Title 46 W. Va. C.S.R.

title-46Title 46 W. Va. C.S.R.Regulation

Open source

Environmental Quality Board Environmental Quality Board

Series 04 Procedural Rules Governing Appeals Before The Environmental Quality Board

W. Va. Code R. § 46-4-1 General

1.1. Scope. -- This series governs the practice and procedure before the environmental quality board (the "board") in adjudicatory proceedings. [Note: The environmental quality board was formerly known as the state water resources board.]

1.1.a. Purpose. -- The purpose of these rules is to describe each of the rules of procedure before the board in order to provide a fair and orderly ascertainment of the facts and to promote the ends of justice and fairness.

1.2. Authority. -- W. Va. Code §§29A-3-3; 22B-1-3(c).

1.3. Filing Date. -- April 20, 2007.

1.4. Effective Date. -- May 19, 2007.

1.5. Repeal of Former Rule. -- This procedural rule repeals and replaces 46 CSR 4 Procedural Rules Governing Appeals Before The Environmental Quality Board which became effective on November 28, 1994.

W. Va. Code R. § 46-4-2 Notice of Appeal; Answer

2.1. Parties to the Appeal. A person appealing an action of the chief shall be known as the appellant, and the chief shall be known as the appellee.

2.2. Notice of Appeal. The adjudicatory process commences by filing a notice of appeal.

a. Form. The notice of appeal shall be in the form as prescribed in appendixA. Forms for filing the notice of appeal may be obtained from the clerk of the boards, 601 57th Street, S.E. Charleston, West Virginia 25304, (304) 926-0445. All subsequent submissions shall be captioned in the same manner as the notice of appeal.

b. When to file. An appeal filed by a person authorized by statute to seek review of an order, permit or official action shall be perfected by filing a notice of appeal with the board within thirty (30) days after the date upon which service of such order, permit or official action was complete. For persons entitled by statute to appeal the failure or refusal of the appropriate chief or the director to act within a reasonable time on an application for a permit, such notice of appeal shall be filed within a reasonable time.

c. Content. The notice of appeal shall set forth the action complained of, and in separate numbered paragraphs the specific objections to the action, including questions of fact and law to be resolved by the board. The objections may be factual or legal. An objection not raised by the appeal shall be deemed waived, provided that, upon good cause shown, the board may agree to hear the objection. The notice of appeal shall conclude with the address, telephone number, and signature of the appellant or his or her attorney of record.

d. Attachments. Appellant shall attach the written notification of the action appealed from to the notice of appeal.

e. Service on Permit Holder. When an appeal of a permit is filed by a party or parties who are not the holders of the permit, the issuance of which, or the terms and conditions of which are being appealed, the third party appellant shall serve upon the holder of the permit a copy of the notice of appeal at the same time that such notice of appeal is filed with the board. The holder of the permit shall be considered a party in interest in the appeal proceedings and shall have the right to intervene in the appeal.

f. Filing of Notice of Appeal on the Chief. In accordance with W.Va. Code §22B-1-7(d), within seven (7) days after receipt of the notice of appeal, the board shall file a copy of the notice of appeal with the appropriate chief or director, and with the Office of Legal Services, West Virginia Department of Environmental Protection.

2.3. Answer. The appellee may file a written answer to the notice of appeal. If an answer is filed, it shall be filed within twenty one (21) days from receipt of the notice of appeal.

W. Va. Code R. § 46-4-3 The Certified Record

3.1. Certifying the Record. Within fourteen (14) days after receipt of his or her copy of the notice of appeal, the chief shall prepare and certify to the board a complete record of the proceedings out of which the appeal arises, including all documents and correspondence in the chief's file relating to the matter in question.

3.2. Preparation by Chief. In order to preserve the evidentiary value of the certified record, it shall be submitted by the appropriate chief in chronological order and each page shall be consecutively numbered.

