W. Va. Code R. § 46-2-12

Current through Register Vol. XLI, No. 50, December 13, 2024

Section 46-2-12 - Public Comment, and Hearings and Effective Date of Permit

12.1. Public notice.

a. Scope:

1. Public notice shall be given that the following actions have occurred:

i. A draft permit has been prepared.

ii. A hearing has been scheduled under Section 12.3.

2. Public notices may describe more than one permit or permit section.

b. Timing:

1. Public notice of the preparation of a draft permit shall allow at least 30 days for public comment. Upon request of the permittee, the public comment period will be extended for an additional 30 days. Further extension of the comment period may be granted by the Chief for good cause shown but in no case may the further extension exceed an additional 30 days.

2. Public notice of a public hearing shall be given at least 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 notices may be combined.

c. Methods. Public notice shall be given by the following methods:

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 rights to receive notice for any classes and categories of permits):

i. The applicant:

ii. Any other State or Federal agency which the Chief 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;

iii. Federal, State, and interstate agencies with jurisdiction over fish, 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 and including the U. S. Army Corps of Engineers;

iv. Any State agency responsible for plan development under the CWA Section 208(b)(2), 208(b)(4) or 303(e);

v. Any user identified in the permit application of a privately owned treatment works;

vi. Persons on a mailing list developed by:

A. Including those who request in writing to be on the list;

B. Soliciting persons for "area lists" from participants in past permit proceedings in that area; and

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 Chief may update the mailing list from time to time by requesting written indication of continued interest from those listed. The Chief may delete from the list the names of any person who fails to respond to such a request.)

vii. Any unit of local government having jurisdiction over the area where the facility is proposed to be located.

2. By the Chief 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 Division within twenty (20) days after publication.

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.

d. Contents:

1. All public notices. All public notices issued under this part shall contain the following minimum information:

i. Name and address of the office processing the permit action for which notice is being given;

ii. 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;

iii. 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;

iv. 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 the application;

v. A brief description of the comment procedures required by Sections 12.2 and 12.3 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; and

vi. 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.

2. Public notices for hearings. In addition to the requirements of paragraph 12.1.d.1 of this section, public notice of a hearing shall contain the following information:

i. Reference to the date of previous public notices relating to the permit;

ii. Date, time, and place of the hearing; and

iii. A brief description of the nature and purpose of the hearing, including the applicable rules and procedures.

3. Special requirements. Public notice of a draft permit for a discharge where a CWA Section 316(a) request has been filed shall include:

i. A statement that the thermal component of the discharge is subject to effluent limitations under CWA Sections 301 or 306 and a brief description, including a quantitative statement, of the thermal effluent limitations proposed under Section 301 or 306;

ii. A statement that a Section 316(a) request has been filed and that alternative less stringent effluent limitations may be imposed on the thermal component of the discharge under Section 316(a) and a brief description, including a quantitative statement of the alternative effluent limitations, if any, included in the request; and

iii. If the applicant has filed an early screening request under 40 CFR 125.72 for a Section 316(a) variance, a statement that the applicant has submitted such a plan.

e. In addition to the general public notice described in paragraph 12.1.d.1 of this section, all persons identified in paragraphs 12.1.c.1.i, 12.1.c.1.ii, 12.1.c.1.iii, 12.1.c.1.iv and 12.1.c.1.vii of this section shall be mailed a copy of the fact sheet, if any, and the draft permit and application unless such person requests, in writing, that these documents not be sent.

12.2. Public comments and requests for public hearings.

During the public comment period provided under Section 12.1, 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 Section 12.4.

12.3. Public hearings.

a. The Chief 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 Chief 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.

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 Section 12.1.b shall automatically be extended to 10 days after the close of any public hearing under this section.

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.

a. If any data, information or arguments submitted during the public comment period raise substantial new questions concerning a permit, or if as a result of comments submitted by someone other than the permittee, the Chief determines to revise any condition of the permit that had been sent to initial public notice, the Chief shall take one or more of the following actions:

1. Prepare a new draft permit, appropriately modified, under Section 10;

2. Prepare a revised fact sheet under Section 11 and reopen the comment period under this section; or

3. Reopen or extend the comment period under Section 12.1 to give interested persons an opportunity to comment on the information or arguments submitted.

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.

a. At the time that any final permit is issued, the Chief shall issue a response to comments. This response shall:

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

2. Briefly describe and respond to all significant comments on the draft permit raised during the public comment period, or during any hearing.

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.

a. If, during the comment period for a draft permit, the District Engineer of the U. S. Army Corps of Engineers advises the Chief 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 Chief that imposing specified conditions upon the permit is necessary to avoid any substantial impairment of anchorage or navigation, then the Chief 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 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 State NPDES permit for the duration of that stay.

b. If during the comment period, any other State or Federal agency with jurisdiction over fish, wildlife, or public health advises the Chief in writing that the imposition of specified conditions upon the permit is necessary to avoid substantial risk to public health, impairment of fish, shellfish, or wildlife resources, the Chief may include the specified conditions in the permit to the extent they are determined necessary to carry out the provisions of the CWA and State Act.

c. In appropriate cases the Chief may consult with one or more of the agencies referred to in this section before issuing a draft permit and may reflect their views in the fact sheet or the draft permit.

12.7. Public access to information.

a. Any information, except effluent data, application forms and information in permits, submitted pursuant to these regulations, 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 Chief may make the information available to the public without further notice.

b. Any information claimed to be confidential shall be forwarded to the Regional Administrator for his or her concurrence in any determination of confidentiality.

c. Such information shall be subject to appropriate Federal regulations governing confidentiality.

12.8. Issuance and effective date of permit.

a. After the close of the public comment period under Section 12.2 on a draft permit, the Chief shall issue a final permit decision. The Chief 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.

b. A final permit decision shall become effective not less than 30 days after date of notice of the decision under paragraph 12.8.a of this section.

W. Va. Code R. § 46-2-12