FRIENDS of SLEEPY CREEK, ) 1 Appellant, J "

BEFORE THE ENVIRONMENTAL QUALITY CHARLESTON, WEST VIRGINIA

FRIENDS OF SLEEPY CREEK, ) 1 Appellant, j ". ,' Appeal No. 417 CHIEF, OFFICE OF WATER ; RESOURCES, DIVISION OF ENVIRONMENTAL PROTECTION, ; Appellee, i ) and ) COUNTY COMMISSION OF MORGAN- COUNTY, ) Intervenor.

FINAL ORDER

Hearings were held before the Environmental Quality Board (the "Board") in the above-captioned appeal on October'25, 1989, and on July 21, 1994.~ On October 25, 198,9, the Board determined that a quorum was present, and on July 21, 1994, the parties agreed to take evidence before less than a quorum of Board members. On each date,that appeal no. 417 was heard, an authorized court reporter was present, and proper notice was duly served on all parties and timely filed with the Secretary of State for publication in the State Register. The Appellant, Friends of Sleepy Creek represented itself through their spokesperson, E. Virgil Falloon. The Appellee was represented by Assistant Attorney General David L. Lahr. The Intervenor was represented by the Morgan County Prosecuting Attorney John Adams. The Board, having carefully reviewed the certified file, relevant law and regulations, the Notice of Appeal, all written filings and memoranda, the testimony of the witnesses, exhibits, and arguments by counsel and by Mr. Falloon, and being duly advised in the premises, by a unanimous vote, hereby ORDERS that in light of the fact that the subject of this

appeal, NPDES permit no. WV0103136 has expired, and that on June

28, 1994, the OWR granted coverage to the 522 Industrial Park facility under the general WV/NPDES permit WVO103110, appeal no. 417 is hereby DISMISSED as moot. In reaching its decision, the Board rules on the parties' proposed Findings of Fact and Conclusion6 of Law as follows: RULINGS ON PROPOSED FINDINGS OF FACT After due consideration of each. and every Finding of Fact proposed by. the parties, the Board hereby rejects, accepts, incorporates, or modifies each such proposed Finding of Fact by adoption of the Board's own Findings of Fact as they are set forth below: FINDINGS OF FACT 1. On or about June 28, 1989, L. Eli McCoy, then Chief of the Office of Water Resources, West Virginia Division of Environmental Protection (formerly the Division of Natural Resources) (collectively referred to as the 'OWR"), issued WV/NpDES Water Pollution Control Permit No. WV0103136 to the Morgan County Commission to install, operate and maintain a small sewage collection and treatment plant.

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2. Permit No. WV0103136 allows the operation of the sewage treatment plant which serves the 522 Industrial Park and to discharge treated water into Sleepy Creek, which is tributary to the Potomac River. 3. "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. Included are those streams or stream segments which receive annual stockings of trout but which do not support year-round trout populations." Code of State Regulations § 46-l-2.4. 4. Sleepy Creek is designated as a "high quality" stream by the West Virginia Department of Natural Resources. (West Virainia Hiah Quality Streams, Fourth Edition, 1979, p. 6). 5. There are no and have been no occupants in the 522 Industrial Park and no person has applied 'to the OWR for any additional permits at the Park. (July 21, 1994 Transcript, p.~74).

6. Harperella (Ptilimnium nodosum) is listed as an endangered plant species by the U.S. Fish and Wildlife Service. (Appellant's Exhibit No. 14, p. 1). I. Harperella populations are found in a 20 mile section of Sleepy Creek, and are found in only two locations in West Virginia: Sleepy Creek and the Cacapon River. (Appellant's Exhibit No. 12; Appellant's Exhibit No. 14, p. 1). a. Water quality degradation is a factor affecting Harperella and is of major concern to the West Virginia Natural Heritage Program. (Appellants Exhibit No. 14, p. 4).

-3- C:\wP51\WC\WATER\417.F0 9. The "anti-degradation" policy of 46 C.S.R. 1 § 4.1.e was not addressed by the OWR prior to issuing the permit. 10. NPDES Permit No. WV0103136 expired on June 27, 1994. 11. By correspondence dated June 28, 1994, the OWR granted

coverage under the general WV/NPDES Permit No. WV0103110 to the 522 Industrial Park for discharges from its treatment plant into Sleepy Creek. 12. The Board has not been requested, nor does it have any facts upon which it may adjudicate the validity of general WV/NPDES Permit No. WV0103110 or any grant of coverage thereunder. RULINGS ON PROPOSED CONCLUSIONS OF LAW After- due consideration of each and every Conclusion of Law proposed by the parties, the Board hereby rejects, accepts, incorporates, or modifies each such proposed Conclusion of Law by adoption of the Board's own Conclusions of Law.as they are set .forth below: CONCLUSIONS OF LAW 1. The Board has jurisdiction to hear this matter in accordance with West Virginia Code. § 20-5A-15(a).' 2. After hearing and considering "all of the testimony, evidence and record in the case, the Board shall make and enter an order affirming, modifying, or vacating the order of the Chief, or shall make and enter such order as the Chief should have entered, or shall make and enter an order approving or modifying the terms

'Recodified at W.Va. Code § 22-11-21 (1994).

C:\WPSl\DOC\WATER\417.F0 -4- . * and conditions of any permit issued." W.Va. Code 9 20-5A-15(g).2 3. The legislative rules of the Water Resources Board (now the Environmental Quality Board) governing water quality standards contain the "anti-degradation policy," which provides in part that "the existing trout and other high quality waters of the State must be maintained at their existing high quality unless it is determined after consultation with EPA and the Chief and opportunity for public comment and hearing that allowing lower water quality is necessary to accommodate important economic or social development in the are 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." 46 C.S.R. 1 5 4.1.e. 4. The issuance of a permit to allow a new source on a ,high quality stream will degrade the existing quality of. a stream, and triggersthe requirements of 46 C.S.R. 1 9 4.l.~e. 5. Because the public notice given on April 26, 1989 of the May 25, 1989 public meeting on the draft permit did not provide notice to the public that the receiving stream, Sleepy Creek, was designated as a high quality stream, it did not provide an opportunity for public comment on the anti-degradation issue. Therefore, the public meeting held on May 25, 1994 did not meet the

'Recodified at Code § 22B-1-7(g) (1994).

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'requirements of 46 C.S.R. 1 § 4.1.e. 6. Because NPDES permit no. WVO103136, the subject of appeal no. 417, expired on June 21, 1994, and the facility has been granted coverage under general NPDES permit no. WVO103110, the affirmance or revocation of NPDES permit no. WV0103136 by the Board is moot. 7. The requirements of 46 C.S.R. 1 9 4.1.e' must be met before the degradation of a high quality water is permitted. Thus, the requirements of 46 C.S.R. 1 § 4.1.e are triggered when a new - ; source proposes to discharge into a high quality water and when a permit modification is proposed to allow the discharge of additional pollutants or quantities of pollutants. 8. The requirements of 46 C.S.R. 1 9 4.1.e must be met before a source may be granted coverage under any general NPDES permit for a discharge into a high quality water.

ORDERED this ehday of December, 1994.

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