3.3. Evidence. The certified record shall be evidence of the agency's consideration of matter that is appealed, and shall form the basis of the board's review of the matter.

3.4. Amendment. In order to remedy an omission, any party may request an amendment to the certified record upon written application to the board.

W. Va. Code R. § 46-4-4 Filing and Service of Documents

4.1. Where to file: all documents required to be filed with the board under these rules shall be filed with the clerk of the boards, environmental quality board, 601 57th Street, S.E., Charleston, West Virginia 25304.

4.2. Method of filing: Filing may be accomplished by personal delivery, express mail, or by first class United States mail, postage prepaid, of six (6) duplicate sets.

4.3. When filing effective: Filing is effective upon personal delivery, upon delivery of express mail, or upon deposit in the United States mail as ascertained by postmark.

4.4. When Receipt Effective: For the purpose of calculation of time to respond, receipt is effective upon personal delivery, upon delivery by express mail, and will be deemed to be effective three days from the date of postmark if received by first class United States mail, postage prepaid.

4.5. Service upon other parties: Copies of all documents filed with the board under these rules shall be served contemporaneously upon all other parties to the appeal.

4.6. Proof of Service: Unless otherwise provided for by these rules, all documents required to be served shall be accompanied by proof of service in the form of a certificate of service, which shall include a statement of how service was accomplished.

W. Va. Code R. § 46-4-5 Orders of the Board; Submission of Motions

5.1. Execution and Entry of Orders. All orders properly acted upon shall be executed by the presiding member of the board, the board's legal counsel or the board's duly authorized hearing examiner. All orders properly acted upon and so executed shall be entered into the official record by the clerk of the boards.

5.2. Authority to Rule on Motions. The board may, in its administrative discretion, and in the interests of fairness and justice, rule on motions which tend to regulate the course of hearing, simplify the issues, and dispose of procedural requests or similar matters. The board may appoint its legal counsel or hearing examiner to dispose of stay requests, procedural motions, discovery motions, and any other request which tends to regulate the course of the hearing.

5.3. Content. Any application to the board, following the notice of appeal, shall be by motion. Such motions may include, but are not limited to, requests for continuance, requests for stay, questions regarding jurisdiction, sufficiency of service of process, failure to state a claim upon which relief can be granted, request for a more definite statement, summary judgement, change of hearing location, dismissal of action or of particular issues in the appeal, and amendment of a notice of appeal.

5.4. Form. Unless made during the hearing, all motions shall be in writing, stating with particularity the grounds thereof and stating the relief or order sought. The motion may be accompanied by a memorandum or other supporting documents. The proponent shall serve the motion on the board and on all other parties to the appeal as required by these rules of procedure. Unless the board determines otherwise, a party shall have ten (10) days from receipt of the motion to respond to the same.

5.5. Stay Requests. The filing of the notice of appeal does not stay or suspend the effectiveness of the action appealed from, except as provided for by section five, article five, chapter twenty-two of the Code of West Virginia. The appellant may request a stay of the action appealed from by written motion contemporaneous with the filing of the notice of appeal. The motion for stay shall include a copy of the action appealed from and any other documents supporting the request. The motion for stay shall be served on the board and all parties in accordance with these rules.

5.6. Discovery. Parties may obtain discovery in accordance with the provisions of W. Va. Code §22B-1-8. Parties have twenty (20) days from receipt of the request to respond. A shorter or longer time may be agreed to in writing by the parties and filed with the Board.

5.7. Informal Hearing on Motion. The board may, in its administrative discretion, and in the interests of fairness and justice, utilize informal hearings to dispose of stay requests, procedural motions, motions which tend to regulate the course of hearing, or simplify the issues, or similar matters. If an informal hearing on a motion is held, it may be conducted by the board’s duly authorized legal counsel or hearing examiner, and may be conducted by telephone.

W. Va. Code R. § 46-4-6 Evidentiary Hearings

6.1. Notice of Evidentiary Hearing. The board shall give each party to any evidentiary hearing at least ten (10) days' written notice of such hearing which shall be served by registered or certified mail or by any proper law-enforcement officer.

