Senate Bill No. 338
(By Senators Ross, Anderson, Minard,
Snyder, Boley and Minear)
__________
[Introduced January 24, 2002; referred to the
Committee on Natural Resources; and then
to the Committee on the Judiciary.]
__________
A BILL to amend and reenact section two, article three, chapter
sixty-four of the code of West Virginia, one thousand nine
hundred thirty-one, as amended, relating to authorizing the
environmental quality board to promulgate a legislative rule
relating to the requirements governing groundwater standards.
Be it enacted by the Legislature of West Virginia:
That section two, article three, chapter sixty-four of the
code of West Virginia, one thousand nine hundred thirty-one, as
amended, be amended and reenacted to read as follows:
ARTICLE 3. AUTHORIZATION FOR BUREAU OF ENVIRONMENT TO PROMULGATE
LEGISLATIVE RULES.
§64-3-2. Environmental quality board.
(a) The legislative rule filed in the state register on the
first day of September, two thousand, authorized under the
authority of section four, article three, chapter twenty-two-b, of
this code, relating to the environmental quality board
(
requirements governing water quality standards
, 46 CSR 1), is
authorized with the amendment set forth below:
On page one by striking out the entire rule and inserting in
lieu thereof the following:
§46-1-1. General.
1.1. Scope. -- These rules establish requirements governing
the discharge or deposit of sewage, industrial wastes and other
wastes into the waters of the state and establish water quality
standards for the waters of the State standing or flowing over the
surface of the State. It is declared to be the public policy of
the State of West Virginia to maintain reasonable standards of
purity and quality of the water of the State consistent with (1)
public health and public enjoyment thereof; (2) the propagation and
protection of animal, bird, fish, and other aquatic and plant life;
and (3) the expansion of employment opportunities, maintenance and
expansion of agriculture and the provision of a permanent
foundation for healthy industrial development. (See W. Va. Code
§22-11-2.)
1.2. Authority. -- W. Va. Code §22B-3-4
1.3. Filing Date. --
1.4. Effective Date. --
§46-1-2. Definitions.
The following definitions in addition to those set forth in W. Va. Code §22-11-3, shall apply to these rules unless otherwise
specified herein, or unless the context in which used clearly
requires a different meaning:
2.1. "Ambient Concentration" is that measured value or level
of water quality downstream of the proposed or existing activity
(discharge point for point source, runoff area for nonpoint source)
for any parameter of concern determined through EPA-approved,
collection and analytical methods in 40 CFR 136 or other methods
accepted by the Chief.
2.2. "Ambient Water Quality Conditions" (AWQC) are those
physical, chemical, biological and radiological conditions of the
receiving waters of the state existing at the time of review of a
regulated activity.
2.3. "Baseline Water Quality" is that ambient concentration
established at the time of an initial antidegradation review under
rules effective (date) for a stream or stream segment or any other
water(s) of the state.
2.4. "Board" is the Environmental Quality Board.
2.5. "Chief" is the Chief of the Office of Water Resources of
the West Virginia Division of Environmental Protection.
2.6. "Conventional treatment" is the treatment of water as
approved by the West Virginia Bureau for Public Health to assure
that the water is safe for human consumption.
2.7. "Cumulative" means a pollutant which increases in
concentration in an organism by successive additions at different
times or in different ways (bio-accumulation).
2.8. "Designated uses" are those uses specified in water
quality standards for each water body or segment whether or not
they are being attained. (See sections 6.2 - 6.6, herein)
2.9. "Director" is the Director of the West Virginia Division
of Environmental Protection.
2.10. "Dissolved metal" is operationally defined as that
portion of metal which passes through a 0.45 micron filter.
2.11. "Existing uses" are those uses actually attained in a water body on or after November 28, 1975, whether or not they are
included in the water quality standards.
2.12. The "Federal Act" means the Clean Water Act (also known
as the Federal Water Pollution Control Act) 33 U.S.C. §1251 - 1387.
2.13. "High quality waters" are those waters whose quality is
equal to or better than the minimum levels necessary to achieve the
national water quality goal uses.
2.14. "Intermittent streams" are streams which have no flow
during sustained periods of no precipitation and which do not
support aquatic life whose life history requires residence in
flowing waters for a continuous period of at least six (6) months.
2.15. "Outstanding national resource waters" are those waters
whose unique character, ecological or recreational value or
pristine nature constitutes a valuable national or State resource.
2.16. "Natural" or "naturally occurring" values or "natural
temperature" shall mean for all of the waters of the state:
2.16.a. Those water quality values which exist
unaffected by -- or unaffected as a consequence of -- any water
use by any person; and
2.16.b. Those water quality values which exist
unaffected by the discharge, or direct or indirect deposit of, any
solid, liquid or gaseous substance from any point source or
non-point source.
2.17. "Non-point source" shall mean any source other than a
point source from which pollutants may reach the waters of the
state.
2.18. "Parameter of concern" means any parameter for which
numeric water quality criteria have been adopted in 46 CSR 1 and
any other parameter for which numeric criteria are not established
but where the discharge of such parameter has a reasonable
potential to either cause or contribute to a violation of the
narrative criteria outlined under 46 CSR 1, section 3.
2.19. "Persistent" shall mean a pollutant and its
transformation products which under natural conditions degrade
slowly in an aquatic environment.
2.20. "Point source" shall mean any discernible, confined
and discrete conveyance, including, but not limited to, any pipe,
ditch, channel, tunnel, conduit, well, discrete fissure, container,
rolling stock or vessel or other floating craft, from which
pollutants are or may be discharged. This term does not include
agricultural stormwater discharges and return flows from irrigated
agriculture.
2.21. "Reasonable less-degrading or non-degrading
alternatives" shall be identified based on case specific
information (as outlined in section 4C.4.a. of Appendix F, herein).
Generally speaking, less-degrading or non-degrading pollution
control alternatives shall be considered reasonable where the costs
of such alternatives are less than 110% of the costs of the
pollution control measures associated with the proposed activity.
