shall be included in the site plan and report. This map shall show:

16.3.2.a. The land application site and all areas of possible expansion;

16.3.2.b. The location of woodlots and fences or other barriers on the property;

16.3.2.c. The direction of the groundwater flow beneath the property;

16.3.2.d. The location of wells, springs, public water supplies, groundwater monitoring wells, and surface water bodies on the property or within two thousand feet (2,000') of the property boundaries;

16.3.2.e. The location of any sinkholes on the property or within two thousand feet (2,000') of the property boundaries; and

16.3.2.f. All structures on the property or within two thousand feet (2,000') of the property boundaries.

16.3.3. Soil Map. -- A soil map showing the soil types at the land application site shall be included in the site plan and report.

16.3.4. Site Report.

16.3.4.a. Site Geology. -- Information related to geological formations, local bedrock structure, the degree of bedrock weathering, the character and thickness of surficial deposits, and the presence of solution openings or sinkholes shall be included in the site plan and report.

16.3.4.b. Site Hydrology. -- Data related to the depth or elevation of the seasonal high water table and the chemical and bacterial composition of the groundwater beneath the site shall be included in the site plan and report.

16.3.4.c. Site Soils. -- The cation exchange capacity, thickness, types, and characteristics of the soils at the site shall be included in the site plan and report. ` 16.3.4.d. Climatological Data. -- The average daily rainfall and temperature at the site shall be included in the site report and plan.

16.3.4.e. Agricultural Practices. -- Information related to present and intended soil-crop management practices, kinds of crops to be grown, harvesting frequency, and ultimate use of crops grown on the property shall be included in the site report and plan.

16.3.4.f. Effluent Characteristics. -- A detailed chemical analysis of the effluent to be disposed at the site shall be included in the site report and plan.

16.3.4.g. Management Practices. -- Information related to the types of equipment to be used for effluent transport and application; site supervision and monitoring practices; contracts, land easements, land leases, and land purchases; and emergency procedures to be utilized in the event of plant or equipment breakdown shall be included in the site plan and report.

16.4. Site Design.

16.4.1. Holding Pond. -- A holding pond shall be constructed at the land application property in order to store effluent during periods when land application cannot occur. This pond shall be capable of storing the effluent produced by the treatment works in ninety (90) days at peak flow. A residual water depth of at least two feet (2') shall be maintained in the holding pond at all times in order to prevent the growth of vegetation.

16.4.2. Application Rates. -- Maximum land application rates, in terms of depth of effluent, shall be one-quarter inch (1/4") per hour, one-half inch (1/2") per day, and two inches (2") per week.

16.4.3. Slopes. -- Slopes at land application sites which are cultivated fields shall be four percent (4%) or less. Slopes at land application sites which are sodded fields shall be eight percent (8%) or less. Slopes at land application sites which are forested shall be eight percent (8%) or less for year-round operations and fourteen percent (14%) or less for seasonal operations.

16.4.4. Runoff. -- The land application site shall be designed to prevent surface runoff from entering or leaving the site.

16.4.5. Fencing. -- The land application site shall be enclosed by a stock-tight fence at least six feet (6') high with a locked entrance gate designed to discourage the entrance of animals or unauthorized persons. Several signs stating the nature of the facility shall be installed on the fence.

16.5. Spray Irrigation Systems.

16.5.1. Piping. -- The piping to the sprinklers in a spray irrigation system shall be arranged to allow the irrigation pattern to be varied easily. For a permanent system, provisions shall be made to allow the pipes to be completely drained to prevent pollution and freezing.

16.5.2. Pump Station. -- Duplicate pumps shall be provided for the delivery of effluent to the irrigation area. Each pump shall have the capacity to handle the maximum anticipated rate of flow plus an allowance to deplete stored volumes. A metering device shall be provided at the spray irrigation pump station. A control valve between the holding pond and the pump station shall be provided. The top of the wet well of the pump station shall be at least as high as the maximum holding pond surface elevation in order to prevent flooding when the spray irrigation equipment is not in operation.

16.5.3. Buffer Zone. -- The spray irrigation system shall be designed to provide an even distribution of effluent over the entire irrigation area. Sprinklers shall be so located as to provide a nonirrigated buffer zone around the irrigated area. The fence prescribed under paragraph 16.4.5 of Part B of this appendix shall be placed at least fifty feet (50') beyond the normal projected irrigation area. Unless otherwise approved by the Secretary, a minimum of three hundred fifty feet (350') shall be provided between the fence and the land application property boundaries or any road.

16.6. Ridge and Furrow Systems.

16.6.1. Design Requirements. -- Ridge and furrow systems may be used on land application sites that have a slope of eight percent (8%) or less. Furrows may be constructed down slope on sites that have a slope of one percent (1%) or less but shall be constructed at right angles to the slope on all other sites. Furrows shall be not more than one thousand feet (1,000') in length and shall be spaced from twenty to forty inches (20" to 40") apart.

16.7. Overland Flow Systems.

16.7.1. Design Requirements. -- Overland flow systems may be used on land application sites that have slopes that range from two to eight percent (2% to 8%) and run for one hundred fifty to three hundred feet (150' to 300'). Overland flow systems may be designed either to flood the land application site or for effluent application to be made by means of gated pipe or spray.

16.8. Monitoring and Reporting.

16.8.1. Monitoring Wells. -- At least one (1) groundwater monitoring well shall be placed down gradient of the land application site. Samples shall be collected from both the surface of and five feet (5') below the water table at each monitoring well. The location and design of monitoring wells and the frequency of sample collection shall be approved by the Secretary.

16.8.2. Crop Analysis. -- If crops for animal or human consumption are grown on the land application site, a chemical analysis of each crop shall be performed at harvest.

16.8.3. Reporting. -- The frequency of reporting the results of groundwater monitoring or crop analysis shall be determined by the Secretary on a case-by-case basis.

PART C. ONSITE WASTEWATER SYSTEMS

1. Approvable Systems.

1.1. Approvable onsite sewage systems are those referenced and designed in accordance with the latest edition of the EPA “Onsite Wastewater Treatment Systems” manual.

1.2. A completed application and the design data sheets shall be submitted to the Secretary with the project plans.

2. General Design Standards.

2.1. Location.

2.1.1. Unless otherwise approved by the Secretary, no part of an individual sewage system shall be located in a poorly-drained or filled area or in any area where seasonal flooding occurs.

2.1.2. No part of an individual sewage system shall be located within ten feet (10') of a building, foundation, or property line.

2.1.3. No part of an individual sewage system shall be located within ten feet (10') of a private water supply line or within twenty-five feet (25') of a public water supply line.

2.1.4. No septic tank, home aeration unit, vault privy, or other sewage tank shall be located within fifty feet (50') of a private water supply well. The distance between a septic tank, home aeration unit, vault privy, or other sewage tank and a public water supply reservoir or well shall be approved by the Secretary on a case-by-case basis.

2.1.5. No portion of a treatment unit or disposal system shall be located under a parking lot, roadway, or other paved surface or under any type of structure.

2.2. Miscellaneous Requirements.

2.2.1. Roof drains, foundation drains, sump pumps, water softener backwash water, surface drains, or similar drains shall not be connected to an individual sewage system.

2.2.2. The Secretary may require the installation of a grease trap on an individual sewage system that serves a dwelling or establishment discharging a large amount of grease. Grease traps shall be designed in conformance with the requirements set forth in Section 7 of Part A of this appendix.

3. Septic Tanks.

3.1. Capacities. -- Septic tanks shall be designed in accordance with the capacities set forth in Table K of this appendix.

Note: When dual compartment tanks or dual tanks are used, the volume ratio of the first compartment or tank to the second compartment or tank shall approximate two to one (2:1). In a dual compartment tank, the connection between compartments shall be an elbow with a minimum diameter of four inches (4"), placed so that the invert at the partition is approximately sixteen inches (16") below the liquid level.

3.2. Materials. -- Septic tanks shall be constructed of reinforced concrete, fiberglass, or a watertight, durable material approved by the Secretary. The use of concrete blocks is not an approvable design.

3.2.1. Concrete Septic Tanks. -- In constructing a concrete septic tank, at least six (6) bags of cement shall be used per yard of concrete mix or equivalent with a minimum compressive strength of four thousand pounds per square inch (4,000 psi). Reinforcement shall be at least six inch by six inch (6" x 6") mesh of #10 welded wire fabric. Aggregate used in the concrete shall be no larger than one inch (1") in size. Concrete shall be vibrated to minimize honeycombing. Tank side walls shall be at least two and one-half inches (2 1/2") thick and tank tops and bottoms shall be at least four inches (4") thick. Recommended dimensions for concrete septic tanks are set forth in Table L of this appendix.

3.2.2. Fiberglass and Plastic Tanks. -- Septic tanks that are made of fiberglass or plastic shall be approved by the Secretary.

3.3. Design Standards.

3.3.1. The invert of the inlet pipe shall be at least two inches (2") above the invert of the outlet pipe.

3.3.2. Inlets and outlets shall be at least four inches (4") in diameter and be equipped with a flexible watertight seal.

3.3.3. The inlet shall be provided with a cast-in-place or inserted baffle or a sanitary tee that extends to a depth of at least six inches (6") but not more than twenty percent (20%) of the liquid depth.

3.3.4. The outlet shall be provided with a cast-in-place or inserted baffle or sanitary tee that extends to at least thirty-five percent (35%) but not more than forty percent (40%) of the liquid depth.

3.3.5. The top of the inlet and outlet baffles or tees shall extend at least six inches (6") above the flow line.

3.3.6. The liquid depth in a septic tank shall be at least thirty inches (30") but shall not exceed five feet (5') for tanks that have a capacity of less than three thousand (3,000) gallons or six feet (6') for tanks that have a capacity of three thousand (3,000) or more gallons.

3.3.7. A minimum of nine inches (9") of clearance shall be provided above the liquid level.

3.3.8. The top of the septic tank above the outlet, shall be embossed, imprinted, stenciled, or otherwise marked in an indelible and legible manner with the manufacturer's name and the tank's liquid capacity, and the date of manufacture.

3.3.9. Access shall be provided to each compartment of the septic tank for inspection and cleaning.

3.3.10. All septic tanks shall have a four (4") inch gas tight inspection port which extends to the surface of the ground to measure sludge and scum accumulations.

4. Soil Absorption Systems.

4.1. General Design Standards.

4.1.1. Location. -- Absorption fields, serial distribution systems, absorption beds, mound systems, and other soil absorption systems shall be located in accordance with the separation distances set forth in Table M of this appendix.

4.1.2. Site Evaluation. -- The evaluation of a site to determine its suitability for the installation of a soil absorption system shall be based upon percolation test results and an evaluation of a six foot (6') deep excavation performed in accordance with the procedures set forth in Table N of this appendix. A soil absorption system shall not be installed in soils where percolation test results show an average percolation time of less than five (5) minutes per inch unless all surrounding occupied structures are served by a public water supply.

4.1.3. Relation to Water Table. -- A minimum of three feet (3') shall be provided between any portion of a soil absorption system and the seasonal high water table.

4.1.4. Relation to Impermeable Layers. -- A minimum of three feet (3') shall be provided between any portion of a soil absorption system and an impermeable layer of rock or soil.

4.2. Standard Soil Absorption Fields.

4.2.1. Sizing. -- Standard soil absorption fields shall be designed in accordance with the sizings set forth in Table O of this appendix.

4.2.1.a. Absorption fields over three thousand (3,000) square feet in total area shall include some form of dosing. Dosing shall be accomplished by gravity distribution boxes or by pumping. Pumped systems shall dose the soil absorption field two to four (2 to 4) times per day; however, the dose shall be no more than seventy-five percent (75%) of the distribution pipe volume for soil absorption systems utilizing four inch (4") pipe. Pumping units shall be designed and constructed in conformance with the applicable requirements of subsection 6.5 of Part A of this appendix.

4.2.1.b. When a total field area of over five thousand (5,000) square feet is necessary, the field shall be split into two (2) or more fields of approximately equal size.

4.2.1.c. When a structure other than a single-family dwelling is to be served, or more than one structure is to be served by a single system, land shall be reserved for the construction of two (2) standard soil absorption fields, each of adequate size to serve the proposed structure or structures.

4.2.2. Construction Materials.

4.2.2.a. Pipe used in gravity distribution soil absorption systems shall have a minimum diameter of four inches (4"). Pipe smaller than four inches (4") in diameter may be used for pressure distribution soil absorption systems.

4.2.2.b. Pipe used in the construction of soil absorption fields shall be ASTM - D 2729, D 2852, D 3350, D 2751, D 2836, D 3033, D 3034, D 3298, or F 789 plastic pipe.

4.2.2.c. Perforated pipe used in the construction of soil absorption fields shall have a minimum of two (2) rows of downward-facing holes that are ninety degrees (90N) of arc apart.

4.2.2.d. Aggregate used in the construction of soil absorption fields shall be washed gravel, crushed stone, or slag that is one-half to two inches (1/2" to 2") in size and has a hardness of 3 on the Moh scale of hardness.

4.2.2.e. Approved gravel less soil absorption systems may be considered in lieu of aggregate systems. Gravel less systems must be installed in accordance with the manufacturers’ specifications. Any sizing reductions must be approved by the Secretary.

4.2.3. Construction on Level Terrain. -- Standard soil absorption fields on level terrain shall be constructed in conformance with the following specifications:

4.2.3.a. Trenches shall be one to three feet (1' to 3') wide with a maximum depth of thirty-six inches (36") and a minimum depth of eighteen inches (18").

4.2.3.b. The maximum length of a trench shall not exceed one hundred feet (100') with the exception that absorption fields dosed by a pump may utilize trenches of greater length upon approval from the Secretary. If distribution lines greater than one hundred feet (100') in length are necessary, the inlet line shall be connected to the center of the distribution line so that the lengths on either side of the connection will not exceed one hundred feet (100') each.

4.2.3.c. The bottom of each trench and its distribution line shall be level. Trenches shall be constructed in a manner that minimizes the compaction or smearing of the sides and bottoms. Trenches shall not be constructed in soil that is so wet that it forms a "wire" instead of breaking apart when rolled between the hands. Trenches shall not be constructed during inclement weather which may interfere with or preclude correct construction procedures.

4.2.3.d. At least six inches (6") of aggregate shall be placed in the bottom of the trench beneath a pipe and at least two inches (2") of aggregate shall be placed on top of the pipe.

4.2.3.e. The surface of the aggregate shall be covered with three to four inches (3" to 4") of straw or hay, one (1) layer of untreated building paper, filter fabric, or a thickness of at least four (4) sheets of newspaper prior to backfilling.

4.2.3.f. At least six feet (6') of undisturbed earth shall be provided between the side walls of each trench. Additional separation may be required in order to avoid interaction between the trenches.

4.2.3.g. Soil absorption fields constructed in flat areas shall be designed to provide a continuous or closed-circuit system.

4.2.3.h. The backfilling of a soil absorption field shall be performed in a manner that minimizes the movement of heavy equipment upon the field. Backfill shall be mounded over the absorption field to allow for settling and to promote runoff from the field. Backfilling shall not be performed when the ground is frozen. The area where a soil absorption field has been constructed shall not be graded after backfilling.

4.2.3.i. The sewer line from the structure to the septic tank shall be laid on a grade of not less than one-eighth of an inch (1/8") per foot.

4.2.3.j. If a soil absorption field is greater than one thousand five hundred (1,500) square feet in area, a siphon chamber or pump chamber may be required by the Secretary to insure even distribution of effluent.

4.2.4. Construction on Sloping Terrain. -- Standard soil absorption fields on sloping terrain shall be constructed in conformance with the applicable requirements of paragraph 5.2.3 of Part C of this appendix and the following specifications:

4.2.4.a. Soil absorption fields constructed on sloping ground shall use a serial distribution system. The use of drop boxes is recommended.

4.2.4.b. Soil absorption fields shall not be constructed on slopes of greater than twenty-five percent (25%).

4.2.4.c. At least six inches (6") of cover shall be placed over the aggregate fill in each trench.

4.2.4.d. The absorption trenches shall follow the approximate ground surface contours so that variation in trench depth will be minimized.

4.2.4.e. Adjacent trenches shall be connected by a relief line, crossover, or drop box arrangement in such a manner so that each trench is completely filled with septic tank effluent to the full depth of the aggregate before effluent flows to succeeding trenches.

4.2.4.e.A. The relief line or crossover shall be solid four inch (4") sewer line with tight joints and a direct connection to the distribution lines or a drop box installation.

4.2.4.e.B. Relief lines, crossovers, and drop boxes shall not be constructed in any location or manner that will subject them to damage during or after construction. The location of relief lines, crossovers, and drop boxes shall be marked prior to backfilling to avoid damage from heavy equipment.

4.2.4.e.C. Trenches for relief lines or crossovers shall be no deeper than the top of the aggregate of the trenches being connected. Relief lines and crossovers shall rest on undisturbed earth and backfill shall be carefully tamped; care shall be exercised to ensure that an undisturbed block of earth remains between the trenches.

4.2.4.e.D. The invert of the overflow pipe in the first relief line or crossover shall be at least four inches (4") lower than the invert of the septic tank outlet.

4.3. Absorption Beds.

4.3.1. Approvable Use. -- Absorption beds shall only be constructed when terrain or space limitations prevent the installation of a standard soil absorption field.

4.3.2. Sizing. -- Absorption beds shall be sized to provide an area that is thirty percent (30%) greater than the area required for a standard soil absorption field in order to compensate for side wall loss.

4.3.3. Design and Construction. -- Absorption beds shall be constructed in conformance with the applicable requirements of subsection 5.2 of Part C of this appendix and the following specifications:

4.3.3.a. Absorption beds shall have a maximum depth of thirty-six inches (36") and a minimum depth of eighteen inches (18").

4.3.3.b. The piping distribution network within absorption beds shall be installed so that the pipes are located eighteen inches (18") to thirty-six (36") from the sides of the bed in a continuous or closed-circuit design, with a minimum of three feet (3') and a maximum of six (6') feet between pipes.

4.4. Shallow and Elevated Soil Absorption Systems.

4.4.1. Approvable Systems. -- Due to the shallowness of many West Virginia soils, a soil absorption system will often have to either be placed at a shallow depth or be elevated above the original ground surface in order to maintain the mandatory three (3) or more feet above the seasonal high water table or an impermeable layer of rock or soil. The construction of a shallow or elevated soil absorption system is approvable where there is a suitable layer of soil, sufficient space for the system, and a natural slope that is not excessively steep. Approvable shallow and elevated soil absorption systems include soil absorption mounds, shallow fields, and unique systems designed for specific situations.

4.4.2. Mound Systems. -- Mound systems shall only be considered when intended to serve existing residences, to correct health hazards, or in other special cases. Mound systems shall be designed and constructed as approved by the Secretary.

4.4.3. Shallow Fields. -- Shallow fields are similar to standard soil absorption fields, more easily constructed than mound systems, and may be considered for new residences. Shallow fields may be used where a pervious rock layer, an impermeable layer of rock or soil, or the seasonal high water table is within three and one-half feet (3 1/2') of the ground surface and the site has a slope of less than fifteen percent (15%). Modified evapotranspiration systems may be used where a pervious rock layer, an impermeable layer of rock or soil, or the seasonal high water table is within four feet (4') of the ground surface and the site has a slope of less than fifteen percent (15%). Shallow fields and modified evapotranspiration systems shall be constructed in conformance with the applicable requirements of subsection 5.2 of Part C of this appendix and the following specifications:

4.4.3.a. The bottoms of trenches shall be at least three feet (3') above pervious rock, impermeable rock or soil, and the seasonal high water table.

4.4.3.b. The depth of trenches in natural ground may be set between six inches (6") and eighteen inches (18"), the space between trenches may be set between six feet (6') and twelve feet (12'), and the depth of cover material may be set between eighteen inches (18") and thirty-six inches (36") depending upon the depth selected for the trenches.

4.4.3.c. Cover material shall be placed prior to the construction of the trench system in conformance with the procedures set forth in Table P of this appendix.

4.4.3.d. The percolation rate to be used when designing a shallow field shall be the rate determined at the field installation depth by means of the procedures set forth in Table N of this appendix.

4.5. Dual Soil Absorption Fields.

4.5.1. Approvable Use. -- Dual absorption fields may be used at sites where the percolation rate, as determined by means of the procedures set forth in Table N of this appendix, is between sixty (60) and ninety (90) minutes per inch.

4.5.2. Sizing. -- Dual absorption fields shall be sized after consultation with the Secretary.

4.5.3. Design and Construction. -- Dual absorption fields shall be designed to meet the dosing requirements set forth in subparagraph 5.2.1.a of Part C of this appendix. A junction box or valving arrangement shall be provided for alternation of the fields.

5. Individual Sewage Systems with Surface Water Discharge.

5.1. Approvable Use. -- Individual sewage systems with a surface water discharge shall only be considered for correcting failures in systems for existing residences or establishments when all other means of treatment and disposal have proven ineffective and a real or potential public health hazard exists.

6. Abandonment of Individual Sewage Systems.

6.1. Sewage Tanks. -- The contents of a sewage tank shall be removed by a licensed sewage tank cleaner or by another means approved by the Secretary. If in a useable condition, the empty tank shall be removed and the excavation filled to eliminate any physical hazard. If not in a useable condition, the empty tank shall be filled with earth or a similar inert material and the excavation shall be filled to eliminate any physical hazard.

6.2. Electrical and Water Service. -- Electrical service to the individual sewage system shall be terminated and electrical service boxes, switches, meters, and similar equipment shall be removed. Any water service to the system shall be disconnected.

6.3. Hazardous Equipment. -- Potentially hazardous equipment associated with the individual sewage system shall be removed.

TABLE A

Minimum Design Loadings for Sewage Treatment Works Facility Description Design Flow Design Loading (gpd) (lbs BOD5/day)

Airports Per employee 15 .05 Per passenger 5 .02 Apartment Houses One bedroom 140 .34 Two bedrooms 210 .51 Three bedrooms 280 .60 Assembly Halls Per seat 2 .02 Beauty Parlors and Barber Shops Per chair 150 .50 Per operator 20 .02 Boarding Houses (with no food service)

Per guest 50 .15 Bowling Alleys (with no food service)

Per alley 75 .13 Per alley, with a bar 225 .30 Churches Per member 2 .01 Per member, with a kitchen 5 .02 Clinics Per patient 5 .02 Per staff 20 .03 Country Clubs Per nonresident member 25 .05 Per resident member 70 .17 TABLE A (continued)

Minimum Design Loadings for Sewage Treatment Works Facility Description Design Flow Design Loading (gpd) (lbs BOD5/day)

Dentist Offices Per chair 200 .10 Per staff 20 .02 Disco/Dance Halls Per seat 5 .01 Doctor Offices Per patient 5 .01 Per staff 20 .02 Factories (per person)

Heavy, with a cafeteria and shower 35 .04 Light, with a cafeteria or shower 25 .02 Light 20 .02 Hospitals Per patient (per bed) 300 .34 Per nonresident staff 20 .02 Per resident staff 100 .17 Hotels (exclusive of restaurants or bars)

Per guest 50 .15 Industrial Parks (sanitary waste only)

Per developable acre 500 .84 Institutions Per resident 70 .17 Laundries (coin-operated)

Per machine 400 .34 Mine Bath Houses Per worker 15 .03 TABLE A (continued)

Minimum Design Loadings for Sewage Treatment Works Facility Description Design Flow Design Loading (gpd) (lbs BOD5/day)

Mobile Homes Per three occupants 210 .51 Motels (exclusive of restaurants or bars)

Per unit 80 .15 Nursing and Rest Homes Per resident 150 .26 Per resident staff 70 .17 Office and Warehouses Per worker 20 .03 Per worker, with food service 25 .04 Recreation Areas (per person)

Picnic areas 10 .02 Beaches 10 .02 Campgrounds 25 .05 Amphitheaters 5 .01 Historic sites 5 .01 Parks 10 .02 Lodges 70 .17 Park residences 70 .17 Park washhouses 30 .05 Restaurants 24-hour service, per seat 50 .17 Normal hour service, per seat 30 .10 Curb service, per car space 50 .17 Fast food, per seat 25 .06 Schools (per person)

Elementary school 8 .02 High school 10 .03 Boarding school 70 .17 TABLE A (continued)

Minimum Design Loadings for Sewage Treatment Works Facility Description Design Flow Design Loading (gpd) (lbs BOD5/day)

Service Stations 24-hour service 1,000 1.60 Normal service 500 .80 Shopping Malls Per 100 square feet 15 .03 Shopping Centers Based upon individual store occupancy Summer Cottages Per resident 50 .17 Swimming Pools Per swimmer 5 .01 Per swimmer, with showers 7 .02 Taverns and Bars (with little or no food service)

Per seat 20 .04 Theaters Drive-in, per car space 4 .008 Movie, per seat 2 .004 Travel Trailer Parks (per resident)

No water to the site 35 .075 With water to the site 50 .10 TABLE B Minimum Slope for Gravity Sewers Slope in feet Sewer Size per 100 feet 6" 0.62 8" 0.40 10" 0.28 12" 0.22 14" 0.17 15" 0.15 16" 0.14 18" 0.12 21" 0.10 24" 0.08 27" and larger 0.07 TABLE C Minimum Specifications for Gravity Sewer Pipe A. House Connection to Collector Sewers 1. Clay - ASTM C 700 2. Plastic - ASTM D 2729, D 2751, D 2836, D 2852 3. Ductile Iron - AWWA C-110, C-151, Cement lined 4. Cast Iron - ASTM A 74 5. Concrete - ASTM C 14 B. Collector and Interceptor Sewers 1. Plastic - ASTM D 3033, D 3034, F 789 2. Composite - ASTM D 2680 3. Ductile Iron - AWWA C-110 , C-151, Cement lined 4. Cast Iron - AWWA C-108, Cement lined 5. Concrete - ASTM C-76 TABLE D Minimum Specifications for Spare Pump Units for Grinder Pumps, Effluent Pumps, and Vacuum Valves Installed Units Spare Units 1 to 10 1 11 to 20 2 21 to 30 3 31 to 40 4 41 to 50 5 51 to 75 6 76 to 100 7 101 to 150 8 151 to 200 9 201 to 300 10 301 to 400 11 401 to 500 12 greater than 501 As approved by the Secretary TABLE E Buffer Zone Requirements for Treatment Works Buffer Zone Required Package Sewage Treatment Plants 40,000 gpd or less 100 feet 40,001 to 100,000 gpd 200 feet greater than 100,000 gpd 300 feet polishing ponds 100 feet package sand filters 100 feet alternating surface sand filters 100 feet TKN removal equipment 100 feet aerated lagoons 100 feet stabilization ponds 300 feet trickling filters 300 feet land treatment systems 300 feet Note: These buffer zone requirements may be waived by the Secretary if suitable screening techniques and odor control are provided. These requirements do not apply to existing treatment works that are being upgraded or expanded.

TABLE F

Color Scheme for Treatment Works Piping Line Color Sludge line Brown Gas line Orange Potable water line Blue Chlorine line Yellow Sewage line Gray Compressed air line Green Water lines for heating digesters or buildings Blue/Red* * Blue with six-inch red bands spaced thirty inches apart.

Note: The contents of each pipe shall be stenciled on the piping in a contrasting color.

TABLE G

Permissible Aeration Tank Capacities and Loadings Aeration Tank F/M Ratio Mixed Liquor Organic Loading (pounds BOD5 Suspended Process*** (pounds BOD5 per day per day per Solids* per 1000 cubic feet) pound MLSS) (mg/l)

Conventional 40 0.2 - 0.5 1,000 - 3,000 Step Aeration 40 0.2 - 0.5 1,000 - 3,000 Complete Mix 40 0.2 - 0.5 1,000 - 3,000 Contact Stabilization 50** 0.2 - 0.6 1,000 - 3,000 Extended Aeration 15 0.05 - 0.1 3,000 - 5,000 Oxidation Ditch 15 0.05 - 0.1 3,000 - 5,000 * Mixed Liquor Suspended Solids (MLSS) values are dependent upon the surface area provided for sedimentation and the rate of sludge return as well as the aeration process. ** Total aeration capacity including both contact and reaeration capacities. Normally the contact zone provides thirty to thirty-five percent (30% to 35%) of the total aeration capacity. *** SBR’s and MBR’s are approvable processes and should be designed in accordance with the manufacturer’s recommendation.

Note: The values above apply to treatment works receiving peak to average daily load ratios ranging from about two to one (2:1) to four to one (4:1). Thus, the utilization of flow equalization facilities to reduce the daily peak organic load may be considered by the Secretary as a justification to approve organic loading rates that exceed those specified above.

MLSS great than 5,000 mg/l may be allowed provided that adequate design data is submitted showing an aeration and clarification system capable of supporting such levels.

TABLE H

Minimum Air Requirements for Aeration Equipment Available Cubic Feet of Air Loading per Pound of BOD5 Process in the Aeration Tank Conventional 1,500 Step Aeration 1,500 Contact Stabilization 1,500 Modified or "High-Rate" 400 to 1,500* Extended Aeration 2,050 * Depending upon the expected BOD5 removal.

Note: Air volume requirements for channels, pumps, and similar appurtenances shall be added to the above figures when designing the appropriate aeration equipment.

TABLE I

Sludge Return Rates Sludge Return Rate as a Percentage of the Influent Flow Minimum Maximum Standard Rate 15% 100% Carbonaceous Stage of Second-Stage Nitrification 15% 100% Step Aeration 15% 100% Contact Stabilization 50% 150% Extended Aeration 50% 150% Nitrification Stage of Second-Stage Nitrification 50% 200% Note: The rate of sludge return shall be varied by means of variable speed motors, drivers, air lifts, or timers to pump sludge at the above rates.

TABLE J

Acceptable Media Sizes for Trickling Filters Media Size Percent Acceptable Passing through a 42" screen 100% by weight Retained on a 3" screen 95% - 100% by weight Passing through a 2" screen 0 - 2% by weight Passing through a 1" screen 0 - 1% by weight TABLE K Minimum Capacities for Septic Tanks 1. Single-Family Dwellings Number of Bedrooms Minimum Tank Capacity 4 or less 1,000 gallons Each additional bedroom 250 gallons for each additional bedroom * Average daily flow may be calculated using the design flows listed in Table A of this appendix. + The minimum tank capacity for commercial establishments utilizing garbage grinders shall be increased by twenty percent (20%). However, garbage grinders are not recommended for any septic tank system, either residential or commercial.

TABLE L

Recommended Dimensions for Concrete Septic Tanks Interior Interior Interior Sewage Tank CapacityLength Width Depth Depth 750 gallons 6' 8" 3' 4" 5' 4" 4' 6" 1,000 gallons 8' 0" 3' 4" 6' 0" 5' 0" 1,250 gallons 8' 8" 4' 0" 6' 0" 5' 0" 1,500 gallons 10' 0" 4' 0" 6' 6" 5' 0" 2,000 gallons 12' 0" 4' 6" 6' 6" 5' 0" 2,500 gallons 13' 6" 5' 0" 6' 6" 5' 0"

TABLE M

Minimum Horizontal Separation Distances Between Soil Absorption Systems and Natural and Man-Made Features Distance Feature 10 feet Foundation drains that are up slope from the disposal area. 20 feet Foundation drains that are down slope from the disposal area. 20 feet Stream banks and open drainage features, whether man-made or natural. 20 feet Man-made cuts in soil and curtain drains. 50 feet Man-made cuts that intersect rock or shale. 100 feet Water supply reservoirs, springs, or wells.

TABLE N

Percolation Test Procedures for Siting Soil Absorption Fields At least four (4) test holes shall be placed at equal distances over the proposed absorption field site. The following steps shall be taken to perform the necessary percolation tests:

1. Dig or bore holes from six to eight inches (6" to 8") in diameter at the proposed absorption field site. The holes shall be dug or bored to the depth of the proposed field but in no case shall be less than twenty-four inches (24") deep.

2. Scratch the bottom and sides of each hole with a sharp, pointed instrument or wire brush in order to remove any smeared soil surfaces which may interfere with the absorption of water.

3. Remove the loose dirt from the bottom of each hole and place two inches (2") of coarse sand or fine gravel into the hole to prevent sealing.

4. Place a 10-penny nail or similar marker in the wall of each hole at a point exactly six inches (6") above the level of sand or gravel.

5. Completely fill each hole with water to ground level. Keep water in the holes to a depth of at least twelve inches (12") for at least four (4) hours before beginning the percolation rate measurement.

6. Adjust the water depth in the holes to the level of the nail or marker. Accurately determine how many minutes it takes for all of the water to be absorbed into the soil. This time in minutes, divided by six (6), gives the rate of fall per inch.

7. Average the rate of fall for all test holes (i.e., add the rate of fall for each test hole together and divide by the number of test holes). This figure is the percolation rate used in calculating the size of the soil absorption field required. If the tests show extreme variations between holes, it may be necessary to relocate the field in a more suitable area.

8. Excavate a six foot (6') deep observation hole in the center of the proposed absorption field to evaluate the soil depth to any pervious rock layer, to any impermeable rock or rock layer, and to the seasonal high water table. If slopes at the proposed site exceed fifteen percent (15%), the observation hole shall be excavated at the location of the lowest proposed trench of the serial system.

TABLE O

The Sizing of Soil Absorption Systems 1. Single-Family Dwellings Minimum Area of Percolation Rate* Soil Absorption System Less than 5 minutes Consult with the Secretary 5 to 10 minutes 200 ft2 per bedroom 11 to 30 minutes 250 ft2 per bedroom 31 to 45 minutes 300 ft2 per bedroom 46 to 60 minutes 400 ft2 per bedroom Over 60 minutes Consult with the director 2. Structures Other Than Single-Family Dwellings Minimum Area of Percolation Rate* Soil Absorption System Less than 5 minutes Consult with the director 5 to 10 minutes 1,650 ft2 per 1,000 gpd 11 to 30 minutes 2,500 ft2 per 1,000 gpd 31 to 45 minutes 2,950 ft2 per 1,000 gpd 46 to 60 minutes 3,300 ft2 per 1,000 gpd Over 60 minutes Consult with the Secretary * Determined by tests conducted in conformance with the procedures set forth in Table N of this appendix.

TABLE P

Procedures for Placing Cover Material on a Shallow Field A. Scarify the area, removing all vegetation prior to placing the cover material. Be careful to minimize the amount of soil removed in this step.

1. Plow the area to be filled with a moldboard plow. Use as large a plow as possible to reduce the number of driven-in furrows which result in compaction of the subsoil. Plow perpendicular to the direction of the surface slope, so the plow throws soil up slope, to a depth of seven to eight inches (7" to 8").

2. Plow only when the moisture content of the soil is low in order to avoid compaction and puddling. That is, plow only when the soil is friable or dry and falls apart when rolled into a "wire." If a fragment of soil approximately nine inches (9") below the surface can be easily rolled into a "wire," the soil should not be plowed since the moisture content is too high.

3. Keep all vehicular traffic off of the plowed area once plowing is completed. Minimize the time between plowing and filling; immediate filling after plowing is highly preferable. If it rains after plowing is completed, wait until the soil dries out before placing the cover material.

B. Place the cover material on the scarified area.

1. Place cover material around the edges of the scarified area. Suitable cover material shall consist of soil with a natural permeability of less than thirty (30) minutes per inch which contains no large, coarse fragments or debris. Keep the wheels of the dump truck off the scarified area as much as possible in order to reduce compaction and ruts.

2. Cover the scarified area in lifts of eight to twelve inches (8" to 12"). Compact each lift to not less than ninety-five percent (95%) of the maximum density. Initially, try to keep at least six inches (6") of fill under the tracks of the dump truck in order to minimize sealing.

3. Place cover material on the scarified area until the desired elevation is achieved.

C. Landscape the filled area by planting grasses on the surface after constructing trenches in conformance with the requirements set forth in subsection 5.2 of Part C of this appendix.

47CSR31

47CSR31

Series 32 Environmental Laboratories Certification And Standards Of Performance

W. Va. Code R. § 47-32-1 General

1.1. Scope. -- This rule governs the certification of laboratories conducting environmental analysis of waste and wastewater performed as required by rules or orders issued pursuant to the covered statutory programs. The rule establishes the provisions for obtaining and maintaining laboratory certifications and the criteria and procedures laboratories will be required to follow in analyzing samples.

1.2. Authority. -- W. Va. Code §22-1-15.

1.3. Filing Date. -- May 12, 2009.

1.4. Effective Date. -- July 1, 2009.

1.5. Incorporation by Reference. -- The Department hereby adopts and incorporates into this rule the approved "Guidelines Establishing Test Procedures for the Analysis of Pollutants" 40 CFR 136, EPA SW 846 Methods, and such other methods as may be approved by U.S. Environmental Protection Agency (EPA) or the Secretary.

1.6. Construction. -- This rule shall be liberally construed to permit the Department to discharge its statutory functions and to effectuate the purposes of the laboratory certification program.

1.7. Purpose of this Rule. -- This rule is promulgated to ensure that the results of environmental analyses are accurate, reproducible and verifiable. This purpose will be achieved by:

1.7.1. Establishing the administrative procedures to be followed by certified laboratories and laboratories seeking certification;

1.7.2. Establishing the categories in which, and the parameters for which laboratories may be certified;

1.7.3. Establishing the minimum requirements, criteria and procedures for laboratory equipment and supplies, practices, methodology, quality control, personnel, facilities, data reporting, and laboratory and record maintenance, which a certified laboratory shall continually meet; and

1.7.4. Establishing the enforcement procedures the Department will follow to ensure that all certified laboratories or laboratories seeking certification are in compliance with this rule.

1.8. Certification Program Requirements.

1.8.1. A laboratory analyzing samples for compliance with adopted rules, permits, or orders issued pursuant to a covered statutory program will follow the procedures set forth in this rule in order to obtain and maintain certification. The provisions of this rule are only applicable to tests required by State and Federal regulatory programs.

1.8.2. Certified laboratories and laboratories seeking certification will analyze all samples requiring testing under this rule in accordance with the procedures and methods required by this rule.

1.9. Program Information and Communications. -- Questions concerning the requirements of this rule should be directed to the Department of Environmental Protection, Division of Water and Waste Management, Quality Assurance Program, 601 57th Street SE, Charleston, WV 25304-2345.

W. Va. Code R. § 47-32-2 Definitions

The following words and terms, when used in this rule have the following meanings unless the context clearly indicates otherwise.

2.1. "Accredited" means an approval conferred upon institutions or programs where appropriate by a nationally recognized accrediting agency or association as determined by the Department.

2.2. “Accuracy” means the closeness of agreement between an observed value and the accepted reference value. Accuracy is best determined through the analysis of a sample spiked with a known concentration of target analytes and this value compared to an unspiked aliquot.

2.3. "Analyte" means an element, ion, isotope, compound, or component of interest to the analyst.

2.4. "Analytical Reagent Grade" (AR), "ACS reagent grade", and "Reagent Grade" are synonymous terms for reagents which conform to the current specifications of the Committee on Analytical Reagents of the American Chemical Society.

2.5. “Analyst” means the individual who performs the analytical methods and associated techniques and who is responsible for applying the required laboratory practices and quality controls to meet the required level of quality.

2.6. "APHA Standard Methods" or "Standard Methods for the Examination of Water and Wastewater" means the methods published by the American Public Health Association, 1015 Fifteenth Street NW, Washington, DC 20005.

2.7. "Approved analytical methods" are those analytical or test methods cited in the Code of Federal Regulations as being approved by EPA or such other methods as shall be approved by the Secretary.

2.8. “Batch” means the environmental samples that are prepared or analyzed together using the same procedures, personnel, lots of reagents, and standards.

2.9. “Batch, Analytical” means a batch composed of prepared environmental samples that are analyzed together as a group. An analytical batch may contain samples originating from various environmental matrices and can exceed 20 samples.

2.10. ”Batch, Preparation” means a batch composed of 1 to 20 environmental samples of the same matrix with a maximum time between the start of processing of the first and last sample in the batch to be 24 hours.

2.11. ”Cancellation” means the voluntary removal of a previously certified laboratory from the laboratory certification program.

2.12. "Category" means a group of parameters for which certification is offered.

2.13. "Certification" means the approval granted by the Secretary authorizing a laboratory to provide environmental compliance data.

2.14. "Certification parameter" means a parameter that is identified in a proficiency test sample and that is used to evaluate the overall analytical performance of a laboratory on the specific method.

2.15. "Certification year" is that period of time following the date upon which the laboratory first receives certification for any parameter or category and lasting for 365 consecutive days.

2.16. "Certified thermometer" is a thermometer that has documentation from the manufacturer showing that it has been compared against a National Institute for Standards Testing (NIST) thermometer covering the temperature ranges employed by the laboratory.

2.17. "CFR" means the Code of Federal Regulations.

2.18. "Compliance analysis" means the analysis of a sample that is required to be analyzed by a Department rule, permit or order.

2.19. "Covered statutory programs" means one of the regulatory programs developed under statutory authority of one of the following acts of the Legislature:

2.19.1. Water Pollution Control Act, W. Va. Code §22-11-1.

2.19.2. Hazardous Waste Management Act, W. Va. Code §22-18-1.

2.19.3. Hazardous Waste Emergency Response Fund Act, W. Va. Code §22-19-1.

2.19.4. Underground Storage Tank Act, W. Va. Code §22-17-1.

2.19.5. Solid Waste Management Act, W. Va. Code §22-15-1.

2.19.6. Groundwater Protection Act, W. Va. Code §22-12-1.

2.20. “Deficiency” means a deviation from acceptable procedures or practices.

2.21. “Department” means the West Virginia Department of Environmental Protection.

2.22. "EPA" and "USEPA" means the United States Environmental Protection Agency.

2.23. "Laboratory" means a facility conducting tests or analyses of parameters for which certification is required, where the results of such tests or analyses are used for purposes of demonstrating compliance under the covered statutory programs. Provided; The term "laboratory" shall not include individuals conducting analyses of constituents that must be conducted in the field because of practical constraints; such as, but not limited to pH, dissolved oxygen, total residual chlorine and sulfide.

2.24. "Laboratory pure water" means distilled or deionized water which is free of contaminants that interfere with analytical tests.

2.25. "Laboratory seeking certification" means an uncertified laboratory which has submitted an acceptable application and the appropriate fee.

2.26. “List of certified parameters” means the document displaying the categories and parameters for which a laboratory is certified.

2.27. “Matrix or matrices” means the media of an environmental sample, either non-potable water or solid and chemical materials.

2.28. “Method” means the scientific technique used to perform testing or analyses of an environmental sample.

2.29. “Mobile laboratory” means a portable enclosed structure within which testing or analyses of environmental samples occurs.

2.30. “NPDES” means National Pollutant Discharge Elimination System.

2.31. “Nonpotable water” means wastewater, ambient water, surface water, groundwater, effluents, water treatment chemicals, and toxicity characteristic leaching procedure or other extracts.

2.32. "Parameter" means an analytical method or test within a category and for which certification is offered.

2.33. “Proficiency test sample” means a sample containing a known amount of a specific or combination of parameters used in part to evaluate the performance of a laboratory.

2.34. "Person, Persons, or applicant" means any industrial user, public or private corporation, institution, association, firm or company organized or existing under the laws of this or any other state or country; state of West Virginia; governmental agency, including federal facilities; political subdivision; county commission; municipal corporation; industry; sanitary district; public service district; drainage district; soil conservation district; watershed improvement district; partnership; trust; estate; person or individual; group of persons or individuals acting individually or as a group; or any legal entity whatever.

2.35. "Personal and direct supervision" means that a supervisor is available either in person or on call at all times when laboratory procedures are being performed.

2.36. “Precision” means the agreement among a set of measurements performed on duplicate samples without assumption of knowledge of the true value. Precision is estimated by means of duplicate/replicate analyses.

2.37. "Quality Assurance Program" means a program developed to achieve the purposes of subsection 1.7 for the covered statutory programs of the Department.

2.38. “Quality Manual” means the document stating, or making reference to the policies, objectives, principles, responsibilities, accountability, implementation plans, methods, operation procedures, or other documents of an environmental laboratory for ensuring the quality of its testing analyses.

2.39. "Raw Data" means that data acquired in the process of collecting and analyzing samples for compliance testing purposes. Raw data includes such sampling report forms, sample log books, laboratory bench sheets, calculations and formulas, and analytical data and notes as are used during sample analysis. Raw data may be in the form of graphs, line recorder charts, handwritten data, or computer printouts made at or near the time of the analysis or sample collection.

2.40. “Revocation of certification” means the action taken by the Department to halt the certification of a laboratory for cause.

2.41. “Sample Duplicate” means a sample prepared by dividing a homogeneous sample into separate parts so that each part is also homogeneous and representative of the original sample.

2.42. “Secretary” means the Secretary of the West Virginia Department of Environmental Protection or his or her designee.

2.43. “Solid and Chemical Materials” means soils, sediments, sludges, solid waste, drill cuttings, overburden, minerals, coal ash, and products and by-products of an industrial process that result in a matrix that is not otherwise defined.

2.44. “Standard Operating Procedure” means a written document that provides detailed instructions for the performance of all aspects of test analyses, operation, or action.

2.45. “Suspension of certification” means the temporary removal of approval to perform analyses under this rule until such time as the basis for suspension is rectified.

2.46. "Supervisor" means that designated person responsible for the technical adequacy and quality of data for a certification category, and who possesses the qualifications required under subsection 3.7.

W. Va. Code R. § 47-32-3 Certification Program; Application, Procedures, and Requirements

3.1. Requirements of Certification.

3.1.1. With the exception of those tests not normally performed in a laboratory proper, all sample analyses required by order of the Department or performed for the purpose of determining compliance with chemical, microbiological, aquatic toxicity and radiological requirements of the State's covered statutory programs must be performed in laboratories certified for this purpose pursuant to this rule. Analyses performed in laboratories not so certified shall not be accepted by the Department as being in compliance with the requirements, rules or orders of the Department. All analyses not performed in a laboratory proper must be performed by personnel under the direction of a supervisor from a certified laboratory.

3.1.2. Laboratories doing business in other states where a state certifying agency grants reciprocal certification, approval, or other authorization to laboratories located in West Virginia, and which is certified, approved or authorized by the agency of that state having primary certification responsibility under Federal programs delegated to such other state under conditions equivalent to those required by this rule, are considered to be certified for the purpose of this rule once they have complied with the provisions of Section 3.4. Laboratories doing business in other states where certification is not required, and who are not certified in another state, may be considered for certification by following the conditions and requirements stated in Section 3.3.

3.1.3. Only laboratories certified pursuant to this rule or maintained by the EPA may be called West Virginia Certified Environmental Laboratories and no laboratory may adopt any name or make any oral or written statement intended or likely to mislead the public with respect to its certification status.

3.2. Categories of Certification. -- A laboratory applying for certification in one or more of the following categories must demonstrate acceptable performance on proficiency test samples for all matrices, where available, and meet all other requirements of this rule. The laboratory certificate, including the list of certified parameters, will specify the categories and the parameters within each category for which the laboratory is certified and it must be displayed in a location visible to the public. Tests for all categories, except Aquatic Toxicity, must be conducted in accordance with the method and procedures specified in the Code of Federal Regulations, Chapter 40 as applicable or other methods that may be approved by EPA or the Secretary. The certification categories are:

3.2.1. Nonpotable Water Trace Metals;

3.2.2. Nonpotable Water Inorganic Nonmetals;

3.2.3. Nonpotable Water Volatile Organic Chemicals;

3.2.4. Nonpotable Water Extractable and Semi-volatile Organic Chemicals;

3.2.5. Nonpotable Water Dioxin and Dibenzofuran;

3.2.6. Nonpotable Water Microbiology, comprising tests for Coliform Bacteria, Fecal Streptococci, Pathogenic Bacteria, Plate counts, Viruses, Parasites and Parasite ova;

3.2.7. Whole Effluent Toxicity, testing which must be conducted in accordance with the methods and procedures specified in 40 CFR 136;

3.2.8. Nonpotable Water Radiochemistry;

3.2.9. Hazardous Waste Characteristics, including Corrosivity, Ignitability, Reactivity, Extraction Procedure Toxicity, and Toxicity Characteristic Leaching Procedure, or other tests or analyses designated by the Secretary;

3.2.10. Solid and Chemical Trace Metals;

3.2.11. Solid and Chemical Inorganic Nonmetals;

3.2.12. Solid and Chemical Volatile Organic Chemicals;

3.2.13. Solid and Chemical Extractable and Semi-volatile Chemicals;

3.2.14. Solid and Chemical Dioxin and Dibenzofuran;

3.2.15. Solid and Chemical Microbiology; and

3.2.16. Solid and Chemical Radiochemistry.

3.3. Application Procedures and Requirements for Laboratories Located in West Virginia.

3.3.1. A person operating a laboratory in West Virginia who wants to be certified in one or more of the categories and parameters thereof or, who if already certified, wants to add a category or a parameter within a category, must apply for certification to the West Virginia Department of Environmental Protection, Quality Assurance Program, refer to subsection 1.9 for the address. The applicant shall submit the appropriate fee with the application for certification.

3.3.2. An application for certification is acceptable when a complete application is submitted. This includes the appropriate fee, and the information requirements of this rule for the category, categories or parameter(s) for which certification is requested. Acceptance of a complete application does not authorize the laboratory to perform analyses regulated by this rule. The applicant will be notified if the application is not acceptable and the laboratory inspected to determine if it is in compliance with the requirements of this rule prior to the issuance of certification.

3.3.3. An application will be rejected without prejudice for not being a complete application.

3.3.4. Proficiency test samples will be an element of the laboratory evaluation. Proficiency testing will be in accordance with subsection 3.10. The laboratory must receive acceptable scores on two separate proficiency test studies prior to an on-site inspection being performed. Certified laboratories that desire to include additional parameters within previously certified categories must demonstrate satisfactory results for proficiency test samples for these additional parameters.

3.3.5. The results of the analysis of proficiency test samples shall be considered in determining whether the certification of the laboratory should be granted, renewed, denied, revoked, or suspended. Certification may be granted only for those parameters for which the laboratory performs acceptably.

3.3.6. An applicant for certification who either does not perform acceptably on the proficiency test samples or does not otherwise meet the requirements of this rule shall be notified that the requirements for certification have not been met.

3.3.6.a. Applicants receiving a notification that certification requirements have not been met may not reapply for certification until the laboratory assures the Quality Assurance Office in writing that corrective actions have been taken and documented that bring the laboratory into compliance with this rule.

3.3.6.b. Owners, principal officers, managers or supervisors of a laboratory, for which certification has been denied, may not reapply for certification of this same facility by simply changing the company or laboratory name.

3.3.6.c. Certification is transferrable. A laboratory facility must notify the Department in writing at the address listed in subsection 1.9 that the facility is being sold or has a change of principal officer(s), manager(s) or supervisor(s) within 30 days of the change or activity.

3.3.7. Certifications may contain conditions requiring correction of minor deficiencies identified by the Quality Assurance Officer by a date or dates specified therein.

3.4. Application Procedures and Requirements for Laboratories Not Located in West Virginia.

3.4.1. Owners of laboratories located in a state other than West Virginia, which have been certified, approved or otherwise authorized by that state's agency having primary certification, approval or authorization responsibility for laboratory certification programs with conditions equivalent to those required by this rule, and who have entered into a reciprocity agreement with West Virginia, and who wish to perform analyses covered by this rule for West Virginia clients shall:

3.4.1.a. Annually complete the application form provided by the Department’s Quality Assurance Office;

3.4.1.b. Have the form certified by the state agency having primary certification authorization/enforcement responsibility; and

3.4.1.c. Return the form to the Quality Assurance Office of West Virginia at the address listed in subsection 1.9.

3.4.2. The application will be reviewed and if found to be complete the laboratory will be certified or recertified.

3.4.3. If the laboratory's certification, approval or authorization is revoked by the state agency having primary certification, approval or authorization responsibility, the West Virginia certification is automatically canceled for the same parameter(s) as has been revoked in the other state. The laboratory manager shall notify the West Virginia Quality Assurance Office and all clients in West Virginia of the revocation within 48 hours of receipt of notice of revocation.

3.4.4. The owner of a laboratory in a state other than West Virginia which is not certified by that state or is certified under conditions not equivalent to those required by this rule and who wishes to perform analyses for West Virginia clients may apply for certification in accordance with the procedure set forth in subsection 3.3 of this rule. In addition, prior to conducting the on-site laboratory inspection, the laboratory shall submit to the Quality Assurance Office a per diem sum the Department determines to be sufficient to cover the travel, room, and board expenses of the certification inspector(s).

3.5. Renewal of Certification. -- Applications for renewal of certification must be submitted, on forms provided therefore, no later than 180 days before the expiration date of certification, and accompanied by the appropriate fee. A laboratory submitting an application for renewal of certification may continue to operate under the previous certification until the Quality Assurance Office notifies the laboratory of the approval or denial of renewal.

3.6. Fees.

3.6.1. Owners of Laboratories applying for certification or renewal of certification, shall submit the appropriate fee obtained from the annual fee schedule specified in Table 1 for each category in which the laboratory seeks certification for one or more parameters, along with the required application materials. Fees are nonrefundable.

3.6.2. Laboratories owned or operated by the State of West Virginia or an agency of the Federal Government are exempt from the above fees, except in situations addressed in paragraph 3.6.2.a, but shall make appropriate application for certification in accordance with the other provisions of this rule.

3.6.2.a. In situations where a laboratory under this subdivision is conducting analyses for a fee, an appropriate certification fee will be assessed.

3.6.3. All application fees collected under this rule will be paid into a special state treasury fund designated the "Environmental Laboratory Certification Fund" which will be used to defray the cost of administering this rule.

3.7. Required Laboratory Personnel Qualifications.

3.7.1. Each laboratory must have one individual designated as the person responsible or in charge and irrespective of any local title or designation, is herein referred to as the laboratory manager.

3.7.2. Current employee records must include a resume documenting each employee's training, degrees held, experience, duties, and date(s) of relevant employment. This provision is applicable only to the employee’s laboratory and environmental sampling work history. Table 2 lists the minimum education and experience requirements.

3.7.3. Laboratory supervisors who are also laboratory technicians and who do not have the required laboratory experience will be considered a Supervisor-in-Training and must have their work reviewed by an individual meeting the above education and experience requirements for supervisors.

3.7.4. Technicians holding a West Virginia Environmental Training Center Wastewater Laboratory Technician certificate meet the education and experience requirements of this rule only in the conduct of analyses while employed at a Publicly Owned Treatment Works (POTW).

3.8. Duties and Responsibilities of Laboratory Personnel.

3.8.1. The laboratory manager or his designee will administer the operations of the laboratory including the approval of test and analytical results.

3.8.2. Each laboratory supervisor shall provide personal and direct supervision for personnel and for the reporting of test and analytical results.

3.9. Management of Laboratories.

3.9.1. A certified laboratory may offer as a service those laboratory tests, analyses, or procedures that are within the category or categories for which it is certified.

3.9.2. A laboratory that is certified shall only report test and analytical data for samples which are properly labeled, and for which there is reasonable assurance the samples have been collected, preserved, stored and transported in such a manner as to assure identity, stability of the sample, and proper analysis.

3.10. Proficiency Testing.

3.10.1. Except when determined by the Quality Assurance Office that an appropriate performance evaluation test is not readily available, all certified laboratories or laboratories seeking certification shall participate in a proficiency testing program covering all tests, matrices, and analyses made available within the category, categories or parameter(s) for which the laboratory is certified or seeks certification. The laboratory must participate in two studies per certification year at a frequency of one study every six (6) months.

3.10.2. Each certified laboratory or laboratory applying for certification must obtain proficiency test samples from an approved provider for each parameter and matrix for which certification is requested. The list of approved providers is located at http://www.a2la.org/dirsearch/nelacptproviders.cfm.

3.10.3. Laboratories certified or those seeking certification must test or analyze the proficiency test samples and submit the results to the Quality Assurance Office or its authorized agent, as appropriate, within the time frame allowed each participant testing that set of samples for evaluation.

3.10.3.a. A laboratory may not send proficiency test samples to another laboratory for testing.

3.10.3.b. A laboratory shall not knowingly receive proficiency test samples from any laboratory seeking certification or certified by this office.

3.10.3.c. A laboratory shall not discuss proficiency test sample data with any other laboratory for any purpose.

3.10.3.d. Any laboratory found in violation of 3.10.3a, 3.10.3.b, or 3.10.3.c will be denied certification and not allowed to reapply for certification for a period of five (5) years from the date of the denial.

3.10.4. The laboratory will have satisfied the requirements for testing for a parameter when it receives an ‘Acceptable’ evaluation for that parameter, in two of the last three proficiency test studies.

3.10.5. The laboratory will be informed of the results of each evaluation by the proficiency test provider. For those parameters which a laboratory has not successfully completed the proficiency test after three attempts, the laboratory will be reevaluated upon written request.

3.10.6. Acceptance limits for proficiency tests will be established according to the USEPA document “National Standards for Water Proficiency Testing, Criteria Document.” For analytes and matrices not found in this document, limits will be established in accordance with the procedures set forth by the current National Environmental Laboratory Accreditation Conference (NELAC).

3.10.7. The laboratory will have three separate opportunities to acceptably analyze proficiency test samples for any parameter for which the laboratory seeks certification. The laboratory need only repeat proficiency tests for those parameters for which the laboratory has failed to perform acceptably. Parameters for Organic Samples shall mean a method, or method subdivision (i.e. Volatiles, Extractables, BTEX, etc.). Laboratories that fail to successfully analyze two of three different sets or rounds of proficiency test samples in the time period allotted will not be certified for the failed parameters until two consecutive sets or rounds have been successfully analyzed.

3.10.8. This rule incorporates by reference the 2003 National Environmental Laboratory Accreditation Conference (NELAC) Proficiency Testing standard, Chapter 2 with appendices for the purposes of Proficiency Testing Criteria for Laboratory Certification.

3.11. Laboratory Inspections.

3.11.1. As a condition of obtaining and maintaining certification, a laboratory will permit and facilitate inspections by personnel of the Department. This inspection will include the physical facilities as well as laboratory records and reports.

3.11.2. The Department will conduct at least one on-site inspection of a laboratory seeking certification to determine whether or not the laboratory meets the Quality Assurance Office standards as set forth in this rule.

3.11.3. Regular inspections of laboratories certified in accordance with this rule will be conducted during reasonable hours. These inspections will be conducted annually or as determined by the Secretary, however, in no situation may more than two years elapse between inspections.

3.11.4. Authorized representatives of the Department may make inspections of a certified laboratory whenever the Department in its discretion considers such inspections necessary. A laboratory's refusal to allow entry to the Department’s representative will be grounds for denial or revocation of certification.

3.11.5. During inspections, consideration will be given to staff competence, working conditions, tests or analytical methods used, quality control procedures, quality assurance programs, maintenance of records and compliance with the requirements of this rule.

3.11.6. The laboratory will be furnished with a copy of the inspection report which will list deficiencies found.

3.12. Cancellation, Suspension, and Revocation of Certification.

3.12.1. Any certified laboratory may cancel its certification in any category or parameter by notifying the Quality Assurance Office in writing of the laboratory's decision to cancel its certification. This cancellation notification will not entitle the laboratory to any refund of fees paid.

3.12.1.a. If the laboratory wishes to cancel the entire certification, all categories and parameters, the laboratory will enclose its Environmental Laboratory Certificate with the letter of notification.

3.12.2. A laboratory’s certification may be suspended for failure to correct deficiencies within the specified timeframe.

3.12.3. A laboratory’s certification may be suspended for failure to correct proficiency test sample failures.

3.12.4. A laboratory’s certification may be revoked if the laboratory commits any falsification relating to certification, testing, or reporting of analytical results or for failing to comply with the provisions in 3.10.

3.13. Effect and Duration of Suspension and Revocation.

3.13.1. The results of any tests or analyses performed after the effective date of a suspension or revocation order for any category or parameter will not be accepted by the Department as being in compliance with the requirements of the Covered Statutory Programs as defined in subsection 2.20.

3.13.2. Suspension or revocation will not be withdrawn until the basis for the suspension or revocation has been eliminated or rectified.

3.13.3. Any laboratory having its certification suspended or revoked must notify all clients of the suspension or revocation.

3.14. Notice of Changes -- In the event there are any changes in the name, location, ownership, address, telephone number or supervisory personnel of the laboratory to which the provisions of this rule apply, then the laboratory will immediately submit written notice thereof to the Department. For supervisory personnel this provision applies only to those whose responsibilities include analyses that must be made in compliance with this rule.

W. Va. Code R. § 47-32-4 Laboratory Requirements

A certified laboratory or a laboratory seeking certification must continually meet and follow the requirements of this section.

4.1. Laboratories will have on the premises and under the control of the laboratory manager all of the equipment and instruments necessary to analyze each parameter in which the laboratory is certified, or is seeking certification. All equipment must meet the minimum standards required by the test method used.

4.2. General Requirements for All Laboratories.

4.2.1. Adequate laboratory space and facilities, to include equipment and instruments must be available to properly carry out the services performed in the laboratory.

4.2.2. Laboratory work areas will be arranged so as to minimize problems in contamination, transportation and communication.

4.2.3. Workbench space within the laboratory must be ample for the tests or analyses to be performed, have adequate lighting and be convenient to a sink, water, gas, vacuum and electrical outlets or other utilities as necessary to properly carry out the specific tests or analyses to be performed.

4.2.4. Temperature and humidity within the laboratory are to be maintained within the limits required for the proper performance of each test or analysis, the proper operation of the various instruments, and the proper storage of expendable supplies.

4.2.5. pH meters must have an accuracy of and scale graduations within 0.1 standard unit.

4.2.6. Analytical and pan balances are to be clean, not corroded, and be provided with Class-S weights or equivalent. Analytical balances will be capable of weighing to 0.1 milligram minimum. Pan balances will be capable of weighing to 100 milligrams.

4.2.6.a. An analytical balance must be mounted on a heavy, shockproof table. The balance level must be checked each use and adjusted as necessary;

4.2.6.b. An analytical balance must be located in an area that is not near laboratory traffic and is protected from drafts and humidity changes; and

4.2.6.c. Three Class-S or equivalent weights are to be available for checking the analytical balance. These weights must cover the range expected to be encountered during routine analyses.

4.2.7. All temperature measuring devices will be graduated in one degree Celsius (or 2 degrees Fahrenheit) increments and readable to 0.5 degrees Celsius (1 degree Fahrenheit) for all analyses except fecal coliform analysis; in which case glass or metal thermometers are to be readable to 0.2 degrees Celsius.

4.2.7.a. Continuous temperature recording devices will be sensitive and accurate to within 1.0 degree Celsius (2 degrees Fahrenheit).

4.2.7.b. The column of liquid in glass thermometers will have no separation.

4.2.7.c. Liquid column in glass and electronic type thermometers without a current manufacturer’s certificate of accuracy must be verified as accurate annually. All other types, to include Automatic Temperature Compensation (ATC) devices, must be verified as accurate quarterly. Verification must be accomplished by comparison to a certified thermometer traceable to a National Institute for Standards Testing thermometer. See also paragraph 5.2.2.g for additional thermometer requirements.