6.2. Continuance of Hearings. After a hearing date has been set, a continuance will not be granted by the board except upon a showing of good cause. A party who desires a continuance shall, immediately upon receipt of a notice of hearing, or as soon thereafter as practicable, file a written motion with the board stating in detail the reasons why such a continuance is necessary. Such motion shall be filed at least five (5) days prior to the date of hearing. The board may at any time order a continuance upon its own motion.

6.3. Quorum. Any evidentiary hearing shall be conducted by a quorum of the board, but the parties may by stipulation agree to take evidence before any one or more members of the board or before a hearing examiner employed by the board.

6.4. Place of Hearing. Unless the board determines otherwise, evidentiary hearings shall be held in the board's offices located at 601 57th Street, S.E., Charleston, West Virginia.

6.5. Conduct of Hearings. All appeal hearings shall be open to the public, and shall be conducted in accordance with article 5 of chapter 29A of the West Virginia Code. All parties to a hearing, their legal counsel, and spectators, shall conduct themselves in a respectful manner. Public displays of any kind at hearings shall not be permitted. The board may, at its discretion, recess or continue any hearing in which the parties, legal counsel, witnesses or spectators conduct themselves in a disrespectful, disorderly or contemptuous manner which interferes with or prevents the proper conduct of such hearing.

6.6. Stipulations. Written stipulations by the parties to questions of fact may be filed with the board before the hearing of an appeal or may be read into the record at the time the hearing is held.

6.7. Testimony at Hearing. Testimony in any hearing before the board will be made on the record, and shall be given under oath.

6.8. Presentation. The board shall hear the appeal de novo. The appellant shall open the hearing and present testimony and offer exhibits that support the notice of appeal. The appellant's witnesses shall be subject to cross-examination by any other party to the appeal or by the board. At the conclusion of the appellant's case, the appellee may then present testimony and offer exhibits. After initial presentations have been made, both the appellant and the appellee may present rebuttal evidence on the issues in the case, providing that such evidence is not cumulative, repetitive or immaterial to the case.

6.9. Briefs. In addition to the presentation of oral argument, the board may require the parties to file written briefs. The board may require the filing of briefs before or after the taking of evidence. The parties shall file the original and six (6) duplicate sets of the brief with the clerk of the boards, and shall serve a copy of the same on all other parties as required by these procedural rules. The original copy of the brief shall be accompanied by one copy of all citations to case law, treatises, or periodicals. Leave to file briefs amicus curiae may also be granted by the board.

6.10. Proposed Findings of Fact and Conclusions of Law. In accordance with article 5, chapter 29A of the West Virginia Code, prior to the entry of any final order or final decision, any party may propose findings of fact and conclusions of law for the board's consideration. All such findings of fact and conclusions of law shall be separated as such and shall be set out by numbered paragraph. Unless otherwise ordered by the board, all such proposed findings of fact and conclusions of law shall be filed within 30 days of the conclusion of the evidentiary hearing.

6.11. Service and Publication of Final Orders. A copy of a final order or final decision, and findings of fact and conclusions of law of the board shall be served upon each party and his or her attorney of record, if any, in person or by registered or certified mail. Further, each final order or final decision issued by the board shall be filed with the secretary of state for publication in the state register in accordance with section 9, article 2, chapter 29A of the West Virginia Code.

6.12. Rules of Evidence. The rules of evidence as applied in civil cases in the circuit courts of West Virginia will govern evidentiary hearings before the board in accordance with section two, article five, chapter 29A of the Code of West Virginia.

6.13. Rules of Procedure. While the differences in the functions of courts and administrative boards preclude the "wholesale transportation" of the Rules of Civil Procedure into the hearings before the board, some such rules must be utilized to manage board hearings. Thus, as a matter of policy and to assure fairness, the appropriate Rules of Civil Procedure will guide the appeals process before the board.

