Current through Register Vol. XLI, No. 24, June 14, 2024
Section 47-57-6 - Variance From Groundwater Quality Standards and Preventative Action Limits6.1. Application -- Upon petition by any person, the Director may identify a single source or class of sources which by their nature cannot be conducted or operated in compliance with the groundwater quality standards or preventative action limits, or both, established pursuant to the Act and may grant a variance for a single source or class of sources. In the case of a petition on behalf of a class of sources, the petition may be filed by any person. In the case of a petition on behalf of a single source, the petition may only be filed by the owner or operator of that source. Any person who petitions for such variance must give contemporaneous notice of the petition by Class I advertisement in a newspaper of general circulation in the area to be affected by the requested variance. If the petitioner seeks a variance which would apply throughout the state, a Class I advertisement must be placed in a newspaper of state-wide circulation. Any advertisement must identify the name, address, and telephone number of the person requesting the variance, the area in which the variance would be effective (note: include a map if appropriate), and the source or class of sources for which the variance is requested and the constituents for which the variance is requested.6.2. Contents -- An application for a variance from preventative action limits or groundwater quality standards, or both, must contain the following information: 6.2.a. A name, mailing address, and phone number of the person requesting the variance, and the name of the individual to be contacted regarding the application;6.2.b. A description of the source or class of sources and constituents for which the variance is being requested;6.2.c. The levels of constituents for which the variance is being requested.6.2.d. A description of the area for which the variance is proposed, including an analysis of the geology and hydrology of the area;6.2.e. A description of current groundwater quality and uses in the area to be affected by the variance, and the predicted long-term effect of the variance on the groundwater quality and uses;6.2.f. A list of other sources which may have an effect on groundwater quality in the area for which the variance is requested;6.2.g. The alternate limits or standards and mitigation measures proposed by the applicant if the variance is granted, and any proposed variance conditions;6.2.h. A statement describing why the source or class of sources by their nature cannot be altered or modified to avoid violating preventative action limits or water quality standards;6.2.i. A statement of the nature and extent of the benefits of the proposed variance including, but not limited to, benefits associated with economics, employment opportunities, health and safety, and the environment;6.2.j. A description of alternatives to the variance, and an explanation of why the benefits of the proposed action outweigh the benefits of each considered alternative course of action, including not granting a variance, and an explanation of why none of the considered alternatives is reasonable and prudent;6.2.k. A statement explaining why the proposed action is more in the public interest than the protection of groundwater quality standards or preventative action limits; and6.2.l. A certificate of publication.6.3. Rulemaking -- If, after considering the variance petition for a single source or class of sources, the Director concludes that a variance is appropriate, in whole or in part, the Director shall initiate legislative rulemaking as provided in W. Va. Code '29A-3. The proposed rule shall set forth: 6.3.a. A description of the single source or class of sources to be granted the variance and the constituents for which the variance is requested;6.3.b. The geographical area for which the variance is allowed;6.3.c. Any appropriate terms and conditions; and6.3.d. The Director's preliminary findings pursuant to subsection 6.7 of this rule with respect to which public comment is to be solicited.6.4. The proposed rule shall be accompanied by a statement of the Director's grounds for proposing the variance. In addition to all other rulemaking requirements, the Director shall hold a public hearing, following thirty (30) days notice, at which oral comments may be received from any interested person, and the Director must allow at least ten (10) days after such hearing for the submission of written comments. Notice of the public hearing shall also be filed with the state capitol press office. The Director shall issue a determination as to whether such a variance is or is not appropriate within forty-five (45) days of the close of the comment period and, if determined to be appropriate, shall take such further steps as may be appropriate to have the variance promulgated as a legislative rule.6.5. Denials -- If the Director determines that a variance for a single source or class of sources shall not be allowed, he shall publish a denial decision stating the reasons for the denial and provide a copy of the denial decision to the petitioner along with a notification of the petitioner's appeal rights by certified mail, and by regular mail to any other person who requests a copy of the denial decision. Notice of the denial decision shall also be published in the State Register.6.6. Appeal -- Any person who is adversely affected by the