4.2.7.d. Each temperature measuring device must be uniquely identified. The results of accuracy verifications must be documented. The corrected temperature must be recorded whenever temperatures are required to be recorded.

4.2.8. Sample storage refrigerators must maintain an internal temperature of ≤ 6 degrees Celsius.

4.2.9. Laboratory glassware, plastic ware, and metal utensils will meet the following requirements:

4.2.9.a. Glassware and metal utensils must resist corrosion, and be capable of withstanding high temperatures, and vigorous cleaning;

4.2.9.b. Flasks, beakers, dilution bottles, culture dishes, culture tubes and other glassware are to be of borosilicate glass and free of chips, cracks, and excessive etching;

4.2.9.c. Volumetric glassware must be Class A and need not be calibrated before use. Non Class A glassware must be calibrated before use; and

4.2.9.d. Metal utensils must be made of stainless steel or other inert material.

4.2.10. Pipettes must meet the following requirements:

4.2.10.a. Glass pipettes are to be made of borosilicate glass;

4.2.10.b. Plastic pipettes must be compatible with the reagents being measured, i.e. will not dissolve or show signs of etching or numbers being removed;

4.2.10.c. Plastic pipettes must be sterile or sterilizable for microbiological procedures;

4.2.10.d. Pipettes must deliver the required volume quickly and accurately within a 2.5 percent tolerance; and

4.2.10.e. Pipettes must not be excessively etched, nor the mouthpiece or delivery tips chipped, or the graduation marks illegible.

4.2.11. Magnetic stirrers must have variable speeds, and use Teflon coated stirring bars.

4.2.12. Volumetric dispensing devices including autopipetors, autotitrators and digital burets must be of sufficient sensitivity for the application. Delivery volumes of mechanical volumetric dispensing devices must be checked using the gravimetric method or using Class A volumetric glassware once every 3 months.

4.2.13. All purchased reagents and solutions must be certified as appropriate for the intended use by the manufacturer or supplier or must be verified as appropriate by the laboratory prior to use.

4.3. Criteria and Procedures for Trace Metal Testing.

4.3.1. The Department incorporates methods approved in 40 CFR §136.3 Table IB, the current approved edition of EPA publication SW-846 Test Methods for Evaluating Solid Waste, Physical/Chemical Methods, and other methods as may be approved by EPA or the Secretary, including all standards, criteria, sample collection procedures, analytical procedures, methodology, quality assurance and quality control specifications for evaluation and certification purposes.

4.4. Criteria and Procedures for Inorganic Nonmetals.

4.4.1. The Department incorporates methods approved in 40 CFR §136.3 Table IB, the current approved edition of EPA publication SW-846 Test Methods for Evaluating Solid Waste, Physical/Chemical Methods, and other methods as may be approved by EPA or the Secretary, including all standards, criteria, sample collection procedures, analytical procedures, methodology, quality assurance and quality control specifications for evaluation and certification purposes.

4.5. Criteria and Procedures for Volatile Organic Chemicals, Extractable and Semi-volatile Chemicals and Dioxin and Dibenzofuran.

4.5.1. The Department incorporates methods approved in 40 CFR §136.3 Table IC, ID and IG, the current approved edition of EPA publication SW-846 Test Methods for Evaluating Solid Waste, Physical/Chemical Methods, or such other methods as may be approved by EPA or the Secretary, including all standards, criteria, sample collection procedures, analytical procedures, methodology, quality assurance and quality control specifications for evaluation and certification purposes.

4.6. Criteria and Procedures for Microbiological Testing.

4.6.1. The Department incorporates from methods approved in 40 CFR §136.3 Table IA, or other methods as may be approved by EPA or the Secretary, including all standards, criteria, sample collection procedures, analytical procedures, methodology, quality assurance and quality control specifications for evaluation and certification purposes.

4.6.2. Laboratory pure water for use in microbiological examinations will be analyzed for the parameters listed in Table 3. Should the test results for any of the substances exceed the standards set forth in the table, corrective action must be taken and the water retested.

4.6.2.a. Analysis of laboratory pure water for use in microbiological examinations must be performed by a laboratory certified under this rule. Results must be maintained and include the date, type of analysis, results and identity of the individual responsible for the results.

4.6.2.b. For purchased laboratory pure water for use in microbiological examinations, a current certificate of analysis from the producer is required, documenting that the purity of the water is traceable. The purchased laboratory pure water must meet the requirements of Table 3.

4.7. Criteria and Procedures for Whole Effluent Toxicity Testing.

4.7.1. All work is to be performed in accordance with procedures outlined in Methods for Measuring the Acute Toxicity of Effluents and Receiving Waters to Freshwater and Marine Organisms, EPA/821/R-02/012, or Short Term Methods for Estimating Chronic Toxicity of Effluents and Receiving Waters to Freshwater Organisms, EPA/821/R-02/013 and other methods as may be approved by EPA or the Secretary for the test to be performed.

4.8. Criteria and Procedures for Radiochemistry Testing.

4.8.1. The Department incorporates methods approved in 40 CFR §136.3 Table IE, the current approved edition of EPA publication SW-846 Test Methods for Evaluating Solid Waste, Physical/Chemical Methods, or other methods as may be approved by EPA or the Secretary, including all standards, criteria, sample collection procedures, analytical procedures, methodology, quality assurance and quality control specifications for evaluation and certification purposes.

4.9. Criteria and Procedures for Characteristics Testing.

4.9.1. The Department incorporates the current approved edition of EPA publication SW-846 Test Methods for Evaluating Solid Waste, Physical/Chemical Methods, and other methods as may be approved by EPA or the Secretary, including all standards, criteria, sample collection procedures, analytical procedures, methodology, quality assurance and quality control specifications for evaluation and certification purposes.

W. Va. Code R. § 47-32-5 Methodology, Quality Control and Record Keeping

5.1. Methodology.

5.1.1. Sample collection, handling, and preservation techniques specified in 40 CFR §136.3 Table II, or other procedures approved by EPA or the Secretary are to be followed.

5.1.1.a. Samples requiring preservation will be preserved in accordance with 40 CFR §136.3 Table II for compliance with subsection 2.19.1 and the NPDES. All other samples will be preserved in accordance with applicable methods and regulations.

5.1.1.b. Sample collection, handling and preservation techniques specified by the analytical methods will be followed for the parameters analyzed by those methods in the absence of guidance under paragraph 5.1.1.a.

5.1.1.c. The chain of custody form must be completed at the time of sample collection and will state the sampling location, date and time of collection, collector's name, type(s) of preservation, number of containers per sample, type of sample (grab or composite) and any remarks.

5.1.1.d. After the sample has been collected, the appropriate information as to identity of the sample is to be written on the label. The identity of the sample must be the same on the label and the chain of custody form. The label must remain affixed to the sample container and is not to be removed until the required analyses have been completed and the surplus sample has been discarded.

5.1.1.e. The chain of custody must accompany the sample at all times. Custody of the sample must be documented on the chain of custody throughout the life of the sample (from collection to disposal of surplus sample after all required analyses have been completed). Any time the custody of the sample is transferred from one person to another, except analysts in the same laboratory, this transfer must be documented in the appropriate fields on the chain of custody form.

5.1.1.f. Immediately upon delivery of the sample to the laboratory, the individual delivering the sample will complete the appropriate section(s) of the chain of custody form. A chain of custody form is not required where the sampler is also the analyst and in situations where the laboratory and the sample site(s) are within the property boundaries of the facility in which the laboratory is located.

5.1.1.g. Prior to accepting custody of a sample, laboratory personnel must be reasonably assured that the sample has met the chemical and temperature preservation requirements. If the sample fails to meet these requirements, the sample chain of custody form is to be marked indicating the sample was improperly preserved. Analytical data resulting from improperly preserved samples must be accompanied by a statement indicating the condition of the sample upon receipt by the laboratory. Analytical data resulting from samples improperly preserved will not be accepted as being in compliance with this rule.

5.1.1.h. When it is necessary to send samples by mail, bus, courier service, or private shipping, the chain of custody form is to be completed by the individual relinquishing custody of the sample for shipping and is to accompany the samples during shipping. Upon receipt of the samples in the laboratory, the provisions of paragraph 5.1.1.g are to be followed.

5.1.2. Test procedures identified in 40 CFR §136.3, EPA publication SW-846 Test Methods for Evaluating Solid Waste, Physical/Chemical Methods or other methods approved by EPA or the Secretary will be utilized for the analysis of all samples required to be reported to the Department.

5.1.2.a. All procedures other than those set forth in subdivision 5.1.2 are considered alternate test procedures (ATP). Laboratories must make special application to the Department for the use of ATPs in accordance with 40 CFR §136.4.

5.1.2.b. All laboratories which have previously been granted approval to use an ATP by the EPA will be allowed to continue using such method after submitting written proof of the approval to the Department.

5.1.3. General Laboratory Practices.

5.1.3.a. Chemistry -- Inorganic Nonmetals and Trace Metals.

5.1.3.a.A. Laboratories utilizing visual comparison devices must calibrate the standards incorporated into devices of this type at least once every four months. The laboratory will make and maintain records of the date and method of each calibration.

5.1.3.a.B. Distilled and deionized water is to have a resistivity value ≥ 0.5 megohms-cm at 25 degrees Celsius.

5.1.3.a.C. Analytical Reagent grade chemicals should be used for most analyses. Detailed information on reagent grades is set forth in the approved analytical methods and their recommendations must be followed for the reagent quality to be used for each test or analysis.

5.1.3.a.D. Where applicable, method detection limits must be determined for all categories and parameters. The method found in 40 CFR Part 136, Appendix B must be used for this calculation.

5.1.3.a.E. Field blanks must be prepared and analyzed for the test categories and parameters identified in subdivisions 3.2.1 and 3.2.2, at a minimum of two times per year, once during the cold wet season and once during the warm dry season.

5.1.3.a.F. Field duplicates must be collected and analyzed for the test categories and parameters identified in subdivisions 3.2.1, 3.2.2, 3.2.10, and 3.2.11, at a minimum of two times per year, once during the cold wet season and once during the warm dry season.

5.1.3.b. Microbiology.

5.1.3.b.A. All practices and procedures for the conduct of microbiological examinations must follow the guidance in methods approved in 40 CFR §136.3 Table IA.

5.1.3.b.B. The temperature of incubators, water baths and heat blocks must be monitored in accordance with approved methods or as specified by regulation.

5.1.3.b.B.1. Each incubator, water bath or heat block must have a thermometer placed so as to give a representative temperature measurement for the device.

5.1.3.b.B.2. Incubators, water baths and heat blocks must be clean and properly maintained in accordance with the manufacturer’s instructions.

5.1.3.b.C. Autoclaves must meet the specified temperature tolerances in the approved method. The use of a pressure cooker is not recommended.

5.1.3.b.C.1. A continuous temperature recording device or a maximum temperature registering thermometer must be used to measure the temperature during each autoclave cycle.

5.1.3.b.C.2. The laboratory must use a sterilization verification technique such as autoclave tape to indicate proper sterilization of equipment and contaminated materials.

5.1.3.b.C.3. Autoclaves must be clean and properly maintained in accordance with the manufacturer’s instructions.

5.1.3.b.C.4. Autoclaves must be serviced annually by a qualified person. Servicing must include a pressure check and calibration of temperature devices.

5.1.3.b.D. Hot air sterilization ovens must be of sufficient size to prevent crowding and constructed to give uniform sterilization.

5.1.3.b.D.1. Hot air sterilization ovens must be clean and properly maintained according to the manufacturer’s instructions.

5.1.3.b.E. Appropriate optical counting equipment must be used in accordance with approved methods.

5.1.3.b.F. Appropriate inoculating equipment must be used in accordance with approved methods.

5.1.3.b.G. Appropriate membrane filters, pads and dishes must be used in accordance with approved methods.

5.1.3.b.H. A sterility blank must be analyzed:

5.1.3.b.H.1. with each lot or batch of media, either purchased or prepared in the laboratory;

5.1.3.b.H.2. with each lot of membrane filters, pads and dishes;

5.1.3.b.H.3. with each lot or batch of sample containers, either purchased or prepared in the laboratory;

5.1.3.b.H.4. with each lot or batch of rinse/dilution water, either purchased or prepared in the laboratory; and

5.1.3.b.H.5. with each lot or batch of culture tubes, either purchased or prepared in the laboratory.

5.1.3.b.I. Field blanks must be prepared and analyzed for the test categories and parameters identified in subdivision 3.2.6, at a minimum of two times per year, once during the cold wet season and once during the warm dry season.

5.1.3.b.J. Field duplicates must be collected and analyzed for the test categories and parameters identified in subdivision 3.2.6, at a minimum of two times per year, once during the cold wet season and once during the warm dry season.

5.1.3.b.K. All equipment and reagents must be sterilized prior to use. All contaminated equipment must be sterilized prior to reuse. All contaminated material must be rendered innocuous prior to disposal.

5.1.3.c. Whole Effluent Toxicity Testing.

5.1.3.c.A. Natural or artificial sources of water may be used, but natural sources are preferred.

5.1.3.c.B. Natural sources are to be free of pollution, low in turbidity, high in dissolved oxygen, low in B.O.D., and the pH must be favorable to the maintenance of the organisms.

5.1.3.c.C. Municipal water supplies are acceptable. Water from a municipal source must be passed through a filter to remove organic chemicals and chlorine before use, and be conditioned for the species under test.

5.1.3.c.D. Test organisms are to be fed as outlined in the approved methods, subdivision 3.2.7.

5.1.3.c.E. Treatment of diseased or parasitized organisms is to be in accordance with the procedures given in the approved methods, subdivision 3.2.7.

5.1.3.c.F. Organisms treated for disease or parasites are not to be used in whole effluent toxicity tests for at least 10 days after treatment.

5.1.3.d. Radiochemistry.

5.1.3.d.A. Analytical reagent grade (AR) chemicals will be used for all analyses, unless otherwise required for an individual analytical procedure.

5.1.3.d.B. Radioactive standards and radioactive wastes are to be stored in an enclosed and properly labeled area, either within the laboratory or in a separate room or facility. All radioactive materials must be safely stored in suitable containers.

5.1.3.d.C. Standards and samples are to be prepared in an area of the laboratory specifically designated for and exclusively used for the preparation of radioactive standards and samples. Adequate precautions must be taken in this area to ensure against radioactive contamination.

5.1.3.e. Volatile Organic, Extractable, and Semi-volatile Organic Testing. Equipment must be capable of meeting the quality control requirements specified in subdivision 5.2.6.

5.1.3.e.A. Trip blanks must be prepared, transported and analyzed for each batch of samples for analysis for Nonpotable Volatile Organic Chemicals, subdivision 3.2.3.

5.1.3.e.B. A method blank must be analyzed with each batch of samples.

5.1.3.e.C. A laboratory control sample must be analyzed with each batch of samples.

5.1.3.e.D. A matrix spike and a matrix spike duplicate must be analyzed with each batch of samples. In situations where the laboratory does not receive sufficient sample volume or quantity to perform a matrix spike and a matrix spike duplicate, a laboratory control sample and a laboratory control sample duplicate must be analyzed.

5.1.3.e.E. Surrogate spike compounds must be added to all samples and quality control standards prior to preparation/extraction and analysis where applicable. The recovery of surrogate compounds must be compared to acceptance limits established in the appropriate method. If acceptance limits are not provided in the method, the laboratory must use appropriate procedures to establish in-house acceptance limits.

5.1.3.e.F. Any time criteria are not met with respect to blanks, laboratory control samples, matrix spikes, matrix spike duplicates, or surrogates, data must be reported with appropriate qualifiers describing the situation and explaining the effect on the results.

5.2. Quality Control Programs -- Each laboratory will develop, and have on file available for inspection a written description of the current laboratory Quality Assurance Program Plan. This written description will outline the procedures the laboratory uses in meeting the quality control requirements set forth in this subsection. Managers, supervisors, and analysts should participate in developing the Quality Assurance Program Plan. Each participant within the laboratory is to have access to a copy of the quality control program Quality Assurance Program Plan and the detailed guidelines for implementation of the participant's responsibility. A record of analytical control tests and quality control checks on media, materials, and equipment will be prepared by the laboratory and retained for at least three years.

5.2.1. A written description includes, but need not be limited to, the following for each category:

5.2.1.a. Procedures which the laboratory will use in meeting the quality control requirements of this rule pertaining to laboratory equipment and instrumentation, and the frequency with which these procedures will be performed.

5.2.1.b. Each laboratory will develop and maintain a written standard operating procedure (SOP) manual, which sets forth, in detail, the methods the laboratory will use in chemical analyses or tests for all parameters for which the laboratory is seeking certification.

5.2.1.c. Each laboratory must record and retain all raw data and calculations derived from analyses and quality control procedures in a manner that will provide easy verification of the data and calculations during on-site inspections.

5.2.2. Laboratories conducting analyses for Inorganic Nonmetals and Trace Metals must perform the following internal quality control checks:

5.2.2.a. Each analytical balance, with the exception of electronic balances without internal calibration controls, is to be checked and adjusted annually by a balance service technician. The accuracy of each analytical balance must be checked on each day of use using at least three Class-S weights covering the range expected to be encountered during routine analysis. The weights used, weight detected, dates on which checks were performed, analyst, record of balance level check and other pertinent information is to be recorded in a log book. The daily weighing check will be used as an indication of proper operation of electronic balances.

5.2.2.b. The accuracy of the wavelength setting of spectrophotometers without built-in automatic system diagnostics is to be checked yearly by comparing the wavelength setting to the absorption maxima appropriate standards. Any observed variation of the wavelength setting from the expected value must be within the manufacturer’s stated tolerance for the instrument. The check data must be recorded in a logbook.

5.2.2.c. pH meters are to be calibrated prior to use with two pH buffer standards bracketing the value to be measured and the calibration recorded. Records of pH meter standardization must be maintained in a laboratory notebook that documents the date of standardization, calibration buffers used and the initials of the individual conducting the standardization. If the meter displays a slope or other indicator of performance, this information must also be recorded.

5.2.2.c.A. Aliquots of standard buffers may not be used for longer than one day.

5.2.2.d. The linearity of conductivity meters must be checked over the range of the instrument using at least five concentrations of standard solutions yearly. The cell constant, k, is to be determined from this data. The meter must be calibrated using at least one standard with each use. The results of these calibrations must be recorded in a log book.

5.2.2.e. A daily record of the drying oven temperature must be maintained for each day on which the drying oven is in use. The oven thermometer must be kept in a sand bed or other inert material.

5.2.2.e.A. The oven temperature must be recorded immediately prior to placing samples in the oven and then again immediately prior to removing samples at the end of the drying cycle.

5.2.2.f. The temperature of each refrigerator and each incubator is to be either recorded continuously or recorded daily from in-place thermometers immersed in liquid and placed on one of the shelves being used. The refrigerator thermometer must be kept in a low vapor pressure liquid such as 50/50 water/Ethylene Glycol.

5.2.2.g. The accuracy of all thermometers used to monitor temperatures will be verified by comparing the readings of such thermometers with the readings of a certified thermometer. Refer to paragraphs 4.2.7.c and 4.2.7.d.

5.2.2.h. A calibration curve must consist of one calibration blank and 4 at least four standards to be prepared for each analysis requiring a calibration curve. This curve will be verified prior to each subsequent analysis by analyzing at least one calibration blank and one standard at or near the midpoint of the curve. These verifications are considered satisfactory if the result for the calibration blank is less than the method detection limit and the result for the midpoint standard is within 10 per cent of the expected value following vendor approved procedures for instrument calibration.

5.2.2.i. Standard curves used in the analysis of parameters in the Trace Metals category will be prepared in accordance with approved methods.

5.2.2.j. Where practicable, duplicate sample analyses are to be conducted for parameters in the Inorganic Nonmetals and Trace Metals categories to verify the precision of the method. Duplicate analyses will be performed at a frequency of 5 percent. Where less than 20 samples are analyzed at one time the analyst is to verify the precision once per analysis batch. Documentation will be made, in tabular form and on control charts, of precision testing.

5.2.2.j.A. In cases where sample results are normally below the method detection limit, precision must be determined by analysis of matrix spikes and matrix spike duplicates.

5.2.2.k. Where practicable, spiked sample analyses will be conducted to verify the accuracy of the method at the same frequency as set forth in paragraph 5.2.2.j of this rule. Documentation will be made, in tabular form and on control charts, of accuracy testing.

5.2.2.l. Where practicable, standard deviations are to be calculated and documented for all applicable measurements being conducted in the Inorganic Nonmetals and Trace Metals categories (spiked sample recoveries). Standard deviations must be documented in tabular form and on control charts.

5.2.3. Microbiology.

5.2.3.a. A start and finish membrane filter (MF) sterile control test of rinse water, media and supplies will be conducted for each sample filtration series. If the control tests indicate contamination, then all data which has been generated through tests involving the use of the contaminated materials will be rejected and the laboratory must request immediate resampling of those samples associated with the observed contamination.

5.2.3.b. When analyzing duplicate aliquots to assess precision, the same series of volumes/dilutions must be utilized for the sample and the duplicate.

5.2.3.c. The method detection limit for bacteria by the membrane filter method is defined as 1 colony /100 ml, adjusted as necessary for filtered volumes other than 100 ml.

5.2.3.d. The most probable number (MPN) test for bacteria must be carried through the "confirmed" stage for Fecal Coliform.

5.2.4. Whole Effluent Toxicity Testing -- An acceptable degree of precision for definitive toxicity tests is the 95 percent confidence level or fiducial intervals within less than ±30 percent of the 48 hour or incipient LC50 value.

5.2.4.a. Five reference toxicant tests on each reference toxicant and species combination evaluated by the laboratory are to be performed to establish the validity of effluent toxicity data generated by bioassay laboratories.

5.2.4.a.A. After completion of the requirements in paragraph 5.2.4.a, a reference toxicant test must be performed each month in which whole effluent toxicity testing is conducted using the same method and species as used for the whole effluent toxicity testing.

5.2.4.b. Quality control and proficiency test samples are available from commercial sources.

5.2.4.c. The reference toxicant test must be conducted within 7 days immediately preceding a whole effluent toxicity test or concurrently with the whole effluent toxicity test.

5.2.4.d. A control chart, as described in approved methods, should be prepared for each reference toxicant/species combination, and successive LC-50's plotted and examined to determine if the results are within prescribed limits.

5.2.4.e. If the LC-50 of a reference toxicant does not fall in the expected range for the test organisms, the sensitivity of the test system is suspect. In this case, the test procedure should be examined for defects, and a different batch of test organisms should be employed in repeating the reference toxicant and effluent toxicity test.

5.2.5. Radiochemistry -- Permanent records must be maintained of preventive maintenance, periodic inspections, testing, and calibration for the proper operation of radiation instruments and analytical balances; validation of methods; evaluation of reagents and volumetric equipment; surveillance of results; and remedial actions taken in response to detected defects. Such records must be kept on file by the laboratory for a period of at least five years.

5.2.5.a. To verify internal laboratory precision, duplicate analyses equal to ten percent of sample analyses shall be performed. The differences between duplicate measurements shall be less than twice the standard deviation of the specific analysis as described in Environmental Radioactivity Laboratory Intercomparison Studies Program, EPA 600/4-77-001 and other guidance from EPA or the Secretary.

5.2.5.b. One background and one calibration standard must be tested each day at a 5 percent level or fraction thereof.

5.2.5.c. Work records of quantitative tests are to indicate final results together with all corresponding instrument readings and calculations. Where instrumentation produces tracings or printouts, such tracings or printouts may serve as the work record.

5.2.6. Volatile Organic, Extractable and Semi-volatile Organic Testing.

5.2.6.a. The frequency and procedures for satisfying each of the requirements listed in paragraphs 5.2.6.b and 5.2.6.c are described in detail in EPA publication SW-846, 40 CFR Part 136, and/or in the US EPA Contract Laboratory Program Statement of Work for Organics Analysis.

5.2.6.b. Minimum quality control operations necessary to satisfy the analytical requirements associated with the determination of semi-volatile and volatile organic compounds by gas chromatographic methods will include the following:

5.2.6.b.A. Evaluation of Appropriate Blank Materials.

5.2.6.b.B. Surrogate Spike Response Monitoring.

5.2.6.b.C. Matrix Spike and Duplicate Analyses or Matrix Spike Duplicate.

5.2.6.b.D. Verification of Response and Calibration.

5.2.6.b.E. Conformational Analysis.

5.2.6.c. Minimum quality control operations to satisfy the analytical requirements associated with gas chromatographic/mass spectrometry determinations of semi-volatile and volatile compounds will be as follows:

5.2.6.c.A. Documentation of GC/MS Mass Calibration and Tune Abundance Patterns.

5.2.6.c.B. Documentation of GC/MS Response Factor Stability.

5.2.6.c.C. Internal Standard Response and Retention Time Documentation.

5.2.6.c.D. Surrogate Spike Recovery Monitoring

5.2.6.c.E. Matrix Spike and Duplicate Analyses or Matrix Spike Duplicate.

5.3. Records and Data Reporting.

5.3.1. Records of analyses, including but not limited to all raw data, calculations, quality control data, and laboratory reports, are to be kept by the laboratory for at least five years unless otherwise specified.

5.3.2. The following information is to be retained by the laboratory as part of the records of analysis and the records of custody:

5.3.2.a. The laboratory number or other form of identification of the sample;

5.3.2.b. The chain of custody form as required under paragraph 5.1.1.c;

5.3.2.c. The date and time when the laboratory received the sample, whether the sample was received preserved or unpreserved;

5.3.2.d. The date and time of analysis of the sample;

5.3.2.e. The person or persons who performed the analysis;

5.3.2.f. The type of analysis performed and the analytical method or methods employed;

5.3.2.g. The raw data generated by the analysis and results of the analysis; and

5.3.2.h. The name and address of the laboratory to which the sample was forwarded, if the analysis was not performed at the laboratory which first received the sample.

5.3.3. If the chain of custody information is reported on a chain of custody form, a copy of the form must be attached to the sample report form.

5.3.4. The results of each analysis are to be calculated and entered on the sample report form which is to be forwarded to the person requesting the analysis of the sample. A careful check is to be made to assure that each result entered on the sample report form is the same as the result generated by the analysis and entered on the bench sheet or other raw data document.

5.3.5. The original or true duplicate of the results of the test or analysis is to be sent promptly to the person who requested such tests or analysis, and must be signed by the laboratory manager or a designee whose designation has been documented in the laboratory Quality Assurance Manual or other instrument describing pertains within the laboratory.

5.3.6. Whenever a laboratory subcontracts samples to another laboratory, the person ordering the examination is to receive the original laboratory report or a true duplicate of that report on the form generated by the subcontract laboratory that actually performed the test or analysis.

5.3.7. If results are entered into a computer storage system, a printout of the data must be verified with the raw data.

5.3.8. The final data report must contain the following:

5.3.8.a. The name, address, and contact information of the laboratory performing the analyses;

5.3.8.b. Sample identification number (unique identifier assigned by the laboratory);

5.3.8.c. Sample description;

5.3.8.d. Date sample was collected;

5.3.8.e. Date sample was received at the laboratory;

5.3.8.f. Date of each individual analysis;

5.3.8.g. Method detection limit for each parameter;

5.3.8.h. Identity of the test method(s);

5.3.8.i. Deviations from the test method, if applicable;

5.3.8.j. Disclosure of contract laboratory and original or true copy of the results from the contract laboratory; and

5.3.8.k. Identity of the responsible agent.

W. Va. Code R. § 47-32-6 Appeals

Appeal to Environmental Quality Board -- Any person aggrieved or adversely affected by an order or action of the Secretary made and entered in accordance with the provisions of this rule or by issuance or denial of certification under the provisions of this rule, may appeal to the Environmental Quality Board in the same manner as appeals are taken under W. Va. Code §22B-1-7 to have the order vacated or modified. The filing of a notice of appeal will not automatically stay an order or action of the Secretary. The Environmental Quality Board will be reimbursed from the Environmental Laboratory Certification Fund for expenses incurred for appeal hearings filed with the Board relative to the provisions of this rule.

TABLE 1:

ENVIRONMENTAL LABORATORY CERTIFICATION

ANNUAL FEE SCHEDULE

Application fee – initial application $100.00 Application fee – renewal application $80.00 Application fee – additional parameters/methods When added other than at renewal $50.00 Nonpotable water Trace Metals – per metal – one method $20.00 Each additional method for the same metal $10.00 Nonpotable water Inorganic Nonmetals – per analyte or parameter – one method $50.00 Each additional method for the same analyte or parameter $25.00 Nonpotable water Volatile Organic Chemicals – per method $250.00 Per category maximum $750.00 Nonpotable water Extractable and Semi—volatile Organic Chemicals – per method $250.00 Per category maximum $750.00 Nonpotable water Dioxin and Dibenzofuran $1000.00 Nonpotable water Microbiology – per parameter per method $75.00 Whole Effluent Toxicity – acute $750.00 Whole Effluent Toxicity – chronic $750.00 Nonpotable water Radiochemistry $600.00 Solid and Chemical Trace Metals – per metal – one method $20.00 Each additional method for the same metal $10.00 Solid and Chemical Inorganic Nonmetals – per analyte or parameter – one method $50.00 Each additional method for the same analyte or parameter $25.00 Solid and Chemical Volatile Organic Chemicals – per method $250.00 Per category maximum $750.00 Solid and Chemical Extractable and Semi-volatile Organic Chemicals – per method $250.00 Per category maximum $750.00 Solid and Chemical Dioxin and Dibenzofuran $1000.00 Solid and Chemical Microbiology – per parameter per method $75.00 Solid and Chemical Radiochemistry $600.00 Hazardous Waste Characteristics – per procedure $150.00 TABLE 2:

EDUCATION & EXPERIENCE REQUIREMENTS

FOR SUPERVISORS

CERTIFICATION EDUCATION + EXPERIENCE SPECIAL

CATEGORY (Years)(1) (Years)(2) REQUIREMENTS Limited Chemistry 12 + 2 or ETC Certificate(3) & 14 + 1 or Microbiology 16 + 1 Atomic Absorption 16 + 2(4) 2 years of experience must be in atomic absorption Gas Chromatography 16 + 2(4) 2 years of experience must be in gas chromatography Mass Spectrometry 16 + 2(4) 2 years of experience must be in mass spectrometry Whole Effluent Toxicity16 + 2(4) 2 years of experience must be in whole effluent toxicity testing Radiochemistry 16 + 2(4) 2 years of experience must be in radiochemistry ----------------------------------------------------------------- Notes:

(1) 12 years = High School diploma or GED. 14 years = 2 years of college with emphasis in laboratory technology or a natural science. 16 years = Bachelors degree in Chemistry, Biology, Environmental Science, or other natural science.

(2) Substitution -- 1 year of laboratory experience within the specific certification category may be used for each year of education beyond 12 years.

(3) ETC Certificate = Environmental Training Center Laboratory Technician Certificate required of all POTW laboratory supervisors.

(4) No substitution is allowed for the 2 years of minimum experience required.

TABLE 3:

QUALITY OF PURIFIED WATER USED IN MICROBIOLOGY TESTS

Monitoring Test Frequency Limit Chemical Tests:

Conductivity With each use >0.5 megohms resistance or <2 umhos/cm at 25 degrees Celsius pH With each use 5.5 - 7.5 Heavy Metals (Cd, Cr, Cu, Ni, Pb, Zn)

(single) Annually <0.05 mg/L (total) Annually <0.10 mg/L Ammonia/Organic N Monthly <0.10 mg/L Total Chlorine Residual with each use < detection limit (0.01 mg/L maximum which ever is lower)

Total Organic Carbon Monthly <1.0 g/L Bacteriological Tests:

Heterotrophic Plate Count Annually <1000 colonies/mL 47CSR32 47CSR32

Series 34 Dam Safety Rule

W. Va. Code R. § 47-34-1 General

1.1. Scope and Purpose. -- This legislative rule establishes requirements relating to the design, placement, construction, enlargement, alteration, removal, abandonment, and repair of dams in this State that fall within the definition set forth in 2.12. This legislative rule also establishes requirements to govern the disbursement and use of moneys held in the State Dam Safety Rehabilitation Revolving Fund. The scope does not extend to those dams that are related to coal activities.

1.2. Authority. -- W. Va. Code §22-14-4 and §22-14-19(c).

1.3. Filing Date. -- May 20, 2009.

1.4. Effective Date. -- June 1, 2009.

1.5. Amendment of Existing Rule. -- This legislative rule amends the Dam Safety Rule, 47 C.S.R. 34, filed and made effective May 10, 1995.

W. Va. Code R. § 47-34-2 Definitions

2.1. "Abandonment" means to render a dam non-impounding by filling the reservoir created by that dam with solid materials and by diverting the natural drainway around the site.

2.2. "Act" means the West Virginia Dam Control and Safety Act, W. Va. Code §22-14-1, et seq.

2.3. "Applicant" means a person who applies for a certificate of approval or a loan pursuant to the provisions of this rule.

2.4. "Appurtenances" means any ancillary part of a dam or reservoir system which contributes to the operation or construction of the dam.

2.5. "Assessment Officer" means a person appointed by the Secretary to carry out the review and hearing procedures outlined in this rule.

2.6. “Authority” means the West Virginia Water Development Authority provided in W. Va. Code §22C-1-1 et seq.

2.7. "Average Time Headway" means the number of seconds in one day divided by the average daily traffic.

2.8. "Breach" means partial removal of a dam, creating a channel through the dam at the original stream bottom elevation.

2.9. "Bridge" means a structure, including any abutments or supports appurtenant to that structure, which:

2.9.a. Meets the definition of "dam" set forth in subsection 2.12.;

2.9.b. Is constructed across a natural drainway for the purpose of maintaining a pathway, railway, roadway, support structure, or other passageway for transporting persons, traffic, or other static or moving loads; and

2.9.c. Has an opening under the structure to provide for the passage of normal stream flow.

2.10. "Certificate of Approval" means the written approval issued by the Secretary to a person who has applied to the Secretary for a certificate of approval that authorizes the person to place, construct, enlarge, alter, remove, abandon, or repair a dam and which specifies the conditions or limitations under which the work is to be performed by the applicant.

2.11. "Cost" means the total of all reasonable and necessary costs incurred by a person or the Secretary to finance the engineering, design, alteration, improvement, repair, breaching or removal of a deficient dam for carrying out all works and undertakings necessary or incidental to the accomplishment of any project receiving a loan under this rule, including:

2.11.a. The costs of developmental, planning, and feasibility studies, surveys, plans, and specifications;

2.11.b. The costs of architectural, engineering, financial, legal, or other special services;

2.11.c. The costs of acquisition of land and any buildings and improvements thereon, including the discharge of any obligations of the sellers of such land, buildings, or improvements;

2.11.d. The costs of site preparation and development, including demolition or removal of existing structures, construction and reconstruction, labor, materials, machinery, and equipment;

2.11.e. The reasonable costs of financing incurred by the person applying for a loan from the Fund in the course of the development of the project, carrying charges incurred before placing the project in service, interest on funds borrowed to finance the project to a date subsequent to the estimated date the project is to be placed in service, necessary expenses incurred in connection with placing the project in service, and the funding of accounts and reserves as required by the Secretary;

2.11.f. Other items as are deemed reasonable and necessary by the Secretary.

2.12. "Dam" means an artificial barrier or obstruction --including any works appurtenant to it and any reservoir created by it -- which is or will be placed, constructed, enlarged, altered, or repaired so that it does or will impound or divert water and is or will be twenty-five (25) feet or more in height from the natural bed of a stream or watercourse measured at the downstream toe of the barrier and which does or can impound fifteen (15) acre-feet or more of water or is or will be six (6) feet or more in height from the natural bed of such stream or watercourse measured at the downstream toe of the barrier and which does or can impound fifty (50) acre-feet or more of water. “Dam” does not mean:

2.12.a. Any dam owned by the federal government;

2.12.b. Any dam for which the operation and maintenance thereof is the responsibility of the federal government;

2.12.c. Any farm pond constructed and used primarily for agricultural purposes -- including, but not limited, to livestock watering, irrigation, retention of animal wastes, and fish culture -- that has no potential to cause a loss of human life in the event of embankment failure; or

2.12.d. Roadfill or other transportation structures that do not or will not impound water under normal conditions and that have a designed culvert or similar conveyance or capacity that would be used under a highway at the same location: Provided, That the Secretary may apply the provisions of W. Va. Code §22-14-10 for hazardous, non-impounding structures that become a hazard to human life or property through the frequent or continuous impoundment of water.

2.13. “Deficient dam” means a noncoal-related dam that exhibits one or more design, maintenance, or operational problems that may adversely affect the performance of the dam over a period of time or during a major storm or other inclement weather that may cause loss of life or property; or a noncoal-related dam that otherwise fails to meet the requirements of the Act or this rule.

2.14. "Dam Safety Section" means the Dam Safety Section of the Department of Environmental Protection.

2.15. "Dangerous Condition" means any structural or hydraulic condition of a dam or its appurtenances which may lead to:

2.15.a. Failure of the dam and possible loss of human life or substantial loss of property;

2.15.b. Harm to the public health or welfare; or

2.15.c. Significant harm to the environment.

2.16. "Design Storm" means predicted precipitation of given intensity, frequency, and duration based upon National Weather Service data that is required to be considered in the design of a dam.

2.17. "Disbursement" means the transfer of cash from the Fund to an applicant.

2.18. "Diversion Ditch" means a designed channel constructed for the purpose of collecting and transmitting surface runoff resulting from a given design storm.

2.19. "Embankment" means a constructed deposit of earth or waste materials, usually exhibiting at least one sloping face.

2.20. "Emergency Condition" means an imminently dangerous condition where failure of the dam is possible at any time.

2.21. "Emergency Spillway" means a hydraulic structure designed to discharge water in excess of that which an impoundment is designed to store or which cannot be passed through a principal spillway.

2.22. "Enforcement Action" means a written notification provided to an alleged violator by the Secretary within thirty (30) calendar days of an inspection, or in accordance with the provisions of the Act.

2.23. "Engineer" or "Registered Professional Engineer" means a person who by reason of his or her knowledge of mathematics, the physical sciences, and the principles of engineering, acquired by professional education and practical experience, is qualified to engage in the practice of professional engineering, and holds a current certificate of registration issued by the State granting its licensee the privilege of practicing professional engineering in accordance with the provisions of W. Va. Code §30-13-1 et seq.

2.24. "Freeboard" means the vertical distance between the lowest point of the crest of the embankment of a dam and the reservoir water surface.

2.25. "Fund" means the State Dam Safety Rehabilitation Revolving Fund.

2.26. "Geotechnical Engineering" means the application of soil mechanics, rock mechanics, and geology to the solution of problems involving engineering structures and their interaction with surrounding earth materials.

2.27. "Hazard Classification" means a classification rating assigned to a structure based upon engineering evaluations and judgments for predicting the danger to human life, property, and environment should a failure of the structure occur.

2.28. "High Risk Highway" means a roadway, roadfill, bridge, support structure, or other passageway for transporting persons, traffic, or other static or moving loads where the average time headway between vehicles in traffic is less than the duration of overtopping caused by the dam break flood wave.

2.29. "Hydraulics" means the study of the physical behavior of liquids, especially water, in natural or man-made systems or processes.

2.30. "Hydrologic Analysis" means a determination, using accepted engineering methods, to establish surface water runoff for a given design storm.

2.31. "Hydrology" means the science that deals with the occurrence and behavior of water in the atmosphere, on the ground, and underground.

2.32. "Impoundment" means a basin for the retention of water, sediment, or waste.

2.33. "Incised Reservoir" means an impoundment, or that portion of an impoundment, which has been excavated below the natural stream level into natural ground.

2.34. "Loan" means a loan made by the Authority to an applicant pursuant to section 20.

2.35. "Loan Agreement" means an agreement entered into between the Authority and the applicant pertaining to a loan.

2.36. "Low Risk Highway" means a roadway, roadfill, bridge, support structure, or other passageway for transporting persons, traffic, or other static or moving loads where the average time headway between vehicles in traffic is greater than the duration of overtopping caused by the dam break flood wave.

2.37. "Major Damage" means destruction, ruin, collapse, or displacement of dwellings, commercial or industrial buildings, public highways or bridges, or important public utilities. Dwellings, buildings, public highways or bridges, or important public utilities will sustain major damage when:

2.37.a. The dwelling, commercial or industrial building, public highway or bridge, or important public utility is in the direct path of the dam break flood wave, or;

2.37.b. Important public utilities equipment or public highways or bridges will be harmed sufficiently to cause disruption of service, or to require repair or replacement of the important public utility equipment, or public highway or bridge, or;

2.37.c. The dwelling, commercial or industrial building or important public utility will experience more than 1.5 feet of flood rise due to the dam break flood wave above the lowest ground elevation adjacent to the outside foundation walls; or more than 1.5 feet of flood rise due to the dam break flood wave above the lowest floor elevation of the dwelling, commercial or industrial building or important public utility. The lower of the elevations shall govern.

2.38. "Minor Damage" means insignificant harm to dwellings, commercial or industrial buildings, public highways or bridges, or public utilities that does not qualify as major damage.

2.39. "Natural Bed" means the lowest elevation of a stream, intermittent stream, or channel created by nature which has not been altered or changed by the actions of man.

2.40. "Natural Drainway" means any natural watercourse which may carry water to the tributaries and rivers of the watershed.

2.41. "Notice of Civil Administrative Penalty" means a written notification provided to a violator by the Secretary, by means of certified mail or personal service, assessing a civil administrative penalty. A notice of civil administrative penalty shall include:

2.41.a. A reference to the section of the statute, rule, notice, order, or certificate of approval term allegedly violated;

2.41.b. A concise statement of the facts alleged to constitute the violation;

2.41.c. A statement of the amount of the initial civil administrative penalty to be imposed; and

2.41.d. A statement of the alleged violator's right to an informal hearing.

2.42. "Notice of Dismissal" means a written notification provided to a violator by the assessment officer or the Secretary dismissing and vacating the civil administrative penalty. A notice of dismissal may be issued at any time during the proceedings.

2.43. “No Hazard” means a situation that is not associated with the structural or hydraulic condition of a dam.

2.44. "P100" means the rainfall amount based upon a one hundred (100) year frequency, six (6) hour duration rainfall event (i.e, a 100-year, 6-hour storm).

2.45. "Person" means any public or private corporation, institution, association, society, firm, organization or company organized or existing under the laws of this or any other state or country; the state of West Virginia; any state governmental agency; any political subdivision of the state or of its counties or municipalities; a sanitary district; a public service district; a drainage district; a conservation district; a watershed improvement district; a partnership; trust, or estate; a person or individual; a group of persons or individuals acting individually or as a group; or any other legal entity. The term "person", when used in this article, includes and refers to any authorized agent, lessee or trustee of any of the foregoing or receiver or trustee appointed by any court for any of the foregoing.

2.46. "Piping" means progressive internal erosion of earth material or adjacent unaltered material caused by water movement through embankment material with sufficient force to move soil particles, leading to the development of a channel or a hole.

2.47. "Principal Spillway" means the hydraulic structure designed to discharge water stored between the normal pool and the emergency spillway invert elevations.

2.48. "Probable Maximum Precipitation" or "PMP" means the depth-duration-area rainfall event for a particular area that represents the maximization of the most critical meteorological conditions that are considered possible to occur.

2.49. “Project” means planning, design, or construction activity necessary to obtain a certificate of approval or to obtain a loan for repair or removal of a dam.

2.50. "Project Area" means all areas physically affected by the construction of a dam including, but not limited to, the dam and its appurtenances, the reservoir area, construction zones, permanent or temporary access roads, borrow areas, materials storage areas, staging areas, and waste disposal areas.

2.51. "Removal" means complete elimination of the dam embankment or structure to restore the approximate original topographic contours of the valley.

2.52. "Roadfill" means a barrier or obstruction which:

2.52.a. Meets the definition of "dam" set forth in subsection 2.12.;

2.52.b. Is constructed across a natural drainway for the purpose of maintaining a roadway or similar crossing across that drainway; and

2.52.c. Has a culvert located in the drainway that is of sufficient size to prevent the normal impoundment of water.

2.53. "Safety Factor" or "Factor of Safety" means the ratio of the sum of the forces or moments resisting mass movement to the sum of the forces or moments tending to produce mass movement.

2.54. "Secretary" means the Secretary of the West Virginia Department of Environmental Protection or his or her authorized representative.

2.55. "Sediment" means solid material, either mineral or organic, resulting from the works of man that has been moved from its site of origin by water.

2.56. "Serious Problem" means a structural or hydraulic condition that if left uncorrected may lead to a dangerous condition.

2.57. "Significant Harm to the Environment" means the degradation of a public or private surface water supply, the alteration of habitat that adversely affects wildlife, or the reduction of the productivity of agricultural land.

2.58. "Site" means the permanent location of a dam, including the dam and its appurtenances, the reservoir area, diversion ditches, and sediment control facilities.

2.59. "Subsidence" means a sinking, collapsing, or cracking of a portion of the earth's surface resulting from the presence of a void or voids beneath the surface.

2.60. "Violator" means the person who is alleged to have violated the Act, or any rule, notice to comply, order, or certificate of approval term imposed pursuant to the Act.

2.61. "Written Decision" means a written decision furnished to the violator concerning the Secretary's final decision regarding the assessment of a civil administrative penalty and the reasons therefor.

W. Va. Code R. § 47-34-3 Classification of Dams

3.1. Types of Dams - For the purpose of this rule, dams are divided into four general types:

3.1.a. Embankment Dams - Embankment dams are usually constructed of materials which exhibit rock-like or soil-like properties.

3.1.b. Gravity Dams - Gravity dams are usually constructed of concrete or masonry materials which form a rigid body.

3.1.c. Waste Disposal Dams - Waste disposal dams are usually constructed of waste materials such as fly ash or coal refuse. The reservoir is utilized to dispose of waste material, thereby creating a continuously decreasing freeboard condition.

3.1.d. Dams of Multiple Type - In cases where a dam exhibits properties of more than one type, such as gabion structures or roller-compacted concrete, the person or his or her agent must apply design techniques which are reasonably applicable to the particular structure involved.

3.2. Dam-Related Measurements.

3.2.a. Measuring Dam Height - The height of a dam is measured from the crest or uppermost point on the dam to the lowest point in the natural bed of the stream or watercourse at the downstream toe of the dam. Gravity overflow dams must be measured to the highest level which is greater than ten percent (10%) of the total crest length of the dam. The height of dams with sloping crests shall be determined by a weighted-average height above the natural bed of the stream or watercourse, excluding spillways.

3.2.b. Measuring Reservoir Volume - For purposes of determining whether a dam meets the criteria set forth in subsection 2.12. as applied to reservoir volume calculations, the volume must be calculated at the crest elevation of the dam that is equivalent to the elevation used in determining the dam height.

3.2.c. Incised Reservoirs - The height of the embankment of an incised reservoir must be measured using the method set forth in paragraph 3.2.a. Reservoir volume must be calculated from the crest of the embankment to the elevation of the lowest point in the natural bed of the stream or watercourse at the downstream toe. That portion of the water stored below stream grade shall not be included in determining whether a dam meets the criteria set forth in subsection 2.12.; however, it must be reported in the application as part of the total reservoir volume.

3.3. Dams in Series - If the Secretary determines that a series or combination of water-impounding structures within the same watercourse, or within the tributaries of the watercourse, which cumulatively meet the definition of "dam" set forth in subsection 2.12. constitute a hazard to human life, and failure of one or more of the impounding structures may induce failure of any or all of the remaining impounding structures, he or she may require the owner or owners of each impounding structure to comply with the requirements of this rule.

3.4. Incidental Dams.

3.4.a. Roadfills.

3.4.a.1. If the Secretary finds that a roadfill has become a hazard to human life or property through the frequent or continuous impoundment of water, he or she may order the owner of that roadfill to take all steps that are necessary to protect life or property in accordance with the emergency powers provided under W. Va. Code §22-14-10.

3.4.a.2. A certificate of approval will not be required for roadfills.

3.4.b. Bridges.

3.4.b.1. If the Secretary finds that a bridge has become a hazard to human life or property through the frequent or continuous impoundment of water, he or she may order the owner of that bridge to take all steps that are necessary to protect life or property in accordance with the emergency powers provided under W. Va. Code §22-14-10.

3.4.b.2. A certificate of approval will not be required for bridges.

3.4.c. Diversions - A certificate of approval will be required for dikes or other structures used to divert water and otherwise meeting the definition of "dam" set forth in subsection 2.12.

3.4.d. Stream Encroachments - If the Secretary finds that a natural drainway has been restricted by filling or other artificial means so that the restriction can or does impound water, and the fill and resulting reservoir meets the height and storage requirements of a "Dam" as defined in this rule, he or she may order the fill removed or require a certificate of approval or both.

3.5. Classification of Dams - The applicant for a certificate of approval must propose the hazard classification for his or her dam based upon the classification guidelines listed in paragraph 3.5.b. and the hazard evaluation performed pursuant to paragraph 3.5.c. The classification proposed by an applicant is subject to approval by the Secretary.

3.5.a. Changes in Dam Classification - The Secretary will periodically review the hazard classification of each dam subject to this rule and may reclassify a dam if he or she determines that the hazard potential has changed. The owner shall be notified by the Secretary of any hazard classification change.

3.5.b. Hazard Classifications.

3.5.b.1. Class 1 (High Hazard) Dams - Class 1 dams are those dams located where failure may cause loss of human life or major damage to dwellings, commercial or industrial buildings, main railroads, important public utilities, or where a high risk highway may be affected or damaged. This classification must be used if failure may result in the loss of human life.

3.5.b.2. Class 2 (Significant Hazard) Dams - Class 2 dams are those dams located where failure may cause minor damage to dwellings, commercial or industrial buildings, important public utilities, main railroads, or cause major damage to unoccupied buildings, or where a low risk highway may be affected or damaged. The potential for loss of human life resulting from failure of a Class 2 dam must be unlikely.

3.5.b.3. Class 3 (Low Hazard) Dams - Class 3 dams are those dams located in rural or agricultural areas where failure may cause minor damage to nonresidential and normally unoccupied buildings, or rural or agricultural land. Failure of a Class 3 dam would cause only a loss of the dam itself and a loss of property use, such as use of related roads, with little additional damage to adjacent property. The potential for loss of human life resulting from failure of a Class 3 dam must be unlikely.

3.5.b.3.A. An impoundment exceeding forty (40) feet in height or four hundred (400) acre-feet storage volume shall not be classified as a Class 3 dam.

3.5.b.3.B. A waste disposal dam, the failure of which may cause significant harm to the environment, shall not be classified as a Class 3 dam.

3.5.b.4. Class 4 (Negligible Hazard) Dams - Class 4 dams are dams where failure is expected to have no potential for loss of human life, no potential for property damage and no potential for significant harm to the environment. Examples of Class 4 dams include: dams across rivers, failure of which under any conditions will not flood areas above normal stream bank elevations; dams located in the reservoir of another dam which, under any conditions, can contain water released by failure of the Class 4 dam; and dams in series where the toe of the Class 4 dam(s) is in close proximity to the reservoir of a dam which can contain failure of the Class 4 dam(s) under any condition. In considering a request for a Class 4 designation, the Secretary may require written concurrence from the owner(s) of downstream dams that may be affected by failure of the Class 4 dam. Approval for use of this classification is vested in the Secretary, and will be based on engineering evaluation of the dam(s) and downstream areas in question.

3.5.c. Hazard Evaluation.

3.5.c.1. Downstream Hazards - In evaluating the hazard potential of a dam in order to determine its hazard classification, a complete evaluation of the downstream area which will be affected in the event of dam failure must be performed. A sudden flooding of inhabited land accompanied by a water flow with damaging velocity, a wall of water, or the flooding of inhabited structures will all be deemed to have the potential to result in a loss of human life. The planned or potential future development of downstream areas must also be considered when evaluating hazard classification.

3.5.c.2. Dam Break Analysis - An applicant must perform a downstream breach analysis to evaluate and map the downstream inundation area under assumed normal conditions and overtopping failure conditions.

3.5.c.2.A. The Secretary may waive the downstream breach analysis required under subparagraph 3.5.c.2. for a Class 2 or Class 3 or Class 4 dam where downstream conditions prevent any future introduction of new facilities or residences that thereby change the hazard classification of the dam.

3.5.c.3. Upstream Hazards - No dam shall be constructed which, during maximum pool conditions, will flood upstream dwellings, public utilities, primary highways, or main railroads unless otherwise approved by the Secretary based upon site-specific conditions.

3.5.d. Risk Assessment - The applicant may propose a risk assessment according to the following provisions to determine the effect upon dwellings or other buildings downstream (paragraph 3.5.d.1.), to reduce the hazard classification (subdivision 3.5.b.) or to reduce the design storm requirements (paragraph 7.1.a.2.) based upon failure of the dam by overtopping. The applicant must include appropriate calculations to support the request for hazard classification or design storm requirement reduction. The Secretary will not consider risk assessment based upon planned evacuation, probability of inhabitation, or monetary recovery of property damage. If both paragraph 3.5.d.1. (Dwellings or other Buildings Affected Downstream) and paragraph 3.5.d.2. (Highways Affected Downstream) pertain to the downstream area, then the hazard classification representing the greatest risk category and the largest of the design storm requirements resulting from the above calculations shall apply. Approval of hazard classification reduction or reduction of design storm requirements based upon risk assessment is vested in the Secretary, and will be based on engineering evaluation of the dam(s) and downstream areas in question.

3.5.d.1. Dwellings or Other Buildings Affected Downstream - The Secretary may consider reduced design storm requirements (subparagraph 7.1.1.b.) within the approved hazard classification, if the applicant can demonstrate that all affected dwellings, commercial and industrial buildings or important public utilities will be inundated and evacuated prior to the dam failure. The applicant must also demonstrate that the potential for loss of human life resulting from the dam failure is not significantly increased from that which occurs immediately prior to the dam failure.

3.5.d.2. Highways Affected Downstream - The Secretary may consider reduced hazard classification (paragraph 3.5.b.) and reduced design storm requirements (subparagraph 7.1.a.2.), if the applicant can demonstrate that affected highway(s) will be impassable and traffic will be stopped in the dam failure inundation area due to the highway(s) being flooded by high water prior to the dam failure. The applicant must also demonstrate that the potential for loss of human life resulting from the dam failure is not significantly increased from that which occurs immediately prior to the dam failure.

W. Va. Code R. § 47-34-4 Certificates of Approval

4.1. Certificate Required - A person must obtain a certificate of approval from the Secretary in order to place, construct, enlarge, alter, breach, remove, abandon, or perform major repairs upon any dam in this State that falls within the definition set forth in subsection 2.12.

4.2. Certificate Issuance.

4.2.a. Certificates of approval may constitute full and final approval of a dam or be issued for alterations or repairs, in which case the certificate may or may not constitute final approval of the dam.

4.2.b. The Secretary will issue or refuse to issue a certificate of approval based upon the following:

4.2.b.1. The receipt of a complete application, including all applicable fees, in accordance with the provisions of subsection 5.1;

4.2.b.2. The review of the application form and plan package for sufficiency; and

4.2.b.3. The results of any hearings held in accordance with the provisions of W. Va. Code §22-14-7.

4.2.c. The Secretary will return defective applications to the applicant by certified or registered mail, return receipt requested, in order that the applicant may correct any defect. The applicant must send a corrected application to the Secretary within thirty (30) days of the date of the applicant's receipt of the returned application. The Secretary may extend the thirty-day period upon the receipt of a written request from the applicant.

4.2.d. Upon the receipt of written approval from the Secretary of the sufficiency of the application, the applicant shall immediately publish a Class I legal advertisement in a qualified newspaper, as defined in W. Va. Code §59-3-1, serving the county in which the proposed dam is to be located or in which the existing dam is located. The notice shall include the name and address of the applicant, the location of the dam for which the application was filed, and such other information as may be specified by the Secretary in his or her written approval.

4.3. Hearings Prior to Certificate Issuance - Any person who may be adversely affected by the issuance of a certificate of approval shall have a right to a hearing before the Secretary. A written request for a public hearing, detailing the specific objections to the issuance of the certificate of approval, must be sent to the Secretary within fifteen (15) days of the publication of the Class I legal advertisement required under subdivision 4.2.d. Hearings that concern specific objections to the issuance of a certificate of approval will be conducted in accordance with the provisions of W. Va. Code §22-14-7 at a location and time set by the Secretary.

4.4. Certificate Revocation or Suspension - The Secretary may revoke or suspend a certificate of approval in accordance with the provisions of W. Va. Code §22-14-8 if he or she determines that a dam for which the certificate was issued constitutes a danger to life and property.

4.5. Certificate Terms and Conditions - A certificate of approval may include such terms and conditions as the Secretary may find necessary for the construction or operation of the dam. These terms and conditions may be amended by the Secretary in accordance with the provisions of W. Va. Code §22-14-8.

4.6. Approval to Impound Water - No person may cause a reservoir to initially fill with water, or refill a drained reservoir, without written approval from the Secretary.

4.6.a. Upon the receipt of a written petition from a dam owner, the Secretary may waive or modify the refilling approval requirement of subsection 4.6 in a case where frequent draining and refilling of a reservoir is the intended purpose and normal operation of the owner's dam.

4.7. Other Approvals - The Secretary may refuse to issue a certificate of approval or may delay issuing a certificate of approval if the applicant fails to obtain necessary approvals from State or federal agencies.

4.7.a. Waterways Under State or Federal Jurisdiction - Construction of a dam across a waterway which is under the jurisdiction of the State or federal government may require State or federal agency approval prior to issuance of a certificate of approval by the Secretary.

4.7.b. Wetlands - Construction of a dam which may inundate, drain, or otherwise adversely affect wetlands (i.e., swamps, marshes, bogs, and similar areas) may require State and federal agency approval.

W. Va. Code R. § 47-34-5 Application Procedures

5.1. Application Preparation and Submission.

5.1.a. Applications for a certificate of approval shall be prepared by or under the direct supervision of an engineer.

5.1.b. Applications shall be submitted on the forms provided by the Secretary. Application forms must be completed in their entirety without unauthorized omissions, alterations, or additions. Applications shall be signed by the applicant and an engineer.

5.1.c. A complete application will consist of a completed and signed application form, all applicable fees, and a plan package containing the information required under subsection 6.4.

5.1.d. Plans, reports, specifications, and design drawings shall be signed and sealed by an engineer in accordance with the provisions of subsection 6.2.

5.2. Application Review.

5.2.a. Applications will be reviewed for sufficiency by the Dam Safety Section. The review will consider the completeness and technical accuracy of the information submitted and will evaluate all engineering plans and assumptions to determine the safety of the dam.

5.2.b. Applications which are incomplete or otherwise not in compliance with the requirements of this rule will be returned to the applicant for correction in accordance with the provisions of W. Va. Code §22-14-7.

W. Va. Code R. § 47-34-6 Plans and Specifications

6.1. Plans and Specifications - Plans and specifications relating to the design, placement, construction, enlargement, alteration, removal, abandonment, or repair of a dam must be prepared in accordance with the requirements of sections 7 through 12.

6.2. Engineer's Signature and Seal Required - All plans and specifications shall be signed and sealed by an engineer. The engineer's signature and seal are required on each full-size plan sheet, even if the sheets are bound together, and are further required on the front page of any engineering report book and each unbound sheet of drawings or specifications included in appendices or pockets.

6.3. Engineering Practices - All plans and specifications for the placement, construction, enlargement, alteration, breaching, removal, abandonment, or repair of a dam shall be in the charge of an engineer.

6.3.a. Standard Practices - All engineering designs, procedures, processes, and analyses shall be based upon standard, accepted, and sound engineering practices. Practices which are questionable or difficult to prove analytically may be rejected by the Secretary or returned for additional information.

6.3.b. Experimental Practices - Experimental design will not be approved by the Secretary unless the experiment meets the following conditions:

6.3.b.1. Engineering analysis indicates the design is realistic and success is likely;

6.3.b.2. Failure of the experiment to perform properly will not endanger life and property or cause the failure of the dam; and

6.3.b.3. The engineer and dam owner agree to redesign and modify the experimental design if it does not perform properly.

6.4. Plan Package Organization - Each plan package submitted for approval shall contain the following information, arranged in the following order, unless an alternative submission format is approved by the Secretary:

6.4.a. Project Narrative - A general narrative discussion of the project shall be included in the plan package to detail the following:

6.4.a.1. Existing site conditions;

6.4.a.2. Local geology and geotechnical considerations;

6.4.a.3. Design life of the dam and its appurtenances;

6.4.a.4. Subsidence potential;

6.4.a.5. Design techniques with associated design computations and data;

6.4.a.6. Environmental protection measures for the control of erosion and sedimentation and for the disposal of construction wastes;

6.4.a.7. Method of construction, including clearing and grubbing, topsoil stockpiles, and surface and subsurface drainage structures;

6.4.a.8. Phases or sequence of construction; and

6.4.a.9. Routine inspection and maintenance procedures and schedules.

6.4.b. Construction Sequence and Schedule - A proposed or recommended sequence of construction, with a schedule listing the anticipated number of working days necessary to accomplish each item in the sequence, shall be included in the plan package. The construction sequence and schedule must be specific to the dam and must cover the following general categories:

6.4.b.1. Sediment control measures;

6.4.b.2. Clearing and grubbing;

6.4.b.3. Road or utility relocations;

6.4.b.4. Development of borrow areas;

6.4.b.5. Placement of coffer dams or diversions;

6.4.b.6. Excavation of foundation areas;

6.4.b.7. Excavation of spillways;

6.4.b.8. Placement of embankment or structural materials;

6.4.b.9. Placement of spillways and appurtenances to spillways;

6.4.b.10. Seeding and mulching of the project area;

6.4.b.11. General cleanup of the project area; and

6.4.b.12. Other information as requested by the Secretary.

6.4.c. Project Specifications - Specifications submitted with the plan package must be specific to construction of the dam or must contain a specific section concerning construction of the dam. Inclusion of specifications for the dam throughout other general construction specifications is not acceptable. Specifications shall be included in the plan package to detail the following:

6.4.c.1. Clearing and grubbing;

6.4.c.2. Soil stockpiles;

6.4.c.3. Subdrain construction;

6.4.c.4. Slopes;

6.4.c.5. Grades;

6.4.c.6. Surface drainage structures such as embankment diversion ditches;

6.4.c.7. Spreading and compaction requirements, including lift thicknesses, moisture content, and degree of compaction;

6.4.c.8. Material and gradation requirements for subsurface drainage structures;

6.4.c.9. Pipes;

6.4.c.10. Concrete, including testing and curing;

6.4.c.11. Anti-seep mechanisms;

6.4.c.12. Cutoff trenches including specific treatment of joints, bedding planes, fractures, weak zones, overhangs or faults;

6.4.c.13. Channel and slope protection (e.g., riprap);

6.4.c.14. Project quality control and testing;

6.4.c.15. Blasting;

6.4.c.16. Construction erosion and sediment control;

6.4.c.17. Construction waste disposal;

6.4.c.18. Dust abatement;

6.4.c.19. Revegetation;

6.4.c.20. Installation and reading of monitoring devices;

6.4.c.21. Inspection and maintenance; and

6.4.c.22. Other information as requested by the Secretary.