W. Va. Code R. § 46-4-7 Ex Parte Contacts

An ex parte contact is an oral or written communication with the board or its staff regarding the merits of an appeal or motion which is not on the record in the proceeding and which is made without notice to and in the absence of the other party or parties. Such ex parte contacts are prohibited and any such communication will not be considered in the determination of an appeal.

W. Va. Code R. § 46-4-8 Confidential Information

The board may utilize in camera proceedings to review any document or other information that is claimed to be protected as confidential.

APPENDIX A

WEST VIRGINIA ENVIRONMENTAL QUALITY BOARD

CHARLESTON, WEST VIRGINIA

APPELLANT'S NAME,

Appellant, v. Appeal No.

DIRECTOR, DIVISION OF ,

DEPARTMENT OF

ENVIRONMENTAL PROTECTION,

Appellee.

NOTICE OF APPEAL

Action Complained Of: The appellant(s) named above respectfully represent(s) that it is aggrieved by (identify the order, failure or refusal, or permit, and give date of the order or permit):

Relief Requested: The appellant therefore prays that this matter be reviewed and that the Board grant the following relief (describe the relief sought):

Specific Objections: The specific objections to the action, including questions of fact and law to be determined by the Board, are set forth in detail in separate numbered paragraphs and attached hereto. The objections may be factual or legal.

Amendment of this Notice of Appeal may be had only by leave of the Board, and only for good cause shown.

Dated this _____ day of _________, 20. ___________________________________ (Signature) ___________________________________ (Address) ___________________________________ (Telephone)

This form is offered as guidance to unrepresented parties.

46CSR4

Series 06 Procedural Rules Governing Site-Specific Revisions To Water Qualtiy Standards

W. Va. Code R. § 46-6-1 General

1.1. Scope. -- This series establishes procedures which govern the promulgation of legislative rules by the Environmental Quality Board and establishes procedures to be followed by the Board in reclassifying designated uses, granting variances from water quality standards, granting variances for remining activities and establishing site-specific numeric criteria as authorized in 46 CSR 1, Requirements Governing Water Quality Standards and W.V. Code '22B-3-4. (Note: the Environmental Quality Board was formerly known as the State Water Resources Board).

1.2. Purpose. -- The purpose of these rules is to establish general procedures the board must follow in promulgating legislative rules and to establish procedures for requests for site specific revisions to 46 CSR 1, Requirements Governing Water Quality Standards, which can be requested by application to the Board.

1.3. Authority. -- W. Va. Code ''22B-3-4 and 29A-3-3.

1.4. Filing Date. -- November 7, 1996.

1.5. Effective Date. -- December 9, 1996. ' 46-6-2 Revision of Legislative Rules.

2.1. Statutory requirements. Except as provided in section 6 herein, all revisions to the Board's legislative rules (46 CSR 1 and 46 CSR 12) shall be made in accordance with the provisions of W. Va. Code '29A-3-1 et seq..

2.2. Public hearing. In addition to the requirements outlined in W. Va. Code '29A-3-1, the Board shall hold at least one public hearing in conjunction with any revision to the Board's legislative rules. Such hearing shall be held prior to the expiration of the public comment period for a proposed legislative rule.

2.3. Additional public notice requirements. In addition to filing notice of the proposed rule in the State Register, the Board shall publish notice of a public hearing on the proposed rule revisions as a Class I legal advertisement in a publication area determined by the Board. Such notice of public hearing shall include the following information:

a. Time and location of hearing;

b. Hearing agenda;

c. Notification of the availability of an information sheet as required in section 3.3 herein; and d. The location where reports, documents, and data pertaining to the hearing agenda are available for public inspection.

W. Va. Code R. § 46-6-3 Requirements For Site-Specific Revisions to 46 CSR 1, Requirements Governing Water Quality Standards

3.1. Application. Any person seeking reclassification of a designated use, a variance from numeric water quality criteria or a site-specific numeric criterion shall file an application with the Board containing the following information and any other information required in this rule:

a. A U.S.G.S. 7.5 minute map showing those stream segments to be affected and showing all existing and proposed discharge points. In addition, the alphanumeric code of the affected stream, if known;

b. Existing water quality data for the stream or stream segment. Where adequate data are unavailable, additional studies may be required by the Board;

c. General land uses (e.g. mining, agricultural, recreation, residential, commercial, industrial, etc.) as well as specific land uses adjacent to the waters for the length of the segment proposed to be revised;

d. 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;

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

f. 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;

g. An assessment of aquatic life in the stream segment in question and in the adjacent upstream and downstream segments; and h. Any additional information or data that the Board deems necessary to make a decision on the application.

3.2. Consultation with the Chief. In reviewing an application filed pursuant to this section, the Board shall consult with the Chief of the Office of Water Resources of the Division of Environmental Protection.

3.3. Preparation of an information sheet. If, after review of an application filed pursuant to this section and consultation with the Chief, the Board determines that the requested change is warranted, the Board shall prepare an information sheet which summarizes the information in the application which is pertinent to the Board's decision on each application. The information sheet shall contain at least the following where applicable:

a. The name and address of the applicant;

b. The name and description of the waters for which a change is proposed, including the location of existing and proposed discharge points and the Alphanumeric designation;

c. All existing and designated uses of the water;

d. The proposed change being requested for the stream or stream segment;

e. A brief abstract of the supportive documentation which demonstrates that the revision is appropriate;

f. A summary of the implications of such revision for the community and other users or potential users of the waters in question;

g. Any recommendations made by the Chief of the Office of Water Resources of the Division of Environmental Protection; and h. Any other information deemed pertinent to the Board's decision.

W. Va. Code R. § 46-6-4 Reclassification of a Designated Use

4.1. Circumstances allowing reclassification of a designated use. The Board may propose the reclassification of a designated use outlined in 46 CSR 6, which is not an existing use, from a stream or stream segment, or the establishment of subcategories of a use for a stream or stream segment if it can be demonstrated that attaining the designated use is not feasible because:

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 result in substantial and widespread adverse economic and social impact; or b. Naturally-occurring pollutant concentrations prevent the attainment of the use; or 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 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 e. Dams, diversions or other types of hydrologic modifications preclude the attainment of the use, and it is not feasible to restore the water body to its original condition or to operate such modification in a way that would result in the attainment of the use; or f. Physical conditions related to the natural features of the water body, 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.

4.2. Application. Any person seeking the reclassification of a designated use from a stream shall file an application with the Board which shall include the information outlined in section 3.1 (a-h) herein, and shall further include the following:

a. The designated use category or categories outlined in 47 C.S.R. 1 which apply to the stream and the alternate designated use category desired by the applicant;

b. Identification of the criterion outlined in section 4.1 (a - f) herein which render the current designated use category unattainable; and c. An explanation of the specific circumstances on the stream and/or in the applicant's discharge or other discharges which render the designated use category unattainable.

d. Any other information, requested in writing by the Board that is required in order to comply with the requirements of 40 CFR 131.10(j), regarding conducting a Use Attainability Analysis.

4.3. Amendment of 46 CSR 1. If, upon review of an application and consultation with the Chief pursuant to '3.2 herein, the Board determines that the requested designated use reclassification is warranted, the Board shall propose the use reclassification as an amendment to 46 CSR 1, Requirements Governing Water Quality Standards. In doing so, the Board shall follow all of the requirements for legislative rulemaking in W. Va. Code '29A-3-1 et seq. and in sections 2 and 3.3 of this rule.

W. Va. Code R. § 46-6-5 Variances From Water Quality Standards Requested Pursuant to 46 CSR 1, Section 8.3

5.1. Circumstances allowing a variance. Upon receipt of an application the Board may approve a variance from numeric water quality criteria if it determines that the conditions outlined in section 4.1 a-f above limit the attainment of one or more specific water quality criteria.