2.22. "Regulated activity" includes 1) any activity that
requires a permit or a water quality certification pursuant to
state or federal law (e.g., Clean Water Act §402 NPDES permits,
Clean Water Act §404 dredge and fill permits, or any activity
requiring a Clean Water Act §401 certification), 2) any activity
subject to nonpoint source control requirements or regulations, and
3) any activity which is otherwise subject to state requirements
and regulations developed to protect water quality. The term
"proposed activity" means a proposed activity that is also a
regulated activity.
2.23. "Representative important species of aquatic life"
shall mean those species of aquatic life whose protection and
propagation will assure the sustained presence of a balanced
aquatic community. Such species are representative in the sense
that maintenance of water quality criteria will assure both the
natural completion of the species' life cycles and the overall
protection and sustained propagation of the balanced aquatic
community.
2.24. The "State Act" or "State Law" shall mean the West
Virginia Water Pollution Control Act, W. Va. Code §22-11-1.
2.25. "Total recoverable" refers to the digestion procedure
for certain heavy metals as referenced in 40 CFR 136, as amended
June 15, 1990, Guidelines Establishing Test Procedures for the
Analysis of Pollutants Under the Clean Water Act.
2.26. "Trading" means establishing upstream controls for a
parameter of concern to compensate for new or increased downstream sources for the same parameter resulting in improved water quality
for the parameter traded. More than one parameter of concern may
be traded on a given stream. Trading may involve point sources,
nonpoint sources or a combination of point and nonpoint sources.
Unused permitted capacity cannot be traded.
2.27. "Trading Assessment Procedure" means methodologies to be
used by the Director to document the basis for any trade allowed in
sections 4B, 4C and 4D of Appendix F, herein, are EPA's Total
Maximum Daily Load Procedures (40 CFR 130.2(i)), wasteload
allocation procedures outlined in EPA's Technical Support Document
for Water Quality-based Toxics Control (EPA/505/2-90-001
PB91-127415, March 1991), wasteload allocation methodologies
outlined in EPA's Draft Framework for Watershed-Based Trading
(EPA/800-R-96-001, May 1996) or other EPA approved wasteload
allocation methodologies as long as these methodologies are
consistent with the trading provisions of this rule.
2.28. "Trout waters" are streams or stream segments which
sustain year-round trout populations. Excluded are those streams
or stream segments which receive annual stockings of trout but
which do not support year-round trout populations.
2.29. "Water of special concern" are those waters occurring
in the categories outlined in section 4.1.c. of the antidegradation
policy. This designation provides an intermediate level of
antidegradation protection between high quality waters and
outstanding national resource waters.
2.30. "Water quality criteria" shall mean levels of parameters
or stream conditions that are required to be maintained by these
regulations. Criteria may be expressed as a constituent
concentration, levels, or narrative statement, representing a
quality of water that supports a designated use or uses.
2.31. "Water quality standards" means the combination of
water uses to be protected and the water quality criteria to be
maintained by these rules.
2.32. "Wetlands" are those areas that are inundated or
saturated by surface or groundwater at a frequency and duration
sufficient to support, and that under normal circumstances do
support, a prevalence of vegetation typically adapted for life in
saturated soil conditions. Wetlands generally include swamps,
marshes, bogs and similar areas.
2.33. "Wet weather streams" are streams that flow only in
direct response to precipitation or whose channels are at all times
above the water table.
§46-1-3. Conditions Not Allowable In State Waters.
3.1. Certain characteristics of sewage, industrial wastes and
other wastes cause pollution and are objectionable in all waters of
the state. Therefore, the Environmental Quality Board does hereby
proclaim that the following general conditions are not to be
allowed in any of the waters of the state.
3.2. No sewage, industrial wastes or other wastes present in
any of the waters of the state shall cause therein or materially
contribute to any of the following conditions thereof:
3.2.a. Distinctly visible floating or settleable solids,
suspended solids, scum, foam or oily slicks;
3.2.b. Deposits or sludge banks on the bottom;
3.2.c. Odors in the vicinity of the waters;
3.2.d. Taste or odor that would adversely affect the
designated uses of the affected waters;
3.2.e. Materials in concentrations which are harmful,
hazardous or toxic to man, animal or aquatic life;
3.2.f. Distinctly visible color;
3.2.g. Concentrations of bacteria which may impair or
interfere with the designated uses of the affected waters;
3.2.h. Requiring an unreasonable degree of treatment for
the production of potable water by modern water treatment processes
as commonly employed; and
3.2.i. Any other condition, including radiological
exposure, which adversely alters the integrity of the waters of the
State including wetlands; no significant adverse impact to the
chemical, physical, hydrologic, or biological components of aquatic
ecosystems shall be allowed.
§46-1-4. Antidegradation Policy.
4.1. It is the policy of the State of West Virginia that the
waters of the state shall be maintained and protected as follows:
4.1.a. Tier 1 Protection. Existing water uses and the
level of water quality necessary to protect the existing uses shall
be maintained and protected. Existing uses are those uses actually
attained in the water body on or after November 28, 1975, whether
or not they are included as designated uses within these water
quality standards.
4.1.b. Tier 2 Protection. The existing high quality
waters of the state must be maintained at their existing high
quality unless it is determined after satisfaction of the
intergovernmental coordination of the state's continuing planning
process and opportunity for public comment and hearing that
allowing lower water quality is necessary to accommodate important
economic or social development in the area in which the waters are
located. If limited degradation is allowed, it shall not result in
injury or interference with existing stream water uses or in
violation of state or federal water quality criteria that describe
the base levels necessary to sustain the national water quality
goal uses of protection and propagation of fish, shellfish and
wildlife and recreating in and on the water.
In addition, the Board and the Director shall assure that all
new and existing point sources shall achieve the highest
established statutory and regulatory requirements applicable to
them and shall assure the achievement of cost-effective and
reasonable best management practices (BMPs) for non-point source
control.
If BMPs are demonstrated to be inadequate to reduce or
minimize water quality impacts, the Director may require that more
appropriate BMPs be developed and applied.
4.1.b.1. High quality waters are those waters
meeting the definition at section 2.13 herein and section 4E.1. of
Appendix F, herein.
4.1.b.2. High quality waters may include but are
not limited to the following:
4.1.b.2.A. Streams designated by the West
Virginia Legislature under the West Virginia Natural Stream
Preservation Act, pursuant to W. Va. Code §22-13-5; and
4.1.b.2.B. Streams listed in West Virginia
High Quality Streams, Fifth Edition, prepared by the Wildlife Resources Division, Department of Natural Resources (1986).
4.1.b.2.C. Streams or stream segments which
receive annual stockings of trout but which do not support
year-round trout populations.
4.1.c. Tier 2.5 Protection. Waters of special concern
include all of those waters listed in Appendix F-2 herein. Waters
of special concern may include, but are not limited to naturally
reproducing trout streams, federally designated rivers under the
"Wild and Scenic Rivers Act," 16 U.S.C. §§1271 et seq., waters in
state parks and forests, waters in National parks and forests,
waters designated under the "National Parks and Recreation Act of
1978," and waters with unique or exceptional aesthetic, ecological,
or recreational value. Waters may be nominated for inclusion in
this category by any interested party or by the Board on its own
initiative.
4.1.d. Tier 3 Protection. In all cases, waters which
constitute an outstanding national resource shall be maintained and
protected and improved where necessary. Outstanding national
resource waters include, but are not limited to, all streams and
rivers within the boundaries of Wilderness Areas designated by The
Wilderness Act (16 U.S.C. §1131 et seq.) within the State.
Additional waters may be nominated for inclusion in that
category by any interested party or by the Board on its own
initiative. To designate a nominated water as an outstanding
national resource water, the Board shall follow the public notice
and hearing provisions as provided in 46 C.S.R. 6.
4.1.e. All applicable requirements of section 316(a) of
the Federal Act shall apply to modifications of the temperature
water quality criteria provided for in these rules.
§46-1-5. Mixing Zones.
5.1. In the permit review and planning process or upon the
request of a permit applicant or permittee, the Chief may establish
on a case-by-case basis an appropriate mixing zone.
5.2. The following guidelines and conditions are applicable
to all mixing zones:
5.2.a. The Chief will assign, on a case-by-case basis,
definable geometric limits for mixing zones for a discharge or a pollutant or pollutants within a discharge. Applicable limits
shall include, but may not be limited to, the linear distances from
the point of discharge, surface area involvement, volume of
receiving water, and shall take into account other nearby mixing
zones. Mixing zones shall take into account the mixing conditions
in the receiving stream (i.e: whether complete or incomplete mixing
conditions exist). Mixing zones will not be allowed until
applicable limits are assigned by the Chief in accordance with this
section.
5.2.b. Concentrations of pollutants which exceed the
acute criteria for protection of aquatic life set forth in Appendix
E, Table 1 shall not exist at any point within an assigned mixing
zone or in the discharge itself unless a zone of initial dilution
is assigned. A zone of initial dilution may be assigned on a
case-by-case basis at the discretion of the Chief. The zone of
initial dilution is the area within the mixing zone where initial
dilution of the effluent with the receiving water occurs, and where
the concentration of the effluent will be its greatest in the water
column. Where a zone of initial dilution is assigned by the Chief,
the size of the zone shall be determined using one of the four
alternatives outlined in section 4.3.3 of US EPA's Technical
Support Document for Water Quality-based Toxics Control
(EPA/505/2-90-001 PB91-127415, March 1991). Concentrations of
pollutants shall not exceed the acute criteria at the edge of the
assigned zone of initial dilution. Chronic criteria for the
protection of aquatic life may be exceeded within the mixing zone
but shall be met at the edge of the assigned mixing zone.
5.2.c. Concentrations of pollutants which exceed the
criteria for the protection of human health set forth in Appendix
E, Table 1 shall not be allowed at any point unless a mixing zone
has been assigned by the Chief after consultation with the
Commissioner of the West Virginia Bureau for Public Health. Human
health criteria may be exceeded within an assigned mixing zone, but
shall be met at the edge of the assigned mixing zone. Mixing zones
for human health criteria shall be sized to prevent significant
human health risks and shall be developed using reasonable
assumptions about exposure pathways. In assessing the potential
human health risks of establishing a mixing zone upstream from a
drinking water intake, the Chief shall consider the cumulative
effects of multiple discharges and mixing zones on the drinking
water intake. No mixing zone for human health criteria shall be
established on a stream which has a seven (7) day, ten (10) year
return frequency of 5 cfs or less.
5.2.d. Mixing zones, including zones of initial
dilution, shall not interfere with fish spawning or nursery areas
or fish migration routes; shall not overlap public water supply
intakes or bathing areas; cause lethality to or preclude the free
passage of fish or other aquatic life; nor harm any threatened or
endangered species, as listed in the Federal Endangered Species
Act, 15 U.S.C. §1531 et seq.
5.2.e. The mixing zone shall not exceed one-third (1/3)
of the width of the receiving stream, and in no case shall the
mixing zone exceed one-half (2) of the cross-sectional area of the
receiving stream.
5.2.f. In lakes and other surface impoundments, the
volume of a mixing zone shall not affect in excess of ten (10)
percent of the volume of that portion of the receiving waters
available for mixing.
5.2.g. A mixing zone shall be limited to an area or
volume which will not adversely alter the existing or designated
uses of the receiving water, nor be so large as to adversely affect
the integrity of the water body.
5.2.h. Mixing zones shall not:
5.2.h.1. Be used for, or considered as, a
substitute for technology-based requirements of the Act and other
applicable state and federal laws.
5.2.h.2. Extend downstream at any time a distance
more than five times the width of the receiving watercourse at the
point of discharge.
5.2.h.3. Cause or contribute to any of the
conditions prohibited in section 3, herein.
5.2.h.4. Be granted where instream waste
concentration of a discharge is greater than 80%.
5.2.h.5. Overlap one another.
5.2.h.6. Overlap any 2 mile zone described in
section 7.2.a.2 herein.
5.2.i. In the case of thermal discharges, a successful
demonstration conducted under section 316(a) of the Act shall constitute compliance with all provisions of this section.
5.2.j. The Chief may waive the requirements of
subsections 5.2.e and 5.2.h.2 above if a discharger provides an
acceptable demonstration of:
5.2.j.1. Information defining the actual boundaries
of the mixing zone in question; and
5.2.j.2. Information and data proving no violation
of subsections 5.2.d and 5.2.g above by the mixing zone in
question.
5.2.k. Upon implementation of a mixing zone in a permit,
the permittee shall provide documentation that demonstrates to the
satisfaction of the Chief that the mixing zone is in compliance
with the provisions outlined in subsections 5.2.b, 5.2.c, 5.2.e,
and 5.2.h.2, herein.
5.2.l. In order to facilitate a determination or
assessment of a mixing zone pursuant to this section, the Chief may
require a permit applicant or permittee to submit such information
as deemed necessary.
§46-1-6. Water Use Categories.
6.1. These rules establish general Water Use Categories and
Water Quality Standards for the waters of the State. Unless
otherwise designated by these rules, at a minimum all waters of the
State are designated for the Propagation and Maintenance of Fish
and Other Aquatic Life (Category B) and for Water Contact
Recreation (Category C) consistent with Federal Act goals.
Incidental utilization for whatever purpose may or may not
constitute a justification for assignment of a water use category
to a particular stream segment.
6.1.a. Waste assimilation and transport are not
recognized as designated uses. The classification of the waters
must take into consideration the use and value of water for public
water supplies, protection and propagation of fish, shellfish and
wildlife, recreation in and on the water, agricultural, industrial
and other purposes including navigation.
Subcategories of a use may be adopted and appropriate
criteria set to reflect varying needs of such subcategories of
uses, for example to differentiate between trout water and other waters.
6.1.b. At a minimum, uses are deemed attainable if they
can be achieved by the imposition of effluent limits required under
section 301(b) and section 306 of the Federal Act and use of
cost-effective and reasonable best management practices for
non-point source control. Seasonal uses may be adopted as an
alternative to reclassifying a water body or segment thereof to
uses requiring less stringent water quality criteria. If seasonal
uses are adopted, water quality criteria will be adjusted to
reflect the seasonal uses; however, such criteria shall not
preclude the attainment and maintenance of a more protective use in
another season. A designated use which is not an existing use may
be removed, or subcategories of a use may be established if it can
be demonstrated that attaining the designated use is not feasible
because:
6.1.b.1. 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 would result in substantial and
widespread adverse economic and social impact; or
6.1.b.2. Naturally-occurring pollutant
concentrations prevent the attainment of the use; or
6.1.b.3. 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
6.1.b.4. 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
§6.1.b.5. 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
6.1.b.6. 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.
6.1.c. The State shall take into consideration the
quality of downstream waters and shall assure that its water
quality standards provide for the attainment of the water quality
standards of downstream waters.
6.1.d. In establishing a less restrictive use or uses,
or subcategory of use or uses, and the water quality criteria based
upon such uses, the Board shall follow the requirements for
revision of water quality standards as required by W. Va. Code
§22B-3-4 and section 303 of the Federal Act and the regulations
thereunder. Any revision of water quality standards shall be made
with the concurrence of EPA. The Board's administrative
procedural regulations for applying for less restrictive uses or
criteria shall be followed.
6.2. Category A -- Water Supply, Public. -- This category
is used to describe waters which, after conventional treatment,
are used for human consumption. This category includes streams on
which the following are located:
6.2.a. All community domestic water supply systems;
6.2.b. All non-community domestic water supply systems,
(i.e. hospitals, schools, etc.);
6.2.c. All private domestic water systems;
6.2.d. All other surface water intakes where the water
is used for human consumption. (See Appendix B for partial listing
of Category A waters; see section 7.2.a.2, herein for additional
requirements for Category A waters.) The manganese human health
criteria shall not apply where the discharge point of the manganese
is located more than five miles upstream from a known drinking
water source.
6.3. Category B -- Propagation and maintenance of fish and
other aquatic life. --
This category includes:
6.3.a. Category B1 -- Warm water fishery streams.
-- Streams or stream segments which contain populations composed
of all warm water aquatic life.
6.3.b. Category B2 -- Trout Waters. -- As defined in section 2.28, herein (See Appendix A for a representative list.)
6.3.c. Category B4 -- Wetlands. -- As defined in
section 2.32, herein; certain numeric stream criteria may not be
appropriate for application to wetlands (see Appendix E, Table 1).
6.4. Category C -- Water contact recreation. -- This
category includes swimming, fishing, water skiing and certain types
of pleasure boating such as sailing in very small craft and
outboard motor boats. (See Appendix D for a representative list of
category C waters.)
6.5. Category D. -- Agriculture and wildlife uses.
6.5.a. Category D1 -- Irrigation. -- This category
includes all stream segments used for irrigation.
6.5.b. Category D2 -- Livestock watering. -- This
category includes all stream segments used for livestock watering.
6.5.c. Category D3 -- Wildlife. -- This category
includes all stream segments and wetlands used by wildlife.
6.6. Category E -- Water supply industrial, water
transport, cooling and power. -- This category includes cooling
water, industrial water supply, power production, commercial and
pleasure vessel activity, except those small craft included in
Category C.
6.6.a. Category E1 -- Water Transport. -- This
category includes all stream segments modified for water transport
and having permanently maintained navigation aides.
6.6.b. Category E2 -- Cooling Water. -- This
category includes all stream segments having one (1) or more users
for industrial cooling.
6.6.c. Category E3 -- Power production. -- This
category includes all stream segments extending from a point 500
feet upstream from the intake to a point one half (2) mile below
the wastewater discharge point. (See Appendix C for representative
list.)
6.6.d. Category E4 -- Industrial. -- This category is
used to describe all stream segments with one (1) or more
industrial users. It does not include water for cooling.
