There are valid reasons for the U.S. Environmental Protection Agency to veto 36 water discharge permits for coal mines issued by the state of Kentucky, said comments filed with EPA by the Kentucky Resources Council and posted to the council’s website on June 22.
“KRC strongly supports the objections that have been filed by the EPA concerning the thirty-six (36) draft Kentucky Pollutant Discharge Elimination System (KPDES) permits referenced in the April 16, 2012 Notice of Public Hearings,” said the KRC comments, written by Director Tom FitzGerald. “Despite data collected by then-Division of Water staff reflecting that elevated levels of dissolved solids, resulting from the interaction of baseflow and rainwater with disturbed strata containing sulfates and carbonates, were associated with surface coal mining operations, the [Kentucky Environmental] Cabinet failed to impose monitoring conditions sufficient to allow an adequate ‘reasonable potential analysis’ (RPA) in accordance with [federal regulations]. The peer-reviewed literature amply demonstrates that, absent the incorporation of measures intended to minimize damage to the hydrologic balance from excessive leaching of minerals from the disturbed strata, the conductivity values will exceed those levels at which adverse impacts to aquatic populations will result.”
KRC is an environmental group in and of itself, and also provides legal support to other environmental groups. It is a consistent thorn in the side of the Kentucky coal industry on environmental issues.
Federal regulations allow the EPA to object to NPDES permits proposed to be issued by a state under a delegated program where, as here, the permit “fails to apply, or to ensure compliance with, any applicable requirement of this part,” FitzGerald wrote. Additionally, where the effluent limits of a permit fail to satisfy federal regulations, EPA is empowered to object to such a permit. In addition to numeric water quality criteria adopted in order to protect the suitability of streams for supporting warmwater aquatic species, Kentucky’s regulations include minimum water quality criteria applicable to all surface waters, and intended to backstop specific numeric criteria and criteria developed through toxics translator mechanisms, FitzGerald added.
“There can be little argument that the disturbance and rubbilization of various strata overlying coal seams in the Appalachian region in order to access the coal by surface mining methods creates the potential for changes, sometimes dramatic, in the water chemistry of base flow or precipitation that infiltrates through fills where excess spoil material is disposed,” he wrote. “The peer-reviewed literature demonstrates clearly that typical spoils handling practices in eastern Kentucky surface coal mines, with end- or wing-dumped fills of blended strata and ‘area’ mining configurations where extended periods of exposure to the elements occurs prior to reclamation of disturbed areas, result in levels of dissolved solids that adversely affect the diversity and health of species in receiving streams.”
Historically, Kentucky has issued both general and individual KPDES permits controlling precipitation-based discharges using a combination of categorical effluent limitations and water quality-based limits for iron. Mine engineering has focused primarily on treatment to address these numeric parameters, FitzGerald wrote.
“As both peer-reviewed scientific studies and field data collected from individual mining operations and from more broad-based water quality assessments reflect, the exposure of strata with soluble constituents (including carbonates, sulfates, and other metals) to saturation through precipitation and base flow, can leach dissolved solids into the water column in a manner that exceeds the carrying capacity of the headwater reaches and impairs the ability of these reaches to support warmwater aquatic life,” he added.
FitzGerald praises EPA for ‘reengagement’ in water permitting process
The “reengagement” of the EPA in overseeing the implementation of the Section 402 and 404 Clean Water Act programs with respect to placement of fill material and discharges into headwater reaches, has created an environment in which significant progress can be made in achieving the goals of the CWA of improving and safeguarding waters for a range of beneficial uses, and of the federal 1977 Surface Mining Control and Reclamation Act that mining technology would follow best reclamation practices rather than dictate them, and that the reclamation would contemporaneously follow land disturbance while minimizing the time from initial disturbance of a mining area until successful reestablishment of a permanent vegetative cover, FitzGerald wrote.
“The EPA is acting well within its authority and the scientific information in demanding that, rather than ‘kicking the can down the road” by issuing another five-year cycle of individual permits with ‘monitoring only’ conditions on sulfates and conductivity, action be taken during this permit cycle to require that the discharges of dissolved solids be minimized and avoided through incorporation of practices intended to result in moderation of the creation and liberation of dissolved solids from disturbed areas,” FitzGerald said. “Clearly, addressing dissolved solids and conductivity issues will require significant re-engineering of mine plans, and management of generated and excess spoil. Just as limitations on selenium discharges have caused changes in handling of spoil through separate removal and management of strata with high selenium leaching potential, new engineering practices and designs will need to be developed and tested to determine whether they can lower the liberation and movement of constituents of concern into the receiving waterbodies.”
KRC has reviewed the May 30 letter from Evelyn MacKnight of the Water Protection Branch for EPA Region III regarding the Hampden Coal Co. LLC NPDES permit, and believes that the general approach outlined by EPA in that letter provides an appropriate path to imposition of meaningful controls on discharges of dissolved solids, FitzGerald said. Hampden Coal is a unit of James River Coal (NASDAQ: JRCC). In that letter, EPA agreed that the measures proposed for compliance with West Virginia’s narrative water quality criteria would be sufficient to meet the state obligation under the Clean Water Act. Specific measures included a combination of mine design and operational techniques, as well as a commitment to future actions (if needed) to protect water quality and biological integrity.
KRC recommends ways to fix targeted water permitting
KRC recommended that, utilizing the authority vested in the EPA (unless the state agrees to do so and avoids the necessity of a veto), best management practices be required to be implemented and monitored, including as appropriate:
- That each strata within the overburden be analyzed separately by a certified laboratory of the leaching potential of that strata for carbonates, sulfates and other constituents of concern, using appropriate EPA or ASTM long-term leaching potential tests. This avoids the “blending” of strata which could mask the potential for discharge of sulfates and other dissolved solids.
- That the permits will contain monitoring requirements for sulfates, and for each strata reflecting a leaching potential for sulfates, that strata would be managed as other “acid or toxic-producing” strata are under SMCRA, i.e. managed “high and dry” and placed against the foot of the highwall or otherwise handled in order to minimize potential for saturation and leaching.
- That whole effluent toxicity testing be conducted periodically.
- That specific practices be utilized by mining companies for placement, design and construction of fills.
- To the extent that deployment of any of these measures would require departure from design standards required by the state Department for Natural Resources through the SMCRA program, the permittee would agree to propose those changes expeditiously as “experimental practices.”
- The monitoring of these best management practices, to the extent possible, would be coordinated with the requirement surface and groundwater monitoring required for individual mining operations under SMCRA, and with the monitoring required to support a Cumulative Hydrologic Impact Assessment analysis and finding of no material damage by the mining agency (as well as the trend stations to be established by DNR and OSM).
EPA said it doesn’t want to shut program, just fix it
EPA said April 16 that it filed a “specific objection” to each of these 36 permits because it was concerned that the draft permits would not protect water quality, the environment and human health consistent with the CWA. Since 2009, the Kentucky Department for Environmental Protection’s Division of Water (KDOW) has authorized discharges from about 2,500 existing and new coal mining and processing projects under the CWA, mostly under an approved coal general permit. KDOW requires individual NPDES permits for mining or processing activities that discharge pollutants into waters that are already polluted and are not meeting water quality standards, along with new or expanding mines within five miles upstream of a drinking water intake. In the last three years, KDOW has issued 115 of these individual permits.
For the 36 individual permits up for review, EPA said it has been working with KDOW to collect and evaluate data on toxic metals, cyanide, phenols, specific conductance, and current biological health of the waters that receive discharges from the mines in an effort to work through the issues identified in the objections. It held hearings in June in Kentucky on this proposal.
“Our intent is not to stop coal mining, but to ensure it proceeds in an environmentally acceptable way,” said EPA Region 4 Administrator Gwen Keyes Fleming in the April 16 statement. “We are holding these hearings on our permit objections to hear from those directly impacted and are hopeful that, following the hearings, the remaining 36 permits will be developed by KDOW with appropriate site-specific controls that will allow these projects to move forward while protecting human health and water quality as required by the CWA.”
The EPA website said these 36 contested permits include authorizations for the Ben Howard Branch surface mine of Xinergy Corp., the Raccoon Branch surface mine of Laurel Mountain Resources, the Bevins Branch surface mine of Sidney Coal and the Beech Fork plant of Blue Diamond Coal.