5.2. Scope and review of variance. Each variance proposed by the Board and approved by the legislature shall apply only to the discharger requesting the variance and shall be reviewed by the Board at least once every three years. At the time of the Board's review the discharger must either meet the standard or make a new demonstration of unattainability.

5.3. Application. Any person seeking a variance from numeric water quality criteria shall file an application with the Board which shall include all of the information outlined in section 3.1 a-h above, as well as the following:

a. The designated use categories outlined in 46 CSR 1 which apply to the stream;

b. The existing numeric water quality criterion which applies to the stream and for which the applicant seeks a variance, and the alternative numeric water quality criterion desired by the applicant;

c. Identification of the criterion outlined in section 3.1 a-f above which render the existing numeric water quality criterion unattainable; and d. Identification of the specific circumstances which render the discharger unable to meet the existing numeric water quality criteria which apply to the stream.

5.4. Amendment of 46 CSR 1. If, upon review of an application and consultation with the Chief, the Board determines that a requested variance is warranted, the Board shall propose such variance as a revision to 46 CSR 1, Requirements Governing Water Quality Standards. In doing so, the Board shall follow all of the requirements for legislative rulemaking outlined in W. Va. Code '29A-3-1 and in sections 2 and 3.3 of this rule. '46 CSR 6. Variances From Numeric Water Quality Standards For Remining Activities.

6.1. Authority to grant a remining variance. Pursuant to the authority provided in W. Va. Code '22B-3-4(c) the Board may grant a site-specific variance for remined areas of coal remining operations from standards of water quality set forth in 46-CSR-1, et seq, setting standards for iron, manganese or pH prior to the issuance of a national pollutant discharge elimination system (NPDES) permit by the Division of Environmental Protection in accordance with 33 USC Section 1311(p) of the Federal Water Pollution Control Act.

6.2. Circumstances allowing issuance of a variance from water quality standards for remining activities. The Board may grant such variance if, after review of the variance application, the NPDES remining permit application and any other pertinent information, it finds that all of the requirements in this rule and in W. Va. Code '22B-3-4 and Coal Remining Policy issued by the West Virginia Division of Environmental Protection on September 30, 1993, have been met and that a variance from water quality standards is warranted. The Board may grant the variance if it finds the following:

a. the stream does not currently meet the applicable numeric water quality criteria for iron, manganese or pH;

b. the remining activity cannot be carried out in compliance with the numeric water quality standards for iron, manganese or pH; and c. the coal remining operation will result in the potential for improved water quality.

6.3. Application. Any person seeking a variance from water quality standards for remining activity shall file with the Board a copy of the NPDES remining permit application filed with the Division of Environmental Protection, as well as a remining variance application containing the following:

a. A demonstration that the coal remining operation is located on a site on which coal mining was conducted prior to August 3, 1977;

b. The name and location of the stream, and the alphanumeric code of the stream, if known;

c. The use designation of the stream;

d. All baseline water quality data collected in the stream;

e. All available data and information regarding the levels of iron, manganese or pH in the existing discharge into the receiving stream;

f. A demonstration that the water quality of the stream does not meet current numeric water quality criteria for iron, manganese or pH;

g. The alternative numeric water quality criteria for iron, manganese or pH in the receiving stream requested by the applicant; and h. A description of the abatement action which will be carried out on site and how such action will result in improved water quality in the receiving stream. In addition, the applicant shall provide information about other abatement actions considered and why the chosen abatement action is preferred and supporting information explaining why the chosen abatement action is the best available technology economically achievable.

6.4. The Board shall review any application prepared and submitted pursuant to the requirements in 6.3 herein, and shall make a preliminary decision regarding whether the requested remining variance is warranted.

6.5. Upon a decision by the Board that the remining variance is warranted, it shall prepare an information sheet which includes the information outlined in section 3.3 herein.

