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PO Box 1070, Frankfort, KY 40602  Phone 502.875.2428, Fax 502.875.2845

KRC Opposes Strip Mine Above Lynch's Water Supply Intake  Posted: June 18, 2009

June 18, 2009

Ron Mills, Director
Division of Mine Permits
Department for Natural resources
Environment and Public Protection Cabinet
#2 Hudson Hollow
Frankfort, Kentucky 40601

Re: A & G Coal Corporation
Permit Application No. 848-0287

Dear Director:

These comments are submitted on behalf of the Kentucky Resources Council, Inc. (Council) on behalf of members who live and work in the community of Lynch, Benham and Cumberland and in Harlan County, and who will be adversely affected and aggrieved within the meaning of the applicable statutes, if the permit requested by A & G Coal Corporation is issued. These comments will be tendered at the public hearing by KRC member Roy Silver, and will additionally be transmitted in electronic format to your attention.

A&G Coal Corporation (A&G) has requested a surface coal mining permit to conduct multiple seam contour and auger mining operations in the Lewis Creek watershed, which drains into Looney Creek.

SUMMARY OF OBJECTIONS

Among the reasons that the Council respectfully requests that the permit be denied are these:

1. Issuance of the permit authorizing discharges from sediment ponds into tributaries of Looney Creek would violate the 5-mile discharge policy of the Commonwealth of Kentucky, since the discharges would contribute sediment and increase turbidity into Looney Creek, which is the water source for the underground reservoir that supplies raw water for the City of Lynch, Kentucky.

2. To the extent that any of the proposed operation (including any disturbance associated with a proposed cut through) is located above the greater of 200 feet above the Highsplint seam or the 3,200 foot elevation, it would violate the Order resolving LUM 98-2.

3. The application lacks an adequate hydrologic protection and hydrologic reclamation plan, and the Cabinet has not conducted a proper and sufficient Cumulative Hydrologic Impact Assessment of the probable cumulative impacts of all anticipated mining on the hydrologic balance within the cumulative impact area.

OBJECTIONS

1. Issuance of the permit authorizing discharges from sediment ponds into tributaries of Looney Creek would violate the 5-mile discharge policy of the Commonwealth of Kentucky, since the discharges would contribute sediment and increase turbidity into Looney Creek, which is the water source for the underground reservoir that supplies raw water for the City of Lynch, Kentucky.

As is explained on the website for the Kentucky Division of Water, the Commonwealth has long had a “Five-Mile Policy” which, absent a variance granted on the basis of extensive wastewater analysis and stream evaluation at critical low-flow conditions, prohibits “discharges from wastewater treatment plants into a stream, lake, or impoundment within five miles upstream from any public water intake.

The policy is explained in this manner:

It is the policy of the Kentucky Division of Water (DOW) to prohibit discharges from wastewater treatment plants into a stream, lake or impoundment within five miles upstream from any public water supply intake and to prohibit the location of public water supply intakes within five miles downstream of a waste discharge.
Applications for permits to construct new wastewater treatment plants or to enlarge existing plants within this five-mile limit will be denied unless a determination is made by DOW that the proposed wastewater plant discharge will not significantly affect the quality of the water in the receiving stream at the downstream water intake.
A variance on the five-mile limitation may be issued after the following requirements are met in the order listed:

1. Preliminary approval to seek a variance granted to the applicant by DOW.

2. Completion of a detailed study of the stream segment that satisfies DOW that the water quality at the water intake point will not be significantly affected by the proposed discharge during worst-case conditions.

3. The plans and specifications for the proposed wastewater treatment facility incorporate design and reliability features as deemed necessary by DOW based on the detailed stream study.

The plan of study shall include the following:

1. The methodology to be used in the stream study.

2. The source and extent of existing data base for establishment of background conditions (quantitative and qualitative) or tentative plan to generate acceptable data base.

3. The parameters to be measured and the equipment to be employed for measurement and analysis.

4. The materials to be used in tracing the simulated discharge plume (fluorescent dyes, chlorides, radioisotopes, etc.) including estimates of maximum concentrations expected within the mixing zone and at the downstream water intake.

5. The means of simulating the actual discharge flow from the proposed plant.

6. The minimum flow at which study will be initiated and the mechanism for monitoring flow conditions in the interim.

7. The number of samples to be taken.

8. The distribution of stream sampling point locations over the stream width and over the length of the reach to be monitored.

9. The frequency of collecting samples.

10. The capability of providing on-site testing equipment and analysis in the field.

11. An estimate of the number of persons to be on site simultaneously for the duration of the study.

No field work on the stream study shall be initiated by the engineer until the detailed plan of study has been submitted, reviewed and accepted by the division.

The scope of the proposed stream study must be sufficiently comprehensive to accomplish each of the following:

1. Since the study is intended to simulate the most critical conditions, i.e., the 7Q10 low-flow condition in the receiving stream, together with a raw sewage discharge, the study cannot be conducted during high stream flow or even average stream flow conditions. Since the study results will have to be extrapolated to the 7Q10 low-flow condition, the study may have to be initiated in October or November or when the monitored stream flow is within the order of magnitude of the 7Q10 low-flow range.

2. The test water flow discharged into the stream during the study must be sufficiently large to simulate accurately the design flow of the proposed new plant. This may be simplified when the discharge is to be made to a tributary to the main stream, if the study is conducted at a time when the main stream flow approximates the 7Q10 range and the tributary flow at this time approximates plant design capacity.

3. The sampling point distribution and collection frequency must be sufficient to define the mixing zone of the stream below the discharge and to describe the lateral dispersion of the simulated plant effluent in the receiving stream all the way to the water intake.

4. For treated sanitary sewage discharges, the critical parameter of concern in the simulation is the fecal coliform concentration arising from human sources. Some background fecal coliform analysis may be required within the discharge/intake reach and also upstream from the proposed discharge. For treatment plants proposed for nonsanitary (commercial/industrial) wastewater, the critical parameters of concern may be organic compounds (e.g. Endrin) and/or inorganic compounds (e.g. arsenic, metals) specified in the Kentucky Public and Semipublic Water Supplies Regulations (formerly 401 KAR 6:015). Background analyses and simulated discharge studies for these compounds must be planned accordingly.

5. Reasonably accurate hydraulic flow measurement of the receiving stream must be made continuously during the course of the study.

6. Data presented in the final engineering report must be actual data together with the simultaneous stream hydraulic flow data. No extrapolation to 7Q10 low-flow conditions is to be made for the purpose of adjusting field data to be presented in the final report.

Issuance of the permit authorizing discharges from the 18 proposed sediment ponds into tributaries of Looney Creek would violate the 5-mile discharge policy of the Commonwealth of Kentucky, since the proposed discharges would contribute sediment, metals and other pollutants of concern and would increase turbidity into Looney Creek, which is the primary water source for the underground mine reservoir that supplies raw water for the City of Lynch, Kentucky.

Contrary to the representation in the Preliminary Application that the nearest downstream municipal water user is Cumberland, the City of Lynch is a surface water user in the vicinity of the proposed permit, withdrawing water at Portal 30 from an underground reservoir that is recharged by two water intakes, with most of water in the reservoir coming from a borehole in Looney Creek. The stream is in direct communication with the reservoir, and there is no attenuation of any pollution loading into the creek, making any changes in stream quality a particular concern for the City of Lynch.

There is no serious dispute but that under Kentucky’s regulations, the sedimentation ponds proposed by A&G are wastewater treatment systems, designed to detain precipitation-induced runoff until compliance with categorical effluent limitations and applicable water quality standards can be met in the water discharged at the outfall.

The “5-mile policy” is incorporated by reference and made an enforceable regulatory obligation by Section 29(b) of 401 KAR 5:005 and is made applicable to Industrial Wastewater Plants (IWWPs) by 401 KAR 5:005 Section 2(3)(b)2. An IWWP is defined in 401 KAR 5:002 as a “privately owned WWTP with more than ninety (90) percent of the influent flow from sources of industrial waste.” “Industrial waste” is in turn defined in 401 KAR 5:002 Section 1(133) to mean “any liquid or other waste resulting from a process of industry, manufacture, trade, or business; or from the depletion of a natural resource.”

A&G’s proposed surface coal mining operation will be producing sediment pond influent that is 100% resultant from the depletion of the coal resource through surface and auger mining, and thus is squarely within the regulatory ambit of 401 KAR 5:005 Section 29(b) and must comply with the 5-mile policy prior to any consideration of permit issuance by the Division of Mine Permits, inasmuch as one of the requirements that the applicant must demonstrate and your agency must find is that “[t]he applicant has demonstrated that surface coal mining and reclamation operations, as required by K.R.S. Chapter 350 and 405 KAR Chapters 7 through 24 can feasibly be accomplished under the mining and reclamation plan contained in the application.” 405 KAR 8:010 Section 14(2). Additionally, the applicant must demonstrate and your agency must find that the “permit application is complete and accurate and in compliance with all requirements of KRS Chapter 350 and 405 KAR Chapters 7 through 24.”

Among the obligations of the applicant is the development of as plan for minimizing disturbances to the hydrologic balance within the permit area and prevention of material damage to the hydrologic balance outside of the permit area. 405 KAR 8:030 Section 32(1). Among the protective measures required to be implemented are those necessary to “[m]eet applicable water quality statutes, administrative regulations, standards, and effluent limitations as required by 405 KAR 16:060 Section 1(3)[.] 405 KAR 8:030 Section 32(1)(b)1 [.] 405 KAR 16:060 Section 1(3) demands that “[I]n no case shall federal and state water quality statutes, regulations, standards, or effluent limitations be violated.”

In sum, absent a demonstration of compliance with and a variance granted from the 5-mile prohibition, this permit cannot be lawfully issued, and must be deemed to be technically deficient for want of a demonstration of compliance with 405 KAR 5:005 Sections 29(b) and 2(3)(b)2.

2. To the extent that any of the proposed operation (including any disturbance associated with a proposed cut through) is located above the greater of 200 feet above the Highsplint seam or the 3,200 foot elevation, it would violate the Order resolving LUM 98-2.

It is almost 10 years to the day that the late Secretary Jim Bickford issued the June 30, 1999 final Order resolving Lands Unsuitable Petition 98-2.

On April 19, 1999, a “Letter Agreement” was reached resolving Lands Unsuitable Petition 98-2. The undersigned authored the petition and negotiated the Letter Agreement on behalf of the Petitioners. The Petition Area included all land above the 3,000 foot elevation contour. All land above the 3,000 foot elevation contour was also subject to a timber conservation easement (except for land at a higher elevation that was subject to timber purchase, which is identified as the “timber purchase area.”). The Letter Agreement also included a definition of “mineable area” in which “[s]urface coal mining and reclamation activities, including underground mining, may be conducted” and defined that area to include that land “between the 3,000 foot elevation contour indicated on the USGS map included with the Lands Unsuitable Petition 98-2 (Petition Area) to either the 3,200 foot contour or 200 vertical feet above the High Splint coal seam, whichever is higher.”

The Letter Agreement was incorporated into the final Secretary’s Order dated June 30, 1999, which dismissed the LUM Petition as being unnecessary because the provisions of the Letter Agreement “adequately protect the values of concern to all parties to Lands Unsuitable Petition 98-2 who have identified an interest which may be adversely affected.”

It appears from the permit application that the applicant seeks to conduct surface coal mining operations, (which includes all disturbances associated with the mining including creation of a “cut through” and associated mining activity, within the area above that which is allowed under the Secretary’s Order. To the extent that it does so, the application cannot be approved, but instead must be denied for want of compliance with the June 30, 1999 Order, since in that Order, the Secretary mandated that “[p]ursuant to 405 KAR 24:030, Section 8(3), and the agreement of the Petitioner and the Intervenors, any future surface coal mining operations in the petition area…must be conducted in compliance with the provisions of the April 19, 1999 Letter Agreement (Exhibit 1) and the May 3, 1999 Agreement (Exhibit 3) which are attached hereto and hereby incorporated into this order as if fully set forth herein.” Order, pp. 5-6. (Emphasis added). No disturbance associated with surface coal mining activities, including but not limited to creation of a “cut through” for haulage of coal and spoil, can be lawfully permitted at an elevation that is higher than the greater of 200 feet above the Highsplint seam or the 3,200 foot contour.

3. The application lacks an adequate hydrologic reclamation plan, and the Cabinet has not conducted a proper Cumulative Hydrologic Impact Assessment.

Both SMCRA and the Kentucky program impose on Kentucky DNR a mandatory, non-discretionary duty to withhold approval of any application for (1) a new surface mining permit or (2) a significant revision of any previously issued surface mining permit, unless and until the application affirmatively demonstrates and Kentucky DNR finds in writing -- on the basis of the information set forth in the application or from information otherwise available which Kentucky DNR documents in its approval papers -- that, among other things:

(1) the permit application is accurate and complete;

(2) all the requirements of SMCRA and the Kentucky program have been complied with;
and

(3) based on an assessment of the probable cumulative impact of all anticipated mining in the area on the hydrologic balance, the proposed operation has been designed to prevent material damage to the hydrologic balance outside the permit area. 30 U.S.C. § 1260(b)(1), (b)(3); 30 C.F.R. §§ 773.15(c)(1), (c)(5); K.R.S. 350.060(2); 405 K.A.R. 8:010 §14(1)-(3).

As part of every cumulative hydrologic impact assessment (“CHIA”), SMCRA and the Kentucky program require Kentucky DNR to, among other things:

(1) base the agency’s designation of the cumulative impact area for the proposed or revised operation on a scientific, data-based analysis of the area within which impacts that likely will result from the proposed operation may interact with impacts of all anticipated mining on surface and groundwater systems, in accordance with 30 C.F.R. §§ 701.5 (cumulative impact area), 733.11, 773.15(e), 780.21, 784.14(f), and 405 K.A.R. 8:001 § 1(28);

(2) specify all anticipated mining within the cumulative impact area according to the standards stated in 30 C.F.R. § 701.5 (cumulative impact area) and 405 K.A.R. 8:001 § 1(28)(a)-(d);

(3) define, for the designated cumulative impact area, the threshold limits or ranges of cumulative hydrologic impact which, if exceeded, would constitute material damage to the hydrologic balance in the cumulative impact area, including among such threshold limits or ranges, at a minimum, the applicable numeric criterion or criteria for each pertinent water quality standard applicable to each water resource within the designated cumulative impact area, in accordance with the requirements of 405 K.A.R. 8:010 § 14(3), 405 K.A.R. 8:030 § 32(3)(b), and 405 K.A.R. 8:040 § 32(3)(b) [as those regulations must be interpreted in light of 30 C.F.R. §§ 780.21, 783.14, and 48 Fed. Reg. 43,973 (Sept. 26, 1983)]; and

(4) determine whether (a) the permit applicant’s proposed hydrologic monitoring plans are capable of detecting any exceedance or trend toward exceedance of each material damage criterion defined in the CHIA and (b) the hydrologic reclamation plan presented in the permit application is capable of forestalling or, if necessary, correcting any actual occurrence of material damage to the hydrologic balance outside the permit area, so as to establish a rational basis for the “prevention of material damage” finding that 30 U.S.C. § 1260(b)(3) and 405 K.A.R. 8:010 § 14(3) require. See also 30 U.S.C. § 1258(a)(13); 30 C.F.R. §§ 780.21(h)-(j), 784.14(g)-(i); 405 K.A.R. 8:030 § 32; 405 K.A.R. 8:040 § 32.

To ensure that mining operations do in fact prevent material damage to the hydrologic balance outside the permit area, the Kentucky program requires that, as part of a complete permit application, each applicant formulate surface and ground water monitoring plans which will, among other things: (1) identify the quantity and quality parameters to be tested during each sampling event; and (2) describe how monitoring data will be used to determine the impact of the operation on the hydrologic balance both on the permit area and adjacent areas. 405 K.A.R. 8:030 § 32(4)(b)(1)-(2) and 405 K.A.R. 8:040 32(4)(b)(1)-(2) [as those regulations must be interpreted in light of 30 C.F.R. §§ 780.21(i) and (j), 783.14(h) and (i)].

During mining and reclamation, the Kentucky program requires the Kentucky DNR to enforce the requirements that (1) each permittee conduct surface coal mining and reclamation operations in a manner that prevents material damage to the hydrologic balance outside the permit area and (2) discharge from disturbed areas shall not cause or contribute to a violation of applicable water quality standards. 405 K.A.R. 16:070 § 1(g); 405 K.A.R. §18:070 § 1(g) [as those regulations must be interpreted in light of 30 C.F.R. §§ 816.41(a), 816.42, 817.41(a), 817.42]. Among other things, the water quality standards applicable at Kentucky coal mines require, at a minimum, that no industrial waste cause or materially contribute to the presence in Kentucky waters of materials in concentrations that “injure or are chronically or acutely toxic to or produce adverse physiological or behavioral responses in humans, animals, or fish and other aquatic life.” 401 K.A.R. 10:031 § 2. Specifically, water quality standards applicable in Kentucky streams include specific numeric limits on concentrations of the following pollutants that, among others, are associated with wastewater discharges from surface coal mining and reclamation operations:

Arsenic
Iron
Beryllium
Lead
Cadmium
Mercury
Chloride
Nickel
Copper
Selenium
Cyanide
Silver
Hexavalent chromium
Zinc

401 K.A.R. 10.031 § 6 Table 1.

No mining permit may lawfully be approved without performing a CHIA in accordance with the requirements of SMCRA and the Kentucky regulations. A&G cannot be approved to conduct the proposed surface coal mining operations unless and until the applicant provides a hydrologic protection plan and Kentucky DNR undertakes a Cumulative Hydrologic Impact Assessment that includes these actions:

(1) analysis and definition of the specific area within which impacts resulting from the proposed operation may interact with the impacts of all anticipated mining on surface and groundwater systems;

(2) use of that analysis as the basis for determining the cumulative impact area for the proposed operation. 30 U.S.C. § 1260(b)(3), K.R.S. 350.060(2), 405 K.A.R. 8:010 §14(1)-(3), and 405 K.A.R. 8:001 §1(28) impose on the agency;

(3) a written determination of all anticipated mining in the cumulative impact area, 30 U.S.C. §1260(b)(3) and 405 K.A.R. 8:001 § 1(28)(a)-(d);

(4) determination of the threshold limits or ranges of cumulative hydrologic impact that constitute material damage to the hydrologic balance in the cumulative impact area of the proposed operation, 30 U.S.C. § 1260(b)(3), 30 C.F.R. §§ 780.21, 783.14 (as interpreted at 48 Fed. Reg. 43,973 (Sept. 26, 1983)), 405 K.A.R. 8:010 § 14(3), 405 K.A.R. 8:030 § 32(3)(b), and 405 K.A.R. 8:040 § 32(3)(b);

(5) determination of whether: (a) the permit applicant’s proposed hydrologic monitoring plans as designed are capable of detecting any exceedance or trend toward exceedance of each applicable material damage criterion, and (b) the hydrologic reclamation plan presented in the permit application is capable of forestalling or, if necessary, correcting any actual occurrence of material damage to the hydrologic balance outside the permit area, so as to establish a rational basis for the “prevention of material damage” finding that 30 U.S.C. § 1260(b)(3) and 405 K.A.R. 8:010 §14(3);

(6) requiring that the groundwater and surface water monitoring plan that meet minimum regulatory requirements of 30 U.S.C. § 1260(b)(1), K.R.S. 350.060(2), 405 K.A.R. 8:010 §14(1), 405 K.A.R. 8:030 § 32(4), and 405 K.A.R. 8:040 § 32(4), by requiring that the permittee (a) monitor each water quality parameter applicable to each receiving stream, (b) describe how surface water or ground water monitoring data will be used to determine the impact of the operation on the hydrologic balance on the permit area and adjacent areas, and (c) require the permit applicant to produce data from which your agency or the public can determine the effects of the permitted mining and reclamation operations on the hydrologic balance, according to 405 K.A.R. §§ 16:110 and 18:110.

Since the permit application does not include these requisite demonstrations, and the permit file does not contain documentation of the required analyses by the Cabinet based on data provided by the applicant and other site-specific information allowing the Cabinet to evaluate the proposed impacts on the hydrologic balance in conjunