Current through Register Vol. XLI, No. 50, December 13, 2024
Section 46-6-6 - Variances From Numeric Water Quality Standards For Remining Activities6.1. 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; andh. 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;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; andc. In the event that the Board determines that degradation of the existing instream water quality will result from the remining operation.