W. Va. Code R. § 47-30-10

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

Section 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. § 47-30-10