Current through Register Vol. XLI, No. 50, December 13, 2024
Section 33-9-5 - Standards for Beneficial Use of Filtrate5.1. Beneficial uses of filtrate approved by a permit must conform to the standards set forth in this section. 5.1.a. A beneficial use permit issued by the Secretary pursuant to this rule shall be based on analysis of the filtrate and other information demonstrating its beneficial use characteristics, an evaluation of the process that creates the filtrate, and an evaluation of potential adverse impacts to human health and the environment from the proposed use.5.1.a.1. The concentration of any heavy metal in the filtrate shall not exceed the values determined to be appropriate for the specific application site as set forth in Tables 1 of this rule.5.1.a.2. Residential soil concentrations in 60CSR3, and other applicable information shall be used by the Secretary as a guide to establish limits for pollutant loading rates when maximum soil concentrations are not established in Table 2 of this rule.5.2. Filtrate may be used as a fill material, to contour grades, as daily cover at a landfill, and for other like uses.5.3. The Secretary may approve the use of filtrate as fill material within fifty (50) feet of surface water upon submission of information sufficient to show that the fill material will have no significant impact on the quality of runoff reaching the surface water.5.4. Filtrate may not be used as a fill material or otherwise placed on the land for a beneficial use where the Secretary determines, after investigation into the proposed use, that the use of filtrate would be inappropriate for any structural or environmental reason.5.5. No person shall apply filtrate in a manner that will result in exceeding the maximum soil concentrations listed in Table 2 of this rule. The Secretary is authorized to issue variances to this subdivision to allow land application to soils where the background levels of metals in the soil exceed the maximum soil concentrations of metals listed in Table 2: Provided, That the analyses of the filtrate, soil analyses, and pollutant loss rates from erosion, leaching, and volatilization demonstrate that the beneficial use of the filtrate will not cause additional net accumulation of any metal in the soil already exceeding the maximum soil concentration listed in Table 2. Any such variance issued by the Secretary shall contain a requirement for soil monitoring, if necessary, of each metal exceeding the Table 2 value.5.6. The Secretary shall not issue a beneficial use permit unless he or she has determined the suitability of the filtrate for use in compliance with this rule.5.7. General Location Standards and Restrictions.5.7.a. Land surface. Filtrate shall not be applied to land that meets any of the following conditions unless approved by the Secretary:5.7.a.1. Land that is frozen, snow-covered, or known to be flooded on a regular basis unless the applicant can demonstrate to the Secretary that the land application will not result in runoff into streams or wetlands.5.7.a.2. Land within fifty (50) feet of surface water to include streams, springs, ponds, wetlands, or other collection points for surface water unless the water in the collection point will be treated before being released into a surface water, including but not limited to ponds, ditches, and cells used to treat surface runoff from surface mines or as a phosphorous control material on agricultural sites. 5.7.a.2.a. To qualify for the use as a phosphorous control agent, the applicant must have the use approved as part of a nutrient management plan developed consistent with West Virginia Conservation Agency or Natural Resources Conservation Agency guidelines.5.7.a.3. Land within two hundred (200) feet of drinking water supply wells or other private water supply.5.7.a.4. Land within fifty (50) feet of an occupied dwelling.5.7.a.5. Land within twenty (20) feet of a federal or state highway unless the beneficial use includes soil improvement for plantings on West Virginia Department of Transportation or federal highway rights of way and is applied with permission of the applicable state or federal highway authority or fill or grading material on West Virginia Department of Transportation or federal highway rights of way with permission of the applicable state or federal highway authority.5.7.a.6. Land from which drainage leads into a sinkhole.5.7.a.7. Land that has a slope greater than 15%.5.7.a.8. Land that has a seasonal high groundwater table less than 3 feet from the surface.5.7.a.9. Land where the application of filtrate is likely to adversely affect a threatened or endangered species listed under section 4 of the Endangered Species Act or its designated critical habitat.5.7.a.10. Other land determined by the Secretary to be