Director's decision to deny a variance may appeal that decision to the Environmental Quality Board within thirty (30) days of the date of publication of a denial decision in the State Register.6.7. Variance Criteria -- The Director shall promulgate rulemaking for a variance for a single source or class of sources, if the Director finds that: 6.7.a. A single source or class of sources by their very nature cannot be conducted in compliance with the requirements of W. Va. Code '22-12-5(g).6.7.b. The benefits of granting the variance outweigh the benefits of complying with the preventative action limits, or groundwater quality standards, or both;6.7.c. The variance is more in the public interest than the protection of groundwater quality standards or preventative action limits; and6.7.d. There is no reasonable and prudent alternative to the variance.6.8. The Director's findings pursuant to the foregoing subsection shall include a statement of basis in support of each finding.6.9. Terms and Conditions -- The Director may propose the variance through the initiation of rulemaking upon such reasonable terms or conditions as may be necessary to protect human health and the environment, to satisfy all requirements of the Act (other than compliance with groundwater quality standards or preventative action limits, or both as specified in the variance), and to minimize adverse impact to groundwater consistent with granting the variance. Such terms and conditions shall include, where the Director deems it to be appropriate, alternative groundwater water standards, alternative preventative action limits, monitoring and reporting requirements, and enforcement provisions. To the extent that such terms and conditions include alternative groundwater quality standards, the Director shall consult with the Environmental Quality Board in establishing such alternative standards. 6.10. Initial Variance -- All sources, except for those sources operating pursuant to subsection 4.2 of this rule, shall be granted a waiver of the requirements to comply with all groundwater quality standards and preventative action limits until November 1, 1994. Any source, whether single or class, which has filed with the Director on or before October 31, 1994, a statement declaring an intent to make application for a variance shall be granted a waiver of the requirements to comply for only those groundwater quality standards and preventative action limits, specific to the variance application, until July 1, 1996. The letter of intent shall include, but not be limited to, identification of the constituent(s) for which a variance is requested, a statement of the nature of the activity requesting the variance, and the geographical area to be affected, by the variance, if granted. Notwithstanding any other provisions of this subsection, such sources may be subject to such other standards or conditions as may be established by an agency to protect human health and the environment and to satisfy all requirements of the Act other than compliance with groundwater quality standards or preventative action limits, or both as specified in the variance. Any waiver granted pursuant to this subsection will be extinguished upon the issuance of the Director's denial of the entire variance. In those instances where a portion of the variance application has been denied, the waiver for that portion is extinguished.6.11. Variance From New Standards -- All sources, except for those sources operating pursuant to subsection 4.2 of this rule, shall be granted a waiver from the requirements to comply with any groundwater quality standards and associated preventative action limits not in effect on August 30, 1993, until six (6) months following the effective date of such standards and associated preventative action limits. Any source, whether single or class, which has filed with the Director, within six (6) months following the effective date of such standards and associated preventative action limits, a statement declaring an intent to make application for a variance shall be granted a waiver of the requirements to comply for only those groundwater standards and preventative action limits as specified in the letter of intent for an additional eighteen (18) months. The letter of intent shall include, but not be limited to, identification of the constituent(s) for which a variance is requested, a statement of the nature of the activity requesting the variance, and the geographical area to be affected, by the variance, if granted. Notwithstanding any other provisions of this subsection, such sources may be subject to such other standards or conditions as may be established by an agency to protect human health and the environment and to satisfy all requirements of the Act other than compliance with groundwater quality standards or preventative action limits, or both as specified in the variance. Any waiver granted pursuant to this subsection will be extinguished upon the issuance of the Director's denial of the entire variance. In those instances where a portion of the variance has been denied, the waiver for that portion is extinguished.6.12. Periodic Review -- No less frequently than every five (5) years the Director shall review all prior decisions granting deviations and variances to determine their continued consistency with this series. Should the Director determine that any modification of such a decision is appropriate, the Director shall initiate rulemaking pursuant to W. Va. Code 29A-3.