§46-1-7. West Virginia Waters.
7.1. Major River Basins and their Alphanumeric System. All
streams and their tributaries in West Virginia shall be
individually identified using an alphanumeric system as identified
in the "Key to West Virginia Stream Systems and Major Tributaries"
(1956) as published by the Conservation Commission of West Virginia
and revised by the West Virginia Department of Natural Resources,
Division of Wildlife (1985).
7.1.a. J - James River Basin. All tributaries to the
West Virginia - Virginia State line.
7.1.b. P - Potomac River Basin. All tributaries of the
main stem of the Potomac River to the West Virginia - Maryland
- Virginia State line to the confluence of the North Branch and
the South Branch of the Potomac River and all tributaries arising
in West Virginia excluding the major tributaries hereinafter
designated:
7.1.b.1. S - Shenandoah River and all its
tributaries arising in West Virginia to the West Virginia -
Virginia State line.
7.1.b.2. PC - Cacapon River and all its
tributaries.
7.1.b.3. PSB - South Branch and all its
tributaries.
7.1.b.4. PNB - North Branch and all tributaries to
the North Branch arising in West Virginia.
7.1.c. M - Monongahela River Basin. The Monongahela
River Basin main stem and all its tributaries excluding the
following major tributaries which are designated as follows:
7.1.c.1. MC - Cheat River and all its tributaries
except those listed below:
7.1.c.1.A. MCB - Blackwater River and all
its tributaries.
7.1.c.2. MW - West Fork River and all its
tributaries.
7.1.c.3. MT - Tygart River and all its tributaries
except those listed below:
7.1.c.3.A. MTB - Buckhannon River and all its
tributaries.
7.1.c.3.B. MTM - Middle Fork River and all its
tributaries.
7.1.c.4. MY - Youghigheny River and all its
tributaries to the West Virginia - Maryland State line.
7.1.d. O Zone 1 - Ohio River - Main Stem. The main
stem of the Ohio River from the Ohio - Pennsylvania - West Virginia
state line to the Ohio - Kentucky - West Virginia State line.
7.1.e. O Zone 2 - Ohio River - Tributaries. All
tributaries of the Ohio River excluding the following major
tributaries:
7.1.e.1. LK - Little Kanawha River. The Little
Kanawha River and all its tributaries excluding the following major
tributary which is designated as follows:
7.1.e.1.A. LKH - Hughes River and all its
tributaries.
7.1.e.2. K - Kanawha River Zone 1. The main stem
of the Kanawha River from mile point 0, at its confluence with the
Ohio River, to mile point 72 near Diamond, West Virginia.
7.1.e.3. K - Kanawha River Zone 2. The main stem
of the Kanawha River from mile point 72 near Diamond, West
Virginia and all its tributaries from mile point 0 to the
headwaters excluding the following major tributaries which are
designated as follows:
7.1.e.3.A. KP - Pocatalico River and all its
tributaries.
7.1.e.3.B. KC - Coal River and all its
tributaries.
7.1.e.3.C. KE - Elk River and all its
tributaries.
7.1.e.3.D. KG - Gauley River. The Gauley
River and all its tributaries excluding the following major
tributaries which are designated as follows:
7.1.e.3.D.1. KG-19 - Meadow River and all
its tributaries.
7.1.e.3.D.2. KG-34 - Cherry River and all
its tributaries.
7.1.e.3.D.3. KGC - Cranberry River and
all its tributaries.
7.1.e.3.D.4. KGW - Williams River and all
its tributaries.
7.1.e.3.E. KN - New River. The New River
from its confluence with the Gauley River to the Virginia - West
Virginia State line and all tributaries excluding the following
major tributaries which are designated as follows:
7.1.e.3.E.1. KNG - Greenbrier River and
all its tributaries.
7.1.e.3.E.2. KNB - Bluestone River and
all its tributaries.
7.1.e.3.E.3. KN-60 - East River and all
its tributaries.
7.1.e.3.E.4. K(L)-81-(1) - Bluestone
Lake.
7.1.e.4. OG - Guyandotte River. The Guyandotte
River and all its tributaries excluding the following major
tributary which is designated as follows:
7.1.e.4.1. OGM - Mud River and all its
tributaries.
7.1.e.5. BS - Big Sandy River. The Big Sandy River
to the Kentucky - Virginia - West Virginia State lines and all its
tributaries arising in West Virginia excluding the following major
tributary which is designated as follows:
7.1.e.5.1 BST - Tug Fork and all its
tributaries.
7.2. Applicability of Water Quality Standards. The following
shall apply at all times unless a specific exception is granted in
this section:
7.2.a. Water Use Categories as described in section 6,
herein.
7.2.a.1. Based on meeting those Section 6
definitions, tributaries or stream segments may be classified for
one or more Water Use Categories. When more than one use exists,
they shall be protected by criteria for the use category requiring
the most stringent protection.
7.2.a.2. Each segment extending upstream from the
intake of a water supply public (Water Use Category A), for a
distance of one half (2) mile or to the headwater, must be
protected by prohibiting the discharge of any pollutants in excess
of the concentrations designated for this Water Use Category in
section 8, herein. In addition, within that one half (2) mile
zone, the Chief may establish for any discharge, effluent
limitations for the protection of human health that require
additional removal of pollutants than would otherwise be provided
by this rule. (If a watershed is not significantly larger than
this zone above the intake, the water supply section may include
the entire upstream watershed to its headwaters.) Until June 30,
2003, the one-half mile zone described in this section shall not
apply to the Ohio River main channel (between Brown's Island and
the left descending bank) between river mile points 61.0 and 63.5.
7.2.b. In the absence of any special application or
contrary provision, water quality standards shall apply at all
times when flows are equal to or greater than the minimum mean
seven (7) consecutive day drought flow with a ten (10) year return
frequency (7Q10). NOTE: With the exception of section 7.2.c.5
listed herein exceptions do not apply to trout waters nor to the
requirements of section 3, herein.
7.2.c. Exceptions: Numeric water quality standards shall
not apply: (See section 7.2.d, herein, for site-specific revisions)
7.2.c.1. When the flow is less than 7Q10;
7.2.c.2. In wet weather streams (or intermittent streams, when they are dry or have no measurable flow): Provided,
That the existing and designated uses of downstream waters are not
adversely affected;
7.2.c.3. In any assigned zone of initial dilution
of any mixing zone where a zone of initial dilution is required by
section 5.2.b herein, or in any assigned mixing zone for human
health criteria or aquatic life criteria for which a zone of
initial dilution is not assigned; In zones of initial dilution and
certain mixing zones: Provided, That all requirements described in
section 5 herein shall apply to all zones of initial dilution and
all mixing zones;
7.2.c.4. Where, on the basis of natural conditions,
the Board has established a site-specific aquatic life water
quality criterion that modifies a water quality criterion set out
in Appendix E, Table 1 of this rule. Where a natural condition of
a waterbody is demonstrated to be of lower quality than a water
quality criterion for the use classes and subclasses in section 6
of this rule, the Board, in its discretion, may establish a
site-specific water quality criterion for aquatic life. This
alternate criterion may only serve as the chronic criterion
established for that parameter. This alternate criterion must be
met at end of pipe. Where the Board decides to establish a
site-specific water quality criterion for aquatic life, the natural
condition constitutes the applicable water quality criterion. A
site-specific criterion for natural conditions may only be
established through the legislative rulemaking process in
accordance with W.Va. Code §29A-3-1 et seq. and must satisfy the
public participation requirements set forth at 40 C.F.R. 131.20 and
40 C.F.R. Part 25. Site-specific criteria for natural conditions
may be established only for aquatic life criteria. A public
notice, hearing and comment period is required before site-specific
criteria for natural conditions are established.
Upon application or on its own initiative, the Board will
determine whether a natural condition of a waterbody should be
approved as a site-specific water quality criterion. Before it
approves a site-specific water quality criterion for a natural
condition, the Board must find that the natural condition will
fully protect existing and designated uses and ensure the
protection of aquatic life. If a natural condition of a waterbody
varies with time, the natural condition will be determined to be
the actual natural condition of the waterbody measured prior to or
concurrent with discharge or operation. The Board will, in its
discretion, determine a natural condition for one or more seasonal or shorter periods to reflect variable ambient conditions; and
require additional or continuing monitoring of natural conditions.
An application for a site-specific criterion to be established
on the basis of natural conditions shall be filed with the Board
and shall include the following information:
7.2.c.4.A. A U.S.G.S. 7.5 minute map showing
the stream segment affected and showing all existing discharge
points and proposed discharge point;
7.2.c.4.B. The alphanumeric code of the
affected stream, if known;
7.2.c.4.C. Water quality data for the stream
or stream segment. Where adequate data are unavailable, additional
studies may be required by the Board;
7.2.c.4.D. General land uses (e.g. mining,
agricultural, recreation, residential, commercial, industrial,
etc.) as well as specific land uses adjacent to the waters for the
affected segment or stream;
7.2.c.4.E. 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;
7.2.c.4.F. General physical characteristics of
the stream segment, including, but not limited to width, depth,
bottom composition and slope;
7.2.c.4.G. Conclusive information and data of
the source of the natural condition that causes the stream to
exceed the water quality standard for the criterion at issue.
7.2.c.4.H. 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;
7.2.c.4.I. An assessment of aquatic life in
the stream or stream segment in question and in the adjacent
upstream and downstream segments; and
7.2.c.4.J. Any additional information or data
that the Board deems necessary to make a decision on the application.
7.2.c.5. For the upper Blackwater River from the
mouth of Yellow Creek to a point 5.1 miles upstream, when flow is
less than 7Q10. Naturally occurring values for Dissolved Oxygen as
established by data collected by the dischargers within this reach
and reviewed by the Board and Division of Environmental Protection
shall be the applicable criteria.
7.2.d. Site-specific applicability of water use
categories and water quality criteria - State-wide water quality
standards shall apply except where site-specific numeric criteria,
variances or use removals have been approved following application
and hearing, as provided in 46 C.S.R. 6. (See section 8.3 and
section 8.4, herein.) The following are approved site-specific
criteria, variances and use reclassifications:
7.2.d.1. James River - (Reserved)
7.2.d.2. Potomac River
7.2.d.2.1. Except that a site-specific numeric
criterion for aluminum, not to exceed 500 ug/l, shall apply to the
section of Opequon Creek from Turkey Run to the Potomac River.
7.2.d.3. Shenandoah River - (Reserved)
7.2.d.4. Cacapon River - (Reserved)
7.2.d.5. South Branch - (Reserved)
7.2.d.6. North Branch
7.2.d.6.1. Except that the Stony River
downstream from the limit of the thermal mixing zone (as
established by Board Order of 11/20/75) for the Mount Storm Lake
wastewater treatment facility to its confluence with the North
Branch of the Potomac River is exempt from the 5oF above natural
temperature rise; however, the maximum temperature outside the
mixing zone shall not exceed 87oF at any time during the months of
May through November and not exceed 73oF at any time during the
months of December through April. This exception shall apply until
the successful completion of a study conducted pursuant to section
316(a) of the Federal Act or December 31, 1998, whichever comes
first.
7.2.d.7. Monongahela River
7.2.d.7.1. Except that flow in the main stem
of the Monongahela River, as regulated by the Tygart Reservoir,
operated by the U.S. Army Corps of Engineers, is based on a minimum
flow of 345 cfs at Lock and Dam No. 8, river mile point 90.8.
This exception does not apply to tributaries of the Monongahela
River.
7.2.d.8. Cheat River
7.2.d.8.1. Except that in the unnamed tributary
of Daugherty Run, approximately one mile upstream of Daugherty
Run=s confluence with the Cheat River, a site-specific numeric
criterion for iron of 3.5 mg/l shall apply and the following
frequency and duration requirements shall apply to the chronic
numeric criterion for selenium (5ug/l): the four-day average
concentration shall not be exceeded more than three times every
three years (36 months), on average. Further, the following
site-specific numeric criteria shall apply to Fly Ash Run of
Daugherty Run: acute numeric criterion for aluminum: 888.5 ug/l and
manganese: 5 mg/l.
7.2.d.9. Blackwater River - The Blackwater River
below Davis, West Virginia shall be classified as a trout water,
Category B2.
7.2.d.10. West Fork River - (Reserved)
7.2.d.11. Tygart River - (Reserved)
7.2.d.12. Buckhannon River - (Reserved)
7.2.d.13. Middle Fork River - (Reserved)
7.2.d.14. Youghiogheny River
7.2.d.14.1. Water Use Categories A and E are
excluded from the tributaries of the Youghiogheny River in West
Virginia which flow into Maryland.
7.2.d.15. Ohio River Main Stem - (Reserved)
7.2.d.16. Ohio River Tributaries.
7.2.d.16.1. Except that site-specific numeric criteria shall apply to the stretch of Conners Run (0-77-A), a
tributary of Fish Creek, from its mouth to the discharge from
Conner Run impoundment, which shall not have the Water Use Category
A and may contain selenium not to exceed 62 ug/1; and iron not to
exceed 3.5 mg/1 as a monthly average and 7 mg/1 as a daily maximum.
7.2.d.16.2. Except that a socio-economic
variance shall apply to that segment of Harmon Creek (0-97) from
its confluence with the Ohio River to a point 2.2 miles upstream,
which shall not have water use Category A designation, and which
shall have the following instream criteria: Lead 14 ug/l, Daily
Maximum, Zinc 181 ug/l, Daily Maximum, Temperature
100 degree
F
(monitored per Footnote 12 of the permit); Iron 4.0 mg/l, Monthly
Average and 8.0 mg/l, Daily Maximum (monitored per Footnote 12 of
the permit). Provided, however, that the criteria for Lead, Zinc,
Temperature and Iron shall not apply, and instead the state-wide
criteria for these parameters shall apply, unless: Weirton Steel
Corporation (1) submits to the Office of Water Resources on or
before January 31, 2001 a report setting forth the water quality of
the discharge from Outlet 004 for these parameters during calendar
year 2000; (2) offers further proposals for any appropriate
reductions in the above excepted levels; (3) provides any
appropriate additional engineering analysis of potential
alternatives for reducing further the concentrations of said
parameters in the discharge toward achieving statewide criteria;
and (4) continues to submit to the Office of Water Resources on a
semi-annual basis, summary reports on the water quality of the
discharge from Outlet 004 and the efforts made by Weirton Steel
Corporation during the prior six (6) months to improve the quality
of said discharge. Additionally Weirton Steel must determine the
water quality of Harmon Creek both immediately upstream of and
below the discharge of outlet 004 at the Con Rail Bridge by
sampling for Flow, pH, Total and Dissolved Lead, Total and
Dissolved Zinc, Iron, Fluoride, Temperature, Turbidity, Oil and
Grease and Hardness on at least a monthly basis and submit the
results to the Office of Water Resources with the semi-annual
report. These exceptions shall be in effect until action by the
Environmental Quality Board to revise such exceptions or until June
29, 2004, whichever comes first.
7.2.d.17. Little Kanawha River - (Reserved)
7.2.d.18. Hughes River - (Reserved)
7.2.d.19. Kanawha River Zone 1 - Main Stem
7.2.d.19.1. For the Kanawha River main stem,
Zone 1, Water Use Category A shall not apply; and
7.2.d.19.2. The minimum flow shall be 1,960
cfs at the Charleston gauge.
7.2.d.20. Kanawha River Zone 2 and Tributaries.
7.2.d.20.1. For the main stem of the Kanawha
River only, the minimum flow shall be 1,896 cfs at mile point 72.
7.2.d.20.2. Except the stretch between the
mouth of Little Scary Creek (K-31) and the Little Scary impoundment
shall not have Water Use Category A. The following site-specific
numeric criteria shall apply to that section: selenium not to
exceed 62 ug/1 and copper not to exceed 105 ug/1 as a daily maximum
nor 49 ug/1 as a 4-day average.
7.2.d.20.3. Except for Simmons Creek (K-54)
from its mouth to a point 1200 feet upstream to which the following
site-specific numeric criteria shall apply: a maximum daily
temperature not to exceed 38oC (100oF) nor a monthly average
temperature to exceed 34oC. This exception shall apply until the
successful completion of a study conducted pursuant to section
316(a) of the Federal Act or May 30, 1998, whichever comes first.
7.2.d.21. Pocatalico River - (Reserved)
7.2.d.22. Coal River - (Reserved)
7.2.d.23. Elk River - (Reserved)
7.2.d.24. Gauley River - (Reserved)
7.2.d.25. Meadow River - (Reserved)
7.2.d.26. Cherry River - (Reserved)
7.2.d.27. Cranberry River - (Reserved)
7.2.d.28. Williams River - (Reserved)
7.2.d.29. New River - (Reserved)
7.2.d.30. Greenbrier River - (Reserved)
7.2.d.31. Bluestone River - (Reserved)
7.2.d.32. Bluestone Lake
7.2.d.33. East River - (Reserved)
7.2.d.34. Guyandotte River - (Reserved)
7.2.d.35. Mud River - (Reserved)
7.2.d.36. Big Sandy River - (Reserved)
7.2.d.37. Tug Fork River - (Reserved)
§46-1-8. Specific Water Quality Criteria.
8.1. Charts of specific water quality criteria are included
in Appendix E, Table 1.
8.1.a. Specific state (i.e. total, total recoverable,
dissolved, valence, etc.) of any parameter to be analyzed shall
follow 40 CFR 136, Guidelines Establishing Test Procedures for
Analysis of Pollutants Under the Clean Water Act, as amended, June
15, 1990. (See also 47 C.S.R. 10, section 7.3 - National Pollutant
Discharge Elimination System (NPDES) Program.)
8.1.b. Compliance with aquatic life water quality
criteria expressed as dissolved metal shall be determined based on
dissolved metals concentrations.
8.1.b.1. The aquatic life criteria for all metals
listed in Appendix E, Table 2 shall be converted to a dissolved
concentration by multiplying each numerical value or criterion
equation from Appendix E, Table 1 by the appropriate conversion
factor (CF) from Appendix E, Table 2.
8.1.b.2. Permit limits based on dissolved metal
water quality criteria shall be prepared in accordance with the
U.S. EPA document "The Metals Translator: Guidance For Calculating
A Total Recoverable Permit Limit From A Dissolved Criterion, EPA
823-B-96-007 June 1996.
8.1.b.3. NPDES permit applicants may petition the
Office of Water Resources of the Division of Environmental
Protection (OWR) to develop a site-specific translator consistent
with the provisions in this section. The OWR may, on a
case-by-case basis require an applicant applying for a translator
to conduct appropriate sediment monitoring through SEM/AVS ratio, bioassay or other approved methods to evaluate effluent limits that
prevent toxicity to aquatic life.
8.1.c. An "X" or numerical value in the use columns of
Appendix E, Table 1 shall represent the applicable criteria.
8.1.d. Charts of water quality criteria in Appendix E,
Table 1 shall be applied in accordance with major stream and use
applications, sections 6 and 7, herein.
8.2. Criteria for Toxicants
8.2.a. Toxicants which are carcinogenic have human
health criteria (Water Use Categories A and C) based upon an
estimated risk level of one additional cancer case per one million
persons (10-6) and are indicated in Appendix E, Table 1 with an
endnote (b).
8.2.b. A final determination on the critical design flow
for carcinogens is not made in this rule, in order to permit
further review and study of that issue. Following the conclusion
of such review and study, the Legislature may again take up the
authorization of this rule for purposes of addressing the critical
design flow for carcinogens: Provided, That until such time as the
review and study of the issue is concluded or until such time as
the Legislature may again take up the authorization of this rule,
the regulatory requirements for determining effluent limits for
carcinogens shall remain as they were on the date this rule was
proposed.
8.3. Variances from Specific Water Quality Criteria. A
variance from numeric criteria may be granted to a discharger if it
can be demonstrated that the conditions outlined in subsections
6.1.b.A - F, herein, limit the attainment of one or more specific
water quality criteria. Variances shall apply only to the
discharger to whom they are granted and shall be reviewed by the
Board at least every three years. In granting a variance, the
requirements for revision of water quality standards in 46 CSR 6
shall be followed.
8.4. Site-specific numeric criteria. The Board may establish
numeric criteria different from those set forth in Appendix E,
Table 1 for a stream or stream segment upon a demonstration that
existing numeric criteria are 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 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. The site-specific numeric
criterion may be established by conducting a Water Effect Ratio
study pursuant to the procedures outlined in US EPA's "Interim
Guidance on the Determination and Use of Water-Effect Ratios for
Metals" (February 1994); other methods may be used with prior
approval by the Board. In adopting site-specific numeric criteria,
the requirements for revision of water quality standards set forth
in 46 CSR 6 shall be followed.
§46-1-9. Establishment Of Safe Concentration Values.
When a specific water quality standard has not been
established by these rules and there is a discharge or proposed
discharge into waters of the State, the use of which has been
designated a Category B1, B2, B3 or B4, such discharge may be
regulated by the Chief where necessary to protect State waters
through establishment of a safe concentration value as follows:
9.1. Establishment of a safe concentration value shall be
based upon data obtained from relevant aquatic field studies,
standard bioassay test data which exists in substantial available
scientific literature, or data obtained from specific tests
utilizing one (1) or more representative important species of
aquatic life designated on a case-by-case basis by the Chief and
conducted in a water environment which is equal to or closely
approximates that of the natural quality of the receiving waters.
9.2. In those cases where it has been determined that there
is insufficient available data to establish a safe concentration
value for a pollutant, the safe concentration value shall be
determined by applying the appropriate application factor as set
forth below to the 96-hour LC 50 value. Except where the Chief
determines, based upon substantial available scientific data that
an alternate application factor exists for a pollutant, the
following appropriate application factors shall be used in the
determination of safe concentration values:
9.2.a. Concentrations of pollutants or combinations of
pollutants that are not persistent and not cumulative shall not
exceed 0.10 (1/10) of the 96-hour LC 50.
9.2.b. Concentrations of pollutants or combinations of
pollutants that are persistent or cumulative shall not exceed 0.01
(1/100) of the 96-hour LC 50.
9.3. Persons seeking issuance of a permit pursuant to these
rules authorizing the discharge of a pollutant for which a safe
concentration value is to be established using special bioassay
tests pursuant to subsection 9.1 of this section shall perform such
testing as approved by the Chief and shall submit all of the
following in writing to the Chief:
9.3.a. A plan proposing the bioassay testing to be
performed.
9.3.b. Such periodic progress reports of the testing as
may be required by the Chief.
9.3.c. A report of the completed results of such testing
including, but not limited to, all data obtained during the course
of testing, and all calculations made in the recording, collection,
interpretation and evaluation of such data.
9.4. Bioassay testing shall be conducted in accordance with
methodologies outlined in the following documents: U.S. EPA
Office of Research and Development Series Publication, Methods for
Measuring the Acute Toxicity (EPA/600/4-90/027F, August 1993, 4th
Edition) or Short Term Methods for Estimating Chronic Toxicity of
Effluents and Receiving Waters to Freshwater Organisms
(EPA/600/4-89/001), March 1989; Standard Methods for the
Examination of Water and Wastewater (18th Edition); or ASTM
Practice E 729-88 for Conducting Acute Toxicity Tests with Fishes,
Macroinvertebrates and Amphibians as published in Volume 11.04 of
the 1988 Annual Book of ASTM Standards. Test waters shall be
reconstituted according to recommendations and methodologies
specified in the previously cited references or methodologies
approved in writing by the Chief.