unsuitable for land application.5.7.a.11. Land where there has been a precipitation event measured at more than 0.25 inches in the previous 24 hours or where there is the expectation that a precipitation event of a like magnitude will occur within 24 hours after application.5.7.b. Land subsurface. Filtrate shall not be applied to land subsurface that meets any of the following conditions unless approved by the Secretary:5.7.b.1. Land within two hundred (200) feet of drinking water supply wells or other private water supply.5.7.b.2. Land from which drainage leads into a sinkhole.5.7.b.3. Land that has a seasonal high groundwater table less than 3 feet from the surface.5.7.b.4. Land where the application of filtrate is likely to adversely affect a threatened or endangered species listed under section 4 of the Endangered Species Act or its designated critical habitat.5.7.b.5. Other land determined by the Secretary to be unsuitable for land application.5.7.c. In addition to the requirements of 5.7.b, any filtrate applied to the land subsurface for the maintenance and construction of utility distribution and collection systems shall be covered by a minimum of six inches of non-filtrate fill material.5.8. Land application site location standards and restrictions. 5.8.a. In addition to the general location standards and restrictions in subsection 5.7. of this rule, land application site must conform to the standards and restrictions in this section.5.8.b. Beneficial characteristics. Beneficial characteristics that may be considered under this subsection include nutrient content and, where applicable, alkaline properties.5.8.c. The concentration of any heavy metal in the filtrate shall not exceed the values listed in Table 1 of this rule.5.8.d. Background concentrations at land application sites, residential soil concentrations in 60CSR3, and any other applicable information shall be used by the Secretary as a guide to establish limits for pollutant loading rates when maximum soil concentrations are not established in Table 2 of this rule.5.8.e. The Secretary shall not issue a permit for a land application site unless he or she has evaluated the proposed land application site to determine its suitability for use and compliance with this rule.5.8.f. The following materials shall not be land applied at a land application site: 5.8.f.1. Any filtrate that is a listed or characteristic hazardous waste referenced in 33CSR20.5.8.g. Any filtrate proposed for use at a land application site having a nutrient concentration that will not provide at least fifty percent of the established crop nutrient need for either nitrogen, phosphorous, or potassium unless the Secretary determines that the proposed land application will provide value for agricultural or land improvement purposes, including but not limited to land application of filtrate to improve soil pH levels or soil alkalinity or for micronutrient value.5.8.h. Filtrate shall not be applied to land that meets any of the following conditions without specific permission from the Secretary:5.8.h.1. Land within one hundred (100) feet of an adjacent property owner's property line, unless written permission is given by the adjacent property owner.5.8.h.2. Land that has been tested and determined to have a pH of less than 6.2, unless the pH is adjusted to 6.2 or greater, and provided that the adjustment of pH to 6.2 or greater can be accomplished by the addition of a higher pH filtrate.5.8.h.3. Land that is within 100 feet of a vertical rock outcrop, unless it is shown that the land application will not adversely affect groundwater.5.8.i. No person shall apply filtrate to a land application site in a manner that will result in exceeding the maximum soil concentrations listed in Table 2 of this rule. The Secretary is authorized to issue variances to this subdivision to allow land application to soils where the background levels of metals in the soil exceed the maximum soil concentrations of metals listed in Table 2: Provided, That the analyses of the filtrate, soil analyses, and pollutant loss rates from erosion, leaching, and volatilization demonstrate that the land application of the filtrate, at a loading rate prescribed by the Secretary, will not cause additional net accumulation of any metal in the soil already exceeding the maximum soil concentration listed in Table 2. Any such variance issued by the Secretary for a land application site shall contain a requirement to annually monitor the soil concentration of each metal exceeding the Table 2 limit for as long as the site is utilized for the land application.5.8.j. Filtrate shall not be applied in a manner that diminishes soil productivity, seed germination, or plant health.5.8.k. No person shall land apply filtrate except during daylight hours.