6.4.d. Maps and Drawings.

6.4.d.1. Maps shall be included in the plan package showing the project area in relation to primary highways, county seats, and major drainages. County highway maps may be used for this purpose.

6.4.d.2. A map showing the limits of the watershed with respect to the project area shall be included in the plan package. The minimum map scale meeting this requirement is a 7-1/2 minute United States Geological Survey topographic map with the project area plotted on it.

6.4.d.3. A plan view map of the project area that shows all disturbed and reservoir areas shall be included in the plan package showing detailed contour intervals (i.e., a five-foot maximum interval).

6.4.d.3.A. The location of the following items, if present, shall be plotted on the plan view map:

6.4.d.3.A.1. Caves;

6.4.d.3.A.2. Cemeteries and graves;

6.4.d.3.A.3. Seeps;

6.4.d.3.A.4. Springs;

6.4.d.3.A.5. Mine drainage;

6.4.d.3.A.6. Underground mine openings;

6.4.d.3.A.7. Underground mine workings;

6.4.d.3.A.8. Borings and test pits;

6.4.d.3.A.9. Cross-sections;

6.4.d.3.A.10. Project stationing;

6.4.d.3.A.11. Reference points;

6.4.d.3.A.12. Instrumentation;

6.4.d.3.A.13. The subdrain system;

6.4.d.3.A.14. Diversion channels;

6.4.d.3.A.15. Surface water drainage channels;

6.4.d.3.A.16. Spillway channels;

6.4.d.3.A.17. Borrow source areas; and

6.4.d.3.A.18. Proposed waste disposal areas.

6.4.d.3.B. Additional detailed plan views of the dam or its spillways and appurtenances may be required by the Secretary.

6.4.d.4. Transverse and longitudinal cross-sections and profiles of the dam shall be included in the plan package showing original ground, subdrain locations, elevations, benches, spillways, and other pertinent features of the project area. A cross-section shall be provided for stability computations showing the dam at critical areas, with subsurface data plotted in accordance with the provisions of part 7.4.b.1.D.4.

6.4.d.5. Cross-sections and profiles of major drainage facilities shall be included in the plan package.

6.4.d.6. Construction drawings shall be included in the plan package showing subdrains, spillways, anti-seep mechanisms, and other pertinent structures.

6.4.e. Inventory of Protected Sites.

6.4.e.1. An inventory of sites protected under State or federal law must be conducted by each applicant seeking a certificate of approval to:

6.4.e.1.A. Construct a new dam; or

6.4.e.1.B. Alter or enlarge an existing dam whereby new areas will be disturbed or flooded.

6.4.e.2. The minimum acceptable protected sites inventory shall include the following components:

6.4.e.2.A. A field survey shall be conducted by the applicant or his or her agents to ascertain the presence of any cave (i.e., a naturally occurring underground subterranean cavity such as a cavern or grotto) within the area to be disturbed or flooded by the project. The location of all caves must then be plotted on the plan view map required under paragraph 6.4.d.3. If no caves are present in the area to be disturbed or flooded, that fact must be noted in a statement attached to the plan view map submitted to the Secretary.

6.4.e.2.B. A field survey shall be conducted by the applicant or his or her agents to ascertain the presence of any cemetery or grave within the area to be disturbed or flooded by the project. The location of all cemeteries and graves must then be plotted on the plan view map required under paragraph 6.4.d.3. If no cemeteries or graves are present in the area to be disturbed or flooded, that fact must be noted in a statement attached to the plan view map submitted to the Secretary.

6.4.e.2.C. A copy of the plan view map required under subparagraph 6.4.d.3. shall be sent by the applicant to the West Virginia Division of Natural Resources, Nongame Wildlife Program, P.O. Box 67, Elkins, West Virginia 26241. A letter of transmittal that briefly explains the nature of the applicant's project must accompany the map so that State officials may have the opportunity to assess whether the applicant's project will adversely impact any animal or plant species that is listed by the federal government as endangered or threatened in Endangered Species Act. [1987 Stat. 884, as amended: 16 U.S.C. 1531 et seq.]. A copy of the applicant's letter of transmittal must be included in the plan package submitted to the Secretary; and

6.4.e.2.D. A copy of the plan view map required under subparagraph 6.4.d.3. shall be sent by the applicant to the West Virginia Division of Culture and History, Historic Preservation Unit, Cultural Center, State Capitol Complex, 1900 Kanawha Boulevard East, Charleston, West Virginia 25305. A letter of transmittal that briefly explains the nature of the applicant's project must accompany the map so that State officials may have the opportunity to assess whether the applicant's project will adversely impact any historic site that is listed by the West Virginia Division of Culture and History on the State Register of Historic Places. A copy of the applicant's letter of transmittal must be included in the plan package submitted to the Secretary.

6.4.e.3. If either artifacts of historical significance or human remains are uncovered by construction or related activities, the Dam Safety Section must be contacted immediately. The Secretary may suspend activities in the vicinity of such artifacts or remains until appropriate investigations have been conducted.

6.4.f. Erosion and Sediment Control - The plan package must include either:

6.4.f.1. A copy of the applicant's letter transmitting a permit application for the WV/NPDES Storm Water Construction General Permit to the Secretary, if the disturbed area within the site will exceed limits necessary for a NPDES permit, or;

6.4.f.2. An erosion and sediment control plan as required in subdivision 7.5.a., if the disturbed area within the site is less than the limits necessary for a NPDES permit.

W. Va. Code R. § 47-34-7 Design Requirements

7.1. Hydrologic Considerations.

7.1.a. General Hydrologic Requirements.

7.1.a.1. Hydrologic Investigation.

7.1.a.1.A. A survey shall be conducted to evaluate soil types, land use, land slope, watershed area, runoff curve number, and any other factors needed to establish watershed characteristics. A summary of all hydrologic and hydraulic data compiled in the initial site investigation and used in the analysis shall be included in table or figure form in the plan package.

7.1.a.1.B. A stream flow analysis shall be conducted to evaluate stream flow quantity and quality as it affects the dam and its appurtenances.

7.1.a.2. Design Storm Requirements - The design storm and any incremental reduction of the design storm proposed by the applicant is subject to approval by the Secretary. All dams shall be designed to meet the following minimum hydrologic criteria based upon hazard classification:

7.1.a.2.A. Class 1 Dams - Class 1 dams shall be designed for the probable maximum precipitation of six (6) hours in duration. The design precipitation for a Class 1 dam may be reduced based on Risk Assessment (subdivision 3.5.d.), but in no case to less than seventy percent (70%) of the probable maximum precipitation.

7.1.a.2.B. Class 2 Dams - Class 2 dams shall be designed for fifty percent (50%) of a probable maximum precipitation of six (6) hours duration. The design precipitation for a Class 2 dam may be reduced based on Risk Assessment (subdivision 3.5.d.), but in no case to less than twenty-five percent (25%) of the probable maximum precipitation.

7.1.a.2.C. Class 3 Dams - Class 3 dams shall be designed for twenty-five percent (25%) of a probable maximum precipitation of six (6) hours in duration. The design precipitation for a Class 3 dam may be reduced based on Risk Assessment (subdivision 3.5.d.), but in no case to less than a P100 rainfall of six (6) hours in duration.

7.1.a.2.D. Class 4 Dams - Class 4 dams shall be designed for a P100 rainfall of six (6) hours in duration.

7.1.a.3. Antecedent Moisture Conditions - Where applicable to the development of a hydrograph, Antecedent Moisture Condition II (AMC II) may be used unless a different condition class is required by the Secretary.

7.1.a.4. Flood Routings - An analysis shall be performed for the reservoir and spillways which includes inflow hydrographs, stage storage curves, stage discharge curves, and routings. The spillways must be able to safely discharge that portion of the design storm that is not stored in the reservoir. If a computer analysis is used, the input data and output results must be clearly labeled and identified. Trial calculations or intermediate results not relevant to the final results may be omitted from the plan package.

7.1.b. Specific Hydrologic Requirements.

7.1.b.1. Embankment Dams.

7.1.b.1.A. Storage and Discharge.

7.1.b.1.A.1. Class 1 dams designed with either an open channel spillway only or with an emergency spillway and a principal spillway together must be capable of discharging that portion of the design storm that cannot be safely stored in the impoundment. Class 1 dams designed with a decant or principal spillway only must be capable of storing the volume of water generated by a PMP rainfall event of six (6) hours in duration. The design of a Class 1 dam must assure that ninety percent (90%) of the stored volume of the design storm will be discharged within ten (10) days after the storm event.

7.1.b.1.A.2. Class 2 dams must be designed with either an open channel spillway only or a combination of principal and emergency spillways. A Class 2 dam shall be capable of passing that portion of the design storm that cannot be safely stored in the impoundment. The design of a Class 2 dam must assure that ninety percent (90%) of the stored volume of the design storm will be discharged within ten (10) days after the storm event.

7.1.b.1.A.3. Class 3 dams must be designed with either an open channel spillway only or a combination of principal and emergency spillways. A Class 3 dam shall be capable of passing that portion of the design storm that cannot be safely stored in the impoundment. The design of a Class 3 dam must assure that ninety percent (90%) of the stored volume of the design storm will be discharged within ten (10) days after the storm event.

7.1.b.1.B. Surface Drainage Control - Surface drainage control devices (e.g., vegetated slopes, benches, groin ditches, and collection channels) shall be provided as necessary to protect the dam and its appurtenances from the effects of erosion. Riprap or other erosion protection measures shall be included where excessive velocity is anticipated or experienced. All surface drainage control devices must be designed to exit safely beyond the downstream toe of an embankment in a natural drainway capable of carrying the design flow without excessive erosion. The 50-year, 6-hour rainfall event shall be used as the design storm for surface drainage systems.

7.1.b.1.C. Spillway Frequency of Operation - Outlet works that incorporate vegetated earth or unlined earth emergency spillways shall be designed so that the average frequency of operation is no greater than the following recurrence schedule, based upon a 6-hour rainfall event:

7.1.b.1.C.1. Class 1 Dams - Once in one hundred (100) years.

7.1.b.1.C.2. Class 2 Dams - Once in fifty (50) years.

7.1.b.1.C.3. Class 3 and Class 4 Dams - Once in twenty-five (25) years.

7.1.b.1.D. Overtopping Embankments - Regardless of their hazard classification, dams designed to overtop in accordance with the provisions of subparagraph 7.4.b.1.E. shall not overtop more frequently than once in one hundred (100) years, based upon a 6-hour rainfall event.

7.1.b.2. Gravity Dams - Gravity dams may be designed in the same manner as the corresponding hazard classes of embankment type dams in subparagraph 7.1.b.1.A. except that designed overtopping of the dam may be substituted for the emergency spillway requirements.

7.1.b.3. Waste Disposal Dams.

7.1.b.3.A. Storage and Discharge - The following storage and discharge systems may be used in design of waste disposal dams:

7.1.b.3.A.1. Open Channel Only or Emergency Spillway with Principal Spillway - A dam designed with either an open channel spillway only or with an emergency spillway and a principal spillway together shall be capable of discharging that portion of the design storm that cannot be safely stored in the impoundment. This type of design must assure that ninety percent (90%) of the stored volume of the design storm will be discharged within ten (10) days after the storm event. Slurry impoundments shall be provided with a means of removing water to maintain the lowest practical water level.

7.1.b.3.A.2. Principal Spillway or Decant Only - A dam designed with a decant or principal spillway only shall be capable of storing the volume equivalent to a minimum of one (1) design storm. Risk assessment shall not be applied to dams with principal spillway or decant only. This type of design must assure that ninety percent (90%) of the stored volume of the design storm will be discharged within ten (10) days after the storm event. Slurry impoundments shall be provided with a means of removing water to maintain the lowest practical water level.

7.1.b.3.A.3. No Outlet Works - A dam designed without discharge structures shall be capable of storing the volume equal to a minimum of two (2) design storms. Risk assessment shall not be applied to dams with no outlet works. Water shall be removed from the impoundment to its lowest practical level by pumping or other means if storm water reduces the storage capacity to one (1) design storm or less.

7.2. Hydraulic Considerations.

7.2.a. General Hydraulic Requirements.

7.2.a.1. Hydraulic Analysis - Using standard engineering practices, a hydraulic analysis shall be performed for the spillways and surface drainage system. Typical cross-section design techniques may be used where constant slopes are encountered. All hydraulic structures shall be designed to safely control the velocity of water in order to prevent excessive erosion. Accepted engineering practices shall be used to design riprap, non-flexible channel linings, bedding, and energy dissipators.

7.2.b. Specific Hydraulic Requirements.

7.2.b.1. Open Channels - Open channels, including open channel spillways, shall be analyzed for flow depth, velocity, nonuniform flow conditions, super-elevation, and hydraulic jumps.

7.2.b.1.A. Stage Discharge - Where an open channel is used as a spillway, a stage discharge rating shall be developed using standard engineering practices for the type and shape of the spillway. In developing the rating, increase in upstream water depth due to change in velocity head must be considered.

7.2.b.1.B. Water Surface Profiles - Where channel slopes or cross-sections vary and nonuniform flow conditions result, a water surface profile may be necessary in order to analyze the channel flow depths and the location of hydraulic jumps.

7.2.b.1.C. Hydraulic Jumps - Where hydraulic jumps will occur, channel sidewall height shall be sufficient to contain the jump. The channel lining shall be designed to withstand the hydraulic jump without damage.

7.2.b.1.D. Critical Flows - Channels shall be designed so that water will not flow at critical depth for extended distances. In channels of varying slope or cross-section where nonuniform flow occurs, the transition through critical flow shall be as rapid as possible.

7.2.b.1.E. Super-elevation - Channel walls shall be designed to contain super-elevated flows in curves. Where curves occur in spillway channels, the Secretary may approve super-elevation wall height based upon one-half of the design flow, but not less than the P100 design flow, provided the excess overflow will impinge on natural ground and will not endanger the dam, human life, or property.

7.2.b.2. Closed Conduit Systems - Closed conduit systems including principal spillways, risers, and pipes shall be analyzed to determine the controlling limits of weir, orifice, and pipe flows.

7.2.b.2.A. Risers and Drop Inlets - Risers shall be protected with a designed trash rack and anti-vortex device. The drop inlet shall be sized to provide a rapid transition from partial to full pipe flow conditions.

7.2.b.2.B. Stage Discharge - When a closed conduit system is used as a principal system, a stage discharge rating shall be developed using standard engineering practices for weir, orifice, and pipe flow calculations.

7.2.b.2.C. Slug Flow - Conduit systems shall be designed to avoid formation of alternating partial and full pipe flow conditions through proper selection of pipe slope and headwater or tailwater conditions.

7.3. Geotechnical Considerations.

7.3.a. Geotechnical Investigation - A geotechnical investigation shall be performed. The quantity, location, and depth of borings, test pits, or trenches must be adequate for the evaluation of the bearing capacity and subsurface conditions for the proposed structure and may vary based upon the height, impoundment volume, and hazard classification of the dam. Factors to be considered include depth of soil, characteristics of bedrock, and determination of groundwater location. Results of in-situ testing and soil sampling shall be reported in the plan package. Soil profiles shall be utilized for critical foundation locations of the structure, spillways, and other pertinent locations which affect the safety of the structure. A geological study shall also be conducted to evaluate stratigraphy, landslides, bedrock discontinuities such as soft seams, joints, joint systems, bedding planes, and fault zones which may adversely affect the structure's performance. Past and future mining including thickness of coal seams, depth and type of rock above the coal seam, and previous or expected subsidence problems shall be considered where subsidence may affect the safety of the structure.

7.3.a.1. Project Area Survey - A project area survey shall be conducted to establish baselines and elevations of the dam embankments, reservoir and borrow areas, and appurtenant structures. The survey shall locate all test pits, borings, gas wells, oil wells, water wells, mine openings, landslides, and areas of natural seepage.

7.3.a.2. Borrow Areas - Borrow areas shall be evaluated for appropriate construction materials and required volume. Borrow areas and excavation materials shall be tested to determine the suitability of material for use in embankments or drains.

7.3.b. Laboratory Testing - Laboratory tests shall be conducted on a sufficient number of samples of foundation and embankment materials to provide an accurate representation of soil conditions. Tests shall include, but not be limited to, a complete soil classification including grain size, sieve, hydrometer analysis, Atterberg limits, density, water content, compaction tests, shear strength, consolidation, and permeability where applicable. Compaction and proctor curves shall be developed for all fill materials as appropriate.

7.3.c. Geotechnical Evaluation - A summary of all geotechnical data determined in the initial site geotechnical investigation and used in the analysis shall be included in table or figure form in the plan package.

7.3.c.1. Seepage Analysis - An analysis of seepage and its detrimental effects on structural integrity shall be made. The analysis shall include consideration of potential piping in the embankment, foundations, and abutments. Seepage control measures shall be specified as necessary in order to enhance the stability of the embankment and adjacent area. Drainage systems shall be designed and constructed using a material approved by the Secretary and shall be protected by a properly designed filter zone using standard geotechnical engineering design practices. The design shall specify methods for sealing or controlling seepage encountered in foundation zones during construction.

7.3.c.1.A. Foundation Treatment - If analysis indicates a highly fractured foundation, the engineer shall specify necessary treatment of the foundation zone including, but not limited to, foundation grout curtains, dental concrete treatment of fractures or overhangs, and detailed methods of foundation zone cleaning. Material used in grouts shall be specified in accordance with the provisions of subparagraph 7.4.a.1.B.

7.3.c.2. Foundation Stability - The foundation must be designed to have adequate bearing capacity to support the embankment and any appurtenant works. Potential subsidence and settlement and their consequences shall be considered using standard engineering practices. Special attention shall be given to differential settlement which would lead to cracking of the dam. Spillway pipes on compressible foundations shall be protected from damage due to settlement.

7.3.c.3. Landslides - The potential for landslides, as determined in the initial project area investigation, shall be evaluated by the engineer. If landslides noted in the project area could cause instability of the dam or appurtenant structures, blockage of spillways and other critical drainage structures, or overtopping of the dam by displacement of water in the reservoir area, such conditions shall be corrected to a minimum static safety factor of 1.5.

7.4. Structural Considerations.

7.4.a. General Structural Requirements - All structures shall be designed to perform as intended for the design life of the dam with proper maintenance or replacement.

7.4.a.1. Structural Materials - Materials selected for use in the dam shall be of adequate quality and durability for the intended purpose of the structure. All structures shall be designed to have sufficient strength plus an adequate safety factor against failure during maximum anticipated loading conditions.

7.4.a.1.A. Earth Materials - Earth materials selected for use in dam construction shall be free from roots, brush, organic materials, construction waste, and other debris. Where rock or rock fill is specified, the rock shall be durable and not subject to slaking or breakdown. Size gradations of the earth materials shall be specified to perform as planned. Compaction requirements for earth materials shall be specified in the plan package.

7.4.a.1.B. Concrete Design - Concrete shall be designed in accordance with standard engineering practices. Concrete design specifications shall include materials, proportioning, form-work, reinforcement, joints and embedded items, production, placing, repair of surface defects, finishing, curing and protection, testing, evaluation and acceptance, and allowable tolerances for acceptance.

7.4.a.1.B.1. Concrete Specifications - The engineer shall specify the nature of concrete to be used with sufficient detail for on-site quality control. The concrete may be specified by specific mix, aggregate, water content, additives, compressive strength, slump, and air entrainment or by reference to specific standards of concrete quality. If published standard specifications are referenced, a copy of the standard or pertinent sections of the standard shall be included in the plan package.

7.4.a.1.B.2. Concrete Placement - The engineer shall specify methods and limits of placement of the concrete including foundation preparation, maximum lift height, maximum time allowed between mixing and placement, methods of working into forms and corners, methods of consolidation and use of vibrating devices, and allowable ambient air temperatures and concrete temperatures.

7.4.a.1.B.3. Concrete Curing - The engineer shall specify the method of curing the concrete including moist curing or membrane curing, wetting, types of covering, acceptable curing temperature range of the concrete, any anticipated cold weather curing specifications or methods such as protection from freezing and insulation methods, hot weather placement methods and limitations, and curing time.

7.4.a.1.B.4. Concrete Finishing - The engineer shall specify the type of finishing to be applied to the concrete and the acceptable temperature range.

7.4.b. Specific Structural Requirements.

7.4.b.1. Embankment Dams.

7.4.b.1.A. Selection of Materials - Material selected for construction of embankments shall be select earth material that is free from roots, brush, organic matter, construction waste, and other debris. The material must not be subject to breakdown or chemical reaction. Unless otherwise approved by the Secretary, the selected material must be thoroughly tested for density, shear strength, liquid and plastic limits, and optimum moisture content. The source of the material and available quantities shall be identified and adequate sampling performed in order to attain consistent quality and soil characteristics.

7.4.b.1.B. Seepage and Piping Control - The Secretary may require installation of a properly designed filter drain system to prevent embankment failure due to seepage and/or internal erosion of any dam which can cause loss of human life or major damage to dwellings, or commercial or industrial buildings, important public utilities, or where a high risk highway may be affected.

7.4.b.1.C. Zoned Embankments.

7.4.b.1.C.1. Filter Drains - Filter drains shall be used in embankment zones where necessary to intercept seepage, reduce phreatic level, and reduce potential for internal erosion. Drain outlets shall be visible, not submerged under normal conditions, unobstructed, and protected with an animal guard where conduits are utilized. 7.4.b.1.C.1(a) Gradations - The gradations of the filter material shall be sized to prevent or resist the migration of embankment material into the voids of the filter. The filter shall be permeable relative to the surrounding embankment material. 7.4.b.1.C.1(b) Size - The filter drain shall be capable of passing the maximum anticipated seepage flows without excessive pore pressure. The combination of filter permeability and area shall be considered in sizing the drain. 7.4.b.1.C.1(c) Durability - The material used in the filter shall be hard, durable material that is not subject to slaking, breakdown, or chemical reaction. 7.4.b.1.C.1(d) Conduits - Perforated pipes may be used in the filter drain to increase capacity. Perforations shall be compatible with the filter gradations so that filter material will not enter the pipe. The pipe shall be capable of supporting the fill load and shall be of a material which will last for the design life of the structure. Corrugated metal pipe shall not be used in critical areas of the embankment or in any areas where the pipe is not reasonably accessible for replacement. 7.4.b.1.C.1(e) Filter Cloth - Filter cloth shall not be used in critical areas of the embankment or in any areas where the cloth is not reasonably accessible for replacement.

7.4.b.1.C.2. Diaphragm Cutoff Walls - When concrete cutoff walls are used as an impermeable barrier, the concrete wall shall be placed upon an adequate foundation and be constructed of reinforced concrete. Where pipes pass through the concrete wall, adequate support for the pipe shall be provided to prevent differential settlement and pipe shearing.

7.4.b.1.D. Embankment Stability -The following stability requirements apply to Class 1 through Class 3 dams. The Secretary may approve lower safety factors for Class 4 dams, based on engineering recommendations.

7.4.b.1.D.1. Embankment Safety Factors - Slope stability shall be analyzed to show that the embankment design achieves the following factors of safety under the conditions listed. Unless otherwise indicated, factors of safety requirements apply to both upstream and downstream slopes of the embankment: 7.4.b.1.D.1(a) A safety factor of 1.5 for the embankment loading conditions specified in part 7.4.b.1.D.3.; 7.4.b.1.D.1(b) An end of construction safety factor of 1.3; 7.4.b.1.D.1(c) An upstream slope rapid drawdown safety factor of 1.2; and 7.4.b.1.D.1(d) An earthquake safety factor under steady-state seepage conditions of 1.2 using seismic loading appropriate to the geological site conditions.

7.4.b.1.D.2. Appurtenance Structural Stability - Embankments constructed as part of an appurtenant structure where failure will lead to a dangerous condition in the dam shall achieve a static safety factor of 1.5.

7.4.b.1.D.3. Embankment Loading Conditions - Loading conditions shall assume a long-term steady-state condition with the phreatic surface originating at the elevation of the emergency spillway crest for embankment dams with emergency spillways or at a maximum design pool elevation for embankment dams without spillways.

7.4.b.1.D.4. Stability Analyses - All slope stability analyses shall be performed using standard engineering practices. Exceptions to this requirement will be allowed by the Secretary only where there is sufficient evidence to indicate that slope failures will not occur. 7.4.b.1.D.4(a) Critical cross-sections of the dam using equal X and Y axes scales shall be provided in the plan package. The cross-sections shall show the embankment limits, foundation zones, soil zones, phreatic line, assumed reservoir elevation, stability arcs or failure planes through the dam, and resulting safety factors for each critical arc or failure plane shown. 7.4.b.1.D.4(b) A listing of soil zone unit weights, angles of internal friction, and cohesion values for each soil shown on the cross-section shall be provided in the plan package. If an alternative analysis is utilized, assumed soil values of the analysis shall be shown.

7.4.b.1.E. Overtopping Embankments.

7.4.b.1.E.1. Rock-Covered Embankments - Rock-covered embankments shall be designed so that the rocks selected will be sized to withstand the maximum depth and velocity of the overtopping flow and be individually placed to maximize the interlocking effect. A minimum of two (2) layers of boulders is required. Boulders shall cover the crest, downstream face, and necessary areas of the upstream face of the dam and extend beyond the dam abutments to the extent necessary to contain the overtopping flow depth. Graded smaller rock shall fill the voids where the boulders contact the embankment to prevent erosion due to flow through the voids. The rock cover may be covered with soil and vegetated, provided that the equipment used to place the soil will not break the rock.

7.4.b.1.E.2. Roller-Compacted Concrete Embankments. Roller-compacted concrete lift thickness and width shall be sized to withstand the maximum anticipated loading and uplift forces. Filter drains and weep holes shall be provided to relieve hydrostatic pressure behind roller-compacted concrete facings. The roller-compacted concrete may be covered with soil and vegetated.

7.4.b.2. Gravity Dams. The following stability requirements apply to Class 1 through Class 3 dams. The Secretary may approve lower safety factors for Class 4 dams, based on engineering recommendations.

7.4.b.2.A. Stability Loading Conditions - Loading conditions for the stability analysis shall assume maximum overflow head from the design storm.

7.4.b.2.B. Gravity Dam Stability.

7.4.b.2.B.1. Overturning - The reaction of all forces must act within the middle one-third of the base. This requirement may be modified by the Secretary if detailed computations prove that overturning will not occur.

7.4.b.2.B.2. Sliding - The dam shall have a factor of safety against sliding of at least 3.0 for normal loading conditions and 1.5 for maximum loading conditions. The sliding factor of safety may be reduced to no less than 2.0 for normal loading conditions where intimate knowledge of subsurface conditions has resulted from a state-of-the-art subsurface investigation, testing program and design analysis. The subsurface investigation and testing necessary to reduce the factor of safety should include, but not be limited to: sampling and testing of weak zones such as discontinuities, joints, joint fill material, fracture zones, bedding planes, and faults and; determination of peak, ultimate and residual strengths of foundation materials. Design analyses should include, but not be limited to: three dimensional analyses of foundation strength resulting from the subsurface investigation. The adequacy of subsurface investigations, testing, and design analyses necessary to reduce the factor of safety is subject to approval by the Secretary.

7.4.b.2.B.3. Bearing - The factor of safety against bearing failure shall be at least 1.5 for maximum stress at the downstream toe.

7.4.b.3. Waste Disposal Dams - The potential for liquefaction must be considered and the design shall include safeguards against the development of this condition.

7.4.b.4. Spillways - All spillways shall be designed to discharge an adequate distance beyond the downstream toe of the dam in a natural drainway to prevent erosion of the downstream toe or other detrimental effects to the dam structure.

7.4.b.4.A. Conduit Spillways - Inlets shall be protected by a designed trash rack and riser type spillways shall be designed to prevent detrimental vortexing. Risers shall have adequate weight to be non-buoyant and shall be of sufficient strength to withstand maximum dynamic water and ice forces. Foundations for risers shall be designed to support the riser without serious movement or deformation.

7.4.b.4.A.1. Conduits - Pipe conduits shall be placed on a designed foundation and bedding of sufficient strength to minimize settlement and other detrimental effects to the conduit. Anti-seep or anti-piping mechanisms shall be provided for all conduits passing through the dam, foundation, or abutments to control seepage along the pipe. Design allowances shall be made to compensate for differential settlement, elongation, and movement of the pipe conduit if the cradle is placed on a yielding foundation. Pipe conduits shall be of sufficient strength to support the maximum external loads and the maximum internal hydraulic pressure without leaking, and shall resist uplift pressures. The pipe conduit shall be constructed of material which will not deteriorate during the design life of the structure. 7.4.b.4.A.1(a) Use of Corrugated Metal Pipes - Corrugated metal pipes, whether coated or uncoated, shall not be used in new Class 2 or new Class 1 dams. Corrugated metal pipes in existing dams must be either replaced with new pipe or retrofitted with an appropriate liner if the Secretary determines that the existing pipe constitutes a hazard to the proper operation of the dam because the pipe has developed leaks, has deteriorated, or has otherwise ceased to function properly.

7.4.b.4.A.2. Outlets - Pipe conduits shall be designed to outlet in a natural drainway or a designed channel leading to a natural drainway. An energy dissipator shall be provided to eliminate erosion at the pipe outlet and be designed for maximum pipe flow. If pipe blockage by animals may occur, the pipe outlet shall be protected by an animal guard.

7.4.b.4.A.3. Gated Drain Pipe Required for New Freshwater Dams - All new freshwater dams shall have a gated drainpipe for draining the impoundment. The gate or valve shall be located in the reservoir or in the saturated zone upstream of the cutoff wall or impermeable barrier. If the gate is located within the embankment or structure, a service well shall be provided. The elevation of the gate system shall be such that the reservoir will be drained completely to original stream level. The drain system shall be designed to drain ninety percent (90%) of the volume of stored water at normal pool in ten (10) days including normal base flow and have a minimum capacity of three (3) times the normal base flow for the watershed with a headwater-to-diameter (HW/D) ratio of 1.5, unless otherwise approved by the Secretary. The drain conduit shall meet the requirements for conduits set forth in part 7.4.b.4.A.1. A designed trash rack shall be provided at the inlet of the drain. The controls to operate the drain gate shall be accessible without the use of specialized equipment or of divers. The drawdown rate for reservoir storage volumes in excess of two thousand (2000) acre-feet may be established by the Secretary.

7.4.b.4.A.4. Existing Dams with Gated Drain Pipes - All existing dams currently equipped with a gated drain pipe must meet the design requirements of part 7.4.b.4.A.3. and continue to be operated and maintained with the gated drain pipe. If such a gate or valve was not previously installed, a gate or valve shall be installed in the reservoir or in the saturated zone upstream of the cutoff wall or impermeable barrier. The Secretary may approve reduced drawdown time and flow quantity requirements for existing drains. Drain systems not meeting the design requirements of part 7.4.b.4.A.3. or dams with leaking or inoperative drain systems must be repaired or modified to maintain the greatest practical capacity of the drain system. If installation of the upstream gate or valve is impractical without draining of the reservoir and reservoir drainage will cause major economic loss to the owner, the Secretary may approve delay of the upstream gate or valve installation until the next necessary draining of the reservoir, provided that the existing drain system is functioning properly and is not leaking in a manner that would create a serious problem. If the existing drain system develops a serious problem, the Secretary may order immediate remedial action. The Secretary may grant an exemption to this subpart when investigation of the existing drain system determines to the Secretary's satisfaction that installation of an upstream drain gate or valve is not feasible.

7.4.b.4.A.5. The term "gate" or "valve" as used in this rule is a general term referring to a device used for controlling water flow.

7.4.b.4.B. Open Spillways - Unless specifically excluded, spillways of this type include the various designs of open type spillways including open channel, side channel, chute, labyrinth, and ogee.

7.4.b.4.B.1. Earth Spillways - Spillways that are constructed of or in earth material shall be designed to pass the maximum design flow without excessive erosion. Earth spillways shall not be constructed over dam embankment fill material. 7.4.b.4.B.1(a) Flexible Linings - Vegetation, rock riprap, soil reinforcement, or other flexible linings may be used to increase flow quantities and velocities in earth spillways within design limits.

7.4.b.4.B.2. Concrete Spillways. 7.4.b.4.B.2(a) Concrete - The engineer shall specify the grade and strength of concrete to be used in the spillway construction. The concrete structure shall be of sufficient strength to withstand the maximum design applied load. 7.4.b.4.B.2(b) Foundation - Concrete shall be placed on a prepared foundation and bedding capable of sustaining the applied loads without excessive deformation. 7.4.b.4.B.2(c) Drains - Designed filter drains and water pressure relief devices shall be provided under concrete slabs and walls to collect and safely convey water from seepage or leakage of construction joints and to relieve uplift pressure from seepage conditions. 7.4.b.4.B.2(d) Joints - Construction joints shall be made watertight by use of a sealant material. Sliding joints shall be supported by a slab to maintain alignment. 7.4.b.4.B.2(e) Cutoff Barriers - Cutoff barriers keyed into the foundation shall be provided to prevent or reduce seepage flow under the spillway. 7.4.b.4.B.2(f) Energy Dissipators - An energy dissipator shall be provided to reduce the hydraulic energy at the end of the spillway. The dissipator shall be designed to function properly for flows of at least one-half of the design spillway flow. Flows in excess of the design capacity of the energy dissipator shall not endanger the dam or its appurtenances and may result only in erosion.

7.4.b.4.B.3. Nonstandard Spillway Design - The Secretary may reject any spillway design if such design is of a nonstandard or untested nature and it is not possible to analytically predict the performance of the spillway or the detrimental effects of cross-waves, eddies, vortices, super-elevation, or hydraulic jumps within the spillway system.

7.4.b.5. Water Supply Pipes - Water supply pipes through a dam shall be constructed of a long-life, high-strength material. Welded joints or mechanical joints with sealing rings, or an alternative sealing method approved by the Secretary, shall be utilized. Pipes shall be properly bedded to reduce differential settling or elongation. Anti-seep mechanisms or filter drains shall be provided to prevent piping along the exterior of the pipe. If the pipe is enclosed in or passes through concrete, the relative coefficients of expansion shall be considered. Anti-corrosive measures shall be employed if soil tests indicate corrosion may be a problem. An upstream shutoff valve shall be installed on all new dams or when upgrading existing dams where reservoirs are to be drained as part of the upgrading. The section of the pipe through the dam shall be capable of withstanding a minimum pressure of twice the maximum reservoir head. The pipe shall be pressure-tested for leaks at maximum reservoir head pressure prior to the final covering of the pipe installation.

7.5. Miscellaneous Considerations.

7.5.a. Erosion and Sediment Control - Erosion and sediment control measures sufficient to comply with the provisions of paragraph 8.1.m. shall be included in the project design where the disturbed area within the site is less than NPDES limits. If the disturbed area within the site exceeds NPDES limits, a letter documenting submission of a NPDES permit application must be submitted in accordance with subparagraph 6.4.f.1.

7.5.b. Waste Disposal Areas - The engineer shall delineate locations in the project area which are to be used as waste disposal areas.

7.5.c. Instrumentation - The engineer shall recommend instrumentation as necessary to monitor and measure performance of new dams or modifications to existing dams. The engineer shall specify the types and purpose of the recommended instrumentation.

7.5.c.1. Piezometers or Observation Wells - Piezometers or observation wells may be required by the Secretary on embankment type dams to monitor phreatic level and water pressures in critical areas of the embankment and, if necessary, the foundation or abutments. All piezometer or well heads shall be anchored in concrete and protected from vandalism with a locking metal cylinder surrounding the piezometer or well pipe.

7.5.c.2. Survey Monuments - Survey monuments may be required by the Secretary on embankment and gravity dams to monitor displacement, settlement, rotation, and deformation. Survey monuments on earth dams shall be sufficiently embedded into the structure to prevent localized movement of the monument. Protective casings shall be installed if necessary to prevent damage or forced movement of the survey point.

7.5.d. Staged Construction - Waste disposal dams designed in stages of construction shall be capable of storing or passing the design storm specified in paragraph 7.1.a.2. and subparagraph 7.1.b.1.A. during all stages of construction except during the initial start-up period, unless otherwise approved by the Secretary. During the initial start-up period, the dam shall be capable of storing or passing the P100 rainfall event as soon as possible. Construction shall increase storm capacity, reaching the full design storm capacity within two (2) years.

W. Va. Code R. § 47-34-8 Construction or Modification of a Dam

8.1. Construction Requirements.

8.1.a. Notification of the Commencement of Construction - Prior to the commencement of construction activities in the project area, the person who has been issued a certificate of approval, or his or her representative, shall notify the Secretary of the following:

8.1.a.1. The intent of the contractor to start construction in the project area and the date of such start-up.

8.1.a.2. The name, address, and telephone number of the owner's authorized contact person at the project area who is responsible for communicating with the Dam Safety Section and for receiving inspections reports and legal notifications.

8.1.b. Conformance with Plans - All work undertaken in the construction or modification of a dam shall be in strict conformance with the plans and specifications contained in the plan package submitted under subsection 5.1 and approved by the Secretary. Any changes to the approved plans and specifications shall be submitted to and approved by the Secretary prior to implementation.

8.1.c. On-Site Documents - A copy of the certificate of approval, the approved plans and specifications, all outstanding notices to comply or orders to comply that have been issued by the Secretary, and the monitoring and emergency action plans prepared in accordance with the provisions of subsection 15.6 and subsection 15.7 shall be available at the project area office for reference by construction personnel and the Secretary.

8.1.d. Adverse Weather Conditions - Construction work shall be suspended on all or part of the project when adverse weather conditions (e.g., prolonged precipitation, extreme temperatures) jeopardize the performance of work in conformance with the approved plan package.

8.1.e. Clearing and Grubbing - Clearing and grubbing shall be performed in the foundation, borrow, and soil stockpile areas. Clearing is required in the maximum permanent pool area unless otherwise approved by the Secretary.

8.1.f. Foundation Preparation - Foundation preparation shall include installation of keyways and subdrains, removal of soft areas, and similar project area preparation operations dictated by the approved plans and specifications and by project area conditions. The foundation shall be inspected by the Secretary prior to placement of embankment materials. If foundation problems are discovered during this inspection, additional foundation preparation may be required by the Secretary.

8.1.g. Placement of Materials.

8.1.g.1. All fill shall be placed in accordance with the approved plans and specifications.

8.1.g.2. Compaction testing shall be completed as specified in the approved specifications; the results of such testing shall be reported in accordance with the provisions of subdivision 8.4.a.

8.1.g.3. Filter drains shall be constructed in accordance with the approved plans and specifications. Filter material shall be tested for compliance with design gradations; the results of such testing shall be reported in accordance with the provisions of subdivision 8.4.a. Filter materials shall be placed to prevent segregation and contamination and shall be concurrently covered to prevent contamination or damage.

8.1.h. Grading.

8.1.h.1. All fill shall be graded in accordance with the approved plans and specifications.

8.1.h.2. The working surface and outslopes of the fill shall be concurrently graded through all phases of embankment construction.

8.1.h.3. The top of the fill shall be crowned to provide positive drainage during construction.

8.1.h.4. Final grading shall be conducted in order to facilitate revegetation.

8.1.i. Spillways and Appurtenances.

8.1.i.1. Spillways and appurtenances shall be constructed in accordance with the approved plans and specifications.

8.1.i.2. When downslope placement of fill material is used in the construction of spillways, the fill material shall be compacted in horizontal layers to achieve the design configuration.

8.1.i.3. All riprap material shall be of hard, durable rock which is not acid-forming or toxic. Riprap shall be placed to prevent size segregation.

8.1.i.4. When bedding is used under riprap, the rock material shall be placed in a manner so as not to damage or contaminate the bedding.

8.1.i.5. When protective channel linings are specified, the linings shall be installed as soon as the channel is constructed to grade in accordance with the approved plans and specifications.

8.1.i.6. When concrete is used in construction of spillways and appurtenances, the concrete shall be placed, cured, and finished in accordance with the provisions of part 7.4.a.1.B.2. through part 7.4.a.1.B.4. Standard engineering tests shall be performed in accordance with the provisions of paragraph 8.2.b.1. and reported in accordance with the provisions of subdivision 8.4.a.

8.1.i.7. All pipes, risers, and appurtenances shall be installed in accordance with the approved plans and specifications. Compaction testing shall be completed to ascertain that fill material around pipes, risers, and appurtenances has been placed in accordance with the approved plans and specifications; the results of such testing shall be reported in accordance with the provisions of subdivision 8.4.a. Sufficient fill shall be placed over pipes so as to prevent damage by heavy equipment.

8.1.j. Minimum Stream Flow - An adequate flow of water may be required by the Secretary in the stream below the dam during construction and reservoir filling to maintain water quality in the stream and to support fish and other aquatic life. The Secretary may require stream flow augmentation in accordance with the provisions of subdivision 15.3.b.

8.1.k. Blasting - Blasting may only be utilized in accordance with and as specified in the approved plans and specifications. Blasting based upon unforeseen project area conditions not covered in the approved plan package shall not be performed prior to approval by the engineer with the concurrence of the Secretary.

8.1.l. Storm Water Discharge - The sequence of construction work shall be planned to maximize the safe discharge of storm water while minimizing the amount of water retained in the impoundment. Either the principal spillway structures, including inlets and outlets, shall be operable prior to placement of construction material above the original valley elevation or diversion channels approved by the Secretary shall be in place.

8.1.m. Erosion and Sediment Control.

8.1.m.1. General Requirements - Erosion and sedimentation must be controlled to prevent a degradation of land and streams below the dam or project area, including visible deposits of sediment, and to prevent any violation of State water quality standards. Erosion and sediment control measures shall, at the minimum, conform with current erosion and sediment control reference manuals and apply to the entire project area.

8.1.m.2. Specific Requirements - Cleared areas, borrow areas, disturbed areas along stream channels and waterways, and fills, whether complete or in progress, must be equipped with erosion and sediment control devices (i.e., diversions, waterways, sediment basins, straw bale dikes, or silt fences).

8.1.m.2.A. Location of Sediment Control Devices - Erosion and sediment control devices must be located as close to the disturbed area as practical. Effort must be made to contain the sediment load within the disturbed area in order to prevent the entry of sediments into the natural drainway or stream.

8.1.m.2.B. Removal of Sediment Control Devices - Erosion and sediment control devices must remain in place until permanent vegetation is established or the area is otherwise stabilized. Prior to the removal of the devices, trapped sediment must be removed and placed in a location approved by the Secretary. Straw bale dikes and silt fences must be removed when no longer needed; sediment basins or ponds must be abandoned in a manner approved by the Secretary. Barren and denuded areas remaining after the removal of a control device must be revegetated.

8.1.m.2.B.1. The Secretary may modify or waive the requirements of subparagraph 8.1.m.2.B. for erosion and sediment control devices that are located within the impoundment area of the dam.

8.1.m.2.C. Cleaning Frequency - Sediment control diversions, silt fences, straw bale dikes, and waterways must be inspected once each week, and after each rainfall, and accumulated sediment must be removed in order to maintain design capacity. Sediment ponds, basins, and traps must be restored to design capacity when sediment accumulation approaches sixty percent (60%) of design capacity, or more frequently if so specified by the Secretary in writing.

8.1.m.2.D. Temporary Seeding and Mulching - Temporary seeding and mulching shall be utilized on bare areas where no construction activity is anticipated for a period of three (3) or more weeks. Areas that shall receive seeding and mulching include the reservoir area, borrow areas, soil stock piles, and steep fill slopes where no further work is planned prior to final grading. Where seeding is not feasible due to severe slope or time of year, the Secretary may approve mulching alone at a rate of three (3) tons of straw or hay per acre, or equivalent.

8.1.m.2.E. Water Routing - Water that is pumped or drained from work areas (e.g., excavations, foundations, and below grade fills) must be routed to properly-sized sediment control devices so that any sediment contained in the water is removed prior to discharge of the water from the project area. Pump discharges may not cause erosion or suspension of additional solids. No untreated water may be pumped or drained to the natural stream or stream diversion channel.

8.1.m.2.F. In-Stream Treatment - Barriers, such as silt fences or straw bales, located in the natural drainway or stream will not be considered acceptable as the primary means of sediment control for the project area. Properly designed sediment basins or ponds may be used for sediment control in the natural drainway or stream if the location of the basin or pond does not cause significant additional disturbance in undisturbed downstream areas. Use of a starter dike or the dam under construction may be considered appropriate for sediment control of the reservoir area provided the necessary detention time is achieved.

8.1.m.2.G. Sediment Control During Construction - Erosion and sediment control measures must be in place prior to the beginning of dam construction activities. Clearing and grubbing or sediment control measures not specified for the beginning of construction must be implemented in a timely manner as needed.

8.1.m.2.H. Permanent Erosion Measures - Permanent measures (e.g., vegetation, grading, diversions, waterways, and outlet structures) shall be included on all completed or existing dams, where applicable, to prevent the erosion of embankments, abutments, stream channels, and waterways during the life and operation of the dam.

8.1.n. Disposal of Construction Wastes.

8.1.n.1. General Disposal Requirements - All waste materials that result from construction activities shall be disposed of in a manner approved by the Secretary.

8.1.n.2. Specific Disposal Requirements.

8.1.n.2.A. Surplus Waste Materials - Surplus soil and rock materials shall be deposited in waste disposal areas delineated in the approved plans.

8.1.n.2.B. Organic Waste Materials - Trees, brush, root masses, and construction-related wood materials may be either buried in waste disposal areas delineated in the approved plan package or burned in accordance with local and State burning ordinances

8.1.n.2.C. Concrete Waste Materials - New or old waste concrete materials may be disposed of in areas approved by the Secretary for surplus soil and rock materials. New, unset waste concrete shall not be deposited in a location where it will enter watercourses, either directly or indirectly as a result of runoff. After it has set, the new waste concrete may be moved to waste disposal areas delineated in the approved plans.

8.1.n.2.D. Other Waste Materials - Chemicals, petroleum products, plastics, garbage, sewage, and any associated containers shall be disposed of in a manner approved by the Secretary.

8.1.n.2.E. Off-Site Waste Materials - No waste materials or soil waste may be transported to the project area for disposal.

8.1.o. Dust Abatement - The contractor shall fully suppress dust on haul and access roads and as necessary within the project area. Water, or an alternative dust palliative approved by the Secretary, shall be used for dust suppression; the use of oil or waste oil is prohibited.

8.1.p. Access Roads - A permanent access road shall be provided to each dam site. The road must be adequate for emergency vehicular traffic. Single lane unpaved roads are acceptable provided the roads are properly maintained. The access road must be designed and located as to not be unduly affected by stream or spillway flows during heavy rainfall events. The road may be secured with a locked gate provided that the key is available to dam monitors and State and local emergency personnel for emergency response.

8.2. Quality Control.

8.2.a. Construction Monitoring.

8.2.a.1. All construction activities shall be monitored by an engineer or his or her designated representative. Construction monitoring shall not be the responsibility of the construction contractor unless specifically approved by the Secretary in writing.

8.2.a.2. Responsibility for assessing the quality of the workmanship and ascertaining compliance with the approved plans and specifications shall be vested primarily in the owner's engineer. The Dam Safety Section shall also monitor construction activities and workmanship in order to ascertain compliance with the approved plans and specifications, in accordance with the provisions of W. Va. Code §22-14-9.

8.2.a.3. Critical phases of construction shall be monitored by the engineer or his or her designated representative constantly during active construction; noncritical phases of construction shall be checked at least once per day during active construction.

8.2.a.4. Additional supervision or testing will be required by the Secretary if evidence of inadequate construction supervision exists.

8.2.b. Materials Testing - Construction materials shall be periodically tested on-site to ascertain compliance with design specifications in the approved plan package. Final quality control testing shall not be the responsibility of the construction contractor.

8.2.b.1. Concrete Testing - Routine tests of slump, air entrainment, and temperature shall be performed on each truck delivery. Cylinder samples for compression testing shall be taken each day or every twenty-five (25) cubic yards of delivered concrete, whichever is more frequent, unless otherwise required by the Secretary.

8.2.b.2. Earth Fill Testing - Earth fill materials shall be tested for compaction and moisture content every alternate layer or each one thousand (1,000) cubic yards, whichever is more frequent. Random fill shall be evaluated for compliance with approved gradation specifications. Critical fill areas shall have gradation tests performed to evaluate compliance with the approved specifications.

8.2.b.3. Filter Materials Testing - Gradation tests shall be performed on filter materials. Close visual observation for signs of material segregation shall be performed. Additional tests may be required by the Secretary to determine durability and soundness of the filter material.

8.3. Construction Inspections.

8.3.a. Inspections During Construction.

8.3.a.1. A visual inspection for construction progress, unstable conditions, quality control, and conformance with the approved plans and specifications shall be held at least once each working day (or more frequently as determined by the engineer). The inspection shall be performed by an engineer or a person under the direct supervision of the engineer. The frequency of inspection may be changed by the Secretary depending upon specific project area conditions.

8.3.a.2. Additional inspections shall be held after each heavy rainfall event in order to detect problems and propose remedial measures. These inspections shall be performed by an engineer or a person under the direct supervision of the engineer.

8.3.a.3. Instrumentation shall be monitored every seven (7) days unless otherwise specified by the engineer. Monitoring shall be performed by an engineer or a person under the direct supervision of the engineer. The frequency of monitoring may be changed by the Secretary depending upon specific project area conditions.

8.3.b. Final Construction Inspection - Upon the completion of the construction or modification of a dam, a joint inspection shall be conducted by the Secretary and the engineer. The purpose of the inspection is to verify that all work has been accomplished in accordance with the approved plan package.

8.3.c. Acceptance of Construction - When the dam owner is advised by the Secretary that the construction appears satisfactory, the owner shall submit to the Secretary a certification by an engineer that all construction was in substantial conformance with the approved plans and specifications, including any modifications that have been approved by the Secretary. This certification shall be submitted within ninety (90) days of the Secretary's advisement. As-built drawings, including all variations from the original specifications and changes in location of borrow or waste disposal areas, shall be submitted with the engineer's certification. If substantial modifications of the original specifications have been made during the construction period, the Secretary may require that a corrected application form be submitted. Upon the receipt of the engineer's certification with the as-built drawings (and a corrected application form, if necessary), a letter of acceptance will be issued by the Secretary.

8.3.d. Completed Dams - After acceptance of construction by the Secretary, the dam and its appurtenances shall be inspected annually for a period of three (3) years by an engineer experienced in such inspections. The Secretary reserves the right to attend any inspection and require prior notification of the inspection by the owner of the dam. A report of each inspection shall be prepared and filed with the Secretary in accordance with the provisions of subdivision 15.5.a.

8.4. Construction Reporting Requirements.

8.4.a. Monthly Progress Reports During Construction - A written report containing the results of each inspection of construction progress shall be submitted to the Secretary every month while the dam and its appurtenances are under construction. The report shall include, but not be limited to, specific instrumentation readings, test results, freeboard, crest elevation, and specific construction or quality control problems with documentation of implemented solutions. Upon the completion of the construction or modification of the dam, notice shall be given by the dam owner to the Secretary so that a final construction inspection can be made in accordance with the provisions of subdivision 8.3.b.

8.4.b. Post-Construction Inspection Reports - A report shall be submitted to the Secretary by the dam owner reporting the findings of the final construction inspection required under subdivision 8.3.b. Certification by an engineer shall be submitted to the Secretary with the inspection report to verify that the dam and its appurtenances were constructed in substantial conformance with the approved plans and specifications and that the dam and its appurtenances are functioning as designed.

W. Va. Code R. § 47-34-9 Breaching of a Dam

9.1. Application to Breach a Dam - The owner of a dam must obtain a certificate of approval from the Secretary prior to the breaching of the dam. A complete application in accordance with the provisions of subsection 5.1. must be submitted to and approved by the Secretary prior to the commencement of breaching activities.

9.1.a. Plan Package Requirements - The plan package submitted in order to breach a dam shall be in accordance with the applicable requirements of section 6 and must also include the specific requirements delineated in subsection 9.2 through subsection 9.10. Narratives, plans, or specifications required under section 6 which are clearly not applicable to the proposed breaching activities may be omitted from the submittal; however, the Secretary reserves the right to specify those items which must be included in the breaching plan package.

9.2. Breach Dimensions - The breach opening in the dam shall be designed so that any water resulting from design storm inflows that is temporarily impounded behind the residual structure shall be less than the height and storage requirements of a "dam" set forth in subsection 2.12. The breach shall be to original stream bottom level, except that a small impoundment of less than one (1) acre-foot storage may be retained for sediment control purposes.

9.3. Breach Channel - The embankment shall be breached with a designed channel having the capacity to carry the peak runoff from the design storm corresponding to the dam's hazard classification. The channel created by the breach shall have an erosion-preventive lining adequate to withstand the depth and velocity of the peak flows from a P100 rainfall event. The channel side slopes shall achieve a minimum stability factor of safety of 1.5.

9.4. Safety - Reservoirs shall be completely drained before breaching operations begin. Breaching work shall be scheduled during dry weather using National Weather Service advice and proceed quickly to reduce the potential for impounding water.

9.5. Blasting - If blasting is to be used in the breaching of a dam, a blasting plan shall be submitted to the Secretary for approval. The plan shall include the distance to existing structures and the measures that will be taken to minimize air blast and flying materials. A pre-blast survey of existing nearby structures and water wells which may be affected by blasting may be required by the Secretary.

9.6. Erosion and Sediment Control - Erosion and sediment control measures sufficient to comply with the provisions of paragraph 8.1.m. shall be implemented during the breaching operation. The following measures shall also be implemented:

9.6.a. Reservoir areas, and the sediment deposits therein, shall be protected from erosion after the impounding capability has been eliminated by the breaching of the dam;

9.6.b. Silt deposits and barren areas in the reservoir shall be stabilized and revegetated;

9.6.c. Disturbed areas, including the faces on any remaining embankment, must be protected by vegetation or other means approved by the Secretary;

9.6.d. A channel in the reservoir sediment may be required by the Secretary in order to reestablish a stream channel; and

9.6.e. Permanent sediment basins, subject to ongoing maintenance, may be required by the Secretary if the dam owner cannot demonstrate the effectiveness of other structural and vegetative measures in stabilizing the reservoir area and dam site.

9.7. Placement of Earthen Material - Material removed from the dam shall be placed in waste disposal areas delineated in the approved plan package. The material shall be graded and compacted as necessary and stabilized from erosion by vegetation or other means approved by the Secretary.

9.8. Placement of Non-Earthen Material - Concrete rubble and other rock material shall be placed in waste disposal areas delineated in the approved plan package. The material shall be placed in a manner to reduce hazardous conditions; protruding metal, wire, or bars are prohibited. The requirements of subdivision 8.1.n. shall apply to the disposal of any other waste materials generated by the breaching operation.

9.9. Galleries and Drains - The effect of flows through the breach and backwater pressure on galleries and drains shall be evaluated. The galleries and drains shall be vented or sealed as necessary to prevent failure of the remaining structure.

9.10. Safety of Remaining Structure - The remaining structure shall have sufficient strength to support the maximum hydraulic loading without failure. The engineer shall attempt to reduce or eliminate hazards associated with an "attractive nuisance."

9.11. Construction Practices - The requirements of section 8 shall apply when breaching a dam unless clearly not applicable to the breaching operation; however, the Secretary reserves the right to specify which requirements are applicable.

W. Va. Code R. § 47-34-10 Removal of a Dam

10.1. Application to Remove a Dam - The owner of a dam must obtain a certificate of approval from the Secretary prior to the removal of the dam. A complete application in accordance with the provisions of subsection 5.1. must be submitted to and approved by the Secretary prior to the commencement of removal activities.

10.1.a. Plan Package Requirements - The plan package submitted in order to remove a dam shall be in accordance with the applicable requirements of section 6 and must also include the specific requirements delineated in subsection 10.2 through subsection 10.8. Narratives, plans, or specifications required under section 6 which are clearly not applicable to the proposed removal activities may be omitted from the submittal; however, the Secretary reserves the right to specify those items which must be included in the removal plan package.

10.2. Removal Requirements - Removal of a dam shall consist of the complete removal of the structure to the original ground except in special cases where it may be necessary or advantageous to leave small sections of the structure. Unless otherwise approved by the Secretary, the removal of a dam shall consist of complete removal of the structure to approximate original contour. A total of no more than ten percent (10%) of the length of the structure may remain at the abutment areas.

10.3. Safety - Reservoirs shall be completely drained before removal operations begin. Removal work shall be scheduled during dry weather using National Weather Service advice and proceed quickly to reduce the potential for impounding water.

10.4. Blasting - If blasting is to be used in the removal of a dam, a blasting plan shall be submitted to the Secretary for approval. The plan shall include distance to existing structures and the measures that will be taken to minimize air blast and flying materials. A pre-blast survey of existing nearby structures and water wells which may be affected by blasting may be necessary.

10.5. Erosion and Sediment Control - Erosion and sediment control measures sufficient to comply with the provisions of subdivision 8.1.m. shall be implemented during the removal operation. The following measures shall also be implemented:

10.5.a. Reservoir areas, and the sediment deposits therein, shall be protected from erosion after the impounding capability has been eliminated by the removal of the dam;

10.5.b. Silt deposits and barren areas in the reservoir shall be stabilized and revegetated;

10.5.c. Disturbed areas, including the faces on any remaining embankment, must be protected by vegetation or other means approved by the Secretary;

10.5.d. A channel in the reservoir sediment may be required by the Secretary in order to reestablish a stream channel; and

10.5.e. Permanent sediment basins, subject to ongoing maintenance, may be required by the Secretary if the dam owner cannot demonstrate the effectiveness of other structural and vegetative measures in stabilizing the reservoir area and dam site.

10.6. Placement of Earthen Material - Material removed from the dam shall be placed in waste disposal areas delineated in the approved plan package. The material shall be graded and compacted as necessary and stabilized from erosion by vegetation or other means approved by the Secretary.

10.7. Placement of Non-Earthen Material - Concrete rubble and other rock material shall be placed in waste disposal areas delineated in the approved plan package. The material shall be placed in a manner to reduce hazardous conditions; protruding metal, wire, or bars are prohibited. The requirements of subdivision 8.1.n. shall apply to the disposal of any other waste materials generated by the removal operation.

10.8. Safety of Remaining Structure - If any portion of the structure remains, that portion shall have sufficient strength to support the maximum hydraulic loading without failure. The engineer shall attempt to reduce or eliminate hazards associated with an "attractive nuisance."

10.9. Construction Practices - The requirements of section 8 shall apply when removing a dam unless clearly not applicable to the removal operation; however, the Secretary reserves the right to specify which requirements are applicable.

W. Va. Code R. § 47-34-11 Abandonment of a Dam

11.1. Application to Abandon a Dam - The owner of a dam must obtain a certificate of approval from the Secretary prior to the abandonment of the dam. A complete application in accordance with the provisions of subsection 5.1. must be submitted to and approved by the Secretary prior to the commencement of abandonment activities.

11.2. Reservoir Elimination - The reservoir area shall be completely filled to the crest elevation of the dam with approved material to eliminate the impoundment of water. The maximum impounding capacity upon completion of final grading shall not exceed one (1) acre-foot of impounding capacity. The final top elevation of the reservoir fill shall be higher than, and sloped into, the diversion system required under subsection 11.4.

11.3. Embankment Stability - The remaining embankment shall be shown to achieve a minimum factor of safety in accordance with the provisions of subparagraph 7.4.b.1.D.

11.4. Diversion System - A diversion system designed for a P100 rainfall event shall be provided to capture the stream at the upstream end of the reservoir and convey stream water and embankment runoff water around the site. The diversion system shall outlet safely beyond the downstream toe of the embankment in a natural drainway capable of carrying the design storm without excessive erosion. The Secretary may require the installation of an energy dissipator in accordance with the provisions of subpart 7.4.b.4.B.2.(f).

11.5. Sealing Conduits - All conduits through the embankment, with the exception of underdrain conduits, shall be sealed with concrete at the upstream end prior to elimination of the reservoir. The Secretary may require pressure testing of conduits to determine seal adequacy.

11.6. Erosion and Sediment Control - Erosion and sediment control measures sufficient to comply with the provisions of subdivision 8.1.m. shall be implemented during the abandonment operation.

11.7. Soil and Vegetative Cover - A sufficient layer of topsoil shall be provided to permit long-term growth of vegetation. A seeding and mulching mixture shall be proposed in the abandonment application to accomplish revegetation of the project area.

11.8. Retention of Jurisdiction - The Secretary shall retain jurisdiction over the site for a minimum period of five (5) years after abandonment, during which time the dam and its appurtenances shall be inspected annually by an engineer experienced in such inspections. The inspections shall include measurement readings of instrumentation to determine the level and volume of saturation within the reservoir fill material. The Secretary may also require more frequent reading and reporting of instrument readings to determine seasonal fluctuations of saturation. A report shall be filed with the Secretary detailing the findings of each inspection and describing intended maintenance work. Should a major storm occur, a similar report shall be filed to detail the resultant condition of the structure.

11.9. Final Approval of Abandonment - At the completion of the five-year period, a final joint inspection by the engineer and the Secretary shall be conducted to determine the effectiveness of the abandonment design and the potential need for continued maintenance. Should the Secretary determine as a result of this inspection that an additional inspection time period or maintenance work is required, a letter detailing these requirements shall be sent to the owner. The Secretary will review instrument records and annual inspection reports to determine if the saturation level of material within the reservoir has decreased in volume to less than the legal definition of a "dam." Should the Secretary determine as a result of the inspection and review of instrumentation records that the volume of saturated material is less than the legal definition of a "dam" and the abandonment design has been effective, a letter of acceptance shall be issued stating that the dam has been properly abandoned.

W. Va. Code R. § 47-34-12 Reduction or Enlargement of a Dam

12.1. Reduction of Dam Height To Less Than Jurisdiction.

12.1.a. A person planning to reduce the height of a dam so that the remaining structure will no longer meet the definition of "dam" set forth in subsection 2.12. must obtain a certificate of approval from the Secretary.

12.1.b. A complete application in accordance with the provisions of subsection 5.1. must be submitted to and approved by the Secretary prior to the commencement of reduction activities. The application must also contain information showing that the remaining impounding structure will not cause loss of life or appreciable property damage downstream should that structure fail.

12.1.b.1. Plan Package Requirements - The plan package submitted in order to reduce the height of a dam shall be in accordance with the applicable requirements of section 6 and must also include the specific requirements delineated in subdivision 12.1.c. and subdivision 12.1.d. Narratives, plans, or specifications required under section 6 which are clearly not applicable to the proposed reduction may be omitted from the submittal; however, the Secretary reserves the right to specify those items which must be included in the reduction plan package.

12.1.c. The remaining structure shall have a properly designed spillway system capable of passing a Class 3 design storm without overtopping.

12.1.d. The remaining structure shall achieve a factor of safety in accordance with the provisions of subparagraph 7.4.b.1.C. or subparagraph 7.4.b.2.B. as appropriate to the type of structure.

12.1.e. The requirements of section 8 apply when reducing the height of a dam unless clearly not applicable to the reduction operation; however, the Secretary reserves the right to specify which requirements are applicable.

12.1.f. The Secretary shall retain jurisdiction over the remaining structure until the reduction operation is completed and a letter of acceptance has been issued by the Secretary.

12.2. Enlargement of a Structure to Jurisdiction.

12.2.a. A person planning to enlarge an existing structure so that the completed structure will meet the definition of "dam" set forth in subsection 2.12. must obtain a certificate of approval from the Secretary.

12.2.b. A complete application in accordance with the provisions of subsection 5.1. must be submitted to and approved by the Secretary prior to the commencement of enlargement activities.

12.2.b.1. Plan Package Requirements - The plan package submitted in order to enlarge a structure to jurisdiction shall be in accordance with the applicable requirements of section 6. Narratives, plans, or specifications required under section 6 which are clearly not applicable to the proposed enlargement may be omitted from the submittal; however, the Secretary reserves the right to specify those items which must be included in the enlargement plan package.

12.2.c. The Secretary will require adequate drilling and testing of the existing structure and foundation to ascertain in place conditions.

12.2.d. The requirements of section 8 shall apply when enlarging a structure to jurisdiction unless clearly not applicable to the enlargement operation; however, the Secretary reserves the right to specify which requirements are applicable.

W. Va. Code R. § 47-34-13 Dams Completed Before July 1, 1973

13.1. Complete Application Required - An application for a certificate of approval shall be submitted to the Secretary for all dams completed before July 1, 1973 which meet the definition of "dam" set forth in subsection 2.12. If the engineer can demonstrate that the dam meets the design requirements specified in this rule, an application for approval of an existing dam shall be submitted. If the dam requires modification to meet the requirements, an application for modification of an existing dam shall be submitted. If the above options are not exercised by the dam owner, an application to breach, remove, or properly abandon the dam pursuant to this rule shall be submitted.

13.2. Performance Requirements - All dams completed before July 1, 1973 shall meet the applicable design requirements of section 7. Those dams which do not meet the applicable design requirement of section 7 shall be modified, breached, removed, or properly abandoned pursuant to the provisions of this rule. In developing the required plans, specifications, and documentation necessary to bring the structure into conformity with section 7, the design engineer may consider in his or her submitted analyses, peculiarities and local conditions for each impounding structure with recognition of the many factors involved, some of which may not be precisely known. Existing construction documentation and the historical performance of the structure including documented storms and spillway flows may be considered by the engineer as part of the evaluation of the structure. Upon approval by the Secretary of the plans, specifications, and documentation submitted by the engineer, the Secretary may issue a certificate of approval.

13.3. Plan Package Requirements - The plan package submitted for approval or modification of an existing dam shall be in accordance with applicable requirements of section 6, except that testing and analysis results may be substituted for design specifications. If as-built drawings are not available, the engineer may substitute drawings prepared by him or her which represent the existing conditions at the dam as determined through the testing and analysis program.

W. Va. Code R. § 47-34-14 Sale or Transfer of a Dam

14.1. Notification and Documentation - Within thirty (30) days after the sale or transfer of a dam, the Secretary must be notified of that transaction by the person who was issued the certificate of approval for the dam.

14.1.a. The seller of a dam must provide the following documentation to the Secretary:

14.1.a.1. The name and address of new owner;

14.1.a.2. A copy of the signed agreement between the previous and new owner acknowledging certificate of approval responsibility and including any warranties, insurance coverage, or liability agreements between the parties;

14.1.a.3. The effective date of the ownership or responsibility transfer; and

14.1.a.4. Documentation that a copy of the certificate of approval or the most recent Dam Control Act notice to comply or order -- if a valid certificate of approval does not exist -- has been entered in the deed or land records of the county in which the dam is located.

14.1.b. The Secretary may reissue a corrected certificate of approval reflecting the sale or transfer of a dam upon the receipt of appropriate documentation and fees.

W. Va. Code R. § 47-34-15 Dam Operations and Safety

15.1. Safe Operations - The owner of a dam shall ensure that his or her dam is operated in a safe and responsible manner so as not to endanger life or property.

15.2. Operations Plan - Owners of dams which require the operation of gates, penstocks, or other means of regulating the reservoir level or downstream flow shall develop and submit an operations plan to the Secretary for approval.

15.2.a. Plan Contents - The operations plan shall include, but not be limited to, normal and seasonal operational procedures for gates, penstocks, and other reservoir or downstream flow regulating devices. The name, address, and telephone number of each individual authorized to operate the dam shall also be included in the plan.

15.2.b. Plan Implementation - The operations plan shall be implemented immediately upon approval by the Secretary and shall be updated periodically as necessary to reflect any changes in personnel or operation procedures.

15.3. Releasing Water - The owner of a dam may release water or lower the reservoir elevation through the use of gates without prior approval of the Secretary provided that the release of water will not adversely affect the dam structure, property, or water quality or pose a hazard to human life.

15.3.a. Emergency Releases of Water - Under emergency conditions, the owner of a dam may release water at a rate which may violate the criteria established under subsection 15.3. provided that such emergency release will not pose an unjustifiable hazard to human life. Notification must be given of a pending emergency release of water in accordance with the provisions of subdivision 15.8.a. In accordance with the provisions of W. Va. Code §22-14-12, this regulatory provision shall not relieve the owner of the dam of any liabilities resulting from an emergency release of water.

15.3.b. Low Flow Augmentation - The Secretary may require the owner of a dam to maintain a specified stream flow below the dam or to augment the stream flow for appropriate in-stream uses.

15.4. Dam Safety Inspections - Periodic inspections of dams shall be performed to monitor and assess the condition of the dam. These scheduled safety inspections of completed dams shall be in the charge of an engineer.

15.4.a. Inspections by the Dam Owner - The owner of a dam or his or her agent shall perform safety inspections monthly or more frequently. Such inspections must survey the dam and its appurtenances to check for problems or changes since the last inspection. The owner or his or her agent shall inspect the dam more frequently than once per month during adverse weather conditions. The owner shall report any observed problems to the Secretary.

15.4.b. Inspections by the Secretary - The Secretary may inspect any dam at any time in accordance with the provisions of W. Va. Code §22-14-4(i).

15.4.c. Inspections by the Owner's Engineer - An engineering inspection shall be conducted annually for three (3) years after the completion of any dam, in accordance with the provisions of paragraph 8.3.d. Upon the conclusion of this three-year period, the dam shall be inspected by the owner's engineer at the frequency specified in subparagraph 15.4.c.1. through subparagraph 15.4.c.4. as appropriate to the hazard classification of the dam. The Secretary may require additional inspections based upon site conditions. The Secretary reserves the right to attend any inspection and require prior notification of the inspection from the owner of the dam.

15.4.c.1. Class 4 dams shall be inspected at least once every seven (7) years.

15.4.c.2. Class 3 dams shall be inspected at least once every five (5) years.

15.4.c.3. Class 2 dams shall be inspected at least once every three (3) years.

15.4.c.4. Class 1 dams shall be inspected at least once every two (2) years.

15.4.d. Inspection of Dams with Serious Problems - The Secretary may establish the frequency of inspection of dams with serious problems for both inspections by the dam owner under subdivision 15.4.a. and inspections by the owner's engineer under subdivision 15.4.c. The inspection of a dam with serious problems shall monitor slopes, seepage, bulges, scarps, vertical displacement, excessive erosion, piping, sudden changes in monitoring devices, and other visible factors which could indicate potential failure of the embankment, spillways, or other appurtenances. The Secretary reserves the right to attend any inspection and require prior notification of the inspection by the owner of the dam.

15.5. Dam Safety Inspection Reports.

15.5.a. Inspection Reports for Completed Dams - A written report containing the observations of each inspection that is required under subdivision 8.3.d. and subdivision 15.4.c. shall be submitted to the Secretary by the dam owner within thirty (30) days of the inspection. The report shall also describe maintenance work to be performed as a result of the inspection findings. Should a storm equal to or greater than a 50-year, 6-hour rainfall event occur, a similar report shall be filed to detail the resultant condition of the structure. Certification by an engineer shall be submitted to the Secretary with each inspection report to verify that the dam and its appurtenances are functioning as designed.

15.5.b. Inspection Reports for Dams with Serious Problems - A written report containing the observations of each inspection required under subdivision 15.4.d. shall be submitted to the Secretary by the dam owner within thirty (30) days of the inspection.

15.6. Monitoring Plans - Owners of Class 1 dams shall formulate and submit a monitoring plan to the Secretary for approval. Owners of Class 2 and 3 dams may be required by the Secretary to formulate and submit a monitoring plan for approval.

15.6.a. The monitoring plan developed by the dam owner must follow the format of the example plan provided by the Secretary and shall include, but not be limited to, the following:

15.6.a.1. A description of the dam, including appropriate drawings and location maps;

15.6.a.2. A listing of problems and deficiencies and any implemented repairs;

15.6.a.3. The inspection frequency under varying weather conditions;

15.6.a.4. A description of areas or items to be inspected;

15.6.a.5. Corrective actions to be taken;

15.6.a.6. The responsible persons' names, addresses, and telephone numbers;

15.6.a.7. The method of notification of the Secretary and county emergency services authorities; and

15.6.a.8. Other items required by the Secretary based upon site-specific conditions.

15.6.b. Monitoring plans shall be updated annually. More frequent updating of the plans may be required by the Secretary based upon rapidly changing personnel or site conditions. The monitoring plan shall be implemented immediately by the dam owner upon the approval of the plan by the Secretary.

15.7. Emergency Action Plans - Owners of Class 1 dams shall formulate and submit an emergency action plan to the Secretary for approval. Owners of Class 2 and 3 dams may be required by the Secretary to formulate and submit an emergency action plan for approval.

15.7.a. The emergency action plan developed by the dam owner must follow the format of the example plan provided by the Secretary.

15.7.b. The dam owner shall coordinate with county emergency service authorities in the development of the emergency action plan. The dam owner must provide copies of the inundation maps required under paragraph 3.5.c.2. to those authorities.

15.7.c. The dam owner shall provide county emergency services authorities with a copy of the monitoring plan, and all updates of that plan, approved by the Secretary pursuant to subsection 15.6.

15.8. Emergency Procedures.

15.8.a. Emergency Condition - If the owner of a dam determines that an emergency exists, he or she shall immediately notify any person who may be endangered if the dam should fail and then notify the appropriate county emergency services authorities and the Secretary. After providing notification of the emergency condition, the owner shall immediately take any remedial action, such as an emergency release of water, that is necessary to protect life and property. The Secretary may waive the requirement for a certificate of approval, as required under section 4, where it is necessary to accomplish repairs under emergency conditions.

15.8.b. Dangerous Condition - Should a dangerous condition develop, the Secretary shall be informed immediately. The owner of the dam shall immediately take any remedial action necessary to protect life and property. Emergency procedures developed in accordance with the provisions of subsection 15.6. and subsection 15.7. shall be implemented to protect life and property downstream. The site shall be inspected and monitored at least once every eight (8) hours until the emergency situation is alleviated. Continuous monitoring may be required by the Secretary when there is an imminent danger to the health, safety, or welfare of the public.

15.8.c. Evaluation of Dangerous Conditions - If a dangerous condition develops, an engineering evaluation shall be initiated as soon as possible to formulate a plan for permanent correction of the dangerous condition. The evaluation and corrective action plan shall be submitted to and approved by the Secretary prior to implementation.

15.9. Dam Owner Not Relieved of Responsibility - The Secretary's approval of a monitoring plan, or updates to such a plan, pursuant to subsection 15.6. or his or her approval of an emergency action plan pursuant to subsection 15.7. shall not relieve the dam owner of his or her legal duties, obligations, or liabilities under W. Va. Code §§22-14-10 and 22-14-12.

W. Va. Code R. § 47-34-16 Dam Maintenance

16.1. General Maintenance Requirements.

16.1.a. Required Maintenance - Each dam shall be maintained in accordance with the plans and specifications approved under the applicable certificate of approval. The Secretary may require maintenance to be performed on a dam, whether or not a certificate of approval has been issued for that dam.

16.1.b. Maintenance Plan - Owners of dams shall formulate and submit a written maintenance plan to the Secretary for approval. The maintenance plan shall include, but not be limited to, schedules for maintaining embankments, concrete structures, vegetative or rock covers, gates, gate mechanisms, penstocks, or other reservoir-regulating devices, spillways, and appurtenances. The maintenance plan shall be implemented immediately by the dam owner upon the approval of the plan by the Secretary. The maintenance plan shall be updated periodically as necessary to reflect changing site conditions.

16.2. Specific Maintenance Requirements.

16.2.a. All spillways and appurtenances shall be maintained to operate in accordance with the plans and specifications approved under the applicable certificate of approval.

16.2.b. All failures resulting from landslides or slope failures shall be corrected immediately if the failures significantly affect the safety or design capacity of the dam or its appurtenances. All failures shall be reported to the Secretary.

16.2.c. All pipes shall be repaired or replaced when damaged, or distorted, or if they otherwise fail to function properly in accordance with the plans and specifications approved under the applicable certificate of approval.

16.2.d. Leakage through joints, fissures, and cracks through or under the spillway channel shall be immediately investigated and repaired.

16.2.e. Any new gate which has been installed in a new dam or in the repair or modification of an existing dam, or any gate which has been opened within five (5) years prior to inspection by the Secretary, shall be opened to at least thirty-three percent (33%) of its maximum capacity at least once annually. Gates not meeting the above requirements may remain closed until operated for the purposes of the owner or to alleviate an emergency condition and shall thereafter be opened at least once annually. All gate mechanisms shall be lubricated annually regardless of the operational status of the gate.

16.3. Routine Maintenance.

16.3.a. Routine maintenance of spillways shall be performed. Such maintenance shall include the removal of sediment, brush, trees, obstructions, and rocks in stilling basins and the re-establishment of the structure to its original hydraulic design.

16.3.b. Routine inspections shall be made of all hydraulic structures in order to maintain proper operation. Special inspections shall be conducted whenever a significant flow through the structures has occurred.

16.3.c. If erosion on the embankment face or abutments occurs, the area shall be regraded and be provided with adequate drainage control or revegetation to prevent future occurrences.

16.3.d. All concrete structures and channel linings shall be maintained in accordance with the plans and specifications approved under the applicable certificate of approval. All cracks located in concrete channels shall be sealed immediately with a sealant approved by the Secretary.

16.3.e. Access roads shall be maintained in order to provide access for emergency inspections, vehicles, and equipment.

16.3.f. The embankment or concrete structure of a dam shall be kept clear of trees and shrubs. The downstream toe and abutments of the dam shall be cleared to natural ground for a lateral distance of at least twenty-five (25) feet. All dams with vegetative covers shall be mowed at least once annually. Grazing by farm animals shall be controlled to prevent animal trails or other damage to the vegetative cover.

16.3.g. The embankment shall be kept clear of burrowing animals.

16.3.h. All monitoring devices shall be routinely inspected and repaired or replaced as necessary so that the devices function properly.

W. Va. Code R. § 47-34-17 Dam Repairs

17.1. General Repair Requirements - The Secretary may require repairs to be performed on a dam, whether or not the dam has a certificate of approval. Major repairs shall require a certificate of approval, issuance of which may or may not constitute final approval of the dam, as determined by the Secretary.

17.1.a. Routine Repairs (No Certificate Required) - Repairs conducted in accordance with the provisions of subsection 16.3. shall not normally require an application for a certificate of approval; however, the Secretary may require such an application based upon site-specific conditions.

17.1.b. Major Repairs (Certificate Required) - Any repairs to a dam other than routine repairs listed in subsection 16.3. shall require an application for a certificate of approval in accordance with the provisions of this rule.

17.2. Specific Repair Requirements.

17.2.a. Removal of Trees and Tree Roots - All trees shall be removed from the embankment and abutment areas, unless otherwise approved by the Secretary based upon site-specific conditions. Small trees with a base diameter of four (4) inches or less may be removed without removing the root system unless specific problems with the root system are evident. Larger trees may require special care in removal. The Secretary may require the removal of root systems of large trees if the potential for seepage along the root system exists. If removal of root systems requires extensive excavation of the embankment, the removal shall be considered a major repair requiring a complete application for a certificate of approval.

W. Va. Code R. § 47-34-18 Application and Annual Registration Fees

18.1. Application Fees - Each application submitted to place, construct, enlarge, alter, repair, remove or abandon a dam shall include an application fee. No fee, however, shall be assessed for dams designed and constructed by the soil conservation service for soil conservation districts. The following application fees apply:

18.1.a. The application fee for placement, construction, alteration, enlargement, repair, or approval of a dam is three hundred dollars.

18.1.b. The application fee for breaching, or abandonment of a dam is two hundred dollars.

18.1.c. The application fee for removal of a dam is one hundred dollars.

18.2. Annual Registration Fees - Owners of existing dams holding certificates of approval shall be assessed an annual registration fee. In accordance with provisions of the Dam Control and Safety Act, West Virginia Code §22-14-7, existing certificates of approval will be extended for one year upon receipt of the annual registration fee, an inspection report in accordance with subsection 15.5., a monitoring and emergency action plan in accordance with subsection 15.6. and subsection 15.7., and a maintenance plan in accordance with subdivision 16.1.b.; Provided that where an approved, up-to-date: inspection report; monitoring and emergency action plan; and maintenance plan are on file in the Dam Safety Section, and where no outstanding violation(s) exist, then the certificate of approval will be extended without resubmission of the foregoing documents upon receipt of the annual registration fee. No fee shall be assessed, however, for dams designed and constructed by the soil conservation service for soil conservation districts. The following annual registration fees apply:

18.2.a. Class 4 dams shall be assessed twenty-five dollars.

18.2.b. Class 3 dams shall be assessed fifty dollars.

18.2.c. Class 2 dams shall be assessed seventy-five dollars

18.2.d. Class 1 dams shall be assessed one hundred dollars.

18.3. Any certificate of approval issued pursuant to W. Va. Code §22-14-7 and this rule is void without notification to the person holding the certificate of approval when the annual registration fee is more than one hundred eighty (180) days past due. Resubmission of an application in accordance with section 5 is required where a certificate has become void due to failure to pay the appropriate annual registration fee within one hundred eighty (180) days of the date due.

W. Va. Code R. § 47-34-19 Civil Administrative Penalties

19.1. Enforcement Actions.

19.1.a. General - An authorized representative of the Secretary may commence an enforcement action for any observed violation.

19.1.b. Enforcement Action Procedures - An enforcement action shall be in writing, shall be signed by the Secretary or other authorized representative of the Secretary, and shall set forth with reasonable specificity:

19.1.b.1. The nature of the enforcement action with a reference to the section of the statute, rule, notice, order or certificate of approval term that was allegedly violated;

19.1.b.2. The time and date of the observance of the violation;

19.1.b.3. A reasonable description of the dam where the violation was observed, where within the operation or maintenance of the dam the observation was observed, and the condition or hazard determined by the Secretary;

19.1.b.4. The name, ownership and location of the dam and any identification number associated with it; and

19.1.b.5. In those instances where a notice or order has not been previously issued, the remedial action necessary to alleviate the violation and time limits for accomplishing the remedial action.

19.2. Penalty Assessment Procedures.

19.2.a. Review of Enforcement Action and Penalty Calculation - The Secretary shall review each enforcement action issued for civil administrative penalty assessment to determine:

19.2.a.1. The appropriateness of a civil administrative penalty;

19.2.a.2. The initial amount of penalty, if any, based upon the rates and methods given in subsection 19.5.;

19.2.a.3. The appropriateness of assessing a daily civil administrative penalty for continuing violations;

19.2.a.4. The total initial civil administrative penalty assessed; and

19.2.a.5. The appropriateness of assessing a separate civil administrative penalty against an individual person.

19.2.b. Notice of Civil Administrative Penalty - The Secretary shall provide the violator with a copy of the enforcement action and:

19.2.b.1. A notice of civil administrative penalty which shall include procedures for requesting an informal hearing and a notification of applicable time constraints; or

19.2.b.2. A notice of dismissal.

19.3. Hearings and Appeals.

19.3.a. Right to Informal Hearing - The violator has twenty (20) calendar days from his or her receipt of the notice of civil administrative penalty within which to request, in writing, an informal hearing before the assessment officer. If a hearing is requested, the assessment officer will hold the hearing within 60 days to deduce the actual facts and circumstances regarding the violation and, based thereon, will make a final recommendation of civil administrative penalty assessment to the Secretary. If no hearing is requested, the notice of civil administrative penalty becomes a final order after the expiration of the twenty-day period and the civil administrative penalty becomes due and payable.

19.3.b. Notice and Scheduling of Informal Hearing - If the violator requests an informal hearing within the twenty-day period, the assessment officer shall schedule a hearing in accordance with the following procedures:

19.3.b.1. The time and place the informal hearing is to be held is to be communicated to any authorized representative of the Secretary who filed an enforcement action bringing about the informal hearing, to the violator and to any person who has expressed an interest in writing concerning the enforcement action;

19.3.b.2. The communication shall be provided at least fifteen (15) calendar days prior to the time of the hearing; and

19.3.b.3. The assessment officer may continue the informal hearing only for good cause shown.

19.3.c. Informal Hearing Procedures - An informal hearing, as provided by this rule, is intended to be an informal discussion of the facts which gave rise to the issuance of an enforcement action and shall be conducted in the following manner:

19.3.c.1. The West Virginia Rules of Civil Procedure and West Virginia Rules of Evidence shall not apply;

19.3.c.2. A record of the informal hearing is not required but may be made by any party to the hearing at the party's expense; and

19.3.c.3. At formal review proceedings which may ensue, no evidence as to any statement made by one party at the informal hearing may be introduced as evidence by another party, nor may any statement be used to impeach a witness, unless the statement is or was available as competent evidence independent of its introduction during the informal hearing.

19.3.d. Written Decision - Within thirty (30) calendar days following the informal hearing, the Secretary shall issue and furnish to the violator a written decision affirming, increasing, decreasing, or dismissing the initial civil administrative penalty assessment and giving the reasons for the decision.

19.3.e. Request for Formal Hearing - Within thirty (30) calendar days after notification of the Secretary's informal hearing decision, the violator may request a formal hearing before the Environmental Quality Board. If no formal hearing is requested, the Secretary’s decision becomes a final order after the expiration of the thirty day period and the civil administrative penalty becomes due and payable.

19.4. Separate Civil Administrative Penalties.

19.4.a. The Secretary may assess a separate civil administrative penalty against any corporate director, officer, agent, or employee of a violator, or any other person, who authorizes, orders, or carries out a violation of the statute, rule, notice, order, or certificate of approval term or who fails or refuses to follow an order from the Secretary.

19.4.b. In determining the amount of a civil administrative penalty to be assessed against a person, consideration shall be given to the criteria specified in subsection 19.5.

19.4.c. The Secretary shall serve on each person to be assessed an administrative penalty a notice of separate civil administrative penalty assessment. For purposes of this subsection, service is considered sufficient if it satisfies Rule 4 of the West Virginia Rules of Civil Procedure for service of a summons and complaint. A notice of separate civil administrative penalty assessment shall include:

19.4.c.1. A reference to the section of the statute, rule, notice, order, or certificate of approval term allegedly violated;

19.4.c.2. A concise statement of the facts alleged to constitute the violation;

19.4.c.3. A statement of the amount of the separate civil administrative penalty to be imposed;

19.4.c.4. A copy of the underlying enforcement action; and

19.4.c.5. A statement of a person's right to an informal hearing.

19.4.d. A person shall have twenty (20) calendar days from receipt of the notice of separate civil administrative penalty assessment in which to request, in writing, an informal hearing before the assessment officer. If no hearing is requested, the notice of separate civil administrative penalty becomes a final order after expiration of the thirty-day period and the separate civil administrative penalty becomes due and payable.

19.4.e. The informal hearing, if requested, will be scheduled and conducted pursuant to this section.

19.5. Civil Administrative Penalty Calculation Procedures.

19.5.a. Calculation - The Secretary shall calculate a civil administrative penalty by taking into account the seriousness of the alleged violation, good faith efforts on the part of the violator (as provided for in paragraph 19.5.c. of this section) and any history of violations by the violator.

19.5.b. History of Violations (HOV) - The Secretary shall take into account the violator's history of violations by determining if any enforcement actions concerning Certificate terms, requirements of the Act, rule requirements, notices to comply or any orders have been taken against the violator during twenty-four (24) months prior to the violation. Those enforcement actions which were withdrawn, dismissed, or vacated shall not be included in the determination. Any outstanding violation within the time period shall constitute a history of violations.

19.5.c. Good Faith Effort - Good faith effort shall be determined in accordance with Table B.

19.5.d. Maximum Assessed Penalty - The maximum assessment for a single violation shall not exceed five thousand dollars ($5,000) per day with a maximum cumulative total of twenty thousand dollars ($20,000) for this same violation. Multiple violations shall not exceed a maximum cumulative total of twenty thousand dollars ($20,000) per day. The amounts applicable to a single violation must be adhered to when developing the cumulative total for multiple days.

19.5.e. Penalty - The civil administrative penalty shall be determined through the use of Table A.

19.5.f. Penalty With Good Faith Efforts by Violator - The civil administrative penalty determined by Table A shall be reduced, if applicable, through the use of Table B.

TABLE A

Seriousness of Violation (dollars/day/violation)

Enforcement Action No Hazard Serious Problem Dangerous Condition Failure to Comply With:

No HOV With HOV No HOV With HOV No HOV With HOV Certificate Act

Rule Notice Order TABLE B Good Faith by Violator Rating Percent Reduction 0% 5% 10% 15% 20% 25% 30% 35% 40% Good Faith Ratings: 0 Violator failed to take appropriate action 1-2 Violator took prompt, but insufficient action to fully comply with the violation within the required time period. Action was completed prior to end of extended time period. 3-4 Violator took prompt action and worked diligently to correct the violation. Conditions beyond the control of the violator prevented full compliance with the enforcement action and required that the compliance time period be extended for just cause. 5-6 Violator initiated compliance action immediately and expended all reasonable efforts to comply. Achieved compliance before the end of the original compliance time period. 7-8 Violator was already taking appropriate action at the time the violation was documented and expended exemplary effort in compliance action before the end of the compliance time period.

Determination of Penalty Assessment:

Enforcement Action Amount (Table A) ____________________ Less Good Faith Percent (Table B) ____________________ Total Assessment ____________________

W. Va. Code R. § 47-34-20 State Deficient Dams Rehabilitation Assistance Program

20.1. The Secretary shall establish a State Deficient Dams Rehabilitation Assistance Program to direct the distribution of loans from the Dam Safety Rehabilitation Revolving Fund created under the Act.

20.2. Use of Moneys in the Fund. -- Moneys in the Fund shall be used to make loans to persons to finance costs for engineering, design, alteration, improvement, repair, breaching or removal of a deficient dam necessary to correct or remove the deficiencies and other activities as authorized by a federal grant or a legislative appropriation. The Fund may also be utilized by the Secretary to repair, remove or take other remedial action with respect to a deficient dam under the authority in section 22 of the Act. The Fund may also be used to defray administrative costs incurred by the Secretary or the Authority.

20.3. Each loan shall be in an amount that covers the reasonable and necessary cost of a project for which funds are sought by the applicant and which are not provided by other available sources. Dam owners may use multiple programs or sources to fund the rehabilitation costs for a deficient dam, up to 100 percent of rehabilitation costs. Dam owners cannot exceed 100 percent funding from multiple programs or sources and must provide the Secretary with any multiple source accounting to verify that the loan amount plus the additional sources of funding do not exceed 100 percent.

20.4. List of Deficient Dams. -- A State List of Deficient Dams shall be developed and updated periodically by the Secretary utilizing a priority ranking system, including, but not limited to, the following factors: size of dam and reservoir; condition of dam and its appurtenances; and hazard potential to life and property.

W. Va. Code R. § 47-34-21 Eligibility Criteria

The Secretary shall consider eligibility for loans to include, but not be limited to, the following criteria:

21.1. Only those dams on the List of Deficient Dams are eligible for a loan from the Dam Safety Rehabilitation Revolving Fund in accordance with the priority specified in the List of Deficient Dams, provided that a person meets the criteria under subsection 21.3.;

21.2. A person has submitted a complete application for a project with eligible costs;

21.3. A person is in a state of readiness to proceed to planning, design or construction and expend loan payments in a timely manner;

21.4. A person has demonstrated his or her ability to pay is less than the estimated cost of repair or removal of the dam;

21.5. A person has demonstrated his or her ability to repay a loan. The Secretary shall evaluate the borrower’s financial stability, financial needs, and ability to repay based upon an appropriate examination of financial information, including, but not limited to, income and credit histories, income tax returns, financial statements and collateral offered to secure the loan;

21.6. Rehabilitation costs for any deficient dam are eligible, except for dams owned by the federal government;

21.7. Costs for State agency-required fish passage are eligible only if they are part of an overall rehabilitation project;

21.8. Costs for lake-enhancement projects such as lake dredging, sediment removal projects, or boat ramps, which do not enhance the safety of a deficient dam are not eligible to be funded through the Fund;

21.9. A person has provided an acceptable schedule for project initiation and completion; and

21.10. A person has demonstrated he or she has the financial, legal, and managerial capabilities to ensure adequate design, construction, completion of the project, and subsequent operation and maintenance of the dam. As a part of this demonstration, the person shall complete and submit to the Secretary financial capability worksheets supplied by the Secretary.

W. Va. Code R. § 47-34-22 Applications for Loans

22.1. A person who meets the eligibility criteria in section 21 may apply for a loan.

22.2. The applicant shall request a pre-application meeting with the Secretary to discuss the requirements of the program, including eligibility. A pre-application package, in a form prescribed by the Secretary, shall be completed and submitted to the Secretary prior to this meeting.

22.3. The review and approval by the Secretary of the pre-application package, including any project plans, design drawings and specifications, or other documents is for administrative purposes only and does not relieve the applicant or his agents and employees from properly planning, designing, constructing, operating, and maintaining the project as required under applicable federal and state statutes and rules.

22.4. If the project will involve two (2) or more persons, the applicant shall submit an agreement among the parties to the Secretary in a form prescribed by the Secretary.

22.5. After the pre-application meeting, a person desiring a loan from the Fund may make a separate application to the Secretary, on a form prescribed by the Secretary, for each project for which a loan is desired.

W. Va. Code R. § 47-34-23 Loan Agreements

Upon approval of an application for a loan, the Secretary shall specify the provisions that are required to be contained in the loan agreement, including:

23.1. The specific purposes for which the proceeds of the loan shall be expended, the cost of the project, the amount of the loan, and the terms of repayment of the loan and the security therefor, which may include a deed of trust or other appropriate security instrument creating a lien on such project or any other collateral the Secretary may require;

23.2. The procedures as to the disbursement of loan proceeds including an estimated monthly draw schedule, and the duties and obligations imposed upon the applicant in regard to the acquisition or construction of the project;

23.3. The agreement of the applicant to repay the obligations of such applicant under the loan agreement. Revenue may be pledged for the repayment of the loan together with all interest, fees, and charges thereon and all other financial obligations of the applicant under the loan agreement;

23.4. If notes or other interim obligations are being issued by the applicant, the agreement of the applicant to take other repayment actions as are required of the applicant under the loan agreement;

23.5. Payments of the principal and any interest on a loan shall be made by the applicant in accordance with the following:

23.5.a. Computation of Interest on Loans. -- Each loan shall bear interest from the date of the delivery of the notes of the applicant evidencing the loan to the applicant (or such other date as is determined by the Secretary) at a rate or rates per annum, either fixed or variable, as determined by the Secretary.

23.5.b. Fees and Charges. -- In addition to payments of principal and interest on a loan, each applicant shall agree in the loan agreement to pay fees and charges equal to the applicant's share of the administrative expenses of the Secretary and the Authority relating to the loan program or any bond program established by the Secretary and the Authority.

23.6. The agreement of the applicant to accept the Authority’s enforcement remedies under the Act in the event of any default under the loan; and

23.7. The agreement of the applicant to comply with all applicable federal and state statutes and rules and regulations and all applicable local ordinances pertinent to the financing, acquisition, design, construction, operation, maintenance and use of the project.

W. Va. Code R. § 47-34-24 Loans Conditioned Upon Availability of Moneys in the Fund

The obligation of the Authority to enter into loan agreements shall be conditioned upon the availability of moneys in the Fund in amounts and on terms and conditions, as at the direction of the Secretary, will enable the Authority to make loans.

W. Va. Code R. § 47-34-25 Disbursement of Loan Moneys

25.1. Following the Secretary’s approval of a loan and conditions to be included in the loan agreement, the Authority shall provide the person with the loan agreement setting forth the specific terms of the loan. The loan agreement, following execution by the person, constitutes a binding commitment for moneys from the Fund.

25.2. Moneys shall be disbursed from the Fund only upon a written authorization from the Authority. On a monthly basis, there shall be disbursed to each recipient the amount certified as costs incurred for the project. Said certification shall be made on an approved form. Moneys will be dispensed from the Fund upon presentation of an executed payment request form.

25.3. Each person receiving a loan shall comply with all terms and conditions of the loan agreement or notes or other debt instruments evidencing the loan.

25.4. Prior to commencement of construction, the Secretary and recipient shall hold a pre-construction conference to review the activities that shall take place during construction of the project.

25.5. Interim inspections of the project shall be conducted by the Secretary periodically during construction. A final inspection shall be conducted by the Secretary after construction has been substantially completed and before the final construction loan payment is disbursed.

25.6. The Secretary may use moneys from the Fund in accordance with provisions of section 22 of the Act. Before seeking a requisition from the Fund, the Secretary shall provide the information required in Section 20 of the Act to the Authority. Costs recovered from an owner by civil action shall be promptly deposited in the Fund.

W. Va. Code R. § 47-34-26 Owner’s Responsibilities

Once a loan has been granted under this rule, the owner or owners of a dam shall cooperate with the Secretary by:

26.1. Facilitating access to the dam and its appurtenances;

26.2. Making available all records maintained pursuant to the provisions of this rule for inspection by the Secretary upon request and where appropriate by the Authority;

26.3. Furnishing the Secretary with all plans, specifications, operation and maintenance data, instrumentation data, and other information pertinent to the dam and its appurtenances, or the loan;

26.4. Providing the Secretary with an operation and maintenance plan;

26.5. Maintaining the dam and appurtenances in the state of repair and operating condition required by the exercise of prudence; due regard for life or property; the application of sound and accepted engineering principles; and provisions of this rule;

26.6. Developing a monitoring and emergency action plan for the approval of the Secretary and implementing the plan upon approval;

26.7. Providing the Secretary with written, regularly scheduled reports describing progress toward repair or removal of the dam; and

26.8. Demonstrating the ability to appropriately operate and maintain the dam after rehabilitation is complete.

W. Va. Code R. § 47-34-27 Procurement Standards

27.1. Procurement Standards for Publicly-Owned Dams. -- Owners of publicly-owned dams shall comply with all applicable State laws and rules pertaining to competitive bid and prevailing wage requirements.

27.2. Procurement Standards for Privately-Owned Dams. -- Owners of privately-owned dams shall obtain a minimum of three bids prior to design, construction, or major procurement items as determined by the Secretary, provided that the Secretary may grant an exception in situations that may cause loss of life or property.

W. Va. Code R. § 47-34-28 Financial Management and Record Keeping

28.1. Financial Management. -- A loan recipient shall establish and maintain a financial management system to account for all costs incurred related to a project. This system shall assure that generally accepted accounting principles and practices are consistently applied in all financial matters related to the project.

28.1.a. Financial management shall include the following elements:

28.1.a.1. The maintenance of ledgers containing accurate, current, and complete records of all financial actions related to the project;

28.1.a.2. The maintenance of records that identify the source and amount of all moneys used for the project and documentation of how such moneys were used; and

28.1.a.3. The maintenance of records that allow a comparison of actual project costs with budgeted costs.

28.1.b. The recipient shall maintain an accounting system, which shall:

28.1.b.1. Establish a separate account for the project;

28.1.b.2. Record all transactions in a timely and verifiable manner;

28.1.b.3. Designate one (1) person who is not responsible for project operations to account for all project funds; and

28.1.b.4. Prepare and submit as directed, financial reports of the project.

28.2. Records. -- The recipient shall maintain official records for each loan received that include:

28.2.a. The loan application and loan approval documents;

28.2.b. All contracts and subagreements related to the project;

28.2.c. All documents related to financial management prescribed under subsection 28.1.;

28.2.d. A documentation of compliance with applicable federal and State statutes, rules, and regulations;

28.2.e. A documentation of the amount of moneys received and expended for the project;

28.2.f. A documentation of all property that was purchased for the project; and

28.2.g. Time records related to the project, if applicable.

47CSR34

47CSR34

Series 55 Groundwater Act Fee Schedule (97 tech cleanup)

W. Va. Code R. § 47-55-1 General

1.1. Scope. -- This rule reauthorizes a schedule of fees for the groundwater protection fund. This rule is applicable to any person who owns or operates facilities or conducts activities subject to the provisions of W. Va. '22-12-1 et. seq.

1.2. Authority. -- W. Va. Code '22-12-9(a).

1.3. Filing Date. -- May 13, 1994.

1.4. Effective Date. -- June 1, 1994.

1.5. Incorporation by Reference. -- Whenever federal or state statutes or regulations are incorporated into this rule by reference, the reference is to the statute or regulation in effect on the filing date listed in subsection 1.3 of this rule.

W. Va. Code R. § 47-55-2 Definitions

2.1. "Agency" means any branch, section, division, department or unit of the state, county or local government however designated or constituted which has authority under W. Va. Code '22-12-1 et seq. to regulate facilities, or activities which have the potential for impacting groundwater.

2.2. "Chief" means the chief of the office of water resources of the division of environmental protection.

2.3. "Class (A through F) landfill" means any landfill Class A through F as defined in Solid Waste Management rule 33CSR1.

2.4. "Director" means the director of the Division of Environmental Protection, unless otherwise specified in this rule.

2.5. "Generator" means any generator as defined in W. Va. Code '22-19-1 et. seq.

2.6. "Groundwater" means the water occurring in the zone of saturation beneath the seasonal high water table, or any perched water zones.

2.7. "Groundwater Certification" means an assurance issued by the director of the division of environmental protection that a permit or other approval issued by a state, county, or local government body regarding an activity that affects or is reasonably anticipated to affect groundwater complies with all requirements of W. Va. Code '22-12-1 et. seq., and the legislative rules promulgated pursuant to that chapter in accordance with W. Va. Code '29A-1-1 et seq. and any other requirements of state law, rules or agreements regarding groundwater.

2.8. "Groundwater protection fund" is the fund established by W. Va. '22-12-9(c)(1).

2.9. "Hazardous waste" means any hazardous waste as defined in subdivision 3.1.c of the division of environmental protection's hazardous waste management rule, 33CSR20.

2.10. "Injection well (Class 1 through 5)" means any injection well, Class 1 through 5, as defined in Regulations for the West Virginia Underground Injection Control Program; Underground Injection Control Fee Schedule, 46 C.S.R. 9.

2.11. "Major facility" means any facility as defined in subsection 2.24 of the State-National Pollutant Discharge Elimination System rules; Rules Governing The State National Pollutant Discharge Elimination System (NPDES) Program, 47CSR10.

2.12. "Monitoring well driller" means the individual operating the drilling rig when drilling, altering or abandoning (i.e., properly closing) a monitoring well(s).

2.13. "Permit" means any license, certification, registration, permit, or any other approval granted by an agency authorized to regulate facilities, or activities, which may have an impact on groundwater.

2.14. "Person" means any industrial user, public or private corporation, institution, association, firm or company organized or existing under the laws of this or any other state or country; state of West Virginia; governmental agency, including federal facilities; political subdivision; county commission; municipal corporation; industry; sanitary district; public service district; soil conservation district; watershed improvement district; partnership; trust; estate; person or individual; group of persons or individuals acting individually or as a group; or any legal entity whatever.

2.15. "Pesticide" means any substance or mixture of substances intended for preventing, destroying, repelling, or mitigating any undesirable insects, rodents, nematodes, fungi, weeds, or other organisms which the commissioner of agriculture may declare to be a pest, and any substances intended for use as a plant regulator, defoliant, desiccant or herbicide, except viruses on or in living man or other living animals.

2.16. "Publicly owned treatment works" or "POTW" means any device or system used in the treatment (including recycling and reclamation) of municipal sewage or industrial wastes of a liquid nature which is owned by a state or municipality as defined by Section 502(4) of the Federal Pollution Control Act, (PL 92-500) as amended by the Clean Water Act (PL 95-217). This definition includes sewers, pipes, or other conveyances only if they convey wastewater to a POTW providing treatment.

2.17. "Solid waste" means any solid waste as defined in W. Va. Code '22-15-2(27).

W. Va. Code R. § 47-55-3 Groundwater Protection Fund

3.1. Annual groundwater protection fund fees required -- Any person whose activities may affect groundwater quality or who is required to obtain a permit from any agency shall pay the appropriate groundwater protection fund fees in accordance with the provisions of subsection 3.5 of this rule.

3.2. Method of fee collection, fee limits, and transfer of fees to funds.

3.2.a. All groundwater protection fund fees assessed under this rule shall be paid to the appropriate agency by check, money order or electronic transfer.

3.2.b. Agencies receiving the groundwater protection funds shall transfer to the director of the division of environmental protection or his or her duly authorized representative, at such frequency as the director may consider appropriate, all groundwater protection fund fees collected.

3.3. Conditions of certification relative to fees and effect on permits.

3.3.a. Each agency's permit shall require that all groundwater protection fund fees be paid in accordance with subsection 3.5 of this rule. The permit shall also contain language stating that failure to remit groundwater protection fund fees shall result in withdrawal or denial of groundwater certification, and subject the person to the penalties outlined in W. Va. Code ' 22-12-10.

3.3.a.1. Agencies may require operating facilities or activities, which do not hold a valid permit and which are identified in subsection 3.5 of this rule, to pay the fees provided for in subsection 3.5.

3.3.a.2. Prior to issuing a permit, each agency shall require that all groundwater protection fund fees be paid following the provisions set forth in subdivision 3.4.a of this rule.

3.3.b. The director shall not issue, modify, or renew a permit subject to the requirements of W. Va. Code '22-12-1 et seq. without groundwater certification unless he or she declares otherwise pursuant to W. Va. Code '22-12-8(c).

3.4. Schedule of groundwater protection fund fees. -- (Fees are assessed on facility or activity type based on the projected cost of administering the Groundwater Protection Act. (W. Va. Code '22-12-1 et seq.)

3.4.a. Persons subject to the fees outlined in subsection 3.5 of this rule will be notified by the director, or his or her delegate, of the appropriate rate or actual amount of the fee, and the date fees are due.

3.4.b. The director shall coordinate the fee collection activities to assure that the statutory limit on fees provided for in W. Va. Code '22-12-9 subsection (a) are not exceeded.

3.5. Schedule of groundwater protection fund fees -- The annual groundwater protection fund fee for the following facilities or activities except subdivision 3.5.c of this rule which is a one time registration fee due prior to installation are:

3.5.a. Registering a pesticide -- $15.00.

3.5.b. Fertilizers - reserved.

3.5.c. Septic tank registration seals - $30.00 each. These seals are to be purchased from the division of environmental protection, office of water resources.

3.5.d. Underground storage tank certification/ registration - $5.00 per tank.

3.5.e. Generators of hazardous waste - $100.00.

3.5.f. Disposal of solid waste in a class A, B, or C landfill - a tipping fee of one cent per ton ($0.01/ton). These fees will be collected following the procedures outlined in W. Va. Code '22-15-11.

3.5.g. A Class F solid waste facility- $300.00.

3.5.h. A facility which may impact groundwater quality, as determined by the director of the division of environmental protection, which is required to obtain a permit under W. Va. Code '22-3-1 et seq., or W. Va. Code '22-11-8(b)(6), or W. Va. Code '22-4 et seq. - $100.00.

3.5.i. A facility which may impact groundwater quality, as determined by the chief, which is required to obtain a permit under W. Va. Code '22-11-8 (b)(1 through 6), and which is designated a major facility (industrial) - $500.00.

3.5.j. A facility which may impact groundwater quality, as determined by the chief, which is required to obtain a permit under W. Va. Code '22-11-8 (b)(1 through 6), and which is not designated as a major facility (industrial) or is not described in subdivisions 3.5.k, 3.5.l, or 3.5.m of this rule - $50.00.

3.5.k. A POTW with design flow greater than one million gallons per day (gpd) - $100.00.

3.5.l. A POTW with design flow less than one million gallons per day (gpd) - $25.00.

3.5.m. A non POTW operating a sewage treatment plant - $10.00 per plant.

3.5.n. An oil well - $3.00 per well.

3.5.o. A gas well - $3.00 per well.

3.5.p. A class 2 or class 3 UIC underground injection well:

3.5.p.1. Class 2-D or class 3 underground injection well - $75.00 per well.

3.5.p.2. Class 2-R underground injection well - $50.00 per well.

3.5.q. Class 5 underground injection wells- $15.00 per permit.

3.5.r. Class 1 underground injection wells- $200.00 per well.

3.5.s. A monitoring well drilling operation shall utilize a certified monitoring well driller for the drilling of groundwater monitoring wells. The certification fee for each monitoring well driller is - $200.00.

3.5.t. Facilities, activities or persons which are reasonably suspected to have the potential to adversely impact groundwater quality, as determined by the chief, and which are not subject to fees outlined in subdivisions 3.5.a through 3.5.s of this rule - reserved.

W. Va. Code R. § 47-55-4 Severability

If any provisions of this rule or the application thereof to any person or circumstance is held invalid, this invalidity shall not affect other provisions or applications of the rule, and to this end the provisions of the rule are declared severable.

47CSR55

Series 56 Assessment Of Civil Administrative Penalties

W. Va. Code R. § 47-56-1 General

1.1. Scope. -- This legislative rule establishes the criteria and procedures that shall be followed in the assessment of civil administrative penalties imposed under the provisions of W. Va. Code §22-12-10.

1.2. Authority. -- W. Va. Code §22-12-10.

1.3. Filing Date. -- May 14, 2009.

1.4. Effective Date. -- July 1, 2009.

W. Va. Code R. § 47-56-2 Definitions

2.1. "Act" means the West Virginia Groundwater Protection Act (W. Va. Code §22-12-1, et seq.).

2.2. "Assessment Officer" means a person appointed by the Secretary to carry out the review, assessment, and hearing procedures outlined in this rule. Any person(s) initiating the Notice of Violation is prohibited from being the Assessment Officer for the facility in question.

2.3. "Civil Administrative Penalty Referral" means a written document that shall include the observations made by the inspector relative to the seriousness of the alleged violation, any good faith efforts made to comply with applicable requirements, as well as any other appropriate factors established by this rule, and any other pertinent information or factors that have bearing on the referral.

2.4. "Inspector" means an authorized representative of the Secretary who as a normal function of his or her responsibilities conducts inspections, takes samples, or determines compliance with applicable statutes, rules, orders, or permit conditions of facilities or activities regulated under the Act.

2.5. "Notice of Civil Administrative Penalty" means a written notification provided to a violator by the assessment officer, by means of certified mail or personal service, assessing a civil administrative penalty. A notice of civil administrative penalty shall include:

2.5.a. A reference to the section of the statute, rule, order, or permit condition allegedly violated;

2.5.b. A concise statement of the facts alleged to constitute the violation;

2.5.c. A statement of the amount of the initial civil administrative penalty to be imposed; and

2.5.d. A statement of the alleged violator's right to an informal hearing.

2.6. "Notice of Dismissal" means a written notification provided to a violator by the assessment officer or the Secretary by means of certified mail or personal service, dismissing and vacating the enforcement action. A notice of dismissal may be issued at any time during the proceedings.

2.7. "Notice of Violation" means a written notification provided to an alleged violator by the inspector.

2.8. "Person" means any industrial user, public or private corporation, institution, association, firm or company organized or existing under the laws of this or any other state or country; state of West Virginia; governmental agency, including federal facilities; political subdivisions; county commission; municipal corporation; industry; sanitary district; public service district; soil conservation district; watershed improvement district; partnership; trust; estate; person or individual; group of persons or individuals acting individually or as a group; or any legal entity whatever.

2.9. “Secretary” means the Secretary of the West Virginia Department of Environmental Protection or his or her authorized representative.

2.10. "Violator" means the person who is alleged to have violated the Act, or any rule, order, or permit condition imposed pursuant to the Act.

2.11. "Written Decision" means a written decision furnished to the violator concerning the Secretary's final decision regarding the assessment of a civil administrative penalty and the reasons for the decision.

W. Va. Code R. § 47-56-3 Notice of Violations

3.1. General. An inspector or other authorized representative of the Secretary may issue a notice of violation for any violation he or she observes.

3.2. Notice Procedures. A notice of violation shall be in writing, shall be signed by the inspector or other authorized representative of the Secretary and shall set forth with reasonable specificity:

3.2.a. The nature of the violation with a reference to the section of the statute, rule, order, or permit condition that was allegedly violated;

3.2.b. The time and date of the observance of the violation; and

3.2.c. A reasonable description of the facility where the violation is observed, and where within that facility the violation was observed, if appropriate.

W. Va. Code R. § 47-56-4 Penalty Assessment Procedures

4.1. Review of Notice of Violation and Penalty Calculation. The assessment officer shall review each notice of violation referred to him or her for civil administrative penalty assessment to determine:

4.1.a. The appropriateness of a civil administrative penalty;

4.1.b. The initial amount of penalty, if any, based upon the rates and methods given in this rule;

4.1.c. The appropriateness of assessing a daily civil administrative penalty for continuing violations;

4.1.d. The total initial civil administrative penalty assessment; and

4.1.e. The appropriateness of assessing a civil administrative penalty against an individual.

4.2. Notice of Civil Administrative Penalty. The assessment officer shall provide the violator with:

4.2.a. A notice of civil administrative penalty which shall include procedures for requesting an informal hearing and a notification of applicable time constraints; or

4.2.b. A notice of dismissal.

W. Va. Code R. § 47-56-5 Hearings and Appeals

5.1. Right to Informal Hearing. The violator has twenty (20) calendar days from his or her receipt of the notice of civil administrative penalty within which to request, in writing, an informal hearing before the assessment officer. If a hearing is requested, the assessment officer will hold the hearing to deduce the actual facts and circumstances regarding the violation and, based thereon, will make a final recommendation of civil administrative penalty assessment to the Secretary. If no hearing is requested, the notice of civil administrative penalty becomes a final order after the expiration of the twenty-day period and the civil administrative penalty becomes due and payable.

5.2. Notice and Scheduling of Informal Hearing. If the violator requests an informal hearing within the twenty-day period, the assessment officer shall schedule a hearing in accordance with the following procedures:

5.2.a. The time and place where the informal hearing is to be held shall be communicated to any inspector or other authorized representative of the Secretary who filed a notice of violation bringing about the informal hearing and to the violator.

5.2.b. The communication shall be provided at least fifteen (15) calendar days prior to the time of the hearing.

5.2.c. The assessment officer may continue the informal hearing only for good cause shown.

5.3. Informal Hearing Procedures. An informal hearing, as provided by this rule, is intended to be an informal discussion of the facts which gave rise to the issuance of a notice of violation and shall be conducted in the following manner:

5.3.a. The West Virginia Rules of Civil Procedure and West Virginia Rules of Evidence shall not apply.

5.3.b. A record of the informal hearing is not required but may be made by any party to the hearing at that party's expense. Any other party to the hearing may obtain copies of the record at the expense of the party requesting the copy.

5.3.c. At formal review proceedings which may ensue, no evidence as to any statement made by one party at the informal hearing may be introduced as evidence by another party, nor may any statement be used to impeach a witness, unless the statement is or was available as competent evidence independent of its introduction during the informal hearing.

5.3.d. During the course of the informal hearing, a violator may make a request to have its ability to pay a civil administrative penalty evaluated. Such a request will only be evaluated if the violator provides all required information and it is received by the Assessment Officer within ten (10) calendar days of the informal hearing date. Incomplete information or information received more than ten (10) days after the informal hearing date will not be evaluated. Should completed information be received in a timely fashion, it will be evaluated in accordance with United States Environmental Protection Agency (USEPA) guidance.

5.4. Written Decision. Within thirty (30) calendar days following the informal hearing, the Secretary shall issue and furnish to the violator a written decision affirming, decreasing, or dismissing the initial civil administrative penalty assessment and giving the reasons for the decision.

5.5. Request for Formal Hearing. Within thirty (30) calendar days after written notification of the Secretary's decision, the violator may request a formal hearing before the Environmental Quality Board in accordance with the provisions of the Act. If no hearing is requested the Secretary's decision shall become a final order after the expiration of the thirty-day period and the civil administrative penalty shall become due and payable.

5.6. The assessment officer shall establish a schedule for payment of the administrative penalty based on all relevant factors.

W. Va. Code R. § 47-56-6 Individual Civil Administrative Penalties

6.1. The Secretary may assess an individual civil administrative penalty against any corporate director, officer, agent, or employee of a violator, or any other person, who authorizes, orders, or carries out a violation of the statute, rule, order, or permit condition or who fails or refuses to follow an order from the Secretary.

6.2. In determining the amount of a civil administrative penalty to be assessed against a violator under this section, consideration shall be given to the criteria specified in section 7.

6.3. The Secretary shall serve on each violator to be assessed an administrative penalty a notice of individual civil administrative penalty assessment. For purposes of this subsection, service is considered to be sufficient if it satisfies Rule 4 of the West Virginia Rules of Civil Procedure for service of a summons and complaint. A notice of individual civil administrative penalty assessment shall include:

6.3.a. A reference to the section of the statute, rule, order, or permit condition allegedly violated;

6.3.b. A concise statement of the facts alleged to constitute the violation;

6.3.c. A statement of the amount of the individual civil administrative penalty to be imposed;

6.3.d. A copy of the underlying notice of violation; and

6.3.e. A statement of the violator's right to an informal hearing.

6.4. A violator has a right to an informal hearing and/or appeal as outlined in section 5.

6.5. The informal hearing, if requested, will be scheduled and conducted pursuant to subsections 5.2, 5.3 and 5.4.

W. Va. Code R. § 47-56-7 Civil Administrative Penalty Calculation Procedures

The Secretary shall calculate a civil administrative penalty by taking into account the seriousness of the alleged violation, negligence or good faith on the part of the violator, and any history of noncompliance by the violator.

7.1. Seriousness of Violation. The Secretary shall take into account the seriousness of the violation by assigning a rating for the extent of deviation from the requirement of the statute, rule, order, or permit condition in accordance with Table A and a rating for the potential harm which may have resulted from the alleged violation in accordance with Table B. These “seriousness of the violation” ratings shall be used to determine the base penalty amount of the civil administrative penalty assessment through the use of Table C.

7.2. Negligence/Good Faith. The Secretary shall take into account the negligence or good faith which the violator displayed with regard to the alleged violation by assigning a rating in accordance with Table D. The negligence/good faith rating shall be used to determine the multiplying factor to be applied to the base penalty amount through the use of Table E.

7.3. “Unique” Factors. Should the violation in question involve an actual release to the environment or harm to human health or involve a chemical that is persistent or bioaccumulative, the associated civil administrative penalty may be multiplied by a factor of up to 2.0.

7.4. History of Noncompliance. The Secretary shall take into account the violator's history of noncompliance by determining the number of previous enforcement actions (administrative, civil, or criminal) which have been taken against the violator during the twenty-four (24) months prior to the violation. Those enforcement actions which were withdrawn, dismissed, or vacated shall not be included in this determination. The number of previous enforcement actions shall be used to determine the dollar amount to be added to the penalty through the use of Table F.

7.5. The civil administrative penalty shall be calculated by multiplying the base penalty amount (established from the seriousness of violation pursuant to subsection 7.1) by the multiplying factor (established from the negligence/good faith ratings pursuant to subsection 7.2), multiplying by the “unique” factor, if applicable (established pursuant to subsection 7.3), and then adding to that product a dollar amount (established from the history of noncompliance pursuant to subsection 7.4) through the use of Table G.

7.6. The civil administrative penalty assessed may not exceed the maximum assessments prescribed by the Act. The maximum assessment for groundwater protection act violations shall not exceed five thousand dollars ($5,000) per day per violation, up to a maximum of twenty thousand dollars ($20,000) total penalty.

TABLE A

Ratings for Deviation from Requirements 1 to 3 -- The violator had completed nearly all requirements of the statute, rule, order, or permit condition in question. However, there were some aspects of the requirements which were clearly not accomplished or the requirements were completed in most, but not all, areas of the facility. 4 to 6 -- The violator had completed approximately one-half of the requirements of the statute, rule, order, or permit condition in question or the requirements were not completed in approximately one-half of the areas of the facility. 7 to 9 -- The violator has completed almost none of the requirements of the statute, rule, order, or permit condition in question. However, some aspects of the requirements clearly were accomplished or the requirements were not completed in most, but not all, areas of the facility. 10 -- The violator had not completed any of the requirements of the statute, rule, order, or permit condition in question or the requirements were not completed in any area of the facility.

TABLE B

Ratings of Potential for Harm 1 to 3 -- The violation is of an administrative nature and could not result in a potential for harm to human health or the environment. 4 to 6 -- The violation is of an administrative or a physical nature and may result in a minor potential for harm to human health or the environment (e.g., report doesn’t contain necessary information of a specific nature, necessary environmental controls are present but not maintained). 7 to 9 -- The violation is of an administrative or a physical nature and may result in a moderate potential for harm to human health or the environment (e.g., report does not fully address intended subject matter or is deficient regarding specific information concerning multiple areas, violator has not made a good faith effort to install/maintain necessary environmental controls). 10 -- The violation is of an administrative or physical nature and may result in a major potential for harm to human health or the environment (e.g., failure to submit a report, failure to provide necessary environmental controls).

TABLE C

Seriousness of Groundwater Protection Act Violation Deviation from Requirement 1 2 3 4 5 6 7 8 9 10 Potential for Harm 1 100 140 190 250 320 400 490 590 700 725 2 200 240 290 350 420 500 590 690 800 825 3 400 440 490 550 620 700 790 890 1000 1125 4 700 740 790 850 920 1000 1090 1190 1300 1425 5 1025 1065 1115 1175 1245 1325 1415 1515 1625 1750 6 1375 1415 1465 1525 1595 1675 1765 1865 1975 2100 7 1725 1765 1815 1875 1945 2025 2115 2215 2325 2450 8 2075 2115 2165 2225 2295 2375 2465 2565 2675 2800 9 2425 2465 2515 2575 2645 2725 2815 2915 3025 3150 10 2775 2815 2865 2925 2995 3075 3165 3265 3375 3500 TABLE D Ratings for Negligence/Good Faith 1 -- The violation is not the result of negligence and the violator expended all possible effort to comply with the requirement in question or the violator has completed all actions to correct the violation. 2 to 4 -- The violation is the result of an oversight by the violator and could have been avoided if a more conscientious effort had been made in the operation of the facility or the violator has begun but not completed current actions to correct the violation. 5 to 7 -- The violation is obvious and a result of a lack of reasonable care by the violator or the violator has taken inadequate action to prevent the violation. 8 to 10 -- The violation is the result of a complete disregard for the requirement in question or the violator failed to respond to a previous enforcement action pertaining to the same requirement.

TABLE E

Negligence/Good Faith Negligence/Good Multiplying Factor 1 0.5 2 0.6 3 0.7 4 0.8 5 1.0 6 1.2 7 1.4 8 1.6 9 1.8 10 2.0 TABLE F

History of Groundwater Protection Act Noncompliance Number of Previous Enforcement Actions Dollar Amount 1 $100.00 2 $200.00 3 $350.00 4 $550.00 5 $850.00 6 $1250.00 7 $1650.00 8 $2150.00 9 $2750.00 10 and greater $3350.00 TABLE G Calculation of Civil Administrative Penalty Assessment Seriousness of Violation Negligence/Good Faith X Subtotal:

Unique Factor X Subtotal:

History of Noncompliance + Total Assessment:

Series 57 Ground Water Quality Standard Variances (See 1st Pub. Hear. 08/09/93)

W. Va. Code R. § 47-57-1 General

1.1. Scope -- This legislative rule establishes criteria for variances and deviations from the requirements of W. Va. Code, '22-12-1 et seq. that would otherwise obligate sources to assure compliance with existing quality, groundwater quality standards of the state Water Resources Board and preventative action limits imposed by groundwater regulatory agencies.

1.2. Authority. -- W. Va. Code '22-12-1 et seq.

1.3. Filing Date -- May 13, 1994.

1.4. Effective Date -- June 1, 1994.

W. Va. Code R. § 47-57-2 Definitions

The definitions set forth in W. Va. Code,'22-12-3 shall apply to this series along with the following definitions unless the context clearly indicates otherwise.

2.1. "Act" means the West Virginia Groundwater Protection Act, W. Va. Code '22-12-1 et seq.

2.2. "Agency" means any branch, section, division, department or unit of the state, county or local government, however designated or constituted, which has the authority pursuant to W. Va. Code '22-12-1 et seq. to regulate facilities or activities which have the potential for adversely impacting groundwater.

2.3. "Agency action" means the issuance, renewal or denial of any permit, license or other required agency approval, or any terms or conditions thereof, or any order or other directive issued by the division of environmental protection, division of health, department of agriculture or any other agency of the state or a political subdivision to the extent that such action relates directly to the implementation, administration or enforcement of the Act.

2.4. "Class of sources" means a group of sources which engage in similar types of activities and release, or have the potential to release, similar types of pollutants to the groundwater.

2.5. "Constituent" means any chemical, or biological substance found in groundwater due to either natural or man-made conditions.

2.6. "Deviation" means an action of the Director relieving a single source or class of sources, for one or more specific constituents, of the requirement to maintain and protect groundwater at existing quality, where existing quality is better than that required to maintain and protect applicable groundwater quality standards.

2.7. "Director" means the Director of the Division of Environmental Protection of the Bureau of Environment.

2.8. "Existing quality limits" means the existing quality of groundwater that is better than groundwater quality standards and which must be maintained and protected pursuant to section 5(e) of the Act.

2.9. "Groundwater" means the water occurring in the zone of saturation beneath the seasonal high water table, or any perched water zones.

2.10. "Groundwater quality standards" means the standards of purity and quality for groundwater of the state promulgated by the Environmental Quality Board pursuant to section 4 of the Act.

2.11. "Preventative action limit" means a numerical value expressing the concentration of a substance in groundwater that, if exceeded, shall cause action to be taken to assure that standards of purity and quality of groundwater are not violated.

2.12. "Release" means any act or omission that results in the spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping or disposing of materials or contaminants in a manner that has caused or is reasonably likely to cause the entry of a constituent to groundwater.

2.13. "Source" means any facility or activity which has caused a release or is reasonably likely to cause a release.

2.14. "Variance" means a legislative rule modifying groundwater quality standards or preventative action limits, or both, for a source or class of sources, for one or more specific constituents.

W. Va. Code R. § 47-57-3 Statutory Exemptions

3.1. The requirements of subsections 5(e), 5(f) and 5(g) of the Act related to groundwater quality standards, preventative action limits or existing quality limits shall not apply to coal extraction and earth disturbing activities directly involved in coal extraction that are subject to either or both W. Va. Code ''22-3-1 et seq. or 22-11-1 et seq. All other provisions of the Act are applicable to such exempt activities.

3.2. The Act is not applicable to groundwater within areas of geologic formations which are site specific to the production or storage zones of crude oil or natural gas and which are utilized for the exploration, development or production of crude oil or natural gas permitted pursuant to W. Va. Code '22-6-1 et seq. nor to the injection zones of Class II or III wells permitted pursuant to the statutes and regulations governing the underground injection control program. All groundwater outside such areas shall remain subject to the Act. An agency has the right to require the submission of data with respect to the nature of such exempt activities.

3.3. The Director has the authority to modify the requirements of subsection 5(g) of the Act with respect to non-coal mining activities subject to W. Va. Code '22-4-1 et seq.. Such modification shall assure protection of human health and the environment. Those agencies regulating such activities shall retain their groundwater regulatory authority as provided for in the relevant statutes and regulations governing such activities other than the Act.

W. Va. Code R. § 47-57-4 Contamination in Excess of Groundwater Quality Standards

4.1. Except for any source or class of sources which has been granted a variance for the particular contaminant at issue, any person who owns or operates a source subject to the Act which has caused, in whole or in part, the concentration of any constituent to exceed any applicable groundwater quality standard subject to the Act, must cease further release of that contaminant and must make every reasonable effort to identify, remove or mitigate the source of such contamination and strive where practical to reduce the level of contamination over time to support drinking water use of such groundwater.

4.2. Sources which are operating in full compliance with and pursuant to an agreement, administrative order, permit, or other authorization of an agency requiring remedial action to be undertaken to address groundwater contamination shall be deemed to be in compliance with W. Va. Code '22-12-4(b).

W. Va. Code R. § 47-57-5 Deviation from Existing Quality

5.1. Application -- Any person may apply to the Director to obtain a deviation from an agency action taken, or to be taken, to assure that a single source or class of sources maintain and protect groundwater at existing quality, where the existing quality is better than that required to maintain and protect applicable groundwater quality standards. Such petition may be independently filed or may be made in conjunction with other matters pending before the Director. If such other matters require public notice, then the request for a deviation shall be clearly identified in such notice.

5.2. Contents -- An application for a deviation must contain:

5.2.a. Name, mailing address and phone number of the person requesting the deviation and the name of the individual to be contacted regarding the application;

5.2.b. A description of the source or class of sources and constituents for which the deviation is being requested and, in the case of a request for a class of sources, a description of how such sources are substantially similar and the geographic area to be covered by such class;

5.2.c. A description of the area for which the deviation is proposed, including an analysis of the geology and hydrology of the area;

5.2.d. A report of the existing groundwater quality and uses in the area to be affected by the deviation, including, but not limited to the levels of constituents for which the deviation is being requested;

5.2.e. A list of other sources which may be expected to contaminate in the area for which the deviation is requested;

5.2.f. A statement describing why the measures necessary to preserve existing quality are not technically feasible or economically practical; and

5.2.g. A statement describing why a change in groundwater quality is justified based upon economic or societal objectives.

5.3. Director Action -- The Director may grant or deny a deviation for a specific site, activity or facility or for a class of activities or facilities which have impacts which are substantially similar and exist in a defined geographic area. The Director's reasons for granting or denying such a deviation shall be set forth in writing. To insure that applicable groundwater quality standards are not violated, the Director shall evaluate the cumulative impacts of all facilities and activities on the groundwater resources in question prior to granting any such a deviation and shall include such evaluation in this written report.

5.4. Terms and Conditions -- The Director shall have the exclusive authority to determine the terms and conditions to be applicable to the Director's decision to grant a deviation and the Director shall have the exclusive authority to determine the terms and conditions of such a deviation. The groundwater regulatory agency shall take such alternative action as may be necessary to assure that the facilities and activities which are subject to the deviation maintain and protect applicable groundwater quality standards. In maintaining and protecting such groundwater quality standards, such agency shall establish preventative action limits which, once reached, shall require action to control a source of contamination to assure that such standards are not exceeded.

5.5. Notice -- The Director or Chief of the Office of Water Resources of the Division of Environmental Protection of the Bureau of Environment shall provide notice of any decisions to approve an application for a deviation to the applicant and to any person that has submitted a written request for such information to such Director or Chief.

W. Va. Code R. § 47-57-6 Variance From Groundwater Quality Standards and Preventative Action Limits

6.1. Application -- Upon petition by any person, the Director may identify a single source or class of sources which by their nature cannot be conducted or operated in compliance with the groundwater quality standards or preventative action limits, or both, established pursuant to the Act and may grant a variance for a single source or class of sources. In the case of a petition on behalf of a class of sources, the petition may be filed by any person. In the case of a petition on behalf of a single source, the petition may only be filed by the owner or operator of that source. Any person who petitions for such variance must give contemporaneous notice of the petition by Class I advertisement in a newspaper of general circulation in the area to be affected by the requested variance. If the petitioner seeks a variance which would apply throughout the state, a Class I advertisement must be placed in a newspaper of state-wide circulation. Any advertisement must identify the name, address, and telephone number of the person requesting the variance, the area in which the variance would be effective (note: include a map if appropriate), and the source or class of sources for which the variance is requested and the constituents for which the variance is requested.

6.2. Contents -- An application for a variance from preventative action limits or groundwater quality standards, or both, must contain the following information:

6.2.a. A name, mailing address, and phone number of the person requesting the variance, and the name of the individual to be contacted regarding the application;

6.2.b. A description of the source or class of sources and constituents for which the variance is being requested;

6.2.c. The levels of constituents for which the variance is being requested.

6.2.d. A description of the area for which the variance is proposed, including an analysis of the geology and hydrology of the area;

6.2.e. A description of current groundwater quality and uses in the area to be affected by the variance, and the predicted long-term effect of the variance on the groundwater quality and uses;

6.2.f. A list of other sources which may have an effect on groundwater quality in the area for which the variance is requested;

6.2.g. The alternate limits or standards and mitigation measures proposed by the applicant if the variance is granted, and any proposed variance conditions;

6.2.h. A statement describing why the source or class of sources by their nature cannot be altered or modified to avoid violating preventative action limits or water quality standards;

6.2.i. A statement of the nature and extent of the benefits of the proposed variance including, but not limited to, benefits associated with economics, employment opportunities, health and safety, and the environment;

6.2.j. A description of alternatives to the variance, and an explanation of why the benefits of the proposed action outweigh the benefits of each considered alternative course of action, including not granting a variance, and an explanation of why none of the considered alternatives is reasonable and prudent;

6.2.k. A statement explaining why the proposed action is more in the public interest than the protection of groundwater quality standards or preventative action limits; and

6.2.l. A certificate of publication.

6.3. Rulemaking -- If, after considering the variance petition for a single source or class of sources, the Director concludes that a variance is appropriate, in whole or in part, the Director shall initiate legislative rulemaking as provided in W. Va. Code '29A-3. The proposed rule shall set forth:

6.3.a. A description of the single source or class of sources to be granted the variance and the constituents for which the variance is requested;

6.3.b. The geographical area for which the variance is allowed;

6.3.c. Any appropriate terms and conditions; and

6.3.d. The Director's preliminary findings pursuant to subsection 6.7 of this rule with respect to which public comment is to be solicited.

6.4. The proposed rule shall be accompanied by a statement of the Director's grounds for proposing the variance. In addition to all other rulemaking requirements, the Director shall hold a public hearing, following thirty (30) days notice, at which oral comments may be received from any interested person, and the Director must allow at least ten (10) days after such hearing for the submission of written comments. Notice of the public hearing shall also be filed with the state capitol press office. The Director shall issue a determination as to whether such a variance is or is not appropriate within forty-five (45) days of the close of the comment period and, if determined to be appropriate, shall take such further steps as may be appropriate to have the variance promulgated as a legislative rule.

6.5. Denials -- If the Director determines that a variance for a single source or class of sources shall not be allowed, he shall publish a denial decision stating the reasons for the denial and provide a copy of the denial decision to the petitioner along with a notification of the petitioner's appeal rights by certified mail, and by regular mail to any other person who requests a copy of the denial decision. Notice of the denial decision shall also be published in the State Register.

6.6. Appeal -- Any person who is adversely affected by the Director's decision to deny a variance may appeal that decision to the Environmental Quality Board within thirty (30) days of the date of publication of a denial decision in the State Register.

6.7. Variance Criteria -- The Director shall promulgate rulemaking for a variance for a single source or class of sources, if the Director finds that:

6.7.a. A single source or class of sources by their very nature cannot be conducted in compliance with the requirements of W. Va. Code '22-12-5(g).

6.7.b. The benefits of granting the variance outweigh the benefits of complying with the preventative action limits, or groundwater quality standards, or both;

6.7.c. The variance is more in the public interest than the protection of groundwater quality standards or preventative action limits; and

6.7.d. There is no reasonable and prudent alternative to the variance.

6.8. The Director's findings pursuant to the foregoing subsection shall include a statement of basis in support of each finding.

6.9. Terms and Conditions -- The Director may propose the variance through the initiation of rulemaking upon such reasonable terms or conditions as may be necessary to protect human health and the environment, to satisfy all requirements of the Act (other than compliance with groundwater quality standards or preventative action limits, or both as specified in the variance), and to minimize adverse impact to groundwater consistent with granting the variance. Such terms and conditions shall include, where the Director deems it to be appropriate, alternative groundwater water standards, alternative preventative action limits, monitoring and reporting requirements, and enforcement provisions. To the extent that such terms and conditions include alternative groundwater quality standards, the Director shall consult with the Environmental Quality Board in establishing such alternative standards.

6.10. Initial Variance -- All sources, except for those sources operating pursuant to subsection 4.2 of this rule, shall be granted a waiver of the requirements to comply with all groundwater quality standards and preventative action limits until November 1, 1994. Any source, whether single or class, which has filed with the Director on or before October 31, 1994, a statement declaring an intent to make application for a variance shall be granted a waiver of the requirements to comply for only those groundwater quality standards and preventative action limits, specific to the variance application, until July 1, 1996. The letter of intent shall include, but not be limited to, identification of the constituent(s) for which a variance is requested, a statement of the nature of the activity requesting the variance, and the geographical area to be affected, by the variance, if granted. Notwithstanding any other provisions of this subsection, such sources may be subject to such other standards or conditions as may be established by an agency to protect human health and the environment and to satisfy all requirements of the Act other than compliance with groundwater quality standards or preventative action limits, or both as specified in the variance. Any waiver granted pursuant to this subsection will be extinguished upon the issuance of the Director's denial of the entire variance. In those instances where a portion of the variance application has been denied, the waiver for that portion is extinguished.

6.11. Variance From New Standards -- All sources, except for those sources operating pursuant to subsection 4.2 of this rule, shall be granted a waiver from the requirements to comply with any groundwater quality standards and associated preventative action limits not in effect on August 30, 1993, until six (6) months following the effective date of such standards and associated preventative action limits. Any source, whether single or class, which has filed with the Director, within six (6) months following the effective date of such standards and associated preventative action limits, a statement declaring an intent to make application for a variance shall be granted a waiver of the requirements to comply for only those groundwater standards and preventative action limits as specified in the letter of intent for an additional eighteen (18) months. The letter of intent shall include, but not be limited to, identification of the constituent(s) for which a variance is requested, a statement of the nature of the activity requesting the variance, and the geographical area to be affected, by the variance, if granted. Notwithstanding any other provisions of this subsection, such sources may be subject to such other standards or conditions as may be established by an agency to protect human health and the environment and to satisfy all requirements of the Act other than compliance with groundwater quality standards or preventative action limits, or both as specified in the variance. Any waiver granted pursuant to this subsection will be extinguished upon the issuance of the Director's denial of the entire variance. In those instances where a portion of the variance has been denied, the waiver for that portion is extinguished.

6.12. Periodic Review -- No less frequently than every five (5) years the Director shall review all prior decisions granting deviations and variances to determine their continued consistency with this series. Should the Director determine that any modification of such a decision is appropriate, the Director shall initiate rulemaking pursuant to W. Va. Code 29A-3.

47CSR57

Series 57A Groundwater Protection Standards At Steam Electric Generating Facilities

W. Va. Code R. § 47-57A-1 General

1.1. Scope. -- Variances may be granted by the legislative to allow groundwater quality standards to be exceeded for a single source or a class of sources which by their nature cannot be conducted in compliance with the requirements of W. Va. Code '22-12-5, AGroundwater Protection Act@. The benefits of granting the variance must out weigh the benefits of complying with existing groundwater quality standards and demonstrate that there is no technologically feasible alternative available, and that granting the variance is more in the public interest than adherence to existing groundwater quality standards.

1.1.a. A study was initiated by Allegheny Power (AP) and American Electric Power (AEP) and conducted by the Electric Power Research Institute (EPRI) to ascertain the existing ground water quality at nine(9) steam electric generating facilities throughout the state. The study concluded that four(4) metals (beryllium, cadmium, chromium and nickel) were consistently exceeding groundwater quality standards at coal storage areas, and two(2) metals (nickel and selenium) were consistently exceeding groundwater quality standards at ash disposal areas.

1.1.b. The purpose of this legislative rule is to grant relief from existing groundwater quality standards by establishing groundwater protection standards (GWPS) for variance applicable areas for both the coal storage and ash disposal sites at nine(9) steam electric power generating facilities within the state.

1.2. Authority. -- W. Va. Code '22-12-5(l).

1.3. Filing Date. -- May 12, 2000.

1.4. Effective Date. -- June 1, 2000.

W. Va. Code R. § 47-57A-2 Definitions

2.1. AAct@ means the West Virginia Groundwater Protection Act, W.Va. Code '22-12-1 et seq.

2.2. AClass of sources@ means a group of sources which engage in similar types of activities and release, or have the potential to release, similar types of pollutants to the groundwater.

2.3. AConstituent@ means any chemical, or biological substance found in groundwater due to either natural or man-made conditions.

2.4. ADirector@ means the director of the Division of Environmental Protection of the Bureau of Environment.

2.5. AGroundwater@ means the water occurring in the zone of saturation beneath the seasonal high water table, or any perched water zones.

2.6. AGroundwater Protection Standard@ or AGWPS@ means the concentration of a specified constituent, statistically calculated, which is achievable with a 95% (percent) confidence level.

2.7. AGroundwater Quality Standards@ means the standards of purity and quality for groundwater of the state promulgated by the Environmental Quality Board pursuant to section 4 of the Act.

2.8. Appb@ - means parts per billion or g/l.

2.9. APreventative Action Limit@ or APAL@ means a numeric value expressing the concentration of a substance in groundwater that, if exceeded, causes action to be taken to assure that standards of purity and quality of groundwater are not violated.

2.10. AReceptor@ means a surface water body, a public or private drinking water supply and any off-site migration onto adjacent properties of groundwater for which the variance is granted.

2.11. ASource@ means any facility or activity which has caused a release or is reasonably likely to cause a release.

2.12. AVariance@ means a legislative rule modifying groundwater quality standards or preventative action limits, or both, for a source or class of sources, for one or more specific constituents.

2.13. AVariance applicable areas@ means a geographic area for which the variance is allowed and is further delineated by geographic coordinates listed in section 3.0 of this rule. '47-57-A-3. Variance Applicable Areas.

3.1. Variance applicable areas for coal storage sites at steam electric power generating facilities with their coordinates are as follows:

3.1.a. Albright; Preston County; 392909,793807; 392909,793811; 392913,793815; 392907,793811:

3.1.b. Fort Martin; Monongalia County; 394303,795514; 394243, 795529; 394304,795517; 394247,795535:

3.1.c. Harrison; Harrison County; 392315,801930; 392307,801925; 392314,801943; 392303,801941:

3.1.d. Kammer; Marshall County; 395101,804852; 395058,804849; 395050,804909; 395045,804902:

3.1.e. Kanawha River; Kanawha County; 381227,812523; 381224,812528; 381236,812529; 381235,812534:

3.1.f. Pleasants/Willow Island; Pleasants County; 392156,811743; 392151",811749; 392210,811739; 392205,811800:

3.1.g. Rivesville; Marion County; 393154,800626; 393153,800628; 393155,800637; 393134,800636 and:

3.1.h. Sporn; Mason County; 385819,815535; 385811,815526; 385815,815543; 385805,815535.

3.2. Variance applicable areas for ash disposal sites at steam electric power generating facilities with their coordinates are as follows:

3.2.a. Kanawha River; Kanawha County; 381219,812435; 381216,812434; 381217, 812502; 381215,812503 and:

3.2.b. Sporn; Mason County; 385757,815518; 385751,815514; 385751,815530; 385744,815526.

3.3. Variance applicable areas shall be permanently marked by stationary monuments or other highly visible alternative methods. These monuments shall be protected from damage or removal as long as the variance is in effect.

3.4. The facility shall communicate to the Director as to which method is used to mark the variance applicable areas.

W. Va. Code R. § 47-57A-4 Groundwater Protection Standards and Preventative Action Limits

4.1. Groundwater protection standards, preventative action limits and compliance monitoring stations are hereby established for the following sites and for the following individual constituents: beryllium, cadmium, chromium, nickel and selenium. (See tables 57A-4A through 57A-4F at the end of this rule.)

4.2. The groundwater protection standards and preventative action limits are established for coal storage and ash disposal ponds at variance applicable areas and shall not pertain to other activities or areas at the facility.

4.3. Compliance with preventative action limits shall also be determined at the same monitoring stations as the groundwater protection standards.

4.4. If any groundwater protection standard (GWPS) or preventative action limit (PAL) is exceeded, the Director shall cause such action to be taken as specified in section 5.0 of this rule to assure that standards of purity and quality are not violated. '47-57-A-5. Terms and Conditions.

5.1. Any constituent for which a variance is granted shall not cause a violation of water quality standards or groundwater quality standards at any receptor.

5.2. A sufficient number of monitoring wells of approved design and construction shall be installed and maintained between the variance applicable areas and the receptor. If the Director reasonably believes the current number and location of compliance monitoring wells is no longer adequate to monitor the variance applicable areas, the Director may order the installation of additional wells.

5.3. Groundwater protection standards and preventative action limits will be applied on intrawell comparisons; that is, each compliance monitoring well would stand alone, and not be collectively averaged with all wells monitoring the variance applicable areas.

5.4. Preventative action limits will be established at 80% (percent) of the groundwater protection standard or as otherwise determined by the Director.

5.5. Any expansion of existing coal storage areas or ash disposal ponds outside of its variance applicable areas is prohibited; unless these expanded areas employ all relevant mitigation practices in accordance with applicable rules promulgated pursuant to the Act.

5.6. Compliance monitoring shall begin on the effective date of this rule and shall continue in accordance with section 5.0 of this rule.

5.7. Compliance monitoring of the variance applicable areas shall be quarterly provided that three(3) successive preventative action limit (PAL) exceedences shall result in an increased monitoring frequency to monthly. Compliance montioring will continue on a monthly basis until such time as the reason for the exceedences is resolved or the pattern of exceedences is broken by two(2) successive sampling events below the preventative action limits (PAL).

5.8. The Director upon determining that an exceedence of the preventative action limit (PAL) has occurred for any constituent shall notify the facility by certified mail that a verification sample shall be taken within thirty(30) days receipt of such notification to substantiate such exceedence. A verification sample which exceeds a preventative action limit (PAL) shall be deemed a second exceedence for purposes of establishing a pattern of exceedences.

5.9. If three(3) successive exceedences of the PAL should occur, the facility will initiate an assessment of the variance applicable area(s) which may include groundwater modeling to determine the cause of such exceedences. The results of such an assessment shall be reported to the Director.

5.10. If four(4) successive exceedences or five(5) exceedences of the PAL within a six(6) month period should occur, then the facility shall initiate a plan of mitigation to be approved by the Director in order to assure that groundwater protection standards are not violated.

5.11. If a groundwater protection standard is exceeded, sampling shall immediately be increased from quarterly to monthly. Compliance monitoring will continue on a monthly basis until such time as a reason for the exceedence is resolved, or until such time as there are two(2) successive sampling events below the preventative action limit (PAL).

5.12. The Director upon determining that an exceedence of the Groundwater Protection Standard (GWPS) has occurred for any constituent shall notify the facility by certified mail that a verification sample shall be taken within thirty(30) days receipt of such notification to substantiate such exceedence. A verification sample which exceeds a groundwater protection standard (GWPS) shall be deemed a second exceedence.

5.13. If a second successive exceedence of the groundwater protection standard (GWPS) should occur, the facility shall sample the receptor, and conduct an assessment of the variance applicable area(s) which may include groundwater modeling to determine the cause of such exceedence. The results of which shall be reported to the Director.

5.14. If a third successive exceedence of the groundwater protection standard (GWPS) should occur, or if there are four(4) exceedences of the Groundwater Protection Standard (GWPS) within a six(6) month period, the facility will initiate remedial action, including an evaluation of environmental and human health risks. '47-57-A-6. Periodic Review.

6.1. No less frequently than every five(5) years the Director shall review all prior decisions granting these variances to determine their continual consistency with 47CSR57, AGroundwater Quality Standard Variances@. Should the Director determine that any modification of such a decision is appropriate, the Director shall initiate rule making pursuant to W.Va. Code '29A-3.

TABLE 57A-4A.

Beryllium (ppb)

Coal Storage Areas Albright 24.0 19.2 MW 501, MW 502 Fort Martin 6.3 5.0 MW 608, MW 610, MW 611 Kammer 52.0 41.6 MW 2, MW 3 Kanawha 109.0 87.2 MW 13, MW 14, MW 17 Pleasants/Willow Island 10.0 8.0 MW 903, MW 904, MW 906 Rivesville 9.1 7.3 MW 801, MW 802 TABLE 57A-4B.

Cadmium (ppb)

Coal Storage Areas Albright 58.0 46.4 MW 501, MW 502 Fort Martin 12.0 9.6 MW 608, MW 610, MW 611 Harrison 7.7 6.2 MW 701, MW 705, MW 706, MW 711 Kammer 182.0 145.6 MW 2, MW 3 Kanawha River 90.0 72.0 MW 13, MW 14, MW 17 Pleasants/Willow Island 8.6 6.9 MW 903, MW 904, MW 906 Rivesville 22.0 17.6 MW 801, MW 802 Sporn 6.4 5.1 MW 12, MW 13, MW 14 TABLE 57A-4C.

Chromium (ppb)

Coal Storage Areas Groundwater Protection Standard (GWPS)

Albright 190.0 152.0 MW 501, MW 502 Fort Martin 440.0 352.0 MW 608, MW 610, MW 611 Kammer 669.0 535.2 MW 2, MW 3 Kanawha River 140.0 112.0 MW 13, MW 14, MW 17 Pleasants/Willow Island 300.0 240.0 MW 903, MW 904, MW 906 Rivesville 120.0 96.0 MW 801, MW 802 TABLE 57A-4D.

Nickel (ppb)

Coal Storage Areas Albright 970.0 776.0 MW 501, MW 502 Fort Martin 433.0 347.0 MW 608, MW 610, MW 611 Harrison 328.0 263.0 MW 701, MW 705, MW 706, MW 711 Kammer 844.0 675.2 MW 2, MW 3 Kanawha River 2900.0 2320.0 MW 13, MW 14, MW 17 Pleasants/Willow Island 744.0 595.2 MW 903, MW 904, MW 906 Rivesville 299.0 240.0 MW 801, MW 802 Sporn 490.0 441.0 MW 12, MW 13, MW 14 TABLE 57A-4E.

Nickel (ppb)

Ash Disposal Ponds Sporn 119.0 95.2 MW 10 TABLE 57A-4F.

Selenium (ppb)

Ash Disposal Ponds Kanawha River 120.0 96.0 MW 2, MW 3, MW 5 47CSR57A

Series 57B Groundwater Protection Standards At Dominion "Generation" Steam Electric Generating Facility, Mt Storm, West Virginia

W. Va. Code R. § 47-57B-1 General

1.1. Scope. -- Variances may be granted by the legislature to allow groundwater quality standards to be exceeded for a source or a class of sources which by their nature cannot be conducted in compliance with the requirements of W.Va. Code §22-12-5, "Groundwater Protection Act". The benefits of granting the variance must out weigh the benefits of complying with existing groundwater quality standards and demonstrate that there is no reasonable and prudent alternative available, and that granting the variance is more in the public interest than adherence to existing groundwater quality standards.

1.1.a. A study was initiated by Virginia Electric and Power Company, doing business as Dominion Generation, and conducted by Resource International, Ltd., to ascertain the existing ground water quality at the Mount Storm steam electric generating facility located at Mount Storm, Grant County, West Virginia. The study concluded that five (5) metals (beryllium, cadmium, chromium, lead, and nickel) were consistently exceeding groundwater quality standards at the coal storage area.

1.1.b. The purpose of this legislative rule is to grant relief from existing groundwater quality standards by establishing groundwater protection standards (GWPS) for the variance applicable area, which is the coal storage site at the Mount Storm steam electric generating facility.

1.2. Authority. -- W. Va. Code §22-12-5(l).

1.3. Filing Date. -- April 15, 2002.

1.4. Effective Date. -- June 1, 2002.

W. Va. Code R. § 47-57B-2 Definitions

2.1. "Act" means the West Virginia Groundwater Protection Act, W.Va. Code §22-12-1 et seq.

2.2. "Class of sources" means a group of sources which engage in similar types of activities and release, or have the potential to release, similar types of pollutants to the ground- water.

2.3. "Constituent" means any chemical, or biological substance found in groundwater due to either natural or man-made conditions.

2.4. "Groundwater" means the water occurring in the zone of saturation beneath the seasonal high water table, or any perched water zones.

2.5. "Groundwater Protection Standard" or "GWPS" means the concentration of a specified constituent, statistically calculated, which is achievable with a 95% (percent) confidence level, or greater.

2.6. "Groundwater Quality Standards" means the standards of purity and quality for groundwater of the state promulgated by the Environmental Quality Board pursuant to section 4 of the Act.

2.7. "ppb" - means parts per billion or Fg/l (micrograms per liter).

2.8. "Preventative Action Limit" or "PAL" means a numeric value expressing the concentration of a substance in groundwater that, if exceeded, causes action to be taken to assure that standards of purity and quality of groundwater are not violated.

2.9. "Receptor" means a surface water body, a public or private drinking water supply and any off-site migration onto adjacent properties of groundwater for which the variance is granted.

2.10. "Secretary" means the Secretary of the Department of Environmental Protection.

2.11. "Source" means any facility or activity which has caused a release or is reasonably likely to cause a release.

2.12. "Variance" means a legislative rule modifying groundwater quality standards or preventative action limits, or both, for a source or class of sources, for one or more specific constituents.

2.13. "Variance applicable area" means a geographic area for which the variance is allowed and is further delineated by geographic coordinates listed in section 3.0 of this rule.

W. Va. Code R. § 47-57B-3 Variance Applicable Area

3.1. Variance applicable area for the coal storage site at the Mt. Storm electric power generating facility is described by the following coordinates:

Southwest corner marker: 39E12N08.249O, 79E16N05.256O Northwest corner marker: 39E12N20.227O, 79E16N10.457O Northeast corner marker: 39E12N22.912O, 79E16’ 01.294O Southeast corner marker: 39E12N08.366O, 79E15’57.272O

3.2. Variance applicable areas shall be permanently marked by stationary monuments or other highly visible alternative methods. These monuments shall be protected from damage or removal as long as the variance is in effect.

3.3. The facility shall communicate to the Secretary as to which method is used to mark the variance applicable areas.

W. Va. Code R. § 47-57B-4 Groundwater Protection Standards and Preventative Action Limits

4.1. Groundwater protection standards, preventative action limits and compliance monitoring stations are hereby established in Table 57B-4 and for the following individual constituents: beryllium, cadmium, chromium, nickel, and lead.

4.2. The groundwater protection standards and preventative action limits are established for the coal storage site at the variance applicable area referenced in Section 3 of this rule. The variance shall not pertain to any other activities or areas at the facility.

4.3. Compliance with preventative action limits shall also be determined at the same monitoring stations as the groundwater protection standards.

4.4. If any groundwater protection standard (GWPS) or preventative action limit (PAL) is exceeded, the Secretary shall cause such action to be taken as specified in Section 5 of this rule, “Terms and Conditions” to assure that standards of purity and quality are not violated.

W. Va. Code R. § 47-57B-5 Terms and Conditions

5.1. Any constituent for which a variance is granted shall not cause a violation of water quality standards or groundwater quality standards at any receptor.

5.2. A sufficient number of monitoring wells of approved design and construction shall be installed and maintained between the variance applicable area and the receptor. If the Secretary reasonably believes the current number and location of compliance monitoring wells is no longer adequate to monitor the variance applicable area, the Secretary may order the installation of additional wells.

5.3. Groundwater protection standards and preventative action limits will be applied on intrawell comparisons; that is, each compliance monitoring well would stand alone, and not be collectively averaged with all other wells monitoring the variance applicable area.

5.4. Preventative action limits have been statistically calculated to establish a concentration for the specified constituent that is achievable with a 95% (percent) confidence level.

5.5. Any expansion of the existing coal storage area outside of its variance applicable area is prohibited; unless the expanded area employs all relevant mitigation practices in accordance with applicable rules promulgated pursuant to Chapter 22, Article 12 et.seq., "Groundwater Protection Act".

5.6. Compliance monitoring shall begin on the effective date of this rule and shall continue in accordance with this section, "Terms and Conditions" of this rule.

5.7. Compliance monitoring of the variance applicable area shall be quarterly provided that three (3) successive preventative action limit (PAL) exceedences shall result in an increased monitoring frequency to monthly. Compliance monitoring will continue on a monthly basis until such time as the reason for the exceedences is resolved or the pattern of exceedences is broken by two (2) successive sampling events below the preventative action limits (PAL).

5.8. The Secretary upon determining that an exceedence of the preventative action limit (PAL) has occurred for any constituent shall notify the facility by certified mail that a verification sample shall be taken within thirty (30) days receipt of such notification to substantiate such exceedence. A verification sample which exceeds a preventative action limit (PAL) shall be deemed a second exceedence for purposes of establishing a pattern of exceedences.

5.9. If three (3) successive exceedences of the PAL should occur, the facility will initiate an assessment of the variance applicable area which may include groundwater modeling to determine the cause of such exceedences. The results of such an assessment shall be reported to the Secretary.

5.10. If four (4) successive exceedences or five (5) exceedences of the PAL within a six (6) month period should occur, then the facility shall initiate a plan of mitigation to be approved by the Secretary in order to assure that groundwater protection standards are not violated.

5.11. If a groundwater protection standard is exceeded, sampling shall immediately be increased from quarterly to monthly. Compliance monitoring will continue on a monthly basis until such time as a reason for the exceedence is resolved, or until such time as there are two (2) successive sampling events below the preventative action limit (PAL).

5.12. The Secretary upon determining that an exceedence of the Groundwater Protection Standard (GWPS) has occurred for any constituent shall notify the facility by certified mail that a verification sample shall be taken within thirty (30) days receipt of such notification to substantiate such exceedence. A verification sample which exceeds a groundwater protection standard (GWPS) shall be deemed a second exceedence.

5.13. If a second successive exceedence of the groundwater protection standard (GWPS) should occur, the facility shall sample the receptor, and conduct an assessment of the variance applicable area which may include groundwater modeling to determine the cause of such exceedence. The results of which shall be reported to the Secretary.

5.14. If a third successive exceedence of the groundwater protection standard (GWPS) should occur, or if there are four (4) exceedences of the Groundwater Protection Standard (GWPS) within a six (6) month period, the facility will initiate remedial action, including an evaluation of environmental and human health risks.

W. Va. Code R. § 47-57B-6 Periodic Review

6.1. No less frequently than every five (5) years the Secretary shall review all prior decisions granting these variances to determine their continual consistency with 47CSR57, "Groundwater Quality Standard Variances". Should the Secretary determine that any modification of such a decision is appropriate, the Secretary shall initiate rule making pursuant to W. Va. Code §29A-3.

TABLE 57B-4

Mount Storm Coal Storage Area Compliance Monitoring Stations: MW-14, MW-15, and MW-16.

Variance Candidate Existing Groundwater Quality Standard (GQS)

Proposed Groundwater Protection Standard (GWPS)

Preventative Action Limit (PAL)

Beryllium (ppb) 125.88 100.7 Cadmium (ppb) 88.24 70.59 Chromium (ppb) 421.25 Lead (ppb)

Nickel (ppb)

47CSR57B

47CSR57B

Series 58 Ground Water Protection Regulations

W. Va. Code R. § 47-58-1 General

1.1. Scope. -- This rule establishes a series of practices which must be followed by any person who owns or operates facilities or conducts activities subject to the provisions of W. Va. Code '22-12-1 et seq. and is subject to regulation by the Division of Environmental Protection's Office of Waste Management or Office of Water Resources.

1.2. Authority. -- W. Va. Code '22-12-5(d).

1.3. Filing Date. -- May 13, 1994 .

1.4. Effective Date. -- June 1, 1994.

W. Va. Code R. § 47-58-2 Definitions

2.1. "Contaminant" means any material in a solid, liquid or gaseous state that has the potential to cause contamination.

2.2. "Contamination" means any man made or man induced alteration of the chemical, physical, or biological, integrity of the groundwater, resulting from activities regulated under this rule, in excess of existing groundwater quality, unless that site has been granted a deviation or variance from existing quality as provided for in the West Virginia Groundwater Protection Act, or is subject to an order, permit, or other regulatory action that requires restoration or maintenance of groundwater quality at a different concentration or level.

2.3. "Director" means the director of the Division of Environmental Protection of the Bureau of Environment or his or her authorized designee.

2.4. "Existing Facility" for the purpose of this regulation means any facility and/or activity which was in operation prior to the effective date of this rule or which does not meet the definition of a new facility.

2.5. "Groundwater" means the water occurring in the zone of saturation beneath the seasonal high water table, or any perched water zones.

2.6. "Impoundment" means an area which is a natural topographic depression, man-made excavation, or diked area that is designed or improved in such a manner so as to hold an accumulation of contaminated surface runoff, process wastewater, product, or sewage, or any other liquid substance that could impact groundwater, but does not include any area used for secondary containment.

2.7. "Industrial Establishment" means any mill, factory, tannery, paper or pulp mill, mine, colliery, breaker or mineral processing operation, quarry, refinery, electric power generating facility, well, and each and every industry or plant or works, or activity in the operation or process of which industrial wastes, sewage, or other wastes are produced. Furthermore, any facility or activity not set forth above may be subject to any or all of the requirements of this rule at the director's discretion pursuant to section 5 of this rule. This definition does not include private or publicly owned sewage treatment operations.

2.8. "Liner" means a continuous layer of natural or man-made materials, beneath and on the sides of an area, which restricts the downward or lateral escape of contaminants.

2.9. "New Facility" for the purpose of this rule means any facility and/or activity which begins construction one hundred eighty (180) days or more after the effective date of this rule.

2.10. "Permit" means any license, certification, registration, permit, or any other approval granted by an agency authorized to regulate facilities or activities, which may have an impact on groundwater.

2.11. "Practice" means any action which is protective of groundwater.

2.12. "Runoff/Infiltration Control System" means any system which is designed to prevent contamination of groundwater from any materials stored in an outside material storage area, by either prohibiting stormwater from contacting the material, or by intercepting and properly disposing of stormwater which has become contaminated due to contact with the material.

2.13. "Secondary Containment" means utilizing dikes, berms, synthetic or natural liner systems, double walled containment vessels, or any combination thereof to prevent contaminants from accidentally discharging into the environment.

W. Va. Code R. § 47-58-3 Conflicting Provisions

3.1. Recognizing that in certain cases, existing rule impose requirements that are more or less restrictive than the requirements of this rule, in the event that this rule conflicts with another applicable rule, the director shall determine which rule, or section(s) thereof, best complies with the intent of the Groundwater Protection Act, and require adherence to said rule or section(s) thereof. The director may, at his discretion, begin the formal regulatory process to remove the conflict between the rule.

W. Va. Code R. § 47-58-4 Groundwater Protection Practices For Industrial Establishments

4.1. Where the evaluation of an existing facility reveals that contamination is occurring, a schedule of compliance must be submitted by the facility or activity and approved by the director whereby the facility or activity must retrofit or improve or discontinue existing systems, activities, or procedures to make them, to the satisfaction of the director, protective of groundwater.

4.2. Subsurface borings (e.g., water wells, injection wells, soil boring, production wells, extraction wells, exploratory wells and groundwater monitoring wells) shall be constructed, operated and closed in a manner that protects groundwater.

4.3. Outside Material Storage or Disposal Areas

4.3.a. Existing areas used for outdoor, non-containerized storage or disposal of raw materials, products or waste shall be evaluated for their potential to contaminate groundwater. Where substantial potential exists, the areas shall have runoff/infiltration control systems. Placement of groundwater monitoring stations may be necessary to determine if contamination has occurred or is occurring.

4.3.b. New areas used for storage or disposal of raw materials, products or wastes shall be designed, constructed and operated to prevent release of contaminants to the groundwater, using liner systems if necessary. Groundwater monitoring stations may be necessary to assure protection of the groundwater resource.

Note: 47CSR11 requires all spills and accidental discharges to be reported by calling 1-800-642-3074.

4.4. Loading and Unloading Areas; Distribution and Bulk Facilities.

4.4.a. Loading and unloading stations including but not limited to drums, trucks and railcars shall have spill prevention and control facilities and procedures as well as secondary containment, if appropriate or otherwise required. Spill containment and cleanup equipment shall be readily accessible.

4.4.b. Distribution facilities and bulk containers shall be designed/installed in such a manner so as to prevent spills and leaks from contaminating groundwater.

4.5. Impoundments (Holding, Storage, Equalization, Treatment, etc.)

4.5.a. Existing impoundments shall be evaluated for their potential to cause groundwater contamination. Where potential for contamination exists, action shall be taken to eliminate, to the degree practicable, the potential for groundwater contamination. In addition further evaluation may be necessary to determine if contamination has occurred and to address such contamination in accordance with the act. Placement of groundwater monitoring stations may be necessary to perform this evaluation.

4.5.b. New impoundments shall be designed and operated to prevent contamination of groundwater. New impoundments which are found to have the potential to contaminate groundwater shall use a liner or other appropriate control system. Groundwater monitoring stations may be necessary to assure protection of the groundwater resource.

4.6. Impoundment Closure Requirements

4.6.a. All wastewater shall be treated and removed. All solids and sludges shall be properly disposed by in place closure if approved by the director, or removed to a landfill, or incinerated, unless a beneficial reuse is allowed in existing rule.

4.6.b. If in-place closure is to be performed, stabilize, if necessary, unless determined innocuous by the director.

4.6.c. Impoundments must be graded and leveled to the maximum extent possible including, where practicable, filling with soils or other material approved by the director, capped if the director determines necessary, and vegetated.

4.6.c.1. In the event the impoundment is subject to rule by the West Virginia Dam Control Act ('22-14-1 et seq.) or the rules promulgated thereunder, it must be closed in accordance with applicable sections of both W. Va. Code ''22-12 and 22-14.

4.6.d. Prior to closing an impoundment which has been found to be contaminating groundwater, a plan which includes, but is not limited to, details of capping, filling, grading, and runoff control must be submitted to the director for approval.

4.7. Pipelines, Ditches, Pumps, and Drums

4.7.a. Pipelines conveying materials which have the potential to contaminate groundwater shall preferentially be installed above ground.

4.7.b. Ditches shall not be installed as primary conveyances for materials which have the potential to contaminate groundwater unless provided with appropriate liners.

4.7.c. Pumps and ancillary equipment (e.g. valves, flanges, filters, condensate lines and instrumentation) handling materials that have the potential to contaminate groundwater shall be selected and installed to prevent or contain any spills or leaks.

4.7.d. Drums, containing materials that have the potential to contaminate groundwater, shall be stored so that spills and leaks are contained. Measures shall be taken to control drum deterioration and/or damage due to handling.

4.8. Sumps and Tanks.

4.8.a. Above-ground storage tanks shall have secondary containment that is appropriate considering the potential to contaminate groundwater. Such secondary containment shall be adequately designed and constructed to contain the materials for a time sufficient to allow removal and disposal without additional contamination of groundwater, but in no case will that time be less than seventy-two (72) hours.

4.8.b. Under-ground tanks containing materials which have the potential to contaminate groundwater shall be designed, constructed, and operated utilizing leak detection or secondary containment, or other appropriate controls that are capable of preventing groundwater contamination.

4.8.c. New tanks containing materials that have the potential to contaminate groundwater may only be installed underground for overriding safety, legal, security or fire protection concerns.

4.8.d. Sumps containing materials which have the potential to contaminate groundwater shall be designed, constructed, and operated utilizing leak detection or secondary containment, or other appropriate controls that are capable of preventing groundwater contamination.

4.8.e. Secondary containment is not required for sumps and tanks used only as secondary containment for other facilities.

4.9. Monitoring

4.9.a. Existing facilities not currently monitoring groundwater shall do so upon order of the director if the director reasonably believes that an industrial establishment is causing or has caused contamination of groundwater.

4.9.b. Industrial establishments may submit such baseline data and monitoring information as they deem appropriate to meet the requirements of the Act and this rule, including information necessary to determine existing quality.

4.9.c. New facilities shall monitor groundwater upon order of the director if the director reasonably believes that an industrial establishment or activity has the potential to contaminate groundwater.

4.9.d. Groundwater monitoring stations shall be located drilled and constructed in a manner that allows accurate determination of groundwater quality and levels, and prevents contamination of groundwater through the finished well hole or casing.

4.9.e. Groundwater monitoring stations shall be designed and installed in accordance with applicable rules promulgated pursuant to the Act.

4.9.f. All groundwater monitoring stations shall be accurately located utilizing latitude and longitude by surveying, or other acceptable means, and the coordinates shall be included with all data collected.

4.9.g. Data Management - The director may at his discretion require submittal of any or all groundwater monitoring data collected in association with a regulated activity, and may further specify an electronic format in which the data is to be submitted.

4.10. Site Selection Criteria -- Facilities or activities must determine if they are planning to locate or expand into areas of karst, wetlands, fault(s), subsidence, or delineated wellhead protection areas, as determined by the Bureau of Public Health. If areas of karst, wetlands, fault(s), subsidence, delineated wellhead protection areas or other areas determined by the director to be vulnerable based on geologic or hydrogeologic information, are determined to exist then the facility or activity design must adequately address the issues arising from locating in the area(s) of a potentially more vulnerable groundwater resource.

4.11. Each industrial establishment shall have a comprehensive groundwater protection plan (GPP). Each GPP shall contain the following:

4.11.a. An inventory of all operations that may reasonably be expected to contaminate the groundwater resources with an indication of the potential for soil and groundwater contamination from those operations;

4.11.b. A description of procedures designed to protect groundwater from the identified potential contamination sources, with specific attention given to:

4.11.b.1. Manufacturing facilities;

4.11.b.2. Materials handling;

4.11.b.3. Equipment cleaning;

4.11.b.4. Construction activities;

4.11.b.4. Maintenance activities;

4.11.b.5. Pipelines carrying contaminants; and

4.11.b.6. Sumps and tanks containing contaminants.

4.11.c. A list of procedures to be employed in the design of any new equipment/operations;

4.11.d. A summary of all activities carried out under other regulatory programs that have relevance to groundwater protection; and

4.11.e. A discussion of all available information reasonably available to the facility/activity regarding existing groundwater quality at, or which may be affected by the site.

4.11.f. A clarification that no wastes be used for deicing, fills, etc., unless provided for in existing rule.

4.11.g. Provisions for all employees to be instructed and trained on their responsibility to ensure groundwater protection. Job procedures shall provide direction on how to prevent groundwater contamination;

4.11.h. The GPP shall include provisions for quarterly inspections to ensure that all elements and equipment of the site's groundwater protection program are in place, properly functioning and appropriately managed;

4.12. Implementation Schedule -- In order to accomplish this task in a timely manner, the following schedule will be established.

4.12.a. Within one year of the effective date of these rule, all industrial establishments shall complete and implement a Groundwater Protection Plan (GPP). The GPP shall be based on a groundwater assessment survey and an evaluation of other applicable groundwater protection rule.

4.12.a.1. Failure to follow any practice set forth in the GPP constitutes a violation of this rule.

4.12.b. For new facilities, the GPP shall be completed prior to construction.

4.12.c. The GPP must be available on site at all times after one year from the effective date of these rule. The GPP is to be submitted and reviewed as part of the facility's or activity's permit application/renewal process. However, the director may review the GPP at any time.

4.12.d. The director may require modification to GPP's to assure adequate protection of groundwater. Further the director may, during review of a GPP require such other information as he reasonably needs to evaluate the plan.

4.12.e. Effect of groundwater certification for facilities or activities with permits.

4.12.e.1. GPP's for those facilities or activities who are required to obtain a permit will be administered through the appropriate permitting program. Groundwater certification will be incorporated into the issuance of the permit, only if all pertinent requirements of the act and rules promulgated thereunder have been met. If a compliance schedule is determined necessary to meet the requirements of the act the schedule shall be addressed in the facility/activity permit.

4.12.f. Groundwater certification for facilities or activities not required to obtain a permit - reserved.

4.12.g. Adherence to a GPP does not relieve the facility/activity of any obligation to comply with any other state, federal or local rule, rule, law or act.

W. Va. Code R. § 47-58-5 Applicability To Facilities Or Activities Not Included In The Definition Of An Industrial Establishment

5.1. Where a statute, rule, ordinance or other legal requirement (other than W. Va. Code '22-12 and rules promulgated pursuant thereto) provides authority to regulate facilities and activities which may adversely affect groundwater, and such facilities and activities are not regulated by another groundwater regulatory agency, including another office of the Division of Environmental Protection, the Director may require such facility or activity to comply with any or all of the requirements of this rule which the Director reasonably determines to be necessary for the implementation of W. Va. Code '22-12.

5.2. The director must provide a written notification specifying which section(s) of this rule will be enforced, before compliance with this rule or any provision thereof is required from any facility or activity not included in the definition of an industrial establishment

W. Va. Code R. § 47-58-6 Groundwater Protection Practices For Private Or Publicly Owned Sewage Treatment Operations. (reserved)

W. Va. Code R. § 47-58-7 Prohibitions

7.1. It shall be unlawful for any person, unless an authorization has been issued by a groundwater regulatory agency, to deliberately allow crude oil, or any petroleum product derived from crude oil, or septage, or natural gas, or salt water, or any chemical mixture which may impact groundwater quality to escape from any well, pipeline, impoundment, storage tank, treatment unit, or storage container, or be deliberately allowed to flow onto or under the land surface in such a manner that could impact groundwater quality.

7.2. Groundwater quality may not be impacted by any facility operation or any activity unless 1) a valid permit exists and/or 2) the director has taken action pursuant to W. Va. Code '22-12-5(f) through (l).

W. Va. Code R. § 47-58-8 Remediation

8.1. The Division has the authority to order persons to conduct remedial actions. The division encourages agreements for investigation and cleanups in appropriate cases. 8.1a. The use of permanent solutions to the maximum extent practical to correct groundwater contaminations is preferred.

8.1.b. Cleanup actions shall not rely primarily on dilution and dispersion of the substance if active remedial measures are technically and economically feasible, as determined by the director.

8.1.c. Adequate groundwater monitoring shall be conducted to demonstrate control and containment of the substance. The director shall specify which parameters should be monitored in a remedial operation. Groundwater monitoring must continue until results assure adequate remedial action was taken.

8.2. Remediation Guidelines. (reserved)

W. Va. Code R. § 47-58-9 Fees

9.1. Nothing in this rule relieves any person of an obligation to pay fees as required by the Groundwater Protection Act Fee Schedule, 47CSR55.

W. Va. Code R. § 47-58-10 Enforcement

10.1. Any person who violates the act or these rule shall be subject to civil and criminal penalties, injunctive relief, enforcement orders, and procedures as set forth in Section 10 of the Act.

10.2. The appeal and review procedures set forth in Section 11 of the Act shall be applicable to actions arising under these rule.

10.3. Civil penalties for violations of these rule may be assessed by the director in accordance with 47CSR56.

W. Va. Code R. § 47-58-11 Waiver Provisions

The director may, to the extent authorized by the act, waive some or all of the requirements of this rule upon determining in writing that such requirements are not necessary to protect groundwater from contamination.

W. Va. Code R. § 47-58-12 Appeals

12.1. Any person ordered or requested to take any action pursuant to this rule may appeal such order or request to the Environmental Quality Board as provided for in W. Va. Code '22-12-11.

12.2. Any person against whom enforcement action is initiated pursuant to section 10 of this rule may appeal to the Environmental Quality Board as provided for in W.Va. Code '22-12-11.

W. Va. Code R. § 47-58-13 Requirements For Reuse Of Sludges. (Reserved)

47CSR58

Series 59 Monitoring Well Rules

W. Va. Code R. § 47-59-1 General

1.1. Scope. -- This legislative rule establishes the certification of monitoring well drillers and monitoring well installations and alterations.

1.2. Authority. -- W. Va. Code §22-12-5(d).

1.3. Filing Date. -- April 9, 2010.

1.4. Effective Date. -- April 9, 2010.

W. Va. Code R. § 47-59-2 Definitions

2.1. “Application” means the Department of Environmental Protection’s standard form(s) for applying for monitoring well driller certification, including any additions, revisions or modifications to the form(s).

2.2. “Borehole” means a circular hole, deeper than it is wide, constructed in earth material for the purpose of obtaining geological or groundwater data. Boreholes are also referred to as “drill holes.”

2.3. “Certified monitoring well driller” means an individual granted a written certificate by the Secretary to drill, construct, alter or abandon monitoring wells and who meets the requirements of this rule.

2.4. “Design standards” means those specifications, drawings and other details promulgated by the Secretary to ensure proper location, design, construction, completion and abandonment of monitoring wells.

2.5. “Groundwater” means the water occurring in the zone of saturation beneath the seasonal high water table, or any perched water zones.

2.6. “High risk borehole” means a borehole that is on a site that currently contains or contained in the past solid or hazardous waste, hazardous materials or their by-products; or that may be affected by solid or hazardous waste, hazardous materials or their by-products; or at sites known or suspected to be contaminated by hazardous waste, hazardous materials or their by-products, unless the contamination is determined to be innocuous; or in situations where water quality in one water-bearing zone may be detrimental to another water-bearing zone.

2.7. “Monitoring well” means any cased excavation or opening into the ground made by digging, boring, drilling, driving, jetting or other methods for the purpose of determining the physical, chemical, biological or radiological properties of groundwater. The term “monitoring well” includes piezometers and observation wells that were installed for purposes other than those listed above, but does not include wells whose primary purpose is to provide a supply of potable water.

2.8. “Monitoring well driller” means the individual operating the drilling rig when drilling, constructing, altering or abandoning (i.e., properly or improperly closing) a monitoring well or a high-risk borehole.

2.9. “Person” means an individual, partnership, association, syndicate, company, firm, trust, corporation, government corporation, institution, department, division, bureau, agency, federal agency or any other entity recognized by law.

2.10. “Piezometer” means a groundwater monitoring well sealed below the water table that is installed for the specific purpose of determining the potentiometric surface or the physical, chemical, biological or radiological properties of groundwater, or both.

2.11. “Secretary” means the Secretary of the Department of Environmental Protection or his or her lawful designee.

W. Va. Code R. § 47-59-3 Application and Enforcement

3.1. Application -- This rule applies to all monitoring well drillers.

3.2. Enforcement -- The enforcement of this rule is vested with the Secretary of the West Virginia Department of Environmental Protection, or his or her lawful designee.

W. Va. Code R. § 47-59-4 Certification of Monitoring Well Drillers

4.1. There shall be a certified monitoring well driller on site in direct charge of actively drilling, constructing, altering, testing or abandoning any monitoring well or high-risk borehole.

4.2. To be eligible for certification, an individual must meet one of the following criteria:

4.2.a. Have a minimum of two (2) years of monitoring well drilling experience under the supervision of a West Virginia certified monitoring well driller; or

4.2.b. Have six (6) months of monitoring well drilling experience that includes properly installing at least fifteen (15) monitoring wells and properly abandoning at least ten (10) monitoring wells under the supervision of a West Virginia certified monitoring well driller.

4.3. An application for certification as a monitoring well driller shall be made in writing to the Secretary on a form prescribed by the Secretary. Information required on the form may include, but not be limited to, the applicant’s name, address, education, experience, business name and references.

4.4. In addition to filing an application for becoming a certified monitoring well driller, the applicant must pass an oral or written examination to assure the Secretary that the applicant is thoroughly familiar with all requirements of applicable laws, regulations, and design standards pertaining to monitoring well drilling and construction and borehole abandonment. Examinations shall be administered by personnel of the West Virginia Department of Environmental protection or their appointees. An applicant must obtain a passing grade of seventy percent (70%) in order to become certified. An applicant who has failed an examination must wait thirty (30) days before retaking the examination.

4.5. Certification is not transferable or assignable and shall automatically become invalid upon suspension or revocation.

4.6. Certification expires one (1) year after date of issuance and may be renewed thirty days (30) before the expiration date.

4.7. If a certified monitoring well driller allows his or her certification to expire without seeking renewal, he or she must be retested in accordance with the provisions of subsection 4.4 above in order to receive recertification under this rule.

W. Va. Code R. § 47-59-5 Monitoring Well Driller Identification

All monitoring well drillers shall have proof of certification available for inspection at all times when actively engaged in drilling, constructing, altering, or closing/abandoning monitoring wells or boreholes.

W. Va. Code R. § 47-59-6 Advisory Board

6.1. The Secretary may establish an advisory board and designate the chairman of the board.

6.2. The advisory board membership shall consist of, but not necessarily be limited to, the following members:

6.2.a. Three (3) members shall be certified monitoring well drillers;

6.2.b. One (1) member shall be from the State Bureau for Public Health;

6.2.c. One (1) member shall be from the Department of Environmental Protection; and

6.2.d. One (1) member shall be from the West Virginia Geological & Economic Survey.

6.3. The duties of the advisory board shall be assigned by the Secretary.

6.4. The Secretary may establish other boards, committees or commissions to assist in carrying out the provisions of this rule.

W. Va. Code R. § 47-59-7 Denial, Suspension or Revocation of Certification

7.1. The Secretary may suspend, revoke or deny certification if the information on the application form is incomplete, inaccurate, false or misleading, or if the provisions of this rule or any other rule pertaining to monitoring wells are willfully or negligently violated.

7.2. Suspension or revocation of certification shall be preceded by a written notice from the Secretary at least ten (10) days prior to actual revocation or suspension.

7.3. Denial, suspension or revocation of certification shall be in writing from the Secretary and shall state specific reasons for the denial, suspension or revocation.

7.4. When certification has been denied, suspended or revoked, the individual thereby affected shall immediately discontinue the drilling, altering, constructing and abandonment of monitoring wells and boreholes.

7.5. Any individual whose application for certification has been denied or whose certification has been suspended or revoked may request a hearing in accordance with the provisions of W. Va. Code §22-12-11.

W. Va. Code R. § 47-59-8 Administrative Due Process

Those persons adversely affected by the enforcement of this rule who desire a contested case hearing to determine any rights, duties, interests or privileges shall proceed in the manner prescribed in W. Va. Code §22-12-11.

W. Va. Code R. § 47-59-9 Severability

If any provisions of this rule or the application thereof to any person or circumstance are held invalid, the invalidity shall not affect the provisions or the application of this rule that can be given effect without the invalid provisions or application and, to this end, the provisions of this rule are declared to be severable.

47CSR59

47CSR59

Series 60 Monitoring Well Design Standards

W. Va. Code R. § 47-60-1 General

1.1. Scope and Purpose. -- This rule establishes minimum acceptable documentation and standards for the design, installation, construction, and abandonment of monitoring wells and for the abandonment of all boreholes.

1.2. Authority. -- W. Va. Code §22-12-5(d).

1.3. Filing Date. -- June 21, 2011.

1.4. Effective Date. -- June 21, 2011.

W. Va. Code R. § 47-60-2 Applicability

This rule applies to any person who either owns, operates, constructs, installs or abandons monitoring wells and boreholes. All monitoring wells and boreholes shall be abandoned according to section 19 of this rule. This rule does not apply to monitoring wells and boreholes installed prior to the effective date of this rule, except as provided for in section 19 of this rule.

W. Va. Code R. § 47-60-3 Definitions

3.1. “Abandonment” means the sealing of a monitoring well or borehole in accordance with section 19 of this rule in order to restore original hydrogeologic conditions and/or to prevent contamination.

3.2. “Air rotary drilling” means a drilling method whereby the borehole is advanced using a circular rotating action applied to a string of drilling rods that have a diffused discharge bit attached to the bottom of the rods. Pressurized air is forced through the drilling rods that cools the drilling tools and removes the cuttings from the borehole.

3.3. “Annular space” (Annulus) means the space between two well casings or between the casing and the borehole sidewall.

3.4. “Annular space seal” means the following:

3.4.a. For wells constructed with filter packs, it is the material placed above the top of the filter pack or the filter pack seal up to the surface seal and between the well casing and the adjacent formation; or

3.4.b. For wells constructed into bedrock formations and without well screens, it is the material placed from the bottom of the enlarged borehole up to the surface seal, between the well casing and the adjacent formation.

3.5. “Appropriate groundwater regulatory agency” means the groundwater regulatory agency that has primary regulatory oversight of a particular facility or activity. Where primary regulatory oversight is unassigned or shared, the Secretary shall determine which groundwater regulatory agency is to be the appropriate groundwater regulatory agency.

3.6. “Aquifer test well” means a monitoring well installed to provide information on the hydraulic conductivity, transmissivity, storage coefficient, capture zone, specific capacity, radius of influence or other physical parameters of an aquifer, defined geologic unit, or water bearing formation.

3.7. “ASTM” means American Society for Testing and Materials.

3.8. “Bedrock” means the continuous solid rock underlying any loose surface material such as soil, alluvium or boulders. Bedrock includes, but is not limited to, limestone, dolomite, sandstone, shale, coal, igneous, and metamorphic rock.

3.9. “Bentonite” means a clay consisting of at least eighty-five percent (85%) montmorillonite. Bentonite is available in the following forms:

3.9.a. “Bentonite powder” means two hundred (200) mesh pure bentonite, without additives.

3.9.b. “Bentonite granules” means eight (8) mesh pure bentonite, without additives.

3.9.c. “Bentonite pellets” means commercially manufactured tablets made by compressing pure bentonite, without additives, into forms greater than one-quarter inch (1/4”) in size.

3.9.d. “Bentonite chips” means commercially processed angular fragments of pure bentonite, without additives.

3.10. “Bentonite-cement grout” means a mixture with the ratio not to exceed five (5) pounds of bentonite with ninety-four (94) pounds of Portland cement and approximately eight and six-tenths (8.6) gallons of water from an uncontaminated source.

3.11. “Bentonite-fine sand slurry” means a mixture with the minimum ratio of fifty (50) pounds of bentonite with one hundred (100) gallons of water from an uncontaminated source and ten to twenty-five percent (10-25%) sand by volume for a mud weight of eleven (11) pounds per gallon.

3.12. “Bentonite granular slurry” means a thoroughly blended mixture of up to thirty (30) pounds of untreated bentonite powder added to one hundred (100) gallons of water from an uncontaminated source with a minimum of one hundred (100) pounds of untreated bentonite granules mixed together by a Venturi hopper mud mixer or other equivalent high shear mixer.

3.13. “Bentonite high-solids grout” means a thoroughly blended mixture of water from an uncontaminated source with untreated bentonite, without additives. The mixture by weight shall contain a minimum of twenty percent (20%) bentonite solids.

3.14. “Borehole” means a circular hole, deeper than it is wide, constructed in earth material for the purpose of obtaining geologic or groundwater related data. Boreholes are also referred to as drill holes.

3.15. “Certified monitoring well driller” means an individual granted a written certificate by the Secretary to drill, construct, alter or abandon monitoring wells or boreholes, except those defined as low-risk in subdivision 19.2.a below, and who meets the requirements of 47CSR59, “Monitoring Well Regulations.”

3.16. “Clay” means a fine grained inorganic soil with a grain size less than seventy-five micrometers (75 µm) and having a plasticity index equal to or greater than four (4).

3.17. “Clustered monitoring wells” means individual monitoring wells situated close together, but not in the same borehole. Clustered wells are most often used for monitoring ground water conditions at various depths in roughly the same area.

3.18. “Coarse sand” means a well sorted sand with a predominant grain size between four and seventy-six hundredths millimeters (4.76 mm) and two millimeters (2.0 mm) as established by the unified soil classification system.

3.19. “Concrete” means a slurry mixture with a ratio of ninety-four (94) pounds of cement, equal volumes of dry sand and gravel, and five (5) to six (6) gallons of water from an uncontaminated source. The ratio of sand and gravel to cement may not exceed three (3) parts to one (1).

3.20. “Contaminant” means any material in a solid, liquid or gaseous state that has the potential to cause contamination.

3.21. “Contamination” means any manmade or man-induced alteration of the chemical, physical or biological integrity of the groundwater resulting from activities regulated under the West Virginia Groundwater Protection Act in excess of existing groundwater quality, unless that site has been granted a deviation or variance from existing quality as provided for in the West Virginia Groundwater Protection Act, or is subject to an order, permit, or other regulatory action that requires restoration or maintenance of groundwater quality at a different concentration or level.

3.22. “Driven-point well” means a well constructed by joining a drive point with lengths of pipe and driving the assembly into the ground with percussion equipment or by hand, without first removing material below the ten (10) foot depth.

3.23. “Excavated well” means any monitoring well that is constructed by backfilling appropriately sized unconsolidated material around the well screen. Excavated wells will be installed in accordance with sections 6, 7, and 8, subdivision 11.4.c, and subsection 11.5 of this rule. Excavated wells include, but are not limited to, any tank pit observation well.

3.24. “Filter pack” means the sand, gravel or both placed in direct contact with the well screen.

3.25. “Filter pack seal” means the sealing material placed in the annular space above the filter pack and below the annular space seal to prevent the migration of annular space sealant into the filter pack.

3.26. “Fine sand” means a well sorted sand with a predominant grain size between 0.42 mm and 0.074 mm, as established by the Unified Soil Classification System.

3.27. “Gravel” means an unconsolidated material with the predominant grain size being between 76.2 mm and 4.76 mm, as established by the Unified Soil Classification System.

3.28. “Groundwater” means the water occurring in the zone of saturation beneath the seasonal high water table, or any perched water zones.

3.29. “Groundwater observation well” means any monitoring well in which the screened interval intersects the water table.

3.30. “Groundwater Regulatory Agency” means the Department of Environmental Protection, the Bureau for Public Health, the Department of Agriculture, or any other political subdivision that has received approval from the Secretary to regulate facilities or activities for groundwater protection.

