Current through Register Vol. XLI, No. 24, June 14, 2024
Section 47-2-5 - Mixing Zones5.1. In the permit review and planning process or upon the request of a permit applicant or permittee, the secretary 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 secretary 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 are not limited to, the linear distances from the point of discharge, surface area involvement, and 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 secretary 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 secretary. 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 secretary, 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 secretary 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 secretary 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 five (5) cubic feet per second (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; kill 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 (1/2) 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 percent (10%) 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.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 State or Federal 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 the instream waste concentration of a discharge is greater than 80%.5.2.h.5. Overlap one another, except that the secretary may allow mixing zones for human health criteria to overlap, if the overlapping mixing zones comply with all guidelines and conditions of subsection 5.2 herein.5.2.h.6. Overlap any half-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 Federal Act shall constitute compliance with all provisions of this section.5.2.j. The secretary may waive the requirements of subdivision 5.2.e and paragraph 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; and5.2.j.2. Information and data proving no violation of subdivisions 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 secretary that the mixing zone is in compliance with the provisions outlined in subdivisions 5.2.b, 5.2.c, 5.2.e, and paragraph 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 secretary may require a permit applicant or permittee to submit such information as he or she deems necessary.