6.6. Public hearing on remining variance. Upon a decision by the Board that the requested remining variance is warranted and the preparation of a information sheet, the Board shall provide notice of a public hearing on its decision. Such notice shall be filed with the Office of the Secretary of State for publication in the state register not less than thirty nor more than sixty days before the date of the public hearing. In addition, the Board shall publish the notice of public hearing as a Class I legal advertisement in a publication area to be determined by the Board.

The notice of public hearing shall include the following information:

a. Time and location of hearing;

b. Hearing agenda;

c. Notification of the availability of an information sheet as required under '6.5 herein; and d. The location where reports, documents, and data pertaining to the hearing agenda are available for public inspection.

6.7. Continuance of hearing. Any hearing scheduled pursuant to the provisions above may be continued from time to time and place to place by the Board, which shall have the effect of extending the last day for receipt of public comments. Notice of such continuance shall be promptly filed in the state register.

6.8. Hearing Transcript. The Board shall cause to be prepared a transcript of any public hearing held pursuant to these rules and shall make such transcript available for public inspection.

6.9. Multiple applications. In consideration of limited time and resources, the Board may, within its discretion, consider more than one remining variance application in one hearing.

6.10. Decision on remining variance application. Upon review and deliberation of all of the information available on a remining variance application, including the comments received during the public hearing and public comment period, the Board shall issue an order either granting or denying the remining variance request. Such order shall be forwarded to the applicant and to the Director of the Division of Environmental Protection.

6.11. Prohibitions. The Board may not grant a variance from water quality standards for remining activities under the following circumstances:

a. Without requiring the applicant to improve the instream water quality as much as is reasonably possible by applying best available technology economically achievable using best professional judgment which requirement will be included as a permit condition;

b. Without a demonstration by the applicant that the coal remining operation will result in the potential for improved instream water quality as a result of the remining operation; and c. In the event that the Board determines that degradation of the existing instream water quality will result from the remining operation.

W. Va. Code R. § 46-6-7 Site-Specific Numeric Criteria Requested Pursuant to 46 CSR 1, section 8.4

7.1. Circumstances allowing a site-specific numeric criterion. A site-specific numeric criterion may be established for a stream or stream segment upon a demonstration that the existing numeric criterion in 46 CSR 1, Appendix E, is 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 by the Board 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. Applicants for site-specific numeric criteria must contact the Board to receive approval for the use of any plan for a Water Effect Ratio, Recalculation Procedure or any other method for developing a site-specific numeric criterion, prior to carrying out any provisions of such plan.

7.2. Application. Any person seeking a site specific numeric criterion may submit to the Board an application which includes the information outlined in section 3.1 a-i of this rule, as well as the following information:

a. the existing numeric water quality criterion which applies to the stream and the alternative numeric criterion desired by the applicant;

b. The results of a Water Effect Ratio study conducted pursuant to the procedures outlined in the February 1994 version of EPA's "Interim Guidance on the Determination and Use of Water-Effect Ratios for Metals" (or any subsequent version of that guidance in effect at the time of the proposal) or any other method for which the applicant has obtained prior approval from the Board including USEPAs Recalculation Procedure; and c. An explanation of how the results of the Water Effect Ratio study demonstrate that the alternative numeric water quality criterion proposed by the applicant is warranted.

7.4. Amendment of 46 CSR 1. If upon review of the application and consultation with the Chief pursuant to section 3.2 herein, the Board determines that a site-specific numeric criterion is warranted, the Board shall propose the site-specific numeric criterion as an amendment to 46 CSR 1, Requirements Governing Water Quality Standards. In doing so, the Board shall follow all of the requirements for legislative rulemaking outlined in W. Va. Code '29A-3-1 and in sections 2 and 3.3 of this rule.

46CSR6

Continue your research in ChatGPT or Claude

Connect Omnilex to search the legal corpus from your AI assistant.