3.31. “Hollow stem auger drilling” means a drilling method where continuous flighting is welded to a hollow stem pipe. The flighting carries drill cuttings to the surface as the flighting is rotated and pushed down into the earth.

3.32. “Inside diameter” means the horizontal distance between the inner walls of a well casing, hollow stem auger or tremie pipe.

3.33. “Medium sand” means a well sorted sand with a predominant grain size between 2.0 mm and 0.42 mm, as established by the Unified Soil Classification System.

3.34. “Monitoring well” means any cased excavation or opening into the ground made by digging, boring, drilling, driving, jetting, or other methods for the purpose of determining the physical, chemical, biological, or radiological properties of groundwater. The term “monitoring well” includes piezometers and observation wells that are installed for purposes other than those listed above, but does not include wells whose primary purpose is to provide a supply of potable water.

3.35. “Montmorillonite” means a group of expanding lattice clay minerals of the general formula: R0.33Al2Si4O10(OH)2.H2O, where R means one or more cations of sodium, potassium, magnesium or calcium and where Al means aluminum, Si means silicon, O means oxygen and H means hydrogen.

3.36. “Mud rotary drilling” means a drilling method whereby a borehole is advanced by using a circular rotating action applied to a string of drilling rods that have a diffused discharge bit attached to the bottom of the string. A bentonite and water mud slurry is used to provide borehole stability, to cool the bit and to carry cuttings to the ground surface.

3.37. “Neat cement grout” means a slurry mixture with a ratio of ninety-four (94) pounds of Portland cement mixed with five (5) to six (6) gallons of water from an uncontaminated source.

3.38. “Nested monitoring wells” means two (2) or more casing strings within the same borehole. The screened interval of each casing string is designed to monitor water from different zones.

3.39. “Percussion drilling” means a drilling method using a cable tool drilling machine or a drilling method whereby the permanent or temporary well casing is driven, or is set into a borehole and then driven.

3.40. “Permanent monitoring well” means any monitoring well in place for sixty (60) days or longer.

3.41. “Person” means any industrial user, public or private corporation, institution, association, firm or company organized or existing under the laws of this or any other state or country; state of West Virginia; governmental agency, including federal facilities; political subdivision; county commission; municipal corporation; industry; sanitary district; public service district; soil conservation district; watershed improvement district; partnership; trust; estate; person or individual; group of persons or individuals acting individually or as a group; or any legal entity whatever.

3.42. “Piezometer” means a monitoring well sealed below the water table that is installed for the specific purpose of determining the potentiometric surface or the physical, chemical, biological, or radiological properties of groundwater, or both.

3.43. “Potentiometric surface” or “piezometric surface” means an imaginary surface representing the total head of groundwater and is the level to which water will rise in a well.

3.44. “PSI” means pounds per square inch.

3.45. “Purge” means an action that removes water from the well, commonly accomplished by using a pump or bailer.

3.46. “Recovery well” means a well intended and designed to capture and remove contaminants from the subsurface.

3.47. “Rotary wash drilling” means a drilling method whereby metal temporary casing is advanced into the borehole by driving. At selected intervals, the temporary casing is cleaned out using rotary drilling tools by pumping clean water through the rod to flush out accumulated cuttings. This drilling method is also known as wash bore or wash down drilling.

3.48. “Sand-cement grout” means a mixture of cement, sand and water in the proportion of ninety-four (94) pounds of Portland cement, one (1) cubic foot of dry sand, and five (5) to (6) gallons of water from an uncontaminated source.

3.49. “Secretary” means the Secretary of the Department of Environmental Protection or his or her authorized designee.

3.50. “Sediment” means any unconsolidated material including, but not limited to, clay, silt, sand, gravel, and rock particles.

3.51. “Solid stem auger drilling” means a drilling method where continuous flighting is welded onto a solid stem pipe. The flighting carries drill cuttings to the surface as the flighting is rotated and pushed down into the earth. The borehole is created by a cutting bit located at the tip of the lead auger.

3.52. “Specific gravity” means the weight of a particular volume of substance compared to the weight of an equal volume of water at a reference temperature.

3.53. “Surge” means an action causing water to move rapidly in and out of the well screen, thereby removing fine material from the surrounding aquifer.

3.54. “Tank pit observation well” means any vapor observation well or groundwater observation well or both installed in an underground storage tank excavation for release detection purposes.

3.55. “Temporary monitoring well” means any monitoring well in place for less than sixty (60) days.

3.56. “Top of bedrock” or “top of firm rock” means at least seventy percent (70%) of the drill cuttings being either:

3.56.a. Angular rock fragments, as in the case of crystalline rock; or

3.56.b. Rock fragments composed of individual grains or rock particles that are cemented together to form an aggregate, as opposed to a single sediment particle.

3.57. “Tremie pipe” means a pipe or hose used to install well construction materials in an annular space or a borehole.

3.58. “Unconsolidated material” means that material found above bedrock, composed of single sediment particles, individual grains or rock fragments. Unconsolidated material includes but is not limited to clay, silt, sand, gravel, loess, peat and organic soil.

3.59. “Unified Soil Classification System” means the soil designation system based on the physical properties of the soil developed from the airfield classification system in 1952 and adopted by the American Society for Testing and Materials in standard test method D2487-83.

Note: A copy of this publication is available from the American Society for Testing and Materials, 100 Bar Harbor Drive, West Conshohocken, Pennsylvania 19428.

3.60. “Vapor observation well” means any excavated well in which the screened interval intersects the backfill or unconsolidated material that is sufficiently porous to readily allow diffusion of vapors into the well.

3.61. “Water table” means the surface of unconfined groundwater where the water pressure is equal to atmospheric pressure.

3.62. “Water table observation well” means any monitoring well in which the screen or open borehole intersects a water table that is installed for the specific purpose of determining either the elevation of the water table or the physical, chemical, biological or radiological properties of groundwater, or both.

3.63. “Well” means any borehole or other excavation or opening in the ground, deeper than it is wide, constructed for the purpose of obtaining or monitoring the surrounding media, including groundwater. This definition does not include water wells whose sole purpose is to provide: a supply of water, for exploration of water, for dewatering, or for functioning as heat pump wells.

3.64. “Well depth” means the distance from the ground surface to the bottom of the well screen or to the bottom of the open hole when a well screen is not used.

3.65. “Well riser” means the impervious portion of pipe extending from the top of the well screen or open borehole to the top of the monitoring well. The well riser prevents undesirable fluids and materials from entering the monitoring well and provides access to the zone or the interval being monitored.

3.66. “Well screen” means the filtering device that allows groundwater to flow freely into a monitoring well from an adjacent formation.

3.67. “Well volume” means the volume of water contained in the well casing and the filter pack.

W. Va. Code R. § 47-60-4 Conflicting Provisions

Where, in certain instances, existing rules impose requirements that are more or less restrictive than the requirements of this rule, and in the event that this rule conflicts with another applicable rule, the Secretary shall determine which rule or section(s) thereof best complies with the intent of the Groundwater Protection Act, W. Va. Code §22-12-1 et seq., and require adherence to said rule or section(s) thereof. The Secretary may, at his or her discretion, begin the formal regulatory process to remove the conflict between the rules.

W. Va. Code R. § 47-60-5 Borehole Protection

Protective measures shall be taken to prevent a borehole from acting as a conduit for contamination or becoming a safety hazard until abandonment in accordance with section 19 of this rule.

W. Va. Code R. § 47-60-6 Monitoring Well Location And Reporting Requirements

6.1. Where prior groundwater regulatory agency approval is required, monitoring wells shall be installed at the locations indicated on the approved plans and specifications.

6.2. Following installation of a monitoring well, each certified monitoring well driller shall report to the Secretary, on forms provided by the Secretary, the following information within sixty (60) days after completion of the well installation.

6.2.a. The name and address of the person for whom the wells were installed;

6.2.b. The date the wells were installed; and

6.2.c. The latitude and longitude coordinates in degrees, minutes, and seconds to the nearest second, and the method used to determine such coordinates for each well installed.

6.3. The certified monitoring well driller shall assign each monitoring well a registration number using the following system:

6.3.a. The first group of numbers will be the certified monitoring well driller’s certification number followed by a dash (-).

6.3.b. The second group of numbers will represent the number of the monitoring well(s) installed by the driller for the calendar year followed by a dash (-).

6.3.c. The third group of numbers will represent the calendar year in which the well was installed.

Example: The first well drilled by a certified monitoring well driller with certification number 0123 in calendar year 1996 would be: 0123-0001-96.

6.4. The certified monitoring well driller shall permanently affix the registration number onto each well installed.

6.5. Failure to comply with any part of section 6 of this rule may result in enforcement action taken pursuant to 47CSR59 §7.

W. Va. Code R. § 47-60-7 Well Riser

7.1. The well riser for wells constructed in a floodplain or floodway shall terminate a minimum of two (2) feet above ground level and be provided with a watertight cap, unless it can be demonstrated that inundation will not occur, except as provided for in subsection 11.6 of this rule.

7.2. Specifications. -- The riser must consist of materials that will not alter the quality of water samples for the constituents of concern and that are appropriate for the monitoring environment. The riser should have adequate wall thickness and coupling strength to withstand installation and development stresses. Each section of riser should be uncontaminated prior to installation. The minimum nominal internal diameter of the riser should be chosen based on the particular application. However, in most instances, a minimum of two (2) inches (50.8 mm) is needed to accommodate sampling devices.

Note: Risers are generally constructed of PVC, stainless steel, fiberglass, or fluoropolymer materials.

7.3. Assembly and Installation. -- Where the well is to be used for organic water quality monitoring, all riser couplings shall use a coupling method that is watertight and that does not introduce organic compounds to the well. Wells that will not be monitored for organic compounds may use any industry accepted watertight coupling method.

7.4. Inspection. -- Prior to use, the casings, couplings and other components shall be inspected for cuts, deformities, gouges, deep scratches, damaged ends, and other imperfections that could compromise the integrity of the well. Any casing, coupling or component having such a defect may not be used.

7.5. Risers shall be centered in the borehole, using centralizers if necessary, except in the case of nested monitoring wells.

7.6. A protective cap on the well riser may be necessary during the installation of the annular space seal, the filter pack, the filter pack seal and the ground surface seal to prevent any of these materials from entering the monitoring well.

W. Va. Code R. § 47-60-8 Well Screen

8.1. Specifications. -- The well screen must consist of materials that will not alter the quality of water samples for the constituents of concern and that are appropriate for the monitoring environment. The well screen should have adequate wall thickness and coupling strength to withstand installation and development stresses. Each section of well screen should be uncontaminated prior to installation. The minimum nominal internal diameter of the well screen should be chosen based on the particular application.

8.2. All monitoring well screens shall be constructed of material that is nonreactive with the constituents in soils and groundwater at the monitoring location. The well screen slot size shall be sized to retain at least ninety percent (90%) of the grain size of the collapsed formation where such is used as filter pack material, or at least ninety percent (90%) of the grain size of the filter pack if material other than collapsed formation is used. In lieu of a sieve analysis, or where other well design considerations require a different slot size, a number ten (10) slot screen size may be used, as a maximum, to retain at least ninety percent (90%) of the filter pack material. Well screen interval lengths should be chosen to adequately monitor the water-bearing zone of interest and to comply with section 13 of this rule. Well screens on piezometers installed for the purpose of determining the elevation of the potentiometric surface may not exceed five (5) feet in length, except where potentiometric surfaces may fluctuate over greater intervals.

Note: Well screens for wells other than the water table observation wells and piezometers identified above may vary in length.

8.3. Assembly and Installation. All well screens shall be joined to the well riser by methods described in subsection 7.3 of this rule. All joints shall be watertight. Monitoring wells installed in bedrock using an open borehole may be constructed without a well screen.

8.4. Well screens shall be centered in the borehole, using centralizers if necessary, except in the case of nested monitoring wells.

8.5. The bottom portion of each well screen or well must be plugged or capped to prevent oversized material from entering the well.

W. Va. Code R. § 47-60-9 Tremie Pipes and Sealing Procedures

9.1. Materials. -- The tremie pipe used for the placement of sealant materials shall be one of the following materials and shall exhibit pressure ratings adequate for the pumping pressures to be used:

9.1.a. Metal pipe,

9.1.b. Rubber-covered hose reinforced with braided fiber or steel,

9.1.c. Thermoplastic pipe including but not limited to:

9.1.c.1. Polyvinyl chloride (PVC),

9.1.c.2. Chlorinated polyvinyl chloride (CPVC),

9.1.c.3. Polyethylene (PE),

9.1.c.4. Polybutylene (PB), or

9.1.c.5. Acrylonitrite butadiene styrene (ABS).

9.2. Procedures. -- This subsection describes groundwater regulatory agency approved sealant placement methods when a tremie pipe is used.

Note: These procedures apply to the use of grout or slurry sealant.

9.2.a. The sealant material shall be placed in such a manner as to not disturb the integrity of the filter pack and seal, and to not threaten the integrity of the riser.

9.2.b. When a tremie pipe is used for placement of fluid sealants, the bottom end shall be kept submerged in the sealant material throughout the sealing process.

9.2.c. The sealant material shall be brought up to the ground surface seal. Any settling of the sealant material shall be topped off.

9.2.d. Tremie pipe - gravity. Sealing material may flow by gravity through a funnel or hopper connected to a tremie pipe. The tremie pipe shall be lowered to the bottom of the annular space or borehole to be sealed and the sealing material placed from the bottom up.

9.2.e. Tremie pipe - pumped. Sealing material shall be placed by a pump through a tremie pipe into the annular space or borehole. Tremie pipes used for the placing of pumped slurry or grout should be fitted with a J-hook end or a closed end with side discharge.

Note: The J-hook end or closed end with side discharge of the tremie pipe will direct the flow of the materials to the side or upward.

W. Va. Code R. § 47-60-10 Filter Packs

10.1. All permanent monitoring wells installed in unconsolidated material and used for the collection of water quality samples shall be constructed with filter packs, except as provided in subsection 10.4 of this rule. Permanent monitoring wells installed in bedrock may be constructed with filter packs. When used, the filter pack shall be the only material in contact with the well screen. All commercially prepared filter packs installed in permanent monitoring wells shall meet the requirements in subsection 10.2 of this rule. All other filter packs shall meet the requirements in subsection 10.4 of this rule.

10.2. Specifications. -- The filter pack shall be a silica based sand or gravel. The sand or gravel used for filter packs shall be hard and durable and shall have an average specific gravity of not less than 2.50. The sand and gravel shall be visibly free of clay, dust and micaceous and organic matter. Not more than five percent (5%) of the sand or gravel shall be soluble in a ten percent (10%) hydrochloric acid solution. Uniformity coefficients for filter pack material shall range from one (1) to three (3). All filter pack material should be purchased from a reputable supplier who has properly cleaned and bagged the material. In lieu of a sieve analysis, for unconsolidated material that is predominately silt and clay, the filter pack shall be a fine sand. In bedrock, the filter pack shall be a medium or coarse sand or gravel, except in karst or highly fractured bedrock formations where fine sand filter packs may be used. Crushed limestone, dolomite or any material containing clay or any other material that will adversely impact on the performance of the monitoring well may not be used as filter pack.

Note: When installing a monitoring well in karst or highly fractured bedrock, a pre-packed or double sleeved screen may be necessary to hold the filter pack material in place.

10.3. Installation. -- The filter pack shall generally extend from six (6) inches beneath the bottom of the well to between two (2) and five (5) feet above the top of the well screen. For water table observation wells constructed in areas where the depth to water table is less than seven (7) feet or where discrete monitoring is desired, the required filter pack height above the top of the well screen may be reduced to six (6) inches to allow for the required amount of annular space sealant to be placed. To ensure that the filter pack is installed evenly surrounding the well screen and casing over the proper depth interval, a tape measure, measuring rod or similar device shall be used to measure the height of the filter pack. The tape measure, measuring rod or similar device shall be carefully raised and lowered while the filter pack is being installed to identify bridging. If bridging occurs, the filter pack material shall be tamped into place surrounding the well screen and riser, using a measuring rod or similar device. Pre-packed screens may be used if necessary.

10.4. Collapsed Formation. -- Collapsed formation may be used as filter pack material, if the collapsed formation will limit the passage of formation fines into the well screen and either an artificial filter pack cannot be installed or the formation grain size is greater than or equal to fine sand sized grains. The grain size distribution of the collapsed formation shall be such that at least ninety percent (90%) of the formation will be retained by the well screen.

W. Va. Code R. § 47-60-11 Sealing Requirements

11.1. All materials and procedures used in the installation of seals for permanent monitoring wells shall meet the requirements of this section.

11.2. Installation of the Filter Pack Seal. -- A bentonite chip, pellet or a slurry seal shall be placed in the annulus between the borehole and the riser pipe on top of the secondary or primary filter pack. This seal will retard the movement of cement-based grout backfill into the primary or secondary filter packs. To be effective, the filter pack seal should extend above the filter packs approximately three (3) feet or more, but may be less depending on site-specific conditions, where discrete sampling is desired or where physical conditions prohibit a longer seal depending on local conditions. The filter pack seal should be installed using a tremie pipe lowered to the top of the filter pack and slowly raised as the bentonite pellets or the slurry fill the annular space. Bentonite pellets may bridge and block the tremie pipe in deep wells. In these cases, pellets may be allowed to free fall into the borehole. As a bentonite pellet seal is poured into the tremie pipe or allowed to free fall into the borehole, a tamper or weighted line may be necessary to tamp pellets into place. If the seal is installed above the water level, water from an uncontaminated source shall be added to allow proper hydration of the annular seal. The tremie pipe or a weighted line inserted through the tremie pipe shall be used to measure the top of the filter pack seal as the work progresses. Sufficient time should be allowed for the bentonite pellet seal to hydrate or the slurry annular seal to expand prior to grouting the remaining annulus. The volume and elevation of the filter pack seal material should be measured and recorded on the well construction diagram.

11.3. Annular Space Seal Specifications. -- All permanent monitoring wells shall be installed with an annular space seal designed to achieve a permeability of 10-5 centimeters per second or less. For permanent monitoring wells constructed with filter packs, the annular space seal shall extend from the filter pack seal to the ground surface seal and should be at least two (2) feet in length. For monitoring wells constructed into bedrock formations and without well screens, the annular space seal shall extend from the bottom of the outer casing to the ground surface seal.

11.4. Annular Space Seal Installation. -- Bentonite chips, pellets or granules with a diameter of three-eighths inches (3/8”) or less shall either be poured freely down the borehole or added through a tremie pipe to seal the annular space. When a tremie pipe is used to place the annular space sealant, the procedures in subsections 9.2.a and 9.2.b of this rule shall be followed.

11.4.a. When grouts or slurries are used to seal the annular space, the material shall be poured freely down a tremie pipe or pumped down a borehole with the use of a tremie pipe. When a tremie pipe is used to place the annular space sealant, the procedures of subsection 9.2 of this rule shall be followed.

11.4.b. When any slurry or grout is used, there shall be a twelve (12) hour period between the time the annular space seal is installed and the time the protective ground surface seal is installed. Any settling in the annular space seal shall be topped off before the ground surface seal is installed.

11.4.c. The top of the well casing shall be covered with a protective cap.

11.5. Excavated Wells. -- For excavated wells, the seal between the protective cover and the riser pipe acts as both the filter pack seal and the annular space seal.

11.6. Ground Surface Seal and Protective Cover Pipe.

11.6.a. Ground surface seal. -- All permanent monitoring wells shall be constructed with a bentonite cement grout, neat cement grout, or concrete ground surface seal. The ground surface seal shall extend to a minimum of thirty (30) inches below the land surface, and the top shall be sloped away from the well casing. If the monitoring well depth is such that both a minimum two (2) foot annular space seal and a minimum two and one-half (2.5) foot ground surface seal cannot both be placed, the ground surface seal may be shortened.

11.6.b. Protective cover pipe. -- The protective cover pipe shall consist of a casing at least two (2) inches larger in diameter than the well riser and have a locking cap. The protective cover pipe shall extend from the bottom of the ground surface seal to a minimum of twenty-four (24) inches above the ground surface, except as provided in subsection 11.5 of this rule. The protective cover pipe shall always extend above the top of the well riser. For water table observation wells constructed in areas where the depth to the water table is less than seven (7) feet, the required length (depth) of protective cover shall be reduced and may not extend into the filter pack.

11.7. Ground Surface Seal and Flush Mounted Protective Cover.

11.7.a. Ground surface seal. -- All permanent monitoring wells with a flush mounted protective cover shall be constructed with a concrete ground surface seal. The ground surface seal shall extend to, but not beyond, the total depth of the flush mounted protective cover. The ground surface seal shall be installed around the flush mounted protective cover and may not be placed between the flush mounted protective cover and the well casing.

11.7.b. Flush mounted protective cover. -- The flush mounted protective cover shall not be installed in areas subject to ponding or flooding. The flush mounted protective cover lid(s) shall indicate on its outer surface that it is a type of monitoring well as defined in section 3.35 of this rule. A black equilateral triangle inset in a white background is also an acceptable label. If an impervious surface does not exist, an apron shall be created that will support the weight of the traffic in the area. The flush mounted protective cover shall consist of a watertight metal casing with an inside diameter at least two (2) inches greater than the inside diameter of the monitoring well riser. The flush mounted protective cover shall be one continuous metal piece or two metal pieces that are joined with a continuous weld. The flush mount protective cover shall be a minimum of twelve (12) inches in length. There may be no more than eight (8) inches between the top of the monitoring well riser and the top of the flush mounted protective cover after installation. The flush mounted protective cover shall have an exterior flange or lugs. The flush mounted protective cover or the monitoring well shall have a locking mechanism. The monitoring well installed within any flush mounted protective cover shall have a watertight cap.

Note: After removing the watertight cap and prior to taking a head level measurement, a waiting period is recommended to enable the water level to stabilize.

W. Va. Code R. § 47-60-12 Drilling Methods and Fluids

Drilling shall be conducted in a manner so as to minimize the introduction of foreign material into the borehole, produce the least possible disturbance to the formation, and permit the proper construction and development of the required diameter well. Only air, water free of bacterial and chemical contamination, or bentonite drilling mud mixed with water from an uncontaminated source may be used as drilling fluids. The water used for drilling shall be stored in such a manner as to prevent contamination of the clean water. If air is used as a drilling fluid, the air shall be filtered by an oil-air filter or oil trap to reduce or remove the oil content discharged from the compressor. If water is used, the source of the water shall be reported.

W. Va. Code R. § 47-60-13 Cross Contamination

In areas where contamination is suspected to exist, precautions shall be taken to prevent cross contamination of groundwater bearing zones or uncontaminated zones.

W. Va. Code R. § 47-60-14 Disposal and Decontamination

14.1. In areas where contamination is known to occur, all drill cuttings and fluids and surge and wash waters from borehole and monitoring well construction and development shall be disposed of in a manner that is protective of the waters of the State.

14.2. All borehole and monitoring well construction and development equipment shall be decontaminated as needed to prevent contamination or cross-contamination of boreholes or monitoring wells.

W. Va. Code R. § 47-60-15 Borehole Diameter

15.1. Boreholes in unconsolidated geologic formations. -- For all permanent monitoring wells in unconsolidated geologic formations, the borehole diameter shall meet the following requirements:

15.1.a. If hollow stem augers are used, their inside working diameter shall be at least two (2) inches greater than the inside diameter of the permanent well casing.

15.1.b. If solid stem augers are used, their outside diameter shall be at least four (4) inches greater than the inside diameter of the permanent well casing.

15.1.c. If an air or mud rotary method is used, the borehole diameter shall be at least four (4) inches greater than the inside diameter of the permanent well casing. If a temporary outer casing is used, the inside diameter of the temporary outer well casing shall be at least four (4) inches greater than the inside diameter of the permanent well casing. The temporary outer casing shall be pulled immediately before or as the annular space is sealed, depending on site specific geology.

Note: The dual-tube or triple-tube reverse rotary systems are rotary methods.

15.1.d. If percussion methods, including the rotary wash, wash down, and wash bore methods are used with a temporary outer casing in unconsolidated geologic formations, the inside diameter of the temporary outer casing shall be at least four (4) inches greater than the inside diameter of the permanent well casing. The temporary outer casing shall be removed during the sealing of the annular space.

15.2. Boreholes in bedrock geologic formations. -- For all permanent monitoring wells installed deeper than two (2) feet past the top of the bedrock, the borehole diameter shall meet the following requirements:

15.2.a. If an air or mud rotary method is used to construct the monitoring well, the requirements of subdivision 15.1.c of this rule shall be followed.

15.2.b. If percussion methods are used to construct the monitoring well, the requirements of subdivision 15.1.d of this rule shall be followed.

W. Va. Code R. § 47-60-16 Recovery Wells

Groundwater quality data from recovery wells may not be acceptable, as some recovery wells may not meet the minimum design standards required for monitoring wells. Recovery wells shall be subject to the reporting requirements in section 6 of this rule, documentation requirements in section 18 of this rule, and the abandonment requirements in section 19 of this rule.

W. Va. Code R. § 47-60-17 Well Development, Redevelopment and Reconditioning

All permanent monitoring wells shall be developed according to the requirements of this section, except for excavated wells and wells that are installed for the sole purpose of determining the level of groundwater or the potentiometric surface. Wells sealed with grout or slurry shall be developed after a minimum waiting period of twelve (12) hours after installation is completed. Development, redevelopment and/or reconditioning operations shall be performed with care, so as to prevent damage to the well and any strata surrounding the well. Care is necessary to prevent the spread of contaminants, particularly when the well is situated in known or suspected areas of contamination. The goal of well development is to produce water free of sediment and all drill cuttings and drilling fluids. Appropriate methods of well development vary with the type and use of a monitoring well. Development methods that may be acceptable under certain circumstances include:

17.1. Methods for wells that cannot be purged dry. -- All permanent monitoring wells that cannot be purged dry shall be developed until a minimum of ten (10) well volumes of water are removed or until the well produces sediment free water. Well volumes shall be calculated in the manner prescribed in Table 1 of this rule. One or more of the following methods shall be used to develop a well under this section:

17.1.a. Surge and Purge Method. -- The surge and purge cycle shall consist of several minutes of surging followed by several minutes of purging to remove the material collecting in the bottom of the well. The surging shall move formation water in and out of the well screen. The surging shall be accomplished by using a bailer, surge block or by pumping the well sufficiently to cause a drawdown and then allowing the well to recover and repeating the process. Plungers, bailers, surge blocks, and other surging devices must incorporate safety valves or vents to prevent excessive pressure differentials that could damage casing, screen, or the formation. The positive and negative pressures exerted shall not force contaminants from or into the well bore, cause mechanical damage to the well components, draw annular space or filter pack sealant into the filter pack, bridge the filter pack with excessive sediments, or collapse the formation.

17.1.b. Over Pumping (Pump Surging Method). -- The monitoring well shall be pumped at a rate considerably higher than it would be during normal operation to dislodge fine-grain materials from the filter pack and surrounding strata. This method also requires mechanical surging in order to delete the negative influences associated with one directional movement of water. This method may not be suitable for wells producing large amounts of sediment that could jam or clog a pump. Over pumping can also create a cone of depression in the water table that can draw contaminants to the well.

17.1.c. Air Lift Pumping Method. -- An air lift pump shall be operated by cycling the air pressure on and off for short periods of time to provide a surging action that will dislodge fine-grained materials from the filter pack and surrounding strata. A steady, low pressure shall be applied to remove the fines that have been drawn into the well by the surging action. Efforts should be made (through the use of a foot valve) to avoid pumping air into the filter pack and adjacent hydrologic unit because the air may lodge there and inhibit future sampling efforts and may also alter ambient water chemistry. Furthermore, application of high air pressures should be avoided to prevent damage to PVC risers, screens, and filter packs. The use of an eductor pipe is recommended. Operational air must be free of oil or other contaminants through use of a coalescing filter.

17.1.d. Well Jetting Method. -- The well screen area shall be jetted with water using sufficient pressure to achieve the desired effect but limiting force to prevent damage to the well components and surrounding formation. Water added during this development procedure will alter the natural, ambient water quality and may be difficult to remove. Therefore, the water added should be obtained from an uncontaminated source. Water from the monitoring well being developed may also be used if the suspended sediments are first removed.

17.2. Methods for Wells that Can Be Purged Dry. All permanent monitoring wells that can be purged dry shall be developed in a manner that limits agitation by slowly purging the well dry. Any water added for development shall be from an uncontaminated source, and an equal volume of water shall be purged upon completion of development.

W. Va. Code R. § 47-60-18 Monitoring Well Construction Documentation

18.1. All permanent monitoring well construction details shall be reported to the person for whom the wells were installed using forms and instructions provided by the Secretary within sixty (60) days after the well has been installed. These forms are to be retained by the person for whom the well was installed for five (5) years beyond the abandonment of the well. These forms are transferable with notification to the proper groundwater regulatory agency. At a minimum, the completed report shall include the following information:

18.1.a. Well location, as determined by subdivision 6.2.c of this rule;

18.1.b. Well casing material and installation procedures;

18.1.c. Well screen materials and installation procedures;

18.1.d. Filter pack materials, installation procedures, and depth to bottom and top of filter pack;

18.1.e. Sealing materials, installation procedures, and depth to bottom and top of seal (i.e. filter pack, annular space, etc,);

18.1.f. Drilling methods and fluids used for installation;

18.1.g. Borehole diameter;

18.1.h. Well development procedures;

18.1.i. Length of screen;

18.1.j. Screen slot size;

18.1.k. Depth of bottom of screen;

18.1.l. Well depth;

18.1.m. Total drilled depth of the borehole;

18.1.n. Well registration number;

18.1.o. Certified driller’s name and company name(s), address(es), and telephone number(s); and

18.1.p. Driller’s certification number,

18.2. The certified monitoring well driller shall report any and all decontamination procedures for each borehole to the person for whom the wells were installed.

W. Va. Code R. § 47-60-19 Abandonment Requirements

The following requirements apply to the abandonment of all monitoring wells and all boreholes. The appropriate groundwater regulatory agency may require, by order or other appropriate means, that any borehole or monitoring well be abandoned. The appropriate groundwater regulatory agency shall consider the following factors in determining whether a borehole or monitoring well should be abandoned: purpose, location, groundwater quality, age and condition of the well or borehole, potential for groundwater contamination, and well or borehole construction.

19.1. Timelines for Abandonment.

19.1.a. A borehole shall be abandoned within three (3) working days after its use has been discontinued.

19.1.b. Any permanent monitoring well no longer being used to gather information on geologic or groundwater properties shall be abandoned within sixty (60) days after its use has been discontinued.

19.1.c. Any monitoring well or borehole found by the appropriate groundwater regulatory agency to be acting as a conduit for groundwater contamination shall be abandoned within fifteen (15) working days after written notification by the appropriate groundwater regulatory agency.

19.1.d. Any monitoring well constructed after the effective date of this rule not meeting the requirements of this rule shall be abated, abandoned or replaced with a monitoring well meeting the requirements of this rule within sixty (60) days after written notification by the appropriate groundwater regulatory agency that the well is noncompliant, unless approved by the appropriate groundwater regulatory agency in accordance with section 22 of this rule.

19.2. Abandonment Procedures.

19.2.a. Boreholes are determined to be low risk or high risk. High risk boreholes are those boreholes on sites containing or formerly containing solid or hazardous waste, hazardous materials or their by-products, or that may be affected by solid or hazardous waste, hazardous materials or their by-products in the future; or at sites of known or suspected contamination unless otherwise determined to be innocuous; or in situations where water quality in one water bearing zone may be detrimental to another water bearing zone. All other boreholes are low risk. Low risk boreholes may be abandoned by complete filling from bottom to top with drill cuttings, tailings or native materials to restore the borehole to its original geologic setting, such that the natural migration of groundwater is not significantly influenced and the borehole has no adverse influence on the environment. High risk boreholes shall be abandoned in accordance with subsection 19.3 of this rule.

19.2.b. Monitoring wells with impermeable annular space seals. -- Monitoring wells known to be constructed with an impermeable annular space seal shall be abandoned according to the requirements of subsection 19.3 of this rule after the protective cover pipe or the flush mounted protective cover and the ground surface seal have been removed and the well riser cut off at least thirty (30) inches below the ground surface. The well riser may be completely removed during abandonment by pulling the well riser, overdrilling around the riser and then pulling the well riser out of the ground, or by drilling out the well riser completely. If the well riser is to be removed, the well should be sealed as the riser is removed pursuant to subsection 19.3 of this rule.

19.2.c. Monitoring wells with permeable annular space seals and wells in waste areas. -- A monitoring well not known to be constructed with an impermeable annular space seal or located in an existing or planned future waste disposal or treatment area shall be abandoned by removing the protective cover pipe or the flush mounted protective cover and the ground surface seal and then completely removing the well riser. The well riser may be completely removed during abandonment by pulling the well riser, overdrilling around the riser and then pulling the well riser out of the ground, or by drilling out the well riser completely. The well riser shall be removed from the well and should be sealed as the riser is removed, pursuant to subsection 19.3 of this rule.

19.3. Sealing requirements. -- Boreholes and monitoring wells shall be abandoned by complete filling with neat cement grout, bentonite-cement grout, bentonite high-solids grout, concrete, bentonite-sand slurry or sand-cement grout. When a tremie pipe is used to place the sealing material, the procedures of subsection 9.2 of this rule shall be followed. A tremie pipe shall be used to abandon monitoring wells and boreholes greater than thirty (30) feet in depth or with standing water. Monitoring wells and boreholes greater than one hundred (100) feet in depth shall be sealed with a tremie pipe-pumped method. A J-hook end or closed end with side discharge is recommended, but not required, when placing sealant materials for the abandonment of a borehole. Bentonite may be used as a sealing material without the use of a tremie pipe under the following conditions:

19.3.a. Bentonite or bentonite mixed sand consisting of eighty percent (80%) silica sand and twenty percent (20%) bentonite by volume may be used for abandonment of boreholes and monitoring wells less than thirty (30) feet deep where there is no standing water.

19.3.b. Bentonite chips or bentonite pellets may be used for abandonment of boreholes and monitoring wells less than fifty (50) feet deep and where the depth of standing water is less than thirty (30) feet, provided that the pellets or chips are smaller than one-fifth (1/5) the diameter of the hole or the annular space.

19.3.c. Bentonite chips or bentonite pellets may be used for abandonment of boreholes and monitoring wells that are greater than four (4) inches in diameter and less than two hundred fifty (250) feet deep and where the depth of standing water is less than one hundred fifty (150) feet, provided that the pellets or chips are smaller than one-fifth (1/5) the diameter of the hole or the annular space.

19.4. Sealant Settlement. -- Any settling of the sealant material shall be topped off. Sealing material may be terminated thirty (30) inches below the ground surface in agricultural areas to avoid interference with agricultural activities. A native soil plug shall be placed on top of the settled sealing material in such cases.

19.5. Abandonment Documentation. -- High risk borehole and permanent monitoring well abandonments shall be reported to the appropriate groundwater regulatory agency within sixty (60) days of the abandonment on forms supplied by the appropriate groundwater regulatory agency. In addition to the information required on the form, the person performing the abandonment shall report any decontamination procedures used between borehole and well abandonments.

W. Va. Code R. § 47-60-20 Driven-Point Wells

Driven-point wells with contaminant compatible drive pipes and well screens may be used as permanent monitoring wells if prior groundwater regulatory agency approval is obtained. Prior approval is not necessary for driven-point wells installed in the backfill surrounding underground storage tanks used solely to determine the water table elevation in the tank pit for tank tightness testing purposes. Written documentation shall be supplied to the appropriate groundwater regulatory agency prior to installation indicating:

20.1. That the well is to be used only for water table elevation measurements or to monitor for parameters for which the well casing and screen material will not interfere with the analytical results;

20.2. That the well will not provide a conduit for contaminants to enter the groundwater; and

20.3. That information on subsurface stratigraphy is not needed. In situations where subsurface geologic information is needed, a separate borehole shall be constructed to collect the required data.

W. Va. Code R. § 47-60-21 Temporary Monitoring Wells

Temporary monitoring wells may be installed according to alternate standards than specified for permanent monitoring wells. Any temporary monitoring well construction shall be approved by the appropriate groundwater regulatory agency prior to its installation. All temporary monitoring wells shall be abandoned in accordance with section 19 of this rule within one hundred twenty (120) days after their installation unless an exception is allowed under section 22 of this rule.

W. Va. Code R. § 47-60-22 Special Circumstances and Exceptions

22.1. The appropriate groundwater regulatory agency may require or approve more restrictive or alternative well material, assembly, installation, development or abandonment procedures if the contaminant concentrations or geologic setting require alternative construction. Prior written approval is required before any alternative materials are used in monitoring well installation.

22.2. Exceptions to the requirements of this rule may be approved by the appropriate groundwater regulatory agency prior to installation or abandonment. An exception request shall state the reasons why compliance with the rule requirements is infeasible or unnecessary. The appropriate groundwater regulatory agency may conditionally approve an exception by requiring materials or procedures that safeguard against contamination and result in monitoring well construction that is substantially equivalent to the requirements of this rule. Failure to comply with the conditions of an exception voids the appropriate groundwater regulatory agency’s approval of the exception.

W. Va. Code R. § 47-60-23 Enforcement

23.1. Any person who violates this rule shall be subject to civil administrative penalties, civil or criminal penalties, enforcement orders, and procedures as set forth in W. Va. Code §22-12-10 and 47CSR59 “Monitoring Well Regulations.”

23.2. The appeal and review procedures set forth in W. Va. Code §22-12-11 shall be applicable to actions arising under this rule.

TABLE 1

WELL VOLUME CALCULATIONS

V1 + V2 = well volume Where:

V1 = volume of water in well casing = 3.1416 x (D1/2)2 H1 V2 = volume of water in filter pack = N x 3.1416 x H2 [(D3/2)2 - (D2/2)2]

N = porosity of filter pack D1 = inside diameter of well casing D2 = outside diameter of well casing D3 = diameter of borehole H1 = height of water column -- (Use appropriate H2) -- H2 = length of sand used in filter pack and fine sand filter pack seal or the height of the water column in water table observation wells. -- or -- H2 = length of filter pack or the height of the water column in water table observation wells.

Note: There are 7.48 gallons per cubic foot.

47CSR60

47CSR60

Series 61 Community Infrastructure Investment Program

W. Va. Code R. § 47-61-1 General

1.1. Scope and Purpose. -- This legislative rule establishes requirements governing the Community Infrastructure Investment Program established pursuant to W. Va. Code §22-28-1 et seq. The program will facilitate the construction or expansion of project facilities for the promotion of economic development and the protection of public health and environment in the state.

1.2. Authority. -- W. Va. Code §22-28-9.

1.3. Filing Date. -- April 20, 2006.

1.4. Effective Date. -- April 20, 2006.

W. Va. Code R. § 47-61-2 Definitions

The definitions set forth in W. Va. Code §22-28-2 apply to this rule along with the following definitions.

2.1. “Act” means the Community Infrastructure Investment Projects Act, W. Va. Code §22-28-1 et seq.

2.2. “Agreement” means the Community Infrastructure Investment Agreement as required by the Act and shall refer to a duly authorized written agreement between a public utility and a person that provides for the transfer of legal title to a project facility from the person to the public utility.

2.3. “Certificate” means a certificate of appropriateness issued by the Secretary evidencing approval of a project to be constructed under the provisions of the Act.

2.4. “Completion and activation” means the date on which operation of the project is initiated or is capable of being initiated, whichever is earlier.

2.5. “Department” means the Department of Environmental Protection.

2.6. “Governing body” means with respect to a municipality the mayor and council; with respect to a public service district the public service board; with respect to a sanitary district the board of trustees; and with respect to any other public utility the duly elected or appointed members having legal authority to make decisions at public meetings for the public utility.

2.7. “Person” means any individual, partnership, firm, society, association, trust, corporation or other business entity.

2.8. “Project” means any newly constructed or enlarged and improved project facilities of $10 million or less that may be transferred to a public utility without cost to the public utility pursuant to the Act.

2.9. “Project cost” means the capital cost of the project to be constructed under the Act and shall not refer to any of the costs or expenses of ordinary operation and maintenance of the project once it becomes operational.

2.10. “Project facilities” means wastewater treatment plants or water treatment plants constructed pursuant to the Act and include, but are not limited to, related storage buildings or structures, meters, hydrants, pump stations, force and gravity main, transmission lines and other such fixtures related to the construction of water and sewer facilities. Project facilities do not refer to the ordinary extension of collection and distribution lines or facilities from or to the project to the property of any user of project facilities.

2.11. “Public utility” means an existing water or sewer utility operated by a municipality, public service district or any other political subdivision that is certificated by the Public Service Commission of West Virginia.

2.12. “Rights of way” means the acquisition of all real property or property rights (easements, etc.) needed for project facility construction.

2.13. “Secretary” means the Secretary of the Department of Environmental Protection or such other person to whom the Secretary has delegated authority or duties pursuant to W. Va. Code §§22-1-6 or 22-1-8.

W. Va. Code R. § 47-61-3 Community Infrastructure Investment Program

3.1. Prior to filing a formal application for a certificate, the public utility or the person intending to construct a community infrastructure project must file a “notice of intent” with the Secretary. This notice of intent must demonstrate a desire to construct the project under the provisions of this rule and must state the date the utility expects to file the application. The notice of intent must be filed as soon as possible, but no later than the date of filing of an application for any applicable Department permit or permit modification, whichever is earlier, or the filing of any applicable permit application with the Bureau for Public Health by the person responsible for the construction of the project facilities. If a permit has already been issued or an application for a permit has already been submitted as of the effective date of this rule, the requirement of this section will be waived.

3.2. Application requirements.

3.2.a. A joint application from a person intending to construct a community infrastructure project and the public utility to which the project will be transferred must be filed with the Secretary on a prescribed form and must include all of the following:

3.2.a.1. Completed Form #CIIP-1;

3.2.a.2. Utility’s current rate tariff, proposed new tariff for the project, if applicable and annual budget;

3.2.a.3. Utility’s most recent two annual independent audited financial statements;

3.2.a.4. Opinion of bond counsel with respect to existing bond covenants being satisfied as a result of transfer of the project;

3.2.a.5. Attorney’s preliminary opinion of title transfer that upon completion of the project the transfer will take place;

3.2.a.6. Any applicable permits issued by the Department and/or Bureau for Public Health;

3.2.a.7. An independent certified public accountant’s cash flow analysis for the public utility’s current operations and projected operations after the transfer of the project;

3.2.a.8. A certified copy of the resolution of the governing body of the public utility authorizing the filing of an application.

3.2.a.9. Evidence and documentation of public participation efforts conducted by the public utility, prior to the filing of this application;

3.2.a.10. Proposed Agreement; and

3.2.a.11. The application fee.

3.3. An application for a certificate will not be deemed administratively complete unless all items are contained therein as described in Subdivision 3.2.a..

3.4. A certified copy of the minutes of the meeting where the application resolution was adopted by the governing body of the public utility shall be filed with the Secretary within thirty (30) days from the date of filing of the application, unless, by mutual agreement among all the parties such time period is extended.

3.5. Upon completion of his or her review of the application and attachments, the Secretary may require additional information as deemed appropriate in order to take final action on the application.

W. Va. Code R. § 47-61-4 Community Infrastructure Investment Agreements

4.1. Each proposed Agreement must be submitted to the Secretary for review and approval as part of the application for a certificate, using a standard form of agreement as prescribed by the Secretary. The public utility and the person intending to construct a community infrastructure project may agree to terms which are different from or additional to those contained in the standard form of agreement provided such terms are set forth in an appendix to the standard form of agreement. The Secretary may approve, reject, or modify such additional or different terms. In the event the Secretary rejects or modifies such additional different terms, construction on the project will not be initiated until the certificate has been issued and a copy of the executed Agreement, as modified by the Secretary, has been returned to the Secretary.

4.2. Each proposed Agreement must contain the following information:

4.2.a. The project facilities must be engineered and constructed in accordance with the requirements for new construction established by the public utility;

4.2.b. Proof or certification of the financial ability of the public utility to maintain and operate the public facilities;

4.2.c. Certification that upon completion and activation of the project facility or improvements to the project facility, the title to the public facility must be transferred without cost to the public utility;

4.2.d. A finding that the construction of the new public facility, or the substantial improvement or expansion of an existing public facility, either: (I) fosters economic growth by promoting commercial, industrial or residential development; and (ii) improves water quality or otherwise enables the affected territory to achieve compliance with any applicable state or federal health or environmental law;

4.2.e. The public utility will receive or otherwise obtain without cost to the public all necessary rights-of-way for the operation of the public facility;

4.2.f. The rates charged by a public utility to new customers to be served by the project facility must be the rates in effect at the time of transfer of the project facility to the utility, unless the revenues to be generated from new customers at the utility’s rates in effect at the time of transfer are less than the utility’s cost of service of the project facility, in which case the utility shall charge rates to the new customers to be served by the project facility which are expected to equal or exceed by no more than 15% the utility’s expected cost of service of the project facility, until such time as new rates may be finally enacted by the public utility and approved by the Public Service Commission of West Virginia. The rates charged by the public utility to existing customers must not be adversely impacted as a result of the obligation of the public utility pursuant to the community infrastructure investment agreement;

4.2.g. Confirmation that the agreement does not violate any of the bond covenants imposed on the public utility;

4.2.h. Proof that necessary permits, where applicable, have been obtained from the Bureau for Public Health and the Department of Environmental Protection;

4.2.i. Evidence that the person responsible for the construction of or improvements to the public facility has provided funding to the public utility for the engagement of an engineer qualified to inspect and certify that the project has been constructed in accordance with plans approved by the Bureau for Public Health and the Department, and that said project has been constructed in a good and workmanlike manner; and

4.2.j. Proof that the person responsible for construction of or improvements to the public facility has obtained a performance bond securing performance for the benefit of the public utility equal to the estimated cost of construction: Provided, that the form of the bond required by this section shall be approved by the Secretary and may include, at the option of the Secretary, surety bonding, collateral bonding (including cash and securities), bonding fund participation as established by the Secretary, self-bonding or a combination of these methods.

4.3. In addition to the requirements contained in section 4.2., each Agreement must contain or require the following items:

4.3.a. A one year warranty bond equal to the cost of construction from the person responsible for the construction of the project facilities;

4.3.b. A payment bond equal to the cost of construction from the person responsible for the construction of the project facilities, or a release of liens regarding the system as specified in the Agreement;

4.3.c. The required performance bond will remain in effect until the project facility has been accepted by the public utility; and

4.3.d. The public utility must monitor the construction of the project facilities for quality control.

4.4. In the absence of enough new customers to reasonably shoulder the initial burden of additional operation and maintenance expenses imposed upon the public utility as a result of completion and transfer of the project, the person responsible for the construction may be required to post a bond in a form approved by the Secretary in an amount necessary to cover any monthly revenue shortfalls for a reasonable period of time.

W. Va. Code R. § 47-61-5 Permitting Requirements

Prior to the issuance of a certificate by the Secretary, all necessary permits, where applicable, must have been obtained from the Department and the Bureau for Public Health. Facilities discharging into the Potomac River watershed and its tributaries must be designed to achieve nutrient reductions, for both nitrogen and phosphorus, consistent with West Virginia’s participation in the Chesapeake Bay program upon implementation of the Chesapeake Bay standards by the Secretary.

W. Va. Code R. § 47-61-6 Time for approval

The Secretary will approve or reject all applications for a project within thirty (30) days from the date the application is deemed administratively complete. By mutual agreement among all the parties such time period may be extended but in no case will the time period extend beyond ninety (90) days from the date the application is deemed administratively complete. Construction on the project will not be initiated until the certificate has been issued and a copy of the executed Agreement has been returned to the Secretary.

W. Va. Code R. § 47-61-7 Fees

Each application for a certificate must be submitted with a check or money order made payable to the Department of Environmental Protection, Office of Water Resources in the amount of $3,000.00.

47CSR61

47CSR61

Series 63 Aboveground Storage Tanks

W. Va. Code R. § 47-63-1 General

1.1. Scope. -- This legislative rule governs the registration, construction, installation, upgrading, use, inspection, maintenance, testing, and closure of aboveground storage tanks in this State.

1.2. Authority. -- W. Va. Code § 22-30-23

1.3. Filing Date. -- June 27, 2016

1.4. Effective Date. – August 1, 2016

1.5. Applicability –

1.5.a. The following are excluded from the requirements of this Rule because the Secretary has determined that they are tanks that do not represent a substantial threat of contamination or because they are equipment whose storage of substances is incidental to their predominant usage as equipment:

1.5.a.1. Surface impoundments, pits, ponds, lagoons, septic tanks, in ground sumps, or home aeration systems;

1.5.a.2. Heating and cooling equipment;

1.5.a.3. Equipment or machinery containing substances for operational purposes, such as hydraulic lifts and lubricating oil reservoirs for pumps and motors;

1.5.a.4. Tanks containing blasting agents or explosives as defined in 199 CSR1; and

1.5.a.5. Aboveground storage tanks that contain water treatment chemicals used for maintaining compliance with NPDES permit effluent limits in treatment systems that are located at facilities subject to either Groundwater Protection Rules for Coal Mining Operations (38 CSR 2F) or a Coal Mining NPDES permit issued pursuant to 47 CSR 30 are not Level 1 tanks for the purpose of this rule unless the tank is located within a zone of critical concern. 1.5.b If necessary to protect public health or the environment, the Secretary may designate a change in the level assigned for an AST system.

1.5.c. Nonoperational tanks are subject only to Section 3 (Registration), Section 5.6 (Labeling and Signage Requirements), and Section 11.1 (Nonoperational ASTs) of this Rule because by definition these tanks are empty and will not receive or dispense substances after June 12, 2015.

1.5.d. Storage tanks located in an underground area (such as a basement, vault or cellar) are aboveground storage tanks if the tanks are situated upon or above the surface of the floor. Storage tanks located in underground mines are not aboveground storage tanks. 1.6 Reference Standards -- The industry standards developed by the organizations listed below serve, in part, as the basis for the standards enacted under this Rule.

1.6.a. American National Standards Institute (ANSI), 1819 L Street, NW, 6th Floor, Washington, DC 20036

1.6.b. American Petroleum Institute (API), 1220 L Street, N.W., Washington, D.C. 20005

1.6.c. American Society of Mechanical Engineers (ASME), ASME International Three Park Avenue, New York, NY 10016-5990

1.6.d. American Society for Non-destructive Testing (ASNT), 1711 Arlington Lane, Columbus, Ohio 43228-0518

1.6.e. American Society for Testing and Materials (ASTM), 100 Barr Harbor Drive, West Conshohocken, Pennsylvania 19429-2959

1.6.f. Fiberglass Tank and Pipe Institute, 14323 Heatherfield, Houston, Texas 77079-7404

1.6.g. National Association of Corrosion Engineers (NACE), P. O. Box 218340, Houston, Texas 77218

1.6.h. National Fire Protection Association (NFPA), Batterymarch Park, Quincy, MA 02269

1.6.i. Petroleum Equipment Institute, P. O. Box 2380, Tulsa, OK 74101-2380

1.6.j. Steel Tank Institute (STI), 570 Oakwood Road, Lake Zurich, Illinois 60047

1.6.k. Underwriters Laboratories (UL), 333 Pfingsten Road, Northbrook, Illinois 60062

1.6.l. In this Rule, all referenced standards mean the most recent edition or version.

1.6.m. Where there is an irreconcilable conflict between the manufacturer’s recommendation, a standard or recommendation published by an industry or professional organization, and a requirement in this Rule, this Rule applies, unless the Secretary otherwise approves.

W. Va. Code R. § 47-63-2 Definitions

2.1. Unless the context in which used clearly requires a different meaning, the definitions contained in W. Va. Code § 22-30-3 apply to this Rule, in addition to those definitions set forth below:

2.2. “Aboveground storage tank system” means an aboveground storage tank as defined by W. Va. Code § 22-30-3(1), its piping, and all its ancillary equipment, including dispensing systems, spill containment devices, overfill protection devices, secondary containment systems, and any associated release detection equipment, up to the first point of isolation.

2.3. “Ancillary equipment” means electrical, vapor recovery, access or other systems and devices, including, but not limited to: piping, fittings, flanges, sumps, valves, and pumps used to distribute, meter, monitor or control the flow of fluids to or from a storage tank system.

2.4. “Cathodic protection” means a technique that prevents corrosion of a metal surface by converting all the anodic (active) sites on the metal surface to cathodic (passive) sites by supplying electrical current (or free electrons) from an alternate source.

2.5. “Cathodic protection tester” means a person who can demonstrate an understanding of the principles and measurements of common types of cathodic protection systems as applied to metal piping and tank systems. At a minimum, the person shall have education and experience in soil resistivity, stray current, structure to soil potential, and component electrical isolation measurements of buried metal piping and tank systems.

2.6. "Certified API Inspector" means an individual who holds a current certification by the American Petroleum Institute (API) under the terms of the API 653 or API 570 certification programs to perform aboveground storage tank inspections and piping, respectively.

2.7. "Certified STI Inspector" means an individual who holds a current certification by the Steel Tank Institute (STI) under the terms of the STI certification program to perform Shop-Fabricated aboveground storage tank inspections.

2.8. “Certifying person” means a person who may sign the annual inspection certification pursuant to Section 5.2 of this Rule.

2.9. "Change in service" means any change to a registered aboveground storage tank to include, but not be limited to, substantive change in contents, relocation, or permanent closure.

2.10. “Combustible Liquid” means any liquid that has a closed cup flash point at or above 100 degrees Fahrenheit and below 200 degrees Fahrenheit as determined by test procedures such as ASTM D 56, ASTM D 93, ASTM D 3278, ASTM D 3828 or SW-846 Method 1010.

2.11. “Compartment tank” means a single tank that has multiple sections that can contain different substances or separate volumes of the same substance.

2.12. “Compatible or compatibility” means the ability of two or more substances to maintain their respective physical and chemical properties upon contact with one another for the design life of the AST system under conditions likely to be encountered in the AST system.

2.13. “Confirmed release” means verification that a substance has been discharged from the AST system components into the waters of the State or has escaped from secondary containment.

2.14. “Corrosion expert” means a person who, by reason of thorough knowledge of the physical sciences and the principles of engineering and mathematics acquired by a professional education and related practical experience, is qualified to engage in the practice of corrosion control on metal piping systems and metal tanks. This person shall be accredited or certified as being qualified by the National Association of Corrosion Engineers.

2.15. “Corrosion protection” means the protection of metal from deterioration due to corrosion. The deterioration may be due to a natural electrochemical reaction between the metal and the soil or other electrolyte or because of stray direct currents.

2.16. “Currently in use (CIU)” means that the AST is operational and is storing fluids or receiving or dispensing fluids on a routine or periodic basis.

2.17. “Department” means the West Virginia Department of Environmental Protection.

2.18. “Dispenser system” means equipment located aboveground that meters the amount of fluids transferred to a point of use outside the AST system, such as a motor vehicle. This system includes the equipment necessary to connect the dispenser to the aboveground storage tank system.

2.19. “Discovery” means either actual knowledge or knowledge of facts that could reasonably lead to actual knowledge of the existence of an incident, spill, release, discharge or an unmaintained aboveground storage tank system or secondary containment structure.

2.20. “Emergency venting” means a tank opening designed to relieve excess pressure caused by fire exposure to the outside of a tank.

2.21. “Empty” means an AST in which all materials have been removed using commonly employed practices such that no more than 2.5 centimeters (one inch) of residue, or 0.3 percent by weight of the total capacity of the AST system remain in the system, but in no case will an AST containing 1,320 gallons or more of fluids be considered empty.

2.22. “Existing AST” means a tank for which physical installation began on or before the effective date of this rule.

2.23. “Facility” means a site that currently contains, is expected to contain, or that has contained an AST system that is situated on the same or geographically contiguous property as the AST system, that is under the same ownership or control, and that may be divided by a public or private right-of-way or an easement. However, oil or gas entities with multiple tanks at various locations may consider their or their operator’s company office or laydown yard as their facility location for purposes of AST registration and financial responsibility requirements set forth in section 12 of this Rule.

2.24. “Field-erected storage tank” means an AST that is constructed by assembling it at the facility.

2.25. “Flammable Liquid” means any liquid that has a closed cup flash point below 100 degrees Fahrenheit as determined by test procedures such as ASTM D 56, ASTM D 93, ASTM D 3278, ASTM D 3828, or SW-846 Method 1010 and a Reid vapor pressure that does not exceed an absolute pressure of 40 pounds per square inch at 100 degrees Fahrenheit as determined by ASTM D 323.

2.26. “Imminent threat of failure or threatened release” means a condition that creates a substantial probability of harm from a potential discharge from the AST system, requiring immediate action to prevent, reduce or mitigate the actual or potential damages to public health or the environment.

2.27. “Impermeable or impervious” means a material of sufficient thickness, density, and composition that it is impenetrable or has a permeability that will prevent the discharge to the lands or waters of the State of any fluid for a period of at least as long as the maximum anticipated time during which the fluid will be in contact with the material.

2.28. “Impressed current system” means direct current supplied to a cathodic protection system.

2.29. “In contact with the soil or an electrolyte” means any portion of the AST system that physically touches the soil or any electrolyte such as water or which is not in direct contact with the soil or electrolyte and is separated from the soil or electrolyte only by a casing, wrapping or other material that is not waterproof.

2.30. “Internal lining” means a material that is applied internally to an AST to protect the tank from internal corrosion or to meet compatibility requirements.

2.31. “Install” means activities to construct, reconstruct, erect or put into service a storage tank, a storage tank system or storage tank facility.

2.32. “Interstice” means, in a double-walled AST, the space between the primary tank and secondary tank; in a double bottomed AST, it means the space or void between the two bottoms; in double wall piping, it means the space between the inner and outer pipes. This space may be open or closed to the atmosphere and may be monitored or tested by vacuum or leak detection equipment or by visual inspection.

2.33. “Interstitial monitoring” means an electronic, visual or manual release detection method that is used in double walled or double bottom tanks or piping to determine the presence of fluids outside of the primary containment and within the interstice.

2.34. “Location, service location or site” means a facility as defined in Section 2.23 of this Rule.

2.35. “Leak detection” means electronic, visual, manual or mechanical measurement of the contents or other characteristics or parameters of an AST that notifies the owner or operator that the contents are not being contained within the AST system and that a release may have occurred.

2.36. “Maintenance” means the normal operational upkeep to prevent an aboveground storage tank system or secondary containment structure from releasing fluids in an uncontrolled manner.

2.37. “Manifolded tanks” means two or more tanks connected by piping that collectively contain a similar type of substances and are operated as one tank without a first point of isolation between the tanks. The total capacity of manifolded tanks shall be calculated and utilized to determine if the AST is subject to registration or meets the capacity requirements to be considered a Level 1 AST.

2.38. “Major modification” means an activity to upgrade, repair, refurbish or restore all or any part of an existing AST system, which alters the original design of the AST system and may affect the structural integrity of that storage tank system.

2.39. “Mobile tank” means an AST that is designed and constructed to be moved to different service locations, and its relocation is inherent in its use. An AST is not considered mobile if the AST is field erected at the site. A mobile tank is not a regulated AST unless it has been in one location for three hundred sixty five (365) days.

2.40. “New AST” means a tank for which physical installation began on or after the effective date of this Rule.

2.41. “Nonaqueous phase liquid (NAPL)” means a liquid that does not mix easily with water.

2.42. “Normal venting” means a tank opening that is provided primarily to relieve excess pressure caused by liquid filling a tank and to relieve vacuum that results from liquid being removed from a tank. Normal venting also allows equalization of interior and exterior pressures associated with atmospheric temperature and pressure changes.

2.43. “Operational life” means the period beginning when installation of the tank system has commenced until the time the tank system is closed in accordance with Section 11.34.

2.44. “Operational status” means the working condition of the AST such as currently in use, nonoperational or permanently out of service.

2.45. “Overfill” means a release that occurs when a tank is filled beyond its capacity, resulting in a discharge of a fluid from an AST to the environment.

2.46. “Permanent closure” means the AST is empty, cleaned of all materials and residues, and rendered incapable of holding fluid. Tanks that undergo permanent closure are no longer ASTs as defined by the Act.

2.47. “Permanently out of service (POS)” means an AST that has undergone permanent closure. POS AST systems are no longer subject to the provisions of this Rule.

2.48. “Petroleum” means crude oil or refined hydrocarbons derived from crude oil such as motor fuels, jet fuels, distillate fuel oils, residual fuel oils, lubricants, used oils, and natural gas condensate.

2.49. “Pipe” or “Piping” means a hollow cylinder or tubular conveyance through which fluids flow. It must be constructed of non-earthen materials and in accordance with NFPA, API, STI, UL or other nationally recognized piping standards for storage tanks.

2.50. “Professional engineer” means a person who has been duly registered or licensed as a professional engineer by the West Virginia Board of Registration for Professional Engineers, as set forth in W. Va. Code § 30-13-1, et seq.

2.51. “Qualified” means someone who, by training or education, is knowledgeable and experienced in AST design, construction and installation, maintenance of corrosion detection equipment, and release prevention and detection equipment, including secondary containment structures.

2.52. “Reconstruction” means the work necessary to reassemble a storage tank that has been dismantled and reassembled at the site or at a new site.

2.53. “Release detection” means the determination, through a method or combination of methods, whether an accidental release of fluids has occurred from an aboveground storage tank system into a secondary containment structure, into the interstitial space between the primary tank or piping for a double walled tank or piping system or into the environment.

2.54. “Release prevention barrier” means a barricade such as steel bottoms, synthetic materials, clay liners or concrete pads placed in the bottom of or under a tank, which has the function of preventing the escape of released material and channeling the released material for leak detection.

2.55. “Repair” means to restore a tank, pipe, spill prevention equipment, overfill prevention equipment, corrosion protection equipment, release detection equipment or other AST system component that has caused a release or a suspected release of a product from the AST system, has failed to function properly or is damaged or deteriorated.

2.56. “Risk based inspection (RBI)” means an alternative method to performing internal inspections on a set schedule by requiring a systematic evaluation of both the likelihood of failure and the associated consequences of failure in order to determine a tank specific schedule for internal inspection. RBIs must adhere to the requirements set forth in API 653 and API RP 580.

2.57. “Sacrificial anode system” means a system to control corrosion of a metal surface, which entails installing an electrode of an electrochemical cell that will oxidize preferentially to the metal surface that has been made the cathode of the electrochemical cell.

2.58. “Secretary” means the Cabinet Secretary of the Department of Environmental Protection or his or her designee.

2.59. “Shop-fabricated storage tank” means an AST that is constructed at the tank manufacturer’s plant and transported wholly to the facility for installation.

2.60. “Standard temperature and pressure” means a temperature of sixty-eight degrees Fahrenheit (68°F) and an absolute pressure of 1.0 atmosphere.

2.61. “Sufficient freeboard” means adequate additional capacity required for the secondary containment structure to contain the full capacity of the largest tank within the structure plus precipitation if it can collect in the structure. The owner or operator is responsible for ensuring that secondary containment structures have capacity to contain the contents of the largest tank, assumed to be full, within the secondary containment structure, plus sufficient additional capacity for precipitation events as determined in accordance with subdivision 10.2.i. of this Rule.

2.62. “Sufficiently impervious” means a material or structure of enough thickness, density, and composition that it will prevent the discharge of fluids to the lands or waters of the State for a period of time sufficient to allow removal and disposal of the discharged material, but in no case would that time be less than seventy-two (72) hours.

2.63. “Suspected or threatened release” means a potential exists that an unplanned or unintentional discharge of substance from the AST system may have occurred or, based upon information obtained from any source, may occur, such as substance from the AST observed in the secondary containment structure, testing, sampling, monitoring results from a release detection method or observed unusual operating conditions of an AST system.

2.64. “Underground vault” means a structure that is beneath the surface of the ground and is designed specifically to contain an aboveground storage tank. A basement is not considered a vault.

2.65. “Underground area” means an underground room, such as a basement, cellar or vault that provides enough space for physical inspection of the exterior of a tank situated on or above the surface of the floor.

2.66. “Upgrade” means the addition or retrofit of systems that may include, but may not be limited to, cathodic protection, lining or spill and overfill controls to meet a higher, new or current standard and improve the ability of an aboveground storage tank system to prevent the release of fluids.

2.67. “Unusual operating conditions” means conditions not normal in the operation of the AST system, such as the erratic behavior of product dispensing equipment, the sudden loss of product from the AST system, discovery of holes in a storage tank or its piping or the unexplained presence of water in the tank.

2.68. “Vault” means a structure that completely encloses the tank and must be constructed of materials compatible with the fluids to be contained in the AST.

W. Va. Code R. § 47-63-3 Registration

3.1. Registration Requirements. – Every owner of an aboveground storage tank shall register each AST located in West Virginia, regardless of its operational state, except that permanently out of service tanks are not required to be registered.

3.1.a. For compartment tanks, the total capacity of all compartments shall be calculated and utilized to determine whether the tank meets the size requirement (1,320 or more gallons of liquid) necessary to qualify as a regulated AST pursuant to the Act and this Rule.

3.1.b. For manifolded tanks, the total capacity of the manifolded tanks shall be calculated and utilized to determine whether the tank meets the requirements (1,320 or more gallons of liquid) necessary to qualify as a regulated AST pursuant to the Act and this Rule, and whether it meets the capacity requirements to be a Level 1 AST. For registration purposes, manifolded tanks will be treated as compartment tanks.

3.1.c. All aboveground storage tanks placed into service on or after July 1, 2015 shall be registered prior to being placed into active service.

3.1.c.1. On and after July 1, 2015, it shall be unlawful for any owner or operator to operate, use or store substances in an aboveground storage tank that has not been properly registered or for which any applicable registration fee has not been paid.

3.1.c.2. Tank owners shall register each aboveground storage tank with the Secretary, except as specifically excluded by this Rule, on a form and in a manner provided by the Secretary, within thirty (30) days after installation or acquisition of an ownership interest in the storage tank.

3.1.d. Tank owners shall submit an amended registration form to the Secretary within thirty (30) days of a change in the previously submitted information, except for a registration form to amend registration for change in the substance stored in the tank or relocation of a tank to a zone of critical concern, in which case the amended registration must be submitted within three (3) days. Amended registrations shall be made for the following:

3.1.d.1. Removal or relocation of a storage tank to a new facility;

3.1.d.2. Change in operating status of the AST.

3.1.d.3. Change in use of a storage tank to or from the statutory definition of an AST, i.e. changing the container’s use from being a storage tank to being a process vessel.

3.1.d.4. Change in substance or substances stored in the tank. Changes in formulations (such as changing grades of gasoline, seasonal variations in formulations, minor fluctuations in concentrations, etc.) that would not substantially change the response actions for releases would not be considered a change in substance.

3.1.d.5. Change of ownership or change of operator.

3.1.d.6. Change of contact, mailing address or telephone number.

3.1.e. The Secretary may require submission of supporting documentation as necessary to confirm or clarify registration information as part of the registration process.

3.1.f. Any change in the corporate or business structure of the aboveground storage tank owner which affects the legal name of the tank owner requires notification to the Secretary.

3.2. Owners of regulated mobile tanks are required to modify their registrations when the tank is moved from one facility to another facility in accordance with subdivision 3.1.d.

3.3. Owners may register multiple aboveground storage tanks at a single facility using one aboveground storage tank registration process prescribed by the Secretary, but owners of aboveground storage tanks located at more than one facility shall complete a separate aboveground storage tank registration form for each facility.

3.4. Owners of regulated mobile tanks that are being relocated from one facility to another shall modify the registration of the moved tank to reflect the tank’s new location and contents if the contents of the tank have changed. Owners of tanks that were once mobile but are being installed as stationary at a facility must comply with the requirements of this subsection.

3.5. Notification of Closure. – An owner of a regulated AST or AST system who closes a tank shall submit to the Secretary an AST closure form at least thirty (30) days prior to beginning the permanent closure. The owner must adhere to the requirements for permanent closure as specified in subsection 11.3 of this Rule and as provided in permanent closure guidance documents developed by the Secretary. The thirty (30) day time period may be waived when the action is in response to a release from an existing aboveground storage tank or AST system on the site or at the discretion of the Secretary for good cause shown.

3.6. If an AST is transferred from one owner to another owner, the new owner shall register the AST no later than thirty (30) days after transfer of ownership and provide proof of financial responsibility in accordance with Section 12 of this Rule.

W. Va. Code R. § 47-63-4 AST Certificates to Operate and Permits/Plans

4.1.a. The owner’s registration form shall also serve as a basis for an AST Certificate to Operate application for Level 1 and Level 2 ASTs. An AST Certificate to Operate will be issued only for Level 1 and Level 2 regulated ASTs. 4.1.a.1 An AST Certificate to Operate may be issued solely on the basis of the registration form, if the Secretary determines that sufficient information to issue the Certificate to Operate is contained within the registration.

4.1.a.2. The Secretary may request supplemental information as needed in order to issue an AST Certificate to Operate.

4.1.b. Failure to register a tank, failure to obtain a Certificate to Operate or revocation of a Certificate to Operate does not relieve a tank owner or operator from the obligation to fully comply with all applicable requirements of the AST Act and its Rules.

4.1.c. AST Certificates to Operate will be renewed automatically on an annual basis concurrent with the payment of tank fees as established in the Aboveground Storage Tank Fee Assessment Rule, provided that:

4.1.c.1. Tank fees are paid in a timely manner as established in the Aboveground Storage Tank Fee Assessment Rule.

4.1.c.2. The owner or operator maintains financial responsibility for the regulated AST system in accordance with the requirements of Section 12 of this Rule.

4.1.c.3. The owner or operator continues to comply with the requirements of the AST Act and all Rules promulgated thereunder. 4.2 Amendment of Site Specific Permits or Plans to Incorporate AST Requirements

4.2.a. For those entities subject to site-specific permits and plans, the Secretary may amend those permits or plans to include conditions pertaining to the management and control of regulated tanks. Until such time that these permits or plans are amended and finalized, all requirements of the AST Act and its Rules are applicable. A site-specific permit or plan may be amended provided that:

4.2.a.1. The permittee is the tank owner or operator;

4.2.a.2. The permittee provides a written request to the Secretary for modification of its plan or permit, which includes, at a minimum, the following:

4.2.a.2.A. Detailed information concerning spill prevention and response, as well as the AST’s and secondary containment structure’s operation, inspection, integrity, and maintenance;

4.2.a.2.B. A statement indicating which industry standards (including but not limited to API 653 Standards for Tank Inspection, Repair, Alteration and Reconstruction) will be followed. AST owners and operators are required to comply with all industry standards identified as applicable.

4.2.a.2.C. Identification of the first point of isolation for each regulated AST, including identification of the associated ancillary equipment for each AST that is located prior to the first point of isolation;

4.2.b. Tank owners or operators who choose to include conditions pertaining to the management and control of regulated tanks in site specific permits or plans shall complete inspections as set forth in subsection 5.2 of this rule.

4.2.c. If for any reason a site-specific permit that contains AST modifications is suspended, revoked or not re-issued by the Secretary, the owner or operator of the AST shall be subject to the AST Act and all associated rules in their entirety. 4.3 Siting Requirements for New Regulated ASTs

4.3.a. New regulated ASTs storing flammable or combustible liquids must be positioned to meet all applicable setback and distance from buildings required by the local jurisdiction and the State Fire Marshal’s office for flammable and combustible substances.

4.3.b. To allow for proper inspection, new regulated ASTs that are using visual methods alone for leak detection must have a minimum spacing of not less than three (3) feet between tanks and between tanks and dike or vault walls, or a substantially unobstructed view to determine leakage. Mobile tanks are not subject to the minimum spacing requirement for new ASTs.

W. Va. Code R. § 47-63-5 Operation and Maintenance Requirements. 5.1 Routine Maintenance Inspections – The owner or operator shall establish and implement routine inspections of conditions at each storage tank facility with regulated ASTs

5.1.a. Secondary Containment Structure Inspections. – The owner or operator shall ensure that visual inspections of the secondary containment area are performed, at a minimum, once every fourteen (14) days for Level 1 AST systems and, at a minimum, at the time of the monthly check required in Section 5.1.b. of this Rule for Level 2 AST systems. The visual inspection may be accomplished by or supplemented with electronic surveillance and shall include:

5.1.a.1. A check of the facility to ensure that no potential hazardous environmental conditions exist associated with the regulated AST system, such as a check for evidence of an obvious release, spill, overflow or leakage from the regulated AST system, including any ancillary regulated equipment;

5.1.a.2. A check for signs of deterioration, discharges or accumulation of liquid substances, including water, inside the secondary containment area and confirmation that containment drain valves are secured in a closed position when not in use;

5.1.a.3. If water accumulation within the secondary containment results in the capacity of the containment being reduced by ten percent (10%) or more, the accumulated water shall be drained off and disposed of in accordance with applicable State and Federal requirements;

5.1.a.4. The inspection of the secondary containment structure shall be documented by the individual who conducted it and records maintained for a minimum of twelve (12) continuous months for review upon request by the Secretary.

5.1.b. Monthly AST Visual Inspection. – An owner or operator shall ensure that a maintenance check of the regulated AST and ancillary equipment up to the first point of isolation is performed each month for Level 1 and Level 2 AST systems. The monthly maintenance check shall include: 5.1.b.1 Monitoring of the leak detection method for each regulated AST and regulated piping up to the first point of isolation at least once per calendar month in accordance with the requirements of subsection 10.3 of this rule.

5.1.b.2. A visual inspection of the tank system exterior surfaces for deterioration and maintenance deficiencies, including a visual check for cracks, areas of wear, distortion, corrosion, settlement, and deterioration of the foundation and supports; the condition of external coatings and paints; and the condition of insulation, if present.

5.1.b.3. Ancillary equipment and appurtenances up to the first point of isolation shall be visually checked for leaks, operational malfunctions, and signs of deterioration.

5.1.b.4. A check of overfill prevention equipment.

5.1.b.5. The monthly maintenance check shall be documented by the individual who conducted the check and records maintained for a minimum of twelve (12) continuous months for review upon request by the Secretary.

5.1.b.6. The owner or operator shall ensure that the results of the monthly routine checks are monitored and reviewed to ensure that any needed repairs can be made in a timely manner.

5.1.b.6.A. The owner or operator shall ensure that any changes to the regulated AST system noted in the monthly inspection that could negatively affect AST system integrity are further assessed by a qualified Professional Engineer, API or STI certified inspector, or by a person holding certification under another program approved by the Secretary as soon as is practical, but in no case more than thirty (30) days from the inspection.

5.1.b.6.B. The owner or operator shall ensure that malfunctioning equipment and appurtenances are repaired, replaced, or removed from service, immediately as possible, but in no case more than thirty (30) days from discovery that the equipment is malfunctioning, in order to prevent releases. The Secretary may specify another reasonable time period for completion of repairs.

5.1.b.6.C. The owner or operator shall ensure weakening equipment and appurtenances that pose an imminent threat of failure that could result in a release are repaired and/or replaced in a timely manner, but no longer than thirty (30) days, after discovering, or being notified by the Secretary, that the equipment is at risk for failure. The Secretary may specify another reasonable time period for completion of repairs.

5.2. Inspection Requirements.

5.2.a. Within one hundred eighty (180) days of the effective date of this Rule, owners or operators of an existing aboveground storage tank shall submit a certification that each regulated AST and its associated secondary containment structure have been evaluated by a qualified individual and meets the standards established in this Rule. The following persons are considered qualified and may inspect a regulated AST and its associated containment structure:

5.2.a.1. A qualified professional engineer as determined by the State Board of Registration for Professional Engineers; or

5.2.a.2. A qualified person working under the direct supervision of a professional engineer; or

5.2.a.3. An individual certified to perform tank inspections by the American Petroleum Institute or the Steel Tank Institute; or

5.2.a.4. A person holding certification under another program approved by the Secretary.

5.2.b. Any person who performs a tank evaluation in accordance with subdivision 5.2.a or a responsible person designated by the owner or operator may certify the regulated AST and secondary containment system; however, the AST owner or operator is responsible for the inspection and subsequent certification submittals. Every owner or operator shall submit, on a form and in a manner prescribed by the Secretary, a certification attesting to the condition of each AST system within one hundred eighty (180) days of the effective date of this Rule, and on or before January 1, 2018 and then on or before January 1 of each year thereafter.

5.2.b.1. For Level 1 AST systems subject to this Rule, the initial inspection under this Rule and subsequent inspections every third year thereafter shall be conducted by a person listed in paragraphs 5.2.a.1 through 5.2.a.4 above, except that any Level 1 AST properly inspected and certified pursuant to the Interpretive Rule (47 CSR 62) will be considered to have met the initial inspection criteria under this Rule.

5.2.b.2. For Level 2 AST systems subject to this Rule, the initial inspection under this Rule and subsequent inspections every fifth year thereafter shall be conducted by a person listed in paragraphs 5.2.a.1 through 5.2.a.4 above, except that any Level 2 AST properly inspected and certified pursuant to the Interpretive Rule (47 CSR 62) will be considered to have met the initial inspection criteria under this Rule.

5.2.b.3. For both Level 1 and Level 2 AST systems subject to this Rule, the tank owner or operator shall certify annual inspections in intervening years between the inspections described in paragraphs 5.2.b.1 and 5.2.b.2. The owner or operator conducting his or her inspection certification is not required to certify tank integrity, but must certify whether or not any obvious change occurred to the AST System in intervening years between certifications performed by a PE, API or STI certified inspector or inspections by a person holding certification under another program approved by the Secretary. 5.2.b.4 The certification form shall be submitted to the Secretary within one hundred eighty (180) days of the effective date of this Rule, and on or before January 1, 2018 and then on or before January 1 of each year thereafter for each duly registered regulated AST system.

5.2.b.5. The tank owner, operator, or a qualified representative of the tank owner or operator may perform inspections on tanks in intervening years between inspections by individuals listed in paragraphs 5.2.a.1 through 5.2.a.4. provided that the individual performing the inspection is qualified to perform tank inspections.

5.2.b.5.A. A Fit for Service certification form shall be completed and signed by the applicable certifying person when it is determined that the regulated AST system meets the minimum standards established by this Rule.

5.2.b.5.B. The certifying person shall document in writing any deficiencies found during the inspection of the regulated AST system and provide recommendations, including a proposed schedule, for abating the deficiencies. This documentation shall be attached to and submitted with the Fit for Service certification form.

5.2.b.5.C. A Not Fit for Service certification form shall be completed and signed by the certifying person when it is determined that the regulated AST system does not meet the minimum integrity standards established by this Rule. 5.2.b.5.D The certifying person shall document in writing any deficiencies found during the inspection of the regulated AST system and provide recommendations, including a proposed schedule for abating the deficiencies and including requirements for repairs, replacement or permanent removal from service of the AST, AST system or secondary containment system, until the tank or secondary containment is made fit for continued service. This documentation shall be attached to and submitted with the certification form.

5.2.b.5.E. No regulated AST that was determined to be Not Fit for Service may be returned to service until it has been certified by a Professional Engineer, an API certified inspector or a STI certified inspector as Fit for Service.

5.2.c. In certifying a regulated AST system, the certifying person shall, at a minimum, review all of the following items for each AST system:

5.2.c.1. AST design (determination that the AST meets design standards);

5.2.c.2. AST construction and installation, including but not limited to, assessments of foundation and compatibility of AST system with materials stored in the AST;

5.2.c.3. General maintenance of the AST system to include examination of the tank system exterior surfaces for signs of potential deterioration or degradation, such as flaws, areas of wear, corrosion, distortion, physical damage, discoloration, cracking, spidering, ultraviolet degradation or other conditions that might adversely affect structural integrity and checks of normal and emergency vents, where applicable, to ensure they are operating and free of restrictions;

5.2.c.4. Results of a leak test, internal inspection, ultrasonic test, or other tank integrity tests or examinations used to determine the suitability of the tank for continued use;

5.2.c.5. Corrosion Protection and Maintenance. – Existing and past corrosion protection measures taken to protect the integrity of the regulated AST system over its lifetime including, as applicable, assessment of the galvanic or impressed current systems, external coatings or liners;

5.2.c.6. Release detection method and procedures;

5.2.c.7. Release prevention methods and procedures;

5.2.c.8. Secondary containment structure and design assessment to ensure that the structure meets capacity requirements, including sufficient freeboard for precipitation events; the structure is compatible with the material that may be released into it; and determination of structural integrity or soundness; and

5.2.c.9. Record keeping for the leak detection system, corrosion protection system, and general operation and maintenance, including upgrades and repairs to the regulated AST system that could affect structural integrity.

5.2.d. A certifying person shall not certify a regulated AST system without having direct knowledge of the AST system inspection and records review, as applicable, or having made inquiry of those individuals immediately responsible for obtaining the information.

5.2.e. The owner or operator must immediately remove from service any regulated AST system or secondary containment structure that has been certified as Not Fit for Service. The tank owner or operator may request a waiver from the Secretary for good cause shown.

5.2.f. The AST owner or operator is responsible for the regulated AST System inspection and certification submitted on their behalf by others. 5.3 Internal Inspection Requirements. 5.3.a Formal internal inspection of regulated ASTs installed prior to June 12, 2015 shall be performed in general accordance with requirements of STI SP001 or API 653, as applicable to the AST being inspected, and at a minimum shall include evaluation of the following:

5.3.a.1. Tank bottom integrity;

5.3.a.2. Shell thickness;

5.3.a.3. Weld or seam integrity;

5.3.a.4. Condition of liner, if present; and

5.3.a.5. Overall fitness for service of the AST.

5.3.b. Formal internal inspections for new regulated ASTs subject to this Rule shall be performed at the following intervals:

5.3.b.1. The interval from when a tank is first placed into use to hold a liquid substance until the first internal inspection shall not exceed twenty (20) years for tanks without a Release Prevention Barrier or thirty (30) years with a Release Prevention Barrier; except ASTs of 30,000 gallons or less capacity are not required to have an internal inspection, provided that the AST remains compliant with subsections 10.1. (Spill and Overfill Protection) and 10.3. (Leak Detection).

5.3.b.2. Subsequent internal inspections required under paragraph 5.3.b.1 shall be performed, at a minimum, every twenty (20) years for tanks without a Release Prevention Barrier or thirty (30) years with a Release Prevention Barrier, unless findings from an inspection reveal that corrosion, deterioration or other specific conditions necessitate a more frequent internal inspection.

5.3.c. As an alternative to the aforementioned intervals for internal inspections, an owner or operator may choose to establish an initial or subsequent internal inspection schedule using the Risk Based Inspection (RBI) assessment methodology in API 653 and API RP 580. 5.3.c.1 The RBI assessment shall be performed by a person or persons who have inspection and engineering expertise and are knowledgeable in the proper application of API RP 580 principles, tank design, construction, and modes of deterioration.

5.3.c.2. An RBI assessment must be tank specific.

5.3.c.3. A person or persons having inspection and engineering expertise must determine the appropriateness of RBI assessments for the tank based upon the level of tank information available. The RBI assessment methodology may not be appropriate if a number of the “likelihood factors” and “consequence factors” described in API 653 and API RP 580 are unknown.

5.3.d. When an internal inspection is due for a regulated AST, it should be scheduled by the tank owner or operator to coincide with the annual inspection required by subsection 5.2 of this Rule in order to collect the maximum amount of data for determining fitness for service of the AST.

5.3.d.1. An internal inspection must be certified by a Professional Engineer, an API certified inspector, a STI certified inspector or by a person holding certification under another program approved by the secretary.

5.3.e. For an existing AST, if an internal inspection of the regulated AST has been conducted in accordance with the schedule recommended by its manufacturer or the American Petroleum Institute or Steel Tank Institute before the effective date of this rule, the internal inspection is acceptable, provided that:

5.3.e.1. The inspection, at a minimum, addresses the required items for assessment from subdivision 5.3.a; and

5.3.e.2. The last internal inspection was performed within the last thirty (30) years of the effective date of this Rule or an alternative time period that was previously determined through a RBI performed in accordance with API 653 and API 580.

5.3.e.3. The internal inspection is reviewed, approved, and certified by a Professional Engineer, an API certified inspector, a STI certified inspector or by a person holding certification under another program approved by the secretary.

5.3.f. If an existing regulated AST has not had an internal inspection, an internal inspection must be performed within:

5.3.f.1. One (1) year of the effective date of the Rule for tanks that are greater than seventy-five (75) years old;

5.3.f.2. Two (2) years of the effective date of the Rule for tanks that are between fifty (50) and seventy-five (75) years old;

5.3.f.3. Three (3) years of the effective date of the Rule for tanks that are between thirty (30) and forty-nine (49) years old;

5.3.f.4. The time intervals specified in paragraph 5.3.b.1 for tanks that are less than thirty (30) years old.

5.3.g. If an internal inspection determines that a regulated AST is not fit for service in its current state, the owner or operator shall:

5.3.g.1. Immediately remove the AST from active service;

5.3.g.2. Empty the AST;

5.3.g.3. Upgrade the AST to meet or exceed the minimum requirements for AST system integrity and provide a certification that the AST has been made Fit for Service signed by a Professional Engineer, an API certified inspector, a STI certified inspector or by a person holding certification under another program approved by the secretary; or

5.3.g.4. Permanently properly close the AST.

5.4. Damaged Tanks.

5.4.a. An owner or operator shall ensure that a regulated AST system subjected to damage is evaluated by a Professional Engineer, an API certified inspector or a STI certified inspector to determine if the AST system is Fit for Service. Damage conditions include, but are not limited to the following;

5.4.a.1. Fire;

5.4.a.2. Natural disasters such as floods, derecho force winds, lighting strikes, seismic events, and tornados;

5.4.a.3. Excessive foundation settlement; 5.4.a.4 ASTs exposed to excessive internal pressure caused by overfill, failure of venting devices or other reasons;

5.4.a.5. AST systems damaged by vehicular traffic or heavy equipment; or

5.4.a.6. ASTs with evidence of cracks or cracking welds. 5.4.b After evaluation of a damaged regulated AST system, the Professional Engineer or API or STI certified inspector shall certify the tank as Fit for Service or Not Fit for Service.

5.4.b.1. The evaluation shall occur with ten (10) days of discovery of the damage for a Level 1 AST and within thirty (30) days of discovery for a Level 2 AST.

5.4.b.2. The tank owner or operator shall submit to the Secretary a copy of the certification for the damaged regulated AST system within thirty (30) days of completion of the evaluation.

5.5. Spill Prevention and Response Plan. – The owner or operator of all operational regulated ASTs shall have a written Spill Prevention Response Plan approved by the Secretary. Nonoperational tanks are not required to have a Spill Prevention Response Plan. The plan or corrections, modifications or updates to it shall be submitted in a manner prescribed by the Secretary. The plan shall be updated as required by this Rule, and a current copy of the plan shall be readily available at all times at the facility or at a central location, if the AST site is unmanned.

5.5.a. By December 9, 2015, owners or operators of an existing regulated aboveground storage tank facility shall submit a spill prevention and response plan or certification as provided in paragraph 5.5.b.1 below for all regulated ASTs, unless the plan has already been submitted pursuant to the Interpretive Rule (47CSR62). The Spill Prevention and Response Plan shall at a minimum:

5.5.a.1. Be updated no less frequently than every five (5) years for Level 1 and Level 2 AST systems. The owner or operator shall ensure that updated plans are submitted to the Secretary for review and approval in accordance with this schedule. Alternatively, the Secretary may develop a form or procedure to allow the tank owner or operator to certify that the previously approved plan was reviewed and no changes were necessary to update the plan.

5.5.a.2. Each owner or operator of a regulated aboveground storage tank with an approved Spill Prevention and Response Plan shall submit to the Secretary a revised plan or addendum within thirty (30) days if any of the following occur:

5.5.a.2.A. There is a major modification in design, construction, operation or maintenance of any regulated aboveground storage tank system or associated AST system equipment or there are other circumstances that increase the potential for fires, explosions or releases of fluids;

5.5.a.2.B. There is a major modification in emergency equipment at the facility;

5.5.a.2.C. There are substantial changes in emergency response protocols at the aboveground storage tank facility;

5.5.a.2.D. The plan fails in an emergency;

5.5.a.2.E. The removal or the addition of any regulated aboveground storage tank; or

5.5.a.2.F. Other circumstances occur about which the Secretary requests an update.

5.5.b. If the Plan is rejected, the Secretary will require modification as may be necessary and reasonable to protect human health or the environment and comply with the AST Act requirements. The owner or operator of the aboveground storage tank shall submit a revised plan in a manner prescribed by the Secretary for approval within thirty (30) days of receipt of notification of the Secretary’s decision.

5.5.b.1. In lieu of a Spill Prevention and Response Plan developed in accordance with the requirements of W. Va. Code § 22-30-9, the owner or operator of a regulated aboveground storage tank may certify to the Secretary that the AST system is subject to:

5.5.b.1.A. A groundwater protection plan approved by the Secretary; or

5.5.b.1.B. A spill prevention control and countermeasures plan that complies with the requirements of 40 C. F. R. Part 112 or 35 C.S.R. 1, Miscellaneous Water Pollution Control Rules.

5.5.b.1.C. Those plans shall be made available for review or submitted in a manner prescribed by the Secretary upon request.

5.5.b.1.D. If the tank owner or operator is seeking to have its site-specific permits or plans amended to include conditions pertaining to the management and control of regulated tanks, then the tank owner or operator must submit documentation required by subsection 4.2 of this Rule and cannot certify the plan as described in paragraph 5.5.b.1 of this Rule.

5.5.b.2. The Secretary shall conduct an administrative review to determine if the Spill Prevention Response Plan meets the requirements of the AST Act and this Rule.

5.5.b.3. For those entities subject to site-specific permits or plans which seek to have their permits or plans amended to include conditions pertaining to the management and control of regulated tanks in lieu of adhering to the AST Rule, the Secretary shall perform a technical review of the Plan to ensure that the conditions in the Plan are protective of human health and the environment and are consistent with specific permit conditions as applicable.

5.5.c. The Spill Prevention Response Plan shall specifically address the following elements, at a minimum:

5.5.c.1. Describe the activity that occurs at the site and provide an inventory of the types and amounts of fluids stored in regulated aboveground storage tanks at the facility. The plan shall provide a reference to the location of the safety data sheets (SDS) required by the Occupational Safety and Health Administration for all fluids stored in regulated aboveground storage tanks at the facility. A single plan may be submitted to address multiple tanks located at a facility.

5.5.c.2. Identify all facility-related positions with duties and responsibilities for overseeing the implementation of the facility’s plan and list all facility emergency coordinators;

5.5.c.3. Describe the preventive maintenance program, monitoring and inspection procedures, and employee training programs;

5.5.c.4. Describe the general release response procedures that the aboveground storage tank facility and contract emergency personnel shall employ upon the occurrence of any release;

5.5.c.5. Provide contact information for the State, county, and municipal emergency management agencies and the nearest downstream public water supply intake and designate the person or persons to be notified in the event of a release from a regulated aboveground storage tank that could reach waters of the State; and

5.5.c.6. Provide the Secretary with any other information that he or she may reasonably request.

5.5.c.7. For those entities subject to site-specific permits and plans who seek to have their permits or plans amended to include conditions pertaining to the management and control of regulated tanks in lieu of adhering to the AST Rule, they shall provide the specific details required in paragraph 4.2.a.2 of this Rule in their SPRP, SPCC or GPP.

5.5.d. The owner or operator of a regulated aboveground storage tank located in a zone of critical concern shall annually obtain and annually update the contact information required under paragraph 5.5.c.5 of this Rule.

5.5.d.1. The owner or operator shall ensure that the updated contact information is readily available in case of an emergency at the facility.

5.5.d.2. The update to contact information alone does not require a resubmittal of the Spill Prevention Response Plan for approval by the Secretary.

5.5.e. Nothing contained in this subsection relieves the owner or operator of an aboveground storage tank from his or her obligation to immediately report any confirmed release from an AST to the Department’s emergency notification telephone number (1.800.642.3074).

5.6. Labeling and Signage Requirements for ASTs. – The owner or operator shall ensure that all aboveground tank systems are labeled or marked in accordance with the AST Act.

5.6.a. At a minimum, the following information shall be labeled or otherwise marked on all ASTs or signs near the ASTs that have not undergone permanent closure:

5.6.a.1. Tank registration number;

5.6.a.2. Owner or operator emergency contact number; and

5.6.a.3. DEP Spill Reporting Hotline number (1.800.642.3074).

5.6.b. Tank labels or markings shall be placed at least three feet above ground level, clearly visible and legible from a public roadway, public right-of-way or from outside the containment area. The requirements for AST signage are:

5.6.b.1. Letter size shall be at least one and one-half inches (1½”). Larger letter size is permissible in order for the information to be legible at a distance.

5.6.b.2. High contrast colors must be used.

5.6.b.3. Signs, if used, must be at least 18 inches by twenty four inches (18” x 24”).

5.6.b.4. Labels or marking shall be kept clearly visible and legible at all times.

5.6.c. The owner or operator shall be capable of readily identifying the substances transferred in the regulated piping system and be able to determine flow control points, including pumps, valves, and dispensers up to the first point of isolation through labeling or other suitable means.

5.6.d. ASTs that have undergone permanent closure and left onsite shall be labeled or marked in accordance with requirements of subdivision 5.6.b. with the date of closure and the words “Permanently Closed”.

5.7. Security Requirements for Regulated ASTs. – Owners or operators are responsible to assure that appropriate security measures and procedures based on the facility location are established and implemented to protect the environment and human health and safety. These security measures and procedures may include, but are not limited to, monitoring, fencing, lighting, access control, locked entrances, and securing of valves and dispensers.

W. Va. Code R. § 47-63-6 Reporting and Recordkeeping Requirements 6.1 Owners or operators of regulated AST systems must cooperate fully with inspections, monitoring, and testing conducted by the Secretary, as well as requests for document submission for AST testing, monitoring results, AST system records, and other AST system related documentation or information requested by the Secretary that may be needed to determine compliance with applicable requirements

6.1.a. Owners or operators must maintain, at a minimum, the following records and make them readily available to the Secretary upon request:

6.1.a.1. Proof of financial responsibility for taking corrective actions for each regulated AST system.

6.1.a.2. The current leak detection records for each regulated AST system. At a minimum, twelve (12) continuous months of leak detection records must be maintained at the facility, or an alternative location, and readily available for review.

6.1.a.3. Appropriate documentation that each regulated AST system is properly protected from corrosion. This documentation should include, but is not limited to, information on protective coatings, AST construction utilizing materials that are not subject to corrosion or cathodic protection test, as applicable.

6.1.a.4. Documentation that reasonably establishes substances currently stored in each regulated AST system are compatible with all AST system components.

6.1.a.5. Documentation that the secondary containment system has been checked as required by subdivision 5.1.a of this Rule. At a minimum, twelve (12) continuous months of checks of the secondary containment records must be maintained by the owner or operator and readily available for review.

6.1.a.6. A copy of the annual certification and associated inspection that each regulated AST system is either Fit for Service or Not Fit for Service.

6.1.a.7. Any internal inspections that are performed on the regulated AST.

6.1.a.8. Documentation of the regulated AST system repairs performed.

6.1.a.9. Original installation and modification of tank system design specifications, including applicable manufacturer’s documentation for the tank system and any regulated ancillary equipment.

6.1.a.10. Floor and wall or shell thickness measurements for regulated metallic ASTs shall be kept on file by the owner or operator for the life of the AST and shall be made available to the Secretary upon request.

6.1.a.11. All manufacturer’s instructions, performance claims, and their manner of determination described in writing by the equipment manufacturer or installer shall be retained by the owner or operator for the life of the regulated AST and made available to the Secretary upon request.

6.1.a.12. A properly completed closure report and results of the site assessment conducted at permanent closure or change-in-service, when applicable.

6.1.b. Owners or operators must maintain records and keep them available either:

6.1.b.1. At the AST facility and immediately available for inspection by the Secretary upon request; or

6.1.b.2. At a readily available alternative site and be provided for inspection to the Secretary upon request;

6.1.b.3. In the case of permanent closure records, owners or operators are also provided with the additional alternative of mailing closure records to the Secretary, if they cannot be maintained at a closed facility or an alternative site as indicated above.

6.2. Reporting of Confirmed, Threatened or Suspected Releases.

6.2.a. Upon the occurrence of a confirmed release from an aboveground storage tank system, the owner or operator shall immediately notify the county or municipal emergency management agencies in the county where the AST is located and the Department’s emergency notification telephone number (1.800.642.3074).

6.2.b. Upon the occurrence of a suspected or threatened release, owners or operators of AST systems must report the suspected or threatened release to the Department within twenty-four (24) hours, unless the owner or operator is able to determine within that time period that the suspected or threatened release was actually a false alarm. The procedures in subsection 6.3 of this Rule shall be followed for any of the following suspected or threatened release conditions:

6.2.b.1. Unusual operating conditions observed by owners or operators (such as, but not limited to, the erratic behavior of product dispensing equipment, the sudden loss of product from the regulated AST system, discovery of holes in a storage tank or piping or the unexplained presence of water in the tank), unless system equipment is found to be defective but not leaking and is immediately repaired or replaced; and

6.2.b.2. Testing, sampling, inspection or monitoring results from a release detection method which indicate a release may have occurred, unless the monitoring device is found to be defective and is immediately repaired, recalibrated or replaced and additional monitoring or testing does not confirm the initial result; and

6.2.b.3. Weakening of regulated AST system equipment (such as, but not limited to, swelling of piping, thinning of AST structural material below the minimum design standard or cracks in welds or steel plates) that pose an imminent threat of failure, unless the owner or operator takes immediate action to repair or replace the equipment or immediately remove substances from the AST system to prevent a release.

6.2.c. Immediately upon determination that a suspected or threatened release is a confirmed release, the owner or operator shall immediately report the confirmed release to the Department in accordance with subdivision 6.2.a. of this Rule and follow the procedures outlined in Section 7 of this Rule.

6.2.d. No person shall knowingly allow any unintentional release from an AST to continue without taking immediate actions to mitigate the release. Owners or operators shall take immediate action to contain any release so as to minimize the impact to human health and safety or the environment.

6.2.e. Actions to prevent a reoccurrence of a release and the actions to mitigate future releases shall be initiated immediately by the owner or operator.

6.2.f. When required by the Secretary, owners or operators of AST systems must follow the procedures in subsection 6.3 or section 7 of this Rule, as appropriate, to determine if the AST system is the source of off-site impacts. These impacts may include the discovery of substances (such as the presence of free product or vapors in soils, basements, sewer and utility lines or waters of the State) that has been observed by the Department or brought to its attention by another party.

6.3. Release Investigation and Confirmation Steps

6.3.a. After the notification required by subsection 6.2 above, unless corrective action is initiated in accordance with section 7 of this Rule, owners or operators must immediately investigate all suspected or threatened releases of substances from the AST system and provide findings to the Secretary within seven (7) days for Level 1 ASTs and within fourteen (14) days for Level 2 ASTs. An extension of the reporting period may be allowed by the Secretary for good cause shown.

6.3.b. The suspected or threatened release investigation shall include a sufficient number of the procedures outlined in this subsection and be sufficiently detailed to confirm whether a release of a substance has occurred or not. The owner or operator shall investigate and fully document the indication of a release by one or more of the following procedures:

6.3.b.1. A check of product dispensing or other similar equipment;

6.3.b.2. A check of release detection monitoring devices;

6.3.b.3. A check of inventory records to detect discrepancies;

6.3.b.4. A visual inspection of the storage tank and the area immediately surrounding the storage tank;

6.3.b.5. Testing of the storage tank for tightness or structural soundness;

6.3.b.6. Testing of the piping for tightness;

6.3.b.7. Sampling and analysis of soil, surface water or groundwater. Owners or operators shall measure for the presence of a release where contamination is most likely to be present at the AST site. In selecting sample types, sample locations, and measurement methods, the type of initial indication of contamination, type of backfill and soil, the depth of groundwater, proximity of surface water, and other factors appropriate for identifying the presence and source of the release shall be considered; or

6.3.b.8. Other investigation procedures which may be necessary to determine whether a release from the AST system has occurred.

6.3.c. If the investigation confirms that a release has occurred, the owner or operator shall immediately report the confirmed release to the Secretary and initiate corrective action.

6.3.d. If the investigation confirms that a release has not occurred, further investigation by the owner or operator is not required.

W. Va. Code R. § 47-63-7 Corrective Action 7.1 Owners and operators of ASTs must, in response to any confirmed release or threatened release from an AST, comply with the requirements of this section unless directed otherwise by the Secretary. 7.1a Secretary Authority to Assume Control of Releases 7.1.a.1 The Secretary reserves the right to assume control of any release or threatened release from an AST to address threats to human health, safety, water resources or the environment when the Secretary makes one of the findings set forth in W. Va. Code § 22-30-8(c). In such cases, all liability, including payment to the Department of response costs, will remain with the owner or operator and its guarantors in accordance with W. Va. Code §§ 22-30-8(e) and (f). 7.1.a.2 To protect human health, safety, and the environment, the Secretary reserves the right for the Department or its contractors to enter and take appropriate actions on affected properties to investigate, abate, and remediate contamination as provided in W. Va. Code § 22-30-8. 7.2 Initial Release Response Requirements

7.2.a. In response to a confirmed release from an AST, owners or operators shall promptly take the following steps to prevent or address an immediate threat to human health or the environment while at the same time initiating, as necessary, one or more of the tasks identified in subsection 7.4: 7.2.a.1 If a faulty AST component is determined to be the cause of a release, take the component or, if necessary, the entire AST system out of service and remove all substance contained in the AST or AST compartment to prevent further release to the environment. The faulty AST shall not be returned to service until the AST is certified as Fit for Service following the procedures outlined in subsection 5.2 .b-e of this rule. 7.2.a.2 Determine an estimate of the amount and type of substance released. 7.2.a.3 Identify and sample affected water supplies and water supplies with the potential to be affected in a reasonable and systematic manner, in accordance with subdivision 7.3.a. 7.2.a.4 Contain the release: 7.2.a.5 Identify, mitigate, and continue to monitor and mitigate fire, explosion, and safety hazards posed by vapors and free product. 7.2.a.6 If non-aqueous phase liquids (NAPL) are present, owners or operators shall formulate a NAPL Conceptual Site Model (NCSM) to determine the most efficient and environmentally protective remedial approach for addressing the release. NAPL shall be removed and remediated to the maximum extent practicable. 7.2.a.7 If contaminated soil exists at the site, the interim remedial action may include excavation of the soils for treatment or disposal. Soils may be stored on site temporarily, in accordance with subsection 7.6. 7.2.a.8 At sites where free product recovery, substance removal or contaminated soil excavation is performed, owners and operators must: 7.2.a.8.A Conduct recovery, removal, storage, treatment, and disposal activities in a manner that prevents the spread of contamination into previously uncontaminated areas. 7.2.a.8.B Minimize the amount of soil and subsurface material affected by a release of a substance by segregating the unaffected soil and subsurface material from the material affected by a release of a regulated substance. 7.2.a.8.C Obtain required State and local permits or approvals for treatment and disposal activities. 7.2.a.8.D Where soil and subsurface material affected by a release are removed from the site, the person removing the material shall provide a receipt documenting acceptance of the material at a permitted treatment or disposal facility to the owner or operator. In the case that the owner or operator is not the landowner, and the landowner requests a receipt, a receipt must be provided to the landowner. 7.3 Affected or Diminished Water Supplies 7.3.a Where the Secretary determines that a public water supply is affected or diminished or potentially affected or diminished due to a release from a regulated AST, sampling shall be done in cooperation and coordination with the public water supplier, the Secretary, and the West Virginia Bureau of Public Health. Where a private water supply is affected or diminished or potentially affected or diminished due to a release, sampling shall be coordinated with the private supply owner(s) and the Secretary. A copy of the sample results shall be provided to the water supplier or supply owner and the Secretary within five (5) days of receipt of the sample results from the laboratory. A water supply affected or diminished by the release shall be restored or replaced with an alternate water supply in accordance with this subsection and in coordination with the water supplier or water supply owner and the Department. 7.3.b Owners or operators who affect or diminish a water supply as a result of a release shall restore the water supply to pre-release condition or replace the affected or diminished supply with an alternate source of water adequate in quantity and quality for the purposes served by the supply at no cost to the public water supplier or owner of the affected or diminished water supply.

7.3.b.1. A temporary water supply shall be provided as soon as practicable but not later than forty-eight (48) hours after one of the following: 7.3.b.1.A The owner or operator receives information which establishes that the release has affected or diminished the water supply. 7.3.b.1.B The owner or operator is notified by the Secretary that the release has affected or diminished the water supply. 7.3.b.2 A permanent water supply shall be provided within ninety (90) days, or within an alternative timeframe as determined by the Secretary, after one of the following: 7.3.b.2.A The owner or operator receives information which establishes that the release has affected or diminished the water supply. 7.3.b.2.B The owner or operator is notified by the Secretary that the release has affected or diminished the water supply. 7.3.b.3 The total time for providing a permanent water supply may not exceed two (2) years. 7.4 Site Characterization Requirements 7.4.a Upon confirming that a release has occurred or upon notification by the Department that a release has been confirmed, unless directed otherwise by the Secretary, owners or operators shall perform site characterization to: 7.4.a.1 Determine whether additional initial response actions are necessary to abate an imminent hazard to human health or the environment. 7.4.a.2 Determine whether additional site investigation work is required upon completion of initial response actions that may have been implemented. 7.4.a.3 Provide sufficient information to allow for completion of a corrective action plan (CAP) based on the site characterization results. 7.4.b Site characterization shall include the following activities, as necessary, based on the nature, extent, type, volume or complexity of the release: 7.4.b.1 Assess the physical characteristics of the site as appropriate to the nature of the release in consultation with the Secretary. 7.4.b.2 Determine the nature of the release and extent of contamination. 7.4.b.3 Evaluate the condition of the ASTs. 7.4.b.4 Develop a conceptual site model that describes the sources of contamination, fate and transport of contaminants, and potential receptors. 7.4.b.5 Prepare and implement site-specific plans for worker health and safety; identification, management, and disposition of wastes generated; and quality assurance/quality control during site characterization activities. 7.4.c Site Characterization Report 7.4.c.1 Owners or operators shall prepare and submit to the Secretary within 120 days of reporting a confirmed release, or within an alternative timeframe as determined by the Secretary, two (2) hard copies and one (1) electronic copy of a site characterization report which describes the activities undertaken in accordance with this section. The site characterization report shall be prepared in accordance to guidance provided by the Office of Environmental Remediation and include the following: 7.4.c.1.A Site Description; 7.4.c.1.B Contaminant Information; 7.4.c.1.C AST System Information; 7.4.c.1.D Initial Response Actions Performed; 7.4.c.1.E Site Specific Plans Prepared and Implemented; 7.4.c.1.F Methods and Results of Investigation; and 7.4.c.1.G Conclusions and Recommendations. 7.4.d If owners or operators determine, after completion of initial response or interim actions, that further site characterization is not required, that soil is the only media of concern, and that these actions have remediated the site, owners or operators may submit a site characterization report to the Secretary that contains the following elements, in lieu of the elements required in subdivision 7.4.c: 7.4.d.1 A concise statement that describes the release, including information such as the amount of the substance that was released, the extent of contamination, and initial release response or interim remedial actions taken pursuant to subsection 7.2. 7.4.d.2 Data demonstrating that the initial release response or interim remedial actions have attained the standard for the site as determined based on the nature of the substance released, as well as standards as set forth in the Water Pollution Control Act, W. Va. Code § 22-11-1, et seq.; the Groundwater Protection Act, W. Va. Code § 22-12-1, et seq.; the Solid Waste Management Act, W. Va. Code § 22-15-1, et seq.; or the Hazardous Waste Management Act, W. Va. Code § 22-18-1, et seq. and the rules promulgated thereunder. 7.4.d.3 Additional information as necessary to fully describe the release, the extent of contamination, and the interim remedial actions taken to address the release. 7.4.e Following submission and review of a complete site characterization report, the Secretary may: 7.4.e.1 Approve the site characterization report as submitted; 7.4.e.2 Require additional information or clarification from the owners or operators; or 7.4.e.3 Disapprove the site characterization report, citing deficiencies, and direct, require or order the owners or operators to perform other tasks or make modifications as necessary to meet the requirements of this section of the rule. 7.4.f At any point after reviewing the information contained in the site characterization report, the Secretary may require the owners and operators to submit additional information or to develop and submit a corrective action plan to address contaminated soils, groundwater or surface water. Additional investigation information or corrective action plans requested by the Secretary shall be submitted within ninety (90) days or within an alternative time frame approved by the Secretary upon request by the owner or operator and for good cause shown. 7.4.g If data can justify site closure, owners or operators may request site closure in accordance with the requirements of subsection 7.8. Corrective action will be considered complete only upon the Secretary’s evaluation and approval of a satisfactory request that no further action be taken. 7.5 Corrective Action Plan Requirements

7.5.a. The Secretary may waive the requirement of an investigation under subsection 7.4 when owners or operators have taken the appropriate initial response steps to eliminate imminent dangers and to prevent any further release, and the owners or operators choose to submit a corrective action plan (CAP) to remediate contaminated soil, groundwater or surface water.

7.5.b. Owners or operators may, in the interest of minimizing environmental contamination and promoting more effective corrective action, begin remediation of contaminated soil, groundwater or surface water before the CAP is approved, provided that they: 7.5.b.1 Notify the Secretary of their intention to begin remediation; 7.5.b.2 Comply with any conditions imposed by the Secretary, including halting remediation or mitigating adverse consequences from cleanup activities; 7.5.b.3 Incorporate these self-initiated remediation measures in the CAP that is submitted to the Secretary for approval; and 7.5.b.4 Recognize that any actions they take without prior approval by the Secretary is at the risk of the owners or operators and do not absolve them of the obligation to comply with the corrective action requirements of this section. 7.5.c The CAP shall: 7.5.c.1 Address the contamination of soils, groundwater, and surface water; vapor intrusion concerns; all occurrences of NAPL resulting from a release; and impacts or potential impacts to water supplies. 7.5.c.2 Provide for adequate protection of human health, safety, water resources, and the environment. 7.5.c.3 Be of specific design and based on the results of the hydrogeologic investigation or contain appropriate investigatory steps if submitted without a prior hydrogeologic investigation having been completed. 7.5.c.4 Include sufficient design information to demonstrate that the remedial technology meets the cleanup goals approved by the Secretary. 7.5.d The CAP may propose a phased approach to site remediation. 7.5.e Corrective Action Plan 7.5.e.1 Owners and operators shall prepare and submit to the Secretary within ninety (90) days of the approval of a site characterization report, or within an alternative timeframe as determined by the Secretary, two (2) hard copies and one (1) electronic copy of a CAP. The CAP shall be prepared in accordance with guidance provided by the Department’s Office of Environmental Remediation, submitted in a report form, and contain the following elements, as necessary, based on the nature, extent, type, volume or complexity of the release: 7.5.e.1.A A brief summary of the site characterization report conclusions. 7.5.e.1.B A summary of past efforts and a description of any new or continued efforts to effectively remove NAPL where NAPL is present. 7.5.e.1.C Cleanup goals for the site. 7.5.e.1.D A proposed corrective action method for the site that will:

7.5.e.1.D.1. Reduce contaminant levels at the site to meet the cleanup goals proposed in the CAP and approved by the Secretary; or

7.5.e.1.D.2. Reduce contaminant levels to achieve the cleanup goals established by the Secretary. 7.5.e.1.E The results of treatability, bench scale or pilot scale studies or other data collected to support the remedial action. 7.5.e.1.F A discussion of how the remedial action will attain the remediation standard for the site. 7.5.e.1.G Design and construction details for the remedial action, including expected effectiveness. 7.5.e.1.H Operation and maintenance details for the corrective action. 7.5.e.1.I A list of required federal, State, and local permits or approvals to conduct the remedial action. 7.5.e.1.J A site map showing the location of buildings, roads, property boundaries, remedial equipment locations, and other information pertinent to the remedial action. 7.5.e.1.K A description of the media and parameters to be monitored or sampled during the remedial action. 7.5.e.1.L A description of the analytical methods to be utilized and an appropriate reference for each. 7.5.e.1.M A description of the methodology for post-remediation monitoring that will be utilized to demonstrate attainment of the remediation standard. 7.5.e.1.N A description of additional items necessary to develop the CAP. 7.5.e.1.O Copies of the site-specific plans for worker health and safety; identification, management, and disposition of wastes generated; and quality assurance/quality control during implementation of the CAP. 7.5.f The Secretary shall approve the CAP when satisfied that implementation of the CAP provides for measures considered adequate to protect human health, safety, water resources, and the environment. 7.5.f.1 Upon approval of the CAP by the Secretary, owners or operators shall implement the CAP, including any modifications to the CAP, according to the schedule contained therein. 7.5.f.1.A Owners or operators must notify the Secretary in writing of any proposed changes to the schedule. 7.5.g Corrective Action Progress Reports 7.5.g.1 During implementation of the CAP, remedial action progress reports shall be submitted to the Secretary quarterly or at an alternative interval as determined by the Secretary upon request and for good cause shown. Each corrective action progress report shall provide the data generated during the reporting period and shall show the progress to date toward attainment of the remediation standard. Corrective action progress reports shall be prepared in accordance to the guidance provided by the Office of Environmental Remediation and shall contain the following elements, as necessary, based on the nature, extent, type, volume or complexity of the release: 7.5.g.1.A A summary of site operations and remedial progress made during the reporting period. 7.5.g.1.B Quantitative analytical results from media sampling, including laboratory reports and tables summarizing cumulative data. 7.5.g.1.C Sufficient information from monitoring data to establish whether the plume is stable, shrinking or expanding. 7.5.g.1.D Reporting period and cumulative amounts of free product recovered, groundwater treated, and soil and sediment treated or disposed. 7.5.g.1.E Treatment and disposal documentation for waste generated during the reporting period. 7.5.g.1.F Recommendations for optimization and improvement as needed to achieve the cleanup goals established in the CAP. 7.5.g.2 The first corrective action progress report shall be submitted to the Secretary within 120 days following the date of CAP implementation. Subsequent reports shall be submitted within thirty (30) days of the end of the quarterly monitoring period. Owners or operators shall submit two (2) hard copies and one (1) electronic copy of each progress report. 7.5.g.3 The final corrective action progress report shall be submitted to the Secretary as part of a corrective action completion report. 7.5.g.4 At least once per twelve (12) month period, the corrective action progress report shall include an evaluation of the effectiveness of the corrective action to determine whether additional measures must be implemented to meet the cleanup goals established in the CAP. The evaluation shall include an estimate of time to corrective action completion.

7.5.g.5. Should the evaluation indicate the corrective action is no longer effective, or the Secretary notifies the owner or operator that the remedy is no longer effective, the owner or operator shall submit a revised CAP to propose a more effective remedy.

7.5.h. If, during implementation of the CAP, the owner or operator decides to change the CAP, the owner or operator shall prepare and submit to the Secretary a new or modified CAP for approval.

7.5.i. If, during implementation of the CAP, the owner or operator determines that continued implementation of the CAP will cause additional environmental harm, the owner or operator shall suspend corrective action and notify the Secretary within twenty-four (24) hours of suspension. The owner or operator shall prepare and submit a new or modified CAP in accordance with this subsection within ninety (90) days.

7.5.j. If the Secretary determines that the implementation of corrective actions are not achieving adequate protection of human health or the environment, the Secretary may require additional responses to be taken.

7.5.k. Upon completion of corrective action activities, the owner or operator shall perform four (4) consecutive quarters of groundwater sampling and surface water sampling, or other sampling schedule as approved by the Secretary, to ensure the remediation standard has been met. 7.6 Onsite Storage of Contaminated Soil 7.6.a Onsite storage of contaminated soil is prohibited unless performed in accordance with this subsection of the Rule and all other applicable federal, State, and local regulations. The owner or operator must notify the Secretary of its intent to temporarily store contaminated soils at the site and submit a brief written plan to the Secretary prior to storing any soils. 7.6.b Onsite storage of contaminated soil may be performed if the soil does not present a threat to human health, safety, water resources or the environment and one of the following applies: 7.6.b.1 Soil excavation is necessary to perform a removal from service. 7.6.b.2 Soil excavation is performed as part of an interim remedial action. 7.6.b.3 Soil excavation is performed as part of remedial action. 7.6.c Where excavated contaminated soil is stored onsite in accordance with subdivision 7.6.b, the excavated soil shall be disposed of or active treatment of the excavated soil shall be initiated within ninety (90) days from the first day of storage or within an alternative timeframe authorized by the Secretary in writing upon request of the owner or operator and for good cause shown. 7.6.d If contaminated soil is stored onsite, the owner or operator shall manage the soil in accordance with applicable federal regulations, legislative rules, and Departmental policies relating to solid and hazardous wastes. In addition to these requirements, unless otherwise specified in applicable federal regulations, legislative rules or Departmental policies, contaminated soil shall be completely and securely covered for the duration of the storage period with an impermeable material of sufficient strength, thickness, anchoring or weighting to prevent tearing or lifting of the cover, infiltration of precipitation or surface water, discharge of any leachate, exposure of the soil to the atmosphere, and runoff. Contaminated soil shall not be stored in such proximity to adjacent properties, public areas or residences as to cause nuisance odor. Appropriate steps shall be taken to deter public access to the storage area, which steps may include fencing or similar barriers, security patrols or warning signs. 7.6.e The Secretary may require immediate removal of contaminated soil if the soil is not being properly stored or managed in accordance with subdivisions 7.6.c. or 7.6.d. above or if the Secretary determines that storage poses a threat to human health, safety, water resources or the environment. 7.7 No Further Action 7.7.a Request for No Further Action Determination 7.7.a.1 After all remedial action goals have been achieved, the owner or operator shall submit a written request to the Secretary for no further action (NFA) status. NFA documentation shall include, but not be limited to, the following: 7.7.a.1.A A demonstration that the site does not threaten human health, safety, water resources or the environment based on current conditions at the site and surrounding areas. 7.7.a.1.B A demonstration that NAPL has been addressed in accordance with subsection 7.5.c.1. 7.7.a.1.C A demonstration that all contaminated soils previously stored at the site have been properly disposed in accordance with subsections 7.2 and 7.6. 7.7.a.1.D Copies of all documents, permits, certificates, approvals, etc. relating to the transportation of impacted environmental media and materials from the site, including ASTs, the substances contained in the ASTs, soils, and water, that have not been previously submitted to the Secretary. Documentation shall include tipping fees, waste receipts, bills of lading or any other documentation verifying that all waste has been properly disposed. 7.7.b The Secretary shall issue a letter requiring NFA and documenting that site cleanup objectives have been met. The NFA letter does not absolve the owner or operator from previously incurred or potential future liability. 7.7.c The NFA letter applies to known site conditions at the time that the NFA request is made. If the risk posed by the site changes in the future or the presence of contamination related to the release in question is discovered at a later date, the Secretary reserves the right to reopen the release case and require the owner or operator to perform additional investigation and remediation to eliminate the risk to human health, safety, water resources or the environment. 7.8 Alternative Corrective Action 7.8.a The owner or operator has the option to remediate releases from ASTs to risk-based standards through the Voluntary Remediation and Redevelopment Program (VRRP) as authorized by the Voluntary Remediation and Redevelopment Act, W. Va. Code § 22-22-1, et seq., and the Voluntary Remediation and Redevelopment Rule (60 C.S.R.3). If the owner or operator chooses this option, it shall inform the Secretary in writing and make application to the VRRP within thirty (30) days of the notification. Subsequent corrective action activities will be governed by the requirements of the Act and its associated legislative rule until a Certificate of Completion is issued, or until either party (the owner or operator or the Secretary) withdraws from the voluntary remediation agreement. If remediation is not completed under the VRRP, the owner or operator must meet the requirements of this section of this Rule. 7.9 Violations. – Owners and operators who fail to comply with the requirements for investigation and corrective action of releases from ASTs shall be subject to the enforcement provisions of W. Va. Code § 22-30-17.

W. Va. Code R. § 47-63-8 AST Design, Construction, and Installation. 8.1 Performance standards for regulated aboveground storage tanks

8.1.a. New regulated aboveground storage tank systems shall be constructed and installed in accordance with manufacturer’s or fabricator’s specifications and with applicable industry standards or codes of practice (relating to new aboveground tank installations and reconstructions) and requirements of this Rule.

8.1.b. Regulated aboveground storage tank system modifications or upgrades shall be performed in accordance with manufacturer’s or fabricator’s specifications and with applicable industry standards or codes of practice and requirements of this Rule.

8.1.c. In the absence of such standards or codes, construction, installation, modifications or upgrades shall be performed in accordance with the manufacturer’s or fabricator’s recommendations and utilizing good engineering practices.

8.1.d. Underground storage tanks shall not be used as an AST unless the manufacturer has certified that the tank was also designed for use as an AST. 8.2 New regulated AST installations and reconstructions.

8.2.a. The owner or operator shall ensure that all regulated tanks installed at facilities have been designed, constructed, and installed according to the manufacturer’s or fabricator’s instructions, this Rule, industry standards, and in accordance with the appropriate, most current Code of Practice developed by nationally recognized associations such as API, ASME, NACE, NFPA, PEI, STI or UL following applicable engineering specifications. An owner or operator must keep documentation for new tanks in the form of a label on the tank, certificate from the manufacturer, documentation on or attached to an invoice describing the tank’s construction or any other method accepted by the Secretary.

8.2.b. A regulated AST must have a stable foundation, capable of supporting the total weight of the tank when full of product without movement, rolling or unacceptable settling:

8.2.b.1. The foundation design and construction must be based on sound engineering practices.

8.2.b.2. The foundation must minimize corrosion of the tank bottom and meet or exceed the specifications of the tank manufacturer.

8.2.b.3. The foundation design shall provide positive drainage of water away from the base.

8.2.b.4. Aboveground storage tanks located in areas subject to flooding must be protected from floatation.

8.2.c. Regulated aboveground storage tanks shall be tested for tightness at installation and reconstruction in accordance with industry standards and current Codes of Practice developed by nationally recognized associations and manufacturer’s specifications:

8.2.c.1. If a pneumatic test is used for manufactured (shop fabricated) tanks, the fittings, welds, joints, and connections shall be coated with a soap solution and checked for leaks.

8.2.c.2. Aboveground field-erected storage tanks shall be hydrostatically tested.

8.2.c.3. Deficiencies shall be remedied prior to tanks being placed into service.

8.2.c.4. Hydrostatic test fluids shall be discharged or disposed of in accordance with State and federal requirements.

8.2.c.5. If testing is done with a vacuum on the interstice of a double wall or double bottom aboveground tank, the vacuum must remain on the tank until it is set in place where it is to be permanently installed. The vacuum must remain above the minimum level set by the tank manufacturer

8.2.c.6. Testing performed in accordance with Section 8.2.c.1 through 8.2.c.5 shall be documented by the tester and testing documents must be retained by the owner or operator.

8.2.d. Reconstruction of regulated aboveground storage tanks must follow the current Codes of Practice developed by a nationally recognized association and be accomplished in accordance with sound engineering practices. 8.2.d.1 Reconstructed regulated aboveground storage tanks must be inspected and hydrostatically tested before being placed into service. Double wall and double bottom tanks may be tested using a vacuum method.

8.2.d.2. Hydrostatic test fluids shall be discharged or disposed of in accordance with State and federal requirements.

8.2.e. The owners or operator shall ensure that regulated mobile aboveground storage tanks that are relocated to another facility are checked by a qualified person before being placed into service to ensure that no damage to the tank occurred during transportation or installation at the new site. Documentation of the checks must be maintained for two (2) years and made available to the Secretary for inspection upon request.

8.2.e.1. The owner or operator shall ensure that any regulated mobile aboveground storage tank that has been damaged in the transportation or installation is inspected for fitness for service prior to placing the tank into service.

8.2.e.2. The owner or operator shall ensure that ASTs are empty prior to relocation.

8.2.e.3. Regulated mobile tanks that are relocated from facility to facility are not subject to the installation documentation requirements of subdivision 8.2.f of this Rule, but remain subject to the registration amendment requirements of subdivision 3.1.d of this Rule.

8.2.e.4. Regulated mobile tanks that are made stationary tanks are subject to the installation documentation requirements of subdivision 8.2.f of this Rule.

8.2.f. For any new regulated AST to be constructed in karst terrain, which are areas generally underlain by limestone or dolomite, in which the topography is formed chiefly by the dissolving of rock and which may be characterized by sinkholes, sinking streams, closed depressions, subterranean drainage and caves, as such areas are identified, mapped and published by the West Virginia Geological and Economic Survey, the tank owner must submit to the Secretary documentation of the new construction design criteria and engineering specifications to indicate that surface or subsurface conditions will not result in excessive settling or unstable support of the proposed regulated AST, as approved by a professional engineer or an individual certified by API or STI to perform installations or a person holding certification under another program.

8.2.g. All regulated AST system components, including piping and ancillary equipment up to the first point of isolation, installed after the effective date of this Rule shall have baseline data including:

8.2.g.1. Floor and wall or shell thickness measurements for regulated metallic ASTs shall be kept on file by the owner or operator for the life of the AST and shall be made available to the Secretary upon request.

8.2.g.2. Material certifications shall be kept on file by the owner or operator for the life of the AST and shall be made available to the Secretary upon request.

8.2.g.3. All manufacturer’s instructions and performance claims and their manner of determination described in writing by the equipment manufacturer or installer shall be retained by the owner or operator for the life of the regulated AST and made available to the Secretary upon request.

8.2.h. All regulated metallic ASTs installed after the effective date of this Rule that have tank bottoms in contact with soil or an electrolyte including, but not limited to, water, shall be protected from corrosion in accordance with section 9 of this Rule.

8.2.i. All new Level 1 ASTs installed after the effective date of this Rule shall be double walled, double bottomed or placed on a Release Prevention Barrier. The integrity of the release prevention barrier shall not deteriorate due to exposure to the elements or soil in the presence of a released substance. The following are acceptable Release Prevention Barriers:

8.2.i.1. An impervious soil layer or geosynthetic clay liner with a permeability of 10-7 cm/sec or less; or

8.2.i.2. An impervious geosynthetic liner with a permeability of 10-7 cm/sec or less installed in accordance with the manufacturer's recommendations, such as a 60 millimeter unreinforced liner, a 40 millimeter reinforced liner or a material of similar or more stringent specifications and that is compatible with the substances being stored; or

8.2.i.3. A double bottom or double walled tank with a leak detection system; or

8.2.i.4. An impervious concrete slab foundation with a permeability of 10-7 cm/sec or less. 8.3 General Upgrade Requirements for Existing AST Systems. – The owner or operator shall ensure that upgrades to all existing regulated AST systems are performed in accordance with the manufacturer’s or fabricator’s instructions and appropriate industry standards.

8.3.a. All existing regulated ASTs storing flammable or combustible liquids shall be upgraded with normal and emergency venting to meet the requirements of subsection 8.6 of this Rule and any standards mandated by the West Virginia Fire Marshal. All existing regulated ASTs storing other liquids required by the applicable industry standard to have normal and emergency venting shall be upgraded to meet the requirements of subsection 8.6 of this Rule.

8.3.b. All existing regulated metallic ASTs in direct contact with soil or other electrolytes which are not equipped with cathodic protection shall be upgraded to meet the requirements of Section 9 of this Rule.

8.3.c. All existing regulated metallic ASTs not in direct contact with soil that are utilizing exterior coatings as a means of corrosion protection shall have an appropriate external coating to meet the requirements of subsection 9.4.

8.3.d. All existing regulated ASTs shall be upgraded with a gauge or other measuring device used that accurately shows the volume of material being stored in the AST to meet the requirements of subsection 10.1.

8.3.e. All existing regulated ASTs shall be upgraded with overfill prevention protection to meet the requirements of subsection 10.1. 8.4 Aboveground tank modifications. – The owner or operator shall ensure that modifications to all regulated AST systems are performed in accordance with the manufacturer’s or fabricator’s instructions, appropriate industry standards, and this Rule.

8.4.a. Regulated Aboveground tanks that are modified shall be inspected and tested according to industry standards before being put into service when a major modification has been performed on the tank shell, tank roof or tank bottom. Deficiencies shall be remedied before returning the AST system to service.

8.4.b. The owners or operator shall maintain records of major modifications to the regulated AST for the life of the AST and make those documents available to the Secretary upon request. 8.5 New Aboveground storage tanks in underground vaults. – The owner or operator shall ensure that the following requirements are met for all new regulated ASTs installed in an underground vault:

8.5.a. The vault shall completely enclose the tank and must be constructed of materials compatible with the substance to be stored in the AST.

8.5.b. A tank must be in its own vault. Adjacent vaults may share a common wall.

8.5.c. Vaults shall be designed according to sound engineering practices.

8.5.d. There may be no backfill around the tank, and there shall be sufficient space between the tank and the vault to allow inspection of the tank and ancillary equipment.

8.5.e. Tanks installed in vaults shall be designed for aboveground use.

8.5.f. A vault and its tank must be suitably anchored to withstand uplifting by either water or released substance, including when the tank is empty.

8.5.g. A suitable means to admit a fire suppression agent shall be provided for each vault that contains a flammable or combustible substance.

8.5.h. When a vault is used as the form of secondary containment for an AST system, the owner or operator shall ensure that the vault is adequately designed, constructed, and maintained to be sufficiently impervious to prevent a released substance from penetrating the vault until the release can be detected and recovered, but in no case will that time be less than seventy-two (72) hours.

8.5.i. At installation of a new tank or reconstruction or relocation of an existing regulated tank in a vault, the requirements of this subsection shall be met before placing the AST in service. 8.6 Ancillary Equipment For ASTs. – The owner or operator shall ensure that ancillary equipment up to the first point of isolation utilized in all regulated AST systems is constructed, designed, installed, and operated in accordance with the manufacturer’s or fabricator’s instructions, fire codes, and appropriate industry standards.

8.6.a. Ancillary equipment up to the first point of isolation is regulated and may include, but is not limited to, the following:

8.6.a.1. Normal and emergency vents;

8.6.a.2. Sumps, spill buckets, and overfill equipment;

8.6.a.3. Dispensers, dispenser hoses, and filters;

8.6.a.4. Connectors, valves, flanges, vent lines, swing lines, piping, and gauges;

8.6.a.5. Roofs, hatches, and manways;

8.6.a.6. Submersible turbine pump;

8.6.a.7. Grounding and bonding for AST systems containing flammable and combustible liquids.

8.6.b. The owner or operator shall ensure that ancillary equipment is compatible with the stored substance(s). No owner or operator shall allow storage of any liquid that is not compatible with the AST system.

8.6.c. Ancillary equipment shall be in good working order and maintained according to the manufacturer’s specifications and accepted industry practices.

8.6.d. Tank connections through which fluids can flow shall be equipped with an operating valve adjacent to the tank to control flow of substance.

8.6.e. Regulated ASTs storing flammable liquids, combustible liquids or other liquids required by industry standards or the manufacturer to have normal or emergency vents shall be so equipped to protect the tank from over-pressurization and excessive vacuums and provide relief from excessive internal pressure caused by exposure to fire. All regulated ASTs, as applicable, shall be equipped with normal and emergency vents in accordance with API 2000, NFPA 30, UL 142, UL2583, or UL 2085. Nothing in this subdivision supersedes any requirements placed on these types of tanks by the West Virginia Fire Marshal.

8.6.e.1. Regulated ASTs shall be equipped with normal vents in order to allow the tank to breathe when transferring product.

8.6.e.2. Regulated ASTs shall be equipped with emergency vents to ensure that the safe pressure for the tank is not exceeded. 8.6.e.3 Normal and emergency vents must be of adequate size and capacity in accordance with the manufacturer’s requirements and industry standards, such as API 2000, NFPA 30, UL 142, or UL 2085, as applicable.

8.6.e.4. The requirement for venting shall apply to each compartment of a compartmented tank and the interstitial space (annulus) of a secondary containment-type double walled tank.

8.6.e.5. For vertical tanks, the emergency relief venting construction shall be permitted to be a floating roof, a lifter roof, a weak roof-to-shell seam, or another approved pressure-relieving construction in accordance with NFPA guidance.

8.6.e.6. The normal and emergency vents must be operable and in good condition, with all components moving freely and vent passageways kept unobstructed.

8.6.e.7. Normal and/or emergency vents shall not be disabled for any reason.

8.6.f. For existing regulated AST systems certified as Fit for Service but having normal or emergency vent deficiencies, the vents shall be upgraded to meet minimum requirements of this Rule and industry standards on the schedule provided by the certifying person, but in no case later than the following:

8.6.f.1. For existing Level 1 ASTs, normal and emergency vents shall be installed by December 31, 2016.

8.6.f.2. For existing Level 2ASTs normal and emergency vents shall be installed by June 30, 2017.

8.6.f.3. An existing regulated tank system that is taken out of service for internal inspection or major modification or that has been temporarily out of service and being returned to service shall be upgraded with normal and emergency vents, as applicable, prior to being put back in service. 8.7 Piping for regulated aboveground storage tanks. — The owner or operator shall ensure that regulated piping (piping up to the first point of isolation) that is installed in the regulated AST system is compatible with the substance stored and properly designed to protect against corrosion and physical damage, including damage from stresses arising from settlement, expansion, contraction, vibration, and shock.

8.7.a. New and replacement piping shall be designed, fabricated, and tested in accordance with current codes of practice developed by nationally recognized associations such as API, ASME, NACE, NFPA, PEI, STI or UL.

8.7.a.1. Installation of piping shall meet or exceed current codes of practice and be in strict accordance with the manufacturer’s specifications.

8.7.a.2. Piping shall be tested for tightness at installation and after repairs. Any deficiencies found must be remedied prior to placing the piping into service.

8.7.b. All regulated metal piping conveying fluids shall be protected from corrosion and deterioration in accordance with section 9 of this Rule. 8.7.c Aboveground piping shall be adequately supported and be protected from physical damage caused by freezing, frost heaving, and vehicular traffic.

8.7.d. Piping that passes through or pierces a dike wall or the wall of a structure shall be designed to prevent damaging stresses and leakage due to settlement or fire exposure.

8.7.e. Regulated underground piping shall have an annual tightness test, unless the piping is double walled and interstitial monitoring reveals no releases found during monthly monitoring checks. If the underground piping conveys a substance under pressure, the piping must be equipped with automatic line leak detectors or other equipment that will alert the operator to the presence of a leak by restricting or shutting off the flow of substances.

8.7.e.1. The tank owner or operator shall establish leak detection performance rates for the annual piping tightness test and automatic line leak detector test.

8.7.e.2. Leak detection performance rates shall be retained for the life of the regulated AST and made available to the Secretary upon request. Leak detection performance rates shall be established utilizing best available technology or best engineering practices.

8.7.e.3. Alternatively, nondestructive examination in accordance with API 570 may be utilized in lieu of a pressure test, where appropriate. The tank owner or operator must be able to demonstrate the capability of the nondestructive examination method to identify potential damage to the piping or release from the piping.

8.7.e.4. A tank owner or operator may provide the manufacturer’s leak detection rate performance claims and their manner of determination as described in writing by the equipment manufacturer. Alternatively, leak and performance rates determined for leak detection equipment evaluated by the third party, National Work Group on Leak Detection Evaluations (NWGLDE), are acceptable provided their protocols are followed.

8.7.f. All fill pipes leading to a pump-filled regulated AST shall be equipped with a properly functioning check valve or equivalent device that provides automatic protection against backflow whenever the piping arrangement of the fill pipe is such that backflow from the AST is possible.

8.7.g. Each regulated AST connection through which a substance can normally flow shall be equipped with a shutoff valve to control flow, unless the AST connection is located at a point higher than the highest liquid level in the AST, such as at the top of a horizontal AST. The valve shall be located on a nozzle welded to the shell of the AST.

8.7.h. Galvanized pipe shall not be used to convey diesel fuel, biodiesel fuel, kerosene or jet fuel.

8.7.i. Regulated aboveground piping shall be tested in accordance with requirements of API 570, except when any leaks from the piping can be visibly observed.

W. Va. Code R. § 47-63-9 Corrosion and Deterioration Prevention. 9.1 General corrosion requirements. – The owner or operator shall ensure that all regulated ASTs are maintained with those corrosion prevention measures that are necessary to prevent releases

9.1.a. The owner or operator shall ensure that regulated AST systems are maintained with corrosion and deterioration prevention measures until the AST system has undergone permanent closure.

9.1.b. Acceptable corrosion and deterioration protection methods may include any one or a combination of various methods, such as cathodic protection systems (galvanic or impressed current), external and internal coatings, internal tank liners, storage in a manner that prevents metal contact with an electrolyte, construction out of noncorrodible material or metal construction with a noncorrodible material coating. 9.2 Cathodic Protection Systems. – To the extent that a cathodic protection system is used as corrosion prevention, the owner or operator shall ensure that cathodic protection systems are designed by a National Association of Corrosion Engineers (NACE) certified (or equivalent) corrosion expert and maintained to provide protection against external corrosion for the operational life of the regulated tank system (tank, tank bottoms, piping) or have provisions to allow for the periodic rehabilitation of the cathodic protection system as needed to affect repairs of failing or defective systems.

9.2.a. For new, reconstructed or relocated regulated tanks, the owner or operator shall ensure that special consideration for monitoring the cathodic protection status of the underside of the AST bottom shall be provided for in the cathodic protection system designed by the corrosion expert.

9.2.b. Regulated metallic AST systems with tank bottoms in direct contact with soil or other electrolytes shall be protected from corrosion, unless the tank is installed at a site that is determined by a NACE certified or equivalent corrosion expert not to be corrosive enough to cause it to have a release due to corrosion during its operating life.

9.2.c. The cathodic protection system for the external bottom of a new or existing regulated metallic AST must be designed, installed, inspected, and maintained to meet or exceed the requirements for cathodic protection required by NACE Standards RP01-93, RP0169 or API 651.

9.2.d. Each cathodic protection system shall have an access point that enables the owner or operator to check on the adequacy of cathodic protection. The cathodic protection systems shall be monitored in accordance with subsection 9.3 of this Rule.

9.2.e. After installation of a sacrificial anode system, measurements of AST-to-soil potential must be made no sooner than 60 days and no later than 180 days after installation of the cathodic protection system by a person who, at a minimum, is NACE certified as a cathodic protection tester. If inadequate cathodic protection is indicated, the cause shall be determined, and the owner or operator shall ensure that necessary repairs are made within 90 days or another time period approved by the Secretary upon request of the owner or operator and for good cause shown.

9.2.f. AST and piping connections of two dissimilar metals which create a galvanic cell are prohibited.

9.2.g. For existing regulated AST systems certified as Fit for Service but having cathodic protection deficiencies, the cathodic protection system shall be upgraded to meet the minimum requirements of this Rule and industry standards on the schedule provided by the certifying person, but in no case later than the following:

9.2.g.1. For Level 1ASTs, the AST system component not meeting cathodic protection standards must be upgraded or repaired and tested by June 30, 2017.

9.2.g.2. For Level 2 ASTs, the AST system component not meeting cathodic protection standards must be upgraded or repaired and tested by December 31, 2017.

9.2.g.3. An existing regulated tank system that is taken out of service for internal inspection or major modification of the tank or that has been temporarily out of service and being returned to service shall have the cathodic protection upgraded or repaired and tested prior to placing the AST back into service. 9.3 Operation and Maintenance of Cathodic Protection Systems. – The owner or operator of a regulated AST system with cathodic protection shall ensure compliance with the following requirements to ensure that releases due to corrosion are prevented for as long as the AST system is used to store fluids.

9.3.a. All cathodic protection systems must be operated and maintained to continuously provide corrosion protection to the metal components of that portion of the regulated tank and piping that routinely contain fluid substances and are in contact with soil or an electrolyte.

9.3.b. All regulated AST systems equipped with galvanic or impressed current cathodic protection systems must be inspected for proper operation by a qualified cathodic protection tester in accordance with the following requirements:

9.3.b.1. Cathodic protection systems must be tested within six months of installation and every three years thereafter by a person who, at a minimum, is NACE certified as a cathodic protection tester. However cathodic protection systems on tank bottoms in direct contact with soil or other electrolytes shall be tested within six months of installation and annually thereafter; and

9.3.b.2. The owner or operator must maintain the results of the last two (2) cathodic protection tests and provide those to the Secretary upon request.

9.3.c. The owner or operator of a regulated AST system with impressed current cathodic protection systems must have the rectifier inspected every sixty (60) days to ensure the equipment is operating properly. The owner or operator must maintain the results of the last six (6) rectifier readings from the impressed current system and make those available to the Secretary for inspection upon request.

9.3.d. All impressed current systems shall be checked by the owner or operator and tested by a NACE certified cathodic protection tester every twelve (12) months as part of a preventative maintenance program to minimize in-service failure. The check and tests shall include a check for electrical shorts, ground connections, meter accuracy, and circuit resistance. The effectiveness of isolating devices, continuity bonds, and insulators shall be evaluated during this inspection.

9.3.e. The impressed current source shall not be de-energized at any time, including periods when the facility is closed (except during power failures or during service work on the regulated AST, underground piping or impressed current system). The impressed current source shall be equipped with a continuously operating meter or meters that display voltage, amperage, and run time to show that the system is working.

9.3.f. If any inspection, monitoring or testing indicates that the cathodic protection system is not functioning properly, the owner or operator shall determine the cause and immediately initiate the necessary repairs.

9.3.f.1. If a cathodic protection system on a Level 1 AST system is found to be defective and the cathodic protection system is not repairable within ninety (90) days, the owner or operator shall take immediate action to remove substances from the affected AST or underground piping, as applicable, in order to protect human health or the environment.

9.3.f.2. Substances shall not be returned to any affected part of the regulated AST system until the defective cathodic protection system has been repaired and passed a cathodic protection test.

9.3.g. The criteria for determining the effectiveness of cathodic protection shall be a negative (cathodic) potential of at least 850 millivolts (mV) with the cathodic protection current applied. Alternatively, a negative potential of at least 850 millivolts from instant off reading or a 100 mV shift from the instant off position is acceptable for impressed current systems. This potential shall be measured with respect to a saturated copper/copper sulfate reference electrode contacting the electrolyte.

9.3.h. Corrosion protection testing required by this section shall be performed by a person having, at a minimum, NACE certification (or equivalent) to perform corrosion testing. 9.4 Exterior Coatings. – For regulated metallic ASTs and piping, corrosion protection may consist of an appropriate external coating as specified in a nationally recognized standard or practice of a nationally recognized association, such as the Society for Protective coatings, or an independent testing laboratory.

9.4.a. When exterior coatings are used as a means of corrosion protection, the owner or operator shall ensure that the exterior surfaces of all regulated aboveground tanks and piping are protected by a suitable coating that prevents corrosion and deterioration in accordance with the requirements of this section.

9.4.a.1. The owner or operator shall ensure that the coating is able to permanently bond to the regulated AST or piping and be of sufficient thickness, density, and strength to resist corrosion, deterioration, and degradation of the exterior of the AST or piping.

9.4.a.2. The owner or operator shall ensure that the exterior tank and piping surfaces are properly prepared prior to the application of a coating, so that visible rust, moisture or foreign matter is not present immediately prior to the application of the coating.

9.4.a.3. The owner or operator shall ensure that the exterior coating system is maintained in good condition to prevent corrosion throughout the entire operational life of the tank or piping.

9.4.b. In order to prevent AST system deterioration, the owner or operator shall ensure that the regulated AST system is repaired when the following types of painting or coating failures are detected. Repairs may be made at the next scheduled maintenance activity, but in no case shall the time for repairs exceed twelve (12) months from the date of discovery for Level 1 ASTs and twenty-four (24) months for Level 2 ASTs.

9.4.b1. Rust spots;

9.4.b.2. Blisters; 9.4.b.3 Peeling;

9.4.b.4. Cracking;

9.4.b.5. Coating bond failure.

9.4.c. For existing regulated AST systems certified as Fit for Service but having corrosion deficiencies of their coating, the corrosion protection shall be repaired or upgraded to meet minimum requirements of this Rule and industry standards on the schedule provided by the certifying person, but in no case later than the following:

9.4.c.1. For Level 1 ASTs, the AST system component not meeting corrosion protection standards for coatings must be repaired or upgraded by June 30, 2017.

9.4.c.2. For Level 2 ASTs, the AST system component not meeting corrosion protection standards for coatings must be repaired or upgraded by December 31, 2017.

9.4.c.3. An existing regulated tank system that is taken out of service for internal inspection or major modification to the tank or that has been temporarily out of service and is being returned to service shall have deficiencies in the coatings upgraded or repaired prior to placing the regulated AST back into service. 9.5 Interior Linings and Coatings. – Coating or lining systems may be used, as applicable, to protect tank interiors from corrosion and to meet requirements of compatibility of the AST with substances stored within the regulated AST.

9.5.a. The owner or operator shall ensure that coating or lining systems that are used in the regulated ASTs are designed in accordance with current codes of practices such as API 652 or associations such as NACE. Any appropriate coating that is bonded firmly to the interior surfaces may be used to protect a tank from corrosion. Specific requirements are as follows:

9.5.a.1. Coatings and linings shall be chemically compatible with the substance to be stored. No owner or operator shall allow storage of any liquid that is not compatible with the AST system.

9.5.a.2. Coating material shall be applied and cured in strict accordance with the manufacturer’s specifications.

9.5.a.3. Surfaces shall be prepared and inspected in accordance with applicable nationally-recognized codes and standards.

9.5.a.4. Coatings used to protect the bottom of a tank shall extend up the side of the tank a minimum of 18 inches, while some forms of lining may cover the entire tank interior.

9.5.a.5. Coatings shall be examined for blisters and air pockets and tested for pinholes. The coating thickness shall be checked to assure compliance with the manufacturer’s specifications and industry standards.

9.5.a.6. Defects in coating or lining systems shall be repaired or corrected prior to putting the tank or system into service.

9.5.b. The owner or operator shall ensure that interior linings or coatings are inspected by an API or STI certified aboveground storage tank inspector, NACE certified corrosion technician or other qualified individual:

9.5.b.1. At installation;

9.5.b.2. When the regulated AST undergoes a major modification;

9.5.b.3. As warranted or recommended by the manufacturer or design engineer;

9.5.b.4. At a minimum, at least every ten years after installation of the internal lining.

9.5.c. For existing regulated systems certified as Fit for Service but having known corrosion deficiencies of their internal lining noted during inspections performed to meet requirements of subdivision 9.5.b of this Rule, the corrosion protection shall be repaired or upgraded, as applicable, to meet the minimum requirements of this Rule and industry standards on the schedule provided by the certifying person, but in no case later than the following:

9.5.c.1. For Level 1 ASTs, the AST system component not meeting corrosion protection standards for internal lining must be repaired or upgraded by June 30, 2017.

9.5.c.2. For Level 2 ASTs, the AST system component not meeting corrosion protection standards for internal lining must be repaired or upgraded by December 31, 2017.

9.5.c.3. A regulated existing tank system that is taken out of service for internal inspection or major modification to the tank or that has been temporarily out of service and is being returned to service shall have deficiencies in the internal lining upgraded or repaired prior to placing the AST back into service.

W. Va. Code R. § 47-63-10 Release Prevention, Leak Detection and Secondary Containment. 10.1 Spill and Overfill Prevention General Requirements. – The owner or operator must ensure that releases from regulated ASTs due to spilling and overfilling do not occur. Regulated ASTs that do not receive deliveries of substances (e.g. an AST at an oil or gas site that is connected directly to a pipeline or well) are only subject to the spill and overfill prevention requirements of subsection 10.1 through subdivision 10.1.b. of this section

10.1.a. The owner or operator must ensure that the volume of storage capacity available in the tank is greater than the volume of product to be transferred to the tank before the transfer is made and that the transfer operation is monitored constantly by the owner’s or operator’s personnel to prevent overfilling and spilling, if there are no mechanical means to prevent overfilling.

10.1.a.1. For regulated ASTs that do not receive deliveries of substances (e.g. an AST at an oil or gas site that is connected directly to a pipeline or well), the requirement for constant monitoring of transfer operations is not applicable; however, the owner or operator must ensure that the AST is monitored in a manner so as to prevent spills and overfills.

10.1.a.2. Immediate action shall be taken by the owner or operator to stop the flow of fluids prior to exceeding tank capacity or in the event that an equipment failure occurs.

10.1.b. The owner or operator shall report, investigate, and clean up spills and overfills in accordance with the requirements of sections 6 and 7 of this Rule.

10.1.c. To prevent spilling associated with product transfer, the owner or operator shall ensure that the regulated AST systems have spill prevention equipment (such as a spill catchment basin or spill containment bucket) that will prevent a release of product to the environment.

10.1.d. The owner or operator must ensure that releases due to overfilling do not occur by ensuring that new regulated ASTs are installed with the following:

10.1.d.1. A gauge or monitoring device that accurately indicates the level or volume in the tank and is visible to the individual responsible for the transfer of the product. The monitoring device shall be installed, calibrated, and maintained in accordance with the manufacturer’s specifications; or

10.1.d.2. A high-level alarm with an automatic high-level cut-off device or a high-level alarm with a manned operator shutdown procedure in operation; or 10.1.d.3 Any overfill device approved by the Secretary in writing. The owner or operator must utilize an overfill protection device that meets the current industry standards for the AST.

10.1.e. The owner or operator must ensure that releases due to overfilling do not occur by ensuring that existing regulated ASTs without overfill protection meeting the requirements of paragraphs 10.1.d.1, 10.1.d.2, and 10.1.d.3 are upgraded on the following schedule if they receive deliveries:

10.1.e.1. For existing regulated AST systems certified as Fit for Service but having overfill or spill protection deficiencies, the overfill or spill protection system shall be upgraded to meet the minimum requirements of this Rule and industry standards on the schedule provided by the certifying person, but in no case later than the following:

10.1.e.1.A. For Level 1 ASTs, the AST system component not meeting overfill or spill requirements must be upgraded by June 30, 2017.

10.1.e.1.B. For Level 2 ASTs, the AST system component not meeting overfill or spill requirements must be upgraded by December 31, 2017.

10.1.e.1.C. A regulated existing tank system that is taken out of service for internal inspection or major modification to the tank or that has been temporarily out of service and is being returned to service shall have the overfill or spill protection upgraded prior to placing the AST back into service.

10.1.f. Prior to receiving deliveries, the owner or operator shall ensure that fill valves are properly labeled with the product stored, all AST fill valves that are not in use are secured, and only the ASTs designated are receiving deliveries. The owner or operator shall ensure the transfer operation is monitored either by manual or automatic means to prevent overfilling.

10.1.g. The owner or operator shall ensure that immediate action is taken to stop the flow of the substance being transferred when the capacity of the tank has been reached or in the event of an equipment failure or emergency.

10.1.h. Overfill prevention devices that are designed for use with gravity deliveries must not be used when a pump is used to fill the tank.

10.1.i. Overfill and spill equipment must be properly installed, operated, inspected, tested, and maintained in accordance with the manufacturer’s specifications. 10.2 Secondary Containment Requirements for Regulated ASTs

10.2.a. The owner or operator shall ensure that all regulated ASTs have a secondary containment system that collects and contains an unintentional release from an AST and its ancillary equipment up to the first point of isolation.

10.2.b. All secondary containment structures shall be compatible with all substance(s) stored within the containment structure.

10.2.c. The owner or operator shall ensure that secondary containment for existing regulated AST systems shall be adequately designed and constructed to be sufficiently impervious to prevent the released substance from penetrating the containment structure until the release can be detected and recovered, but in no case will that time be less than seventy-two (72) hours.

10.2.d. The owner or operator shall ensure that secondary containment structures for Level 1 ASTs are visually inspected for the presence of released fluids from the AST system at least once every fourteen (14) days and Level 2 ASTs are visually inspected, at a minimum, at the time of the monthly inspection required in subdivision 5.1.b of this Rule. If liquids are found in the secondary containment area, the owner or operator shall take action as required under paragraphs 5.1.a.2 and 5.1.a.3 of this Rule.

10.2.e. Secondary containment structures shall be designed, constructed, and maintained in accordance with sound engineering practices adhering to nationally-recognized standards, such as API, NFPA, and STI, as applicable.

10.2.e.1. For regulated ASTs containing flammable or combustible materials, the walls of the diked area shall be of earth, steel, concrete or solid masonry and be designed, built, and maintained to withstand a full hydrostatic head.

10.2.e.2. Alternatively, the Secretary may approve other construction materials that are shown to be appropriate for use with flammable or combustible materials.

10.2.f. The owner or operator shall ensure that new secondary containment systems for Level 1 ASTs installed after the effective date of this Rule are designed to direct any release to a monitoring point to meet leak detection requirements on a new tank at installation, reconstruction or relocation of an existing tank or when any part of the tank floor is replaced. Permeability of the secondary containment must be less than 1 x 10-7 cm/sec at anticipated hydrostatic head and shall be verified at the time of installation.

10.2.g. The owner or operator must take action to correct deficiencies found in secondary containment areas in order to prevent releases to the environment.

10.2.g.1. The owner or operator shall make contact with the Department within seventy-two (72) hours of discovery of the deficiency.

10.2.g.1.A. If a secondary containment structure for a Level 1 AST is found to be defective and the structure is not repairable within seventy-two (72) hours, the owner or operator shall take immediate action to remove substances from the AST system(s) affected in order to protect human health or the environment. Alternatively, the tank owner or operator may request an extension from the Secretary for good cause shown.

10.2.g.1.B. Substances shall not be returned to the regulated AST system until the defective secondary containment structure has been repaired and is certified by a professional engineer, an API certified inspector or a STI certified inspector as meeting the minimum requirements of this Rule.

10.2.g.1.C. Transfers of substances to and from a regulated AST within secondary containment shall be monitored by personnel designated by the owner or operator for the duration of the transfer.

10.2.h. Double walled ASTs serve as secondary containment so long as substance transfer and the interstitial space are continuously monitored. Therefore, a separate secondary containment basin is not required for the AST, but single walled piping, dispenser, and ancillary equipment up to the first point of isolation would require secondary containment.

10.2.i. The owner or operator shall ensure that secondary containment areas, such as dikes and curbing or paving, shall be designed and certified by a professional engineer or other qualified person to prevent the discharge from the containment area of the entire capacity of the largest single tank, assuming a full tank, and sufficient freeboard to contain all collected precipitation until the secondary containment is inspected in accordance with requirements of subsection 5.1 of this Rule. When determining the largest AST in a containment area, the combined capacity of manifolded tanks must be considered if a leak from one tank or the piping is capable of emptying the other tanks.

10.2.i.1. Calculations for dike capacity must consider the volume of the largest AST within the dike, the displacement volumes from other ASTs and other items within the dike, if present, and account for sufficient freeboard for precipitation events.

10.2.i.2. Factors to be considered in determining the appropriate capacity for the secondary containment area shall be documented and include:

10.2.i.2.A. Size of largest AST;

10.2.i.2.B. Size of other ASTs and their effect on the overall capacity of the secondary containment area;

10.2.i.2.C. Local precipitation conditions;

10.2.i.2.D. Height of existing containment area;

10.2.i.2.E. Frequency of containment drainage and inspections; 10.2.i.2.F Site safety considerations; and

10.2.i.2.G. The appropriateness of using a twenty-five (25) year, twenty-four (24) hour storm event precipitation design criteria for determining containment freeboard.

10.2.i.3. The secondary containment system containing flammable or combustible ASTs shall not be used to store combustible materials, empty or full drums, or barrels.

10.2.i.4. Dikes shall be kept free of woody or other deep rooted vegetation, debris, and any other material not necessary to the operation of the facility.

10.2.i.5. Drains on secondary containment systems shall be kept in good operating condition, closed, and secured. Flapper-type drain valves shall not be utilized on secondary containment systems unless the discharge to a wastewater treatment system.

10.2.i.6. Drains and drain valves constructed of low melting point materials, such as brass or PVC, shall not be utilized in secondary containment systems.

10.2.j. An external liner is a liner that is installed inside an existing secondary containment structure, such as a dike, to provide additional assurance of impermeability. External liners must be compatible with the substance(s) stored in the regulated AST system.

10.2.k. Stormwater shall be removed from secondary containment areas as soon as possible or when the water is in contact with the tank or piping and prior to the capacity of containment being reduced by ten percent (10%) or more. Manually operated pumps or siphons and manually operated gravity drains may be used to empty the containment. If drain valves are used, they shall be secured in the closed position at all times except during controlled drainage events. Accumulated stormwater must be inspected prior to discharge to ensure no substance other than stormwater is present. Discharge or disposal of substances from the containment structure must comply with applicable State and federal requirements.

10.2.l. For existing regulated AST systems certified as Fit for Service but having secondary containment deficiencies, the secondary containment system shall be upgraded, repaired or otherwise brought into compliance to meet the minimum requirements of this Rule and industry standards on the schedule provided by the certifying person, but in no case later than the following:

10.2.l.1. For Level 1 ASTs, the AST system component not meeting secondary containment requirements must be upgraded to meet secondary containment requirements for existing ASTs within three (3) months of the effective date of this Rule.

10.2.l.2. For Level 2 ASTs, the AST system component not meeting secondary containment requirements must be upgraded to meet secondary containment requirements for existing ASTs within six (6) months of the effective date of this Rule.

10.2.l.3. A regulated existing tank system that is taken out of service for internal inspection or major modification of the tank or that has been temporarily out of service and is being returned to service shall meet the secondary containment requirements prior to placing the AST system back into service. 10.3 Leak Detection Requirements. – The owner or operator shall ensure that regulated aboveground storage tank systems are monitored for leak detection at least once per calendar month, using a method or combination of methods that are capable of detecting a release from any portion of the AST.

10.3.a. The leak detection method or equipment, other than visual, shall be installed, calibrated, operated, and maintained in accordance with applicable manufacturer’s specifications, including routine maintenance checks for operability to ensure that the device is functioning as designed.

10.3.a.1. All manufacturer’s instructions, performance claims, and their manner of determination described in writing by the equipment manufacturer or installer shall be retained by the owner or operator for the life of the AST and made available to the Secretary upon request.

10.3.a.2. The owner or operator, using a leak detection method other than visual, shall establish leak detection performance rates for each in accordance with paragraphs 10.3.a.3 or 10.3.a.4. The owner or operator shall retain leak detection performance rates for the life of the regulated AST and made available to the Secretary upon request. Leak detection performance rates shall be established utilizing best available technology or best engineering practices.

10.3.a.3. A tank owner or operator may establish leak detection performance rates by providing the manufacturer leak detection rate performance claims and their manner of determination described in writing by the equipment manufacturer.

10.3.a.4. Alternatively, leak detection performance rates determined for leak detection equipment evaluated by the third party, National Work Group on Leak Detection Evaluations (NWGLDE), are acceptable provided their protocols are followed.

10.3.b. The owner or operator shall ensure that the area beneath the tank bottom is monitored for leakage by visual, mechanical or electronic leak detection methods.

10.3.c. Visual testing is an acceptable form of leak detection for regulated AST systems so long as the entire area of concern (e.g. the AST itself and its aboveground piping, flanges, valves, etc. and its secondary containment) is readily accessible for view and properly illuminated by natural or artificial light (minimum of 50-foot candles or 100 lumens) at the time of the visual testing. If either of the methods listed in Sections 10.3.c.1 and 10.3.c.2 are utilized, the area for observation of any fluids must be readily accessible for view and properly illuminated. Visual tests may be performed remotely by using mirrors, cameras or other suitable instruments.

10.3.c.1. A double-bottomed or double-walled tank that is designed and constructed to channel fluids to an area for observation is an acceptable form of visual testing.

10.3.c.2. A release prevention barrier that is designed and constructed to channel fluids to an area for observation is an acceptable form of visual testing.

10.3.c.3. Liquids discovered in a double-bottomed or double walled tank or release prevention barrier structures must be immediately removed in order to continue using visual testing of these systems for leak detection.

10.3.d. New Level 1 ASTs shall be double-walled, double-bottomed or installed with a release prevention barrier that allows for releases from all parts of the AST to be visually observed.

10.3.e. Acceptable forms of leak detection for all regulated AST systems include any one or a combination of the following methods:

10.3.e.1. Visual inspection subject to the requirements of subdivision 10.3.c.;

10.3.e.2. Automatic tank gauging;

10.3.e.3. Statistical inventory reconciliation;

10.3.e.4. Interstitial monitoring;

10.3.e.5. Soil vapor monitoring within secondary containment;

10.3.e.6. Volumetric or mass measurements;

10.3.e.7. Acoustic measurement; or

10.3.e.8. Inventory control with tank tightness testing; or

10.3.e.9. Other forms approved by the Secretary upon request and for good cause shown.

10.3.f. A tank tightness test must follow a nationally recognized procedure that is based on a volumetric or mass measurement or an acoustic measurement, such as those addressed in API Publication 334 ‘‘Guide to Leak Detection in Aboveground Storage Tanks.’’

10.3.f.1. The test shall be performed by a third-party inspector or third-party technician who has experience with the selected method and is qualified by the test equipment manufacturer or certified by the relevant industry association and is not an employee of the tank owner.

10.3.f.2. The tank tightness test report must provide information on the leak rate that is detectable by the method for the given tank tested and provide information on the probability of detection and probability of false alarm for the given leak rate.

10.3.g. Any interstitial spaces, including without limitation those located in double-walled ASTs, double-walled piping, and double bottomed tanks that are installed as part of a new or upgraded regulated AST system, shall be equipped with interstitial monitoring equipment capable of detecting a discharge of a substance into the interstitial space under all operating conditions, and the interstitial space shall be monitored once every calendar month.

10.3.h. The Secretary may approve other leak detection methods if the owner or operator can demonstrate that the method can detect a release as effectively as any of the methods listed above. In comparing methods, the Secretary shall consider the size of release that the method can detect and the frequency and reliability with which it can be detected. If the method is approved, the owner or operator must comply with any conditions imposed by the Secretary on its use to ensure the protection of human health or the environment. Alternatively, leak and performance rates determined for leak detection equipment evaluated by the third party, National Work Group on Leak Detection Evaluations (NWGLDE), are acceptable provided their protocols are followed.

10.3.i. When a combination of leak detection methods is utilized to meet the monthly leak detection requirement, a failure of any one method (e.g. an automatic tank gauge indicates a failure during monthly test) is considered a failure of the leak detection equipment or test method for the component being tested.

10.3.j. Two consecutive months of inconclusive results or three non-consecutive months of inconclusive results in a twelve (12) month period is considered a failure of the leak detection method for automatic tank gauge and statistical inventory reconciliation methods.

10.3.k. Regulated underground piping shall be tested in accordance with the requirements of subsection 8.7 of this Rule.

10.3.l. All leak detection records shall be kept at the facility for a minimum of twelve (12) continuous months and made available to the Secretary upon request.

10.3.l.1. The records should clearly demonstrate and document that the leak detection monitoring performed was capable of detecting an unintentional release from any portion of the AST system; and

10.3.l.2. Leak detection was performed at least every calendar month for the regulated AST system; and

10.3.l.3. The person performing the monitoring activity shall document the following:

10.3.l.3.A. Name of the person doing the monitoring;

10.3.l.3.B. Monitoring method or methods used; and

10.3.l.3.C. Monitoring date and results;

10.3.m. For existing regulated AST systems certified as Fit for Service but having leak detection deficiencies, the leak detection system shall be upgraded or repaired to meet the minimum requirements of this Rule and industry standards by the owner or operator on the schedule provided by the certifying person, but in no case later than the following:

10.3.m.1. For Level 1 ASTs, the AST system component not meeting the requirements for leak detection must be upgraded, repaired or otherwise brought into compliance by June 30, 2017, except that leak detection by visual means must have begun no later than the effective date of this Rule.

10.3.m.2. For Level 2 ASTs, the AST system component not meeting the requirements for leak detection must be upgraded, repaired or otherwise brought into compliance by June 30, 2018, except that leak detection by visual means must have begun no later than the effective date of the this Rule.

10.3.m.3. A regulated existing tank system that is taken out of service for internal inspection or major modification to the tank or that has been temporarily out of service and is being returned to service shall have to meet the leak detection requirements prior to placing the AST system back into service.

W. Va. Code R. § 47-63-11 Nonoperational, Change in Service, and Closures of AST Systems. 11.1 Nonoperational ASTs. – An AST is considered nonoperational when the tank is empty and will not have fluids deposited in or dispensed out of the tank on or after June 6, 2014. Nonoperational ASTs cannot be returned to service

11.1.a. Nonoperational ASTs must be registered and labeled in accordance with requirements of §22-30-11.

11.1.b. The owner or operator must permanently close AST systems located within the zone of critical concern that have been in nonoperational status for seven (7) years, unless the time frame for retaining the AST system in nonoperational status is extended by the Secretary upon request of the owner or operator and for good cause shown. 11.2 Changes In Service for ASTs. – A change in service to a registered aboveground storage tank includes, but is not limited to, a change in nature of contents, relocation, or permanent closure.

11.2.a. The owner or operator shall amend its registration in accordance with subdivision 3.1.d of this Rule when performing a change in service.

11.2.b. The owner or operator shall document that any new substance to be placed in the AST is compatible with the AST system components and with the secondary containment measures for the AST system.

11.2.c. The owner or operator shall ensure proper handling, storage, and disposal procedures of all of the AST system contents and cleaning materials during a change in service procedure. These materials must be reused, treated or disposed of in accordance with State and federal requirements.

11.2.d. The owner or operator shall submit a modified Spill Prevention Response Plan for regulated ASTs, if required, by subsection 5.5 of this Rule. 11.3 Permanent Closure of Regulated AST Systems

11.3.a. To place a regulated AST system in permanent closure, the owner or operator must empty and clean the AST, piping, and any associated equipment by removing all liquids and accumulated residues. All tanks permanently taken out of service must be either dismantled and removed from the site or rendered unusable for the storage of any substance.

11.3.b. At least thirty (30) days before beginning a permanent closure, the owner or operator shall notify the Secretary in writing of its intent to permanently close the regulated AST system, unless the action is in response to a corrective action ordered by the Secretary. A waiver of the thirty (30) day notice may be granted by the Secretary upon request of the owner or operator and for good cause shown.

11.3.c. Closure activities must be performed in accordance with industry standards (such as API, NFPA, and STI) and closure guidance documents developed by the Secretary.

11.3.d. Closure activities must be performed by a professional engineer, a person certified by API or STI or a person holding certification under another program approved by the Secretary.

11.3.e. The owner or operator shall submit a closure plan for review and approval by the Secretary at least thirty (30) days prior to closure. The owner or operator must measure for the presence of a release where contamination is most likely to be present at the AST site and consider the method of closure, the nature of the stored substance, the analytical methods to be performed, the type of backfill, the depth to ground water, and other factors appropriate for identifying the presence of a release.

11.3.f. The tank owner or operator shall submit a minimum of three (3) copies of the closure report to the Secretary no later than sixty (60) days after the closure has been completed. The closure report shall describe the regulated AST system closure procedures, including findings of any closure sampling required as part of the closure. The owner or operator shall retain a copy of the closure report for a minimum of three (3) years. If records cannot be maintained at a closed facility or an alternative site, the tank owner or operator may transmit the permanent closure records to the Secretary.

11.3.g. If contaminated soil, sediment, surface water or groundwater or free product is discovered outside of secondary containment or confirmed by either direct observation or indicated by the analytical results of the closure sampling, the owner or operator shall report the release immediately and comply with section 7 of this Rule.

11.3.h. Tanks that undergo permanent closure and left onsite shall be rendered unusable for the storage of any substance and shall be secured against unauthorized entry. The regulated AST is to be legibly marked by placing a stencil in a readily visible location that states the name of the last substance stored in the AST, the date of closure, and the words “Permanently Closed”.

W. Va. Code R. § 47-63-12 Financial Responsibility Requirements

12.1. General Financial Assurance Requirements

12.1.a. The owner or operator of a regulated AST must demonstrate financial responsibility for taking corrective action caused by accidental releases arising from the operation of aboveground storage tank systems. All forms of financial assurance must be submitted in accordance with the AST Act and this Rule in a manner prescribed by the Secretary and must remain in effect for the operational life of the tank or tank facility.

12.1.b. The mechanisms used to demonstrate financial assurance under this section must be conditioned upon the owner or operator complying with the Aboveground Storage Tank Act, any rules promulgated thereunder, any order of the Secretary, and the terms and conditions of the certificate to operate and ensure that the funds necessary to meet the costs of containment and corrective action for known releases will be available whenever they are needed.

12.1.c. The owner or operator shall demonstrate financial responsibility in an amount calculated as follows:

12.1.c.1. For Level 1 ASTs, an amount equal to twenty cents per gallon (20¢/gal.) of the aggregate storage capacity for the tank or tank facility, at a minimum of five thousand dollars ($5,000).

12.1.c.2. For Level 2 ASTs, an amount equal to ten cents per gallon (10¢/gal.) of the aggregate storage capacity for the tank or tank facility, at a minimum of five thousand dollars ($5,000).

12.1.d. The financial assurance mechanisms must be legally valid, binding, and enforceable under State and federal law.

12.1.e. If, for any reason, an owner or operator fails to maintain proper financial assurance for taking corrective action, the Secretary shall issue a cease and desist order and revoke the certificate to operate, and the owner or operator may not operate the regulated AST until appropriate financial assurance has been obtained for the AST system.

12.1.f. If the owner and operator of an aboveground storage tank are separate entities, only one entity is required to demonstrate financial responsibility; however, both parties are liable in event of noncompliance.

12.2. Allowable Mechanisms of Financial Assurance or Bonding

12.2.a. Surety bond;

12.2.b. Collateral bond, including:

12.2.b.1. Cash deposits, certified checks, cashiers’ checks or treasurer’s checks that are issued, drawn on or certified by a bank or banking institution authorized to do business in this State;

12.2.b.2. Collateral securities;

12.2.b.3. Certificates, including:

12.2.b.3.A. Bonds of the United States or its possessions;

12.2.b.3.B. Bonds of the Farm Credit Bank;

12.2.b.3.C. Full Faith and General Obligation bonds of the State of West Virginia or other states and of any West Virginia county, district or municipality, or any county, district or municipality of other states;

12.2.b.3.D. Letters of credit from banks or banking institutions authorized to do business in this State and that are automatically renewable and irrevocable;

12.2.b.3.E. Certificates of deposit from banks or banking institutions authorized to do business in this State and that are automatically renewable and assignable; or

12.2.b.3.F. Negotiable bonds of the United States or its possessions; the Farm Credit Bank; or Full Faith and General Obligation bonds of the State of West Virginia or other states and of any West Virginia county, district or municipality, or any county, district or municipality of other states.

12.2.c. Escrow account;

12.2.d. Performance bonding fund participation as established by the Secretary;

12.2.e. Trust fund;

12.2.f. Tank insurance for performing corrective action;

12.2.g. The financial test of self-insurance;

12.2.h. Proof of assets;

12.2.i. Bonds or other surety alternatives issued in accordance with Articles 3, 6, and 6A of Chapter 22 of the West Virginia Code satisfies the financial responsibility requirements of the Act and this Rule, provided that the operator provides proof that the bond will cover tank-related costs of corrective action up to the amount of the bond; or

12.2.j. Other forms approved by the Secretary upon request and for good cause shown.

12.3. Use of Multiple Financial Mechanisms.

12.3.a. If the owner or operator uses separate mechanisms or separate combinations of mechanisms to demonstrate financial responsibility for taking corrective action caused by accidental releases; the amount of financial responsibility provided by the combination of mechanisms must be in the full amounts specified in Section 12.1.c.

12.3.b. Where an owner or operator uses a combination of separate mechanisms to cumulatively demonstrate financial responsibility, the mechanisms shall clearly and expressly state the order and priority of the mechanisms in paying for corrective action and such order and priority shall be consistent with all regulatory requirements for demonstrating financial responsibility.

12.3.c. The Secretary may refuse to accept the combination of financial assurance mechanism if it is determined that the financial guarantee is unacceptable or for any other reason, does not meet the purposes of the Act, this Rule, or orders of the Secretary, or other relevant financial, insurance, or bonding laws of the State of West Virginia.

12.3.d. The financial test and a guarantee provided by a corporate parent, sibling or grandparent may not be combined if the financial statements of the two firms are consolidated.

12.3.e. Mechanisms used to demonstrate financial assurance with the Aboveground Storage Tank Act, any rules promulgated thereunder, or any order of the Secretary, must adhere to the relevant financial, insurance, or bonding laws of the State of West Virginia. 12.4 Releases From the Requirements of Financial Responsibility

12.4.a. An owner or operator is no longer required to maintain financial responsibility for an AST after the tank has been properly closed, or if corrective action is required, after corrective action has been completed and the tank has been properly permanently closed.

Series 64 Aboveground Storage Tank Fee Assessments

W. Va. Code R. § 47-64-1 General

1.1. Scope and Purpose. -- This rule establishes schedules of registration fees, annual operating fees, and annual response fees for aboveground storage tanks governed by the Aboveground Storage Tank Act, W. Va. Code § 22-30-1, et seq. This rule applies to any person who is subject to regulation by that Act.

1.2. Authority. -- W. Va. Code §§ 22-30-12 and 22-30-13.

1.3. Filing Date. -- June 27, 2016

1.4. Effective Date. -- August 1, 2016

W. Va. Code R. § 47-64-2 Definitions. – Unless the context in which used clearly requires a different meaning, the definitions contained in the Aboveground Storage Tank Act (the Act), W. Va. Code § 22-30-3, and the Aboveground Storage Tank Rule, 47 CSR 63, apply to this Rule

W. Va. Code R. § 47-64-3 Fee Assessment

3.1. Inventory Registration Fee

3.1.a. The Secretary shall collect an inventory registration fee from each owner of an AST subject to registration under the Aboveground Storage Tank Act.

3.1.a.1. For the initial inventory and registration, the fee shall be $40.00 per tank. For fee purposes, the initial registration period is June 6, 2014 through June 30, 2015.

3.1.a.2. For all ASTs installed after June 30, 2015, the registration fee shall be $20.00 per tank.

3.1.b. A transfer fee of ten dollars ($10.00) per tank shall be charged to transfer tank ownership. The new owner is responsible for the transfer fee. For administrative purposes the transfer of ownership shall not be considered complete until the Secretary receives a completed amended registration and payment of the transfer fee.

3.2. Annual Operating Fee

3.2.a. The Secretary shall collect an annual operating fee from owners of Level 1 and Level 2 ASTs that have not undergone permanent closure or change-in-service to a non-regulated tank.

3.2.a.1. The operating fee for Level 1 ASTs shall be $201.00 per tank per year.

3.2.a.2. The operating fee for Level 2 ASTs shall be $40.00 per tank per year.

3.3. Annual Response Fee

3.3.a. The Secretary shall collect an annual response fee from owners of Level 1 and Level 2 ASTs, unless the owner’s tanks have undergone permanent closure or change-in-service to a non-regulated tank. This fee shall be reviewed annually in accordance with W. Va. Code § 22-30-13(b) and be deposited into the Protect Our Water Fund.

3.3.b. The response fee for Level 1 and Level 2 ASTs shall be varied to produce a fund balance of no more than $1 million dollars after three years from June 12, 2015 and to maintain an aggregate fund balance of $1 million at the beginning of each calendar year thereafter.

3.4. Fee Calculation

3.4.a. For tanks that came into service before July 1, 2015, the owners shall pay an initial inventory and registration fee as provided in paragraph 3.1.a.1 above.

3.4.b. For tanks that came into service on or after July 1, 2015, the owners shall pay the registration fee assessed in subdivision 3.1.b above.

3.4.c. All Level 1 and Level 2 ASTs shall pay an annual Operating Fee and an annual Response Fee as assessed in subsections 3.2 and 3.3 above. The fee shall be collected pursuant to the provisions of section 4 of this Rule.

3.4.d. The fees assessed pursuant to this Rule shall not be prorated. Once the registration fee, annual operating fee, and annual response fees are paid, the Secretary shall not refund any portion of those payments if the tank subsequently goes out of service or goes through a change-in-service in the year for which the fees were paid.

3.5. Fee Consolidation. – All fees assessed pursuant to this Rule shall be consolidated.

W. Va. Code R. § 47-64-4 Fee Collection

4.1. The Secretary shall provide to each tank owner an invoice for the fees assessed pursuant to this Rule. The invoice shall include an itemized list of fees assessed and the date upon which the fees are due and payable. The invoice shall be provided in the form and manner as prescribed by the Secretary.

4.2. Fees assessed pursuant to this Rule shall be paid by check, money order, credit card or bank draft payable to the West Virginia Department of Environmental Protection. Payment of the entire amount of the fees assessed, as calculated on the assessment invoice, must be made in a single payment.

4.3. Fee payments shall be sent to the address on the fee assessment invoice by the date specified on the invoice. If the owner mails the fee payment, it shall be postmarked by the date specified on the invoice.

4.4. Correcting Fee Assessment Errors

4.4.a. If the Secretary undercharges a tank owner on a fee assessment invoice, the Secretary shall issue a corrected fee assessment invoice to the tank owner for payment.

4.4.b. If the Secretary overcharges a tank owner on a fee assessment invoice, the Secretary shall issue a corrected fee assessment invoice that is distributed for the next calendar year, unless the tank owner submits a written request for refund to the Secretary. The request for refund, along with documentation supporting the claim of erroneous assessment, shall accompany the payment of the assessed fee. The Secretary shall investigate the tank owner’s claim and issue a refund for the amount in excess of the proper assessment if the tank owner’s claim proves to be valid.

4.4.c. Any errors made in the calculation or assessment of fees, whether by the Secretary or as a result of inaccurate information submitted by the tank owner, shall be corrected within one year of the due date posted on the fee assessment invoice. Any errors not identified within this one year period shall be deemed waived.

W. Va. Code R. § 47-64-5 Fee Deposit

5.1. For the initial registration fees assessed pursuant to paragraph 3.1.a.1 of this Rule, the Secretary shall deposit fifty percent of the fees collected into the special revenue account within the State Treasury designated the Aboveground Storage Tank Administrative Fund and fifty percent of the fees collected into the special revenue account within the State Treasury designated the Protect Our Water Fund.

5.2. The Secretary shall deposit the registration fees assessed for tanks that came into service after June 30, 2015 pursuant to subdivision 3.1.b of this Rule into the special revenue account within the State Treasury designated the Aboveground Storage Tank Administrative Fund.

5.3. The Secretary shall deposit the annual operating fees assessed pursuant to subsection 3.2 above and any penalties assessed in accordance with Section 6.2 below into the Aboveground Storage Tank Administrative Fund.

5.4. The Secretary shall deposit the annual response fees assessed pursuant to subsection 3.3 above into the Protect Our Water Fund.

5.5. The deposit of a fee payment into the State Treasury is not acquiescence by the Secretary that the tank owner has paid for the correct number of tanks. Each tank owner is obligated to notify the Secretary if the number of tanks assessed is incorrect. The Secretary shall make necessary corrections in accordance with subsection 4.4 above.

W. Va. Code R. § 47-64-6 Failure to Pay Fees

6.1. A tank owner who does not make a full, timely payment of fees assessed pursuant to this Rule, or who otherwise fails to comply with the provisions of this Rule, may be subject to the penalties provided in the Aboveground Storage Tank Act, W. Va. Code § 22-30-17.

6.2. The Secretary shall assess penalties on fee payments not received by the Secretary by the specified due date on the fee assessment invoice. Late fees shall be a cumulative sum based on the following penalty assessment: fifty percent of the balance assessed for delinquent fees in excess of 30 days after the due date specified on the fee assessment invoice.

6.3. An owner who fails to pay any of the fees required by the Aboveground Storage Tank Act and this Rule may be subject to civil action for collection of delinquent debts.

6.4. Failure to pay any of the fees required by the Aboveground Storage Tank Act and this Rule my result in administrative actions against the tank owner, including revocation of AST certificate(s) to operate.

6.5. If a tank owner attempts to register an AST and the Secretary accepts the registration, but the tank owner is delinquent in payment of any of the fees required by the Aboveground Storage Tank Act and this Rule, the Secretary may deny issuance of the Certificate to Operate the subject tank.

6.6. If tank ownership changes and any of the fees required by the Aboveground Storage Tank Act and this Rule for the subject tank are delinquent, the unpaid fee balance shall transfer to the new owner.

W. Va. Code R. § 47-64-7 Inflation or Deflation Based Fee Adjustments

7.1. The annual operating fee set forth in this Rule is based on calendar year 2016 dollar value. The annual operating fee shall be indexed annually, up or down, based on the U.S. Department of Labor’s Consumer Price Index (All items).

7.1.a. Invoices issued by the Department after July 1, 2017 shall reflect the cumulative inflation or deflation adjustment(s).

Series 65 Aboveground Storage Tank Administrative Proceedings and Civil Penalty Assessment

W. Va. Code R. § 47-65-1 General

1.1. Scope. -- This rule establishes a procedure for the resolution of enforcement actions and the assessment of civil penalties for violations of the Aboveground Storage Tank Act in lieu of the institution of a civil action.

1.2. Authority. -- W. Va. Code § 22-30-16

1.3. Filing Date. -- June 27, 2016

1.4. Effective Date. -- August 1, 2016

1.5. Nothing in this Rule shall be construed as limiting or altering the authority of the Secretary to enforce the provisions of the Aboveground Storage Tank Act (“Act”) or the Aboveground Storage Tank Rule(s) (“Rules”) as set forth therein. This enforcement provision is in addition to any and all other enforcement provisions set forth in the Act or Rules.

W. Va. Code R. § 47-65-2 Definitions

2.1. This Rule hereby incorporates by reference the definitions of all terms as contained in the Aboveground Storage Tank Act, W. Va. Code §22-30-3, and the Aboveground Storage Tank Rule, 47 CSR 63. In addition, for the purpose of this Rule, the following definitions apply:

2.2. “Administrative proceedings” means those proceedings undertaken pursuant to this Rule by the Secretary upon the Secretary’s decision to attempt to resolve alleged violations of the Aboveground Storage Tank Act and its Rules.

2.3. “Base penalty” means that amount assessed for a violation of the Act or its Rules based solely upon the extent of the deviation from the Act and the potential for harm to the public or the environment resulting from the violation.

2.4. “Responsible party” may be an owner, operator, permittee or any person alleged to have violated the Act or its Rules.

W. Va. Code R. § 47-65-3 Applicability of the Rule

3.1. Upon discovery of a violation, through whatever means, of the Aboveground Storage Tank Act or its Rules, the Secretary may, at his or her discretion, choose to institute administrative proceedings pursuant to the Act and this Rule to resolve the alleged violation.

3.2. Not a Waiver. – Nothing in this Rule shall be construed as limiting the ability of the Secretary to pursue a civil action for any violation of the Act or its Rules, should the agency and the responsible party be unable to reach a settlement of the alleged violations, pursuant to the procedures set forth in this Rule. The Secretary is under no requirement to institute administrative proceedings prior to taking any other lawful action pursuant to the Act or its Rules.

W. Va. Code R. § 47-65-4 Notice

4.1. The Secretary shall notify any responsible party of the Secretary’s decision to institute administrative proceedings pursuant to the Act and its Rules.

4.2. Notice of the Secretary’s decision to commence an administrative proceeding shall be transmitted to the responsible party by certified mail or other transmittal method that offers proof of delivery (i.e. facsimile or electronic mail).

4.3. Notice shall include a proposed Consent Order initially containing, at a minimum, findings of fact and conclusions of law outlining the alleged violations, any remedial work to be performed by the responsible party, and a proposed civil penalty assessment that shall be based on the procedures set forth in this Rule.

4.4. The responsible party shall respond to the Secretary’s Notice within ten days of receipt thereof, indicating whether or not it will participate in the administrative proceeding. Failure to timely respond shall be considered as refusal to participate in the process.

W. Va. Code R. § 47-65-5 Administrative Proceedings

5.1. Should the responsible party agree to participate in an administrative proceeding, the parties shall set a meeting to be held within thirty days of the initial Notice, if possible.

5.2. The administrative proceeding may consist of multiple meetings amongst the parties and may continue until a satisfactory resolution of the alleged violations are agreed to.

5.3. If agreed to, resolution of the alleged violations contained in the Notice shall be by Consent Order entered into by the responsible party and the Secretary.

5.4. The administrative proceeding may be terminated at any time, for any reason, by any party involved in the proceeding.

W. Va. Code R. § 47-65-6 Civil Penalty Assessment

6.1. Determination of Base Penalty. – The seriousness (gravity) of a violation must be taken into account in assessing a penalty for a violation. The gravity-based penalty amount should be determined by examining two factors: potential for harm to human health or the environment and extent of deviation from the statutory or regulatory requirement.

6.1.a. Potential for harm to human health or the environment.

6.1.a.1. The potential for harm to human health or the environment from a violation may be determined by the likelihood and degree of exposure of persons or the environment to pollution or the degree of adverse effect of noncompliance on statutory or regulatory purposes or procedures for implementing the regulatory program.

6.1.a.2. Emphasis shall be placed on the potential harm posed by a violation rather than the actual harm which occurred. There need not be any showing of actual harm to human health or the environment to support a finding of potential harm.

6.1.a.3. The Secretary shall determine whether the potential for harm was major, moderate or minor depending upon factors to be considered on a case-by case analysis.

6.1.b. Extent of Deviation from Requirements.

6.1.b.1. The extent of deviation from the Act or its Rules and its regulatory requirements relates to the degree to which the violation renders inoperative the requirements violated.

6.1.b.2. The Secretary shall determine whether the extent of deviation from the statutory or regulatory requirement was major, moderate or minor depending upon factors to be considered on a case-by-case basis.

6.1.c. Factors that may be considered in determining potential for harm to human health or the environment and the extent of deviation from a regulatory requirement may include, but are not limited to, length of time of violation, actual human and environmental exposure, and resultant effects upon human health and the environment, potential seriousness of contamination, and degree of non-compliance.

6.1.d. Civil Penalty Matrix. – Each of the above factors - potential for harm and extent of deviation from a requirement - forms one of the axes of a civil penalty matrix from which the base penalty is calculated. The matrix shall have nine cells, each containing a penalty range. The selection of the exact penalty amount is within the discretion of the Secretary. The seriousness of the violation is considered in determining the base penalty. The reason the violation was committed, the intent of the responsible party or other factors related to the violator are not considered. The complete matrix is illustrated in Appendix A.

6.2. Penalty Adjustment Factors. –

6.2.a. The base penalty may be adjusted at the discretion of the Secretary after consideration of factors presented by the responsible party. The adjustment may raise or lower the base civil penalty.

6.2.b. The Secretary may consider the following factors in determining whether an adjustment in the base civil penalty assessment is justified:

6.2.b.1. Good faith efforts to comply or lack of good faith;

6.2.b.2. Degree of willfulness or negligence;

6.2.b.3. Cooperation with the Secretary;

6.2.b.4. History of noncompliance;

6.2.b.5. Ability to pay a civil penalty;

6.2.b.6. Economic benefits derived by the responsible party;

6.2.b.7. Staff investigative costs; and

6.2.b.8. Other factors deemed relevant by the Secretary that may be presented on a case-by-case basis.

6.3. Multi-Day Penalties. – In cases of an ongoing or continuing violation, each day of violation is one distinct violation for which a calculation must be made.

W. Va. Code R. § 47-65-7 Entry of Consent Order

7.1. Prior to a responsible party and the Secretary signing any Consent Order resolving an alleged violation of the Act or its Rules, the Secretary shall publish notice in the form of a Class I Legal Advertisement in accordance with W. Va. Code § 59-3-1 et. seq. in a newspaper of general circulation in the county that the facility subject to the action is located and at least thirty (30) days prior to the final settlement of any Consent Order. This notice will identify the facility found to be in violation, the specific enforcement action to be taken, and the name and address where information about the proposed settlement can be obtained. The Secretary shall consider all comments received during the thirty (30) day period.

7.2. The Secretary may either modify the Consent Order based upon the public comments or execute the Consent Order as proposed.

7.3. Should the Secretary modify the Consent Order as a result of public comments, the responsible party may reject the proposed modifications and reject the modified Consent Order.

7.4. Penalties collected pursuant to this Rule shall be deposited into the Aboveground Storage Tank Administrative Fund or the Protect our Water Fund, as appropriate, for use in effectuating the purposes of the Act and its Rules.

APPENDIX A

CIVIL PENALTY MATRIX

Extent of Deviation from Requirement MAJOR MODERATE MINOR Potential for Harm to Human Health or the Environment MAJOR $8,000 to $10,000 $6,000 to $8,000 $5,000 to $6,000 MODERATE $4,000 to $5,000 $3,000 to $4,000 $2,000 to $3,000 MINOR $1,500 to $2,000 $1,000 to $1,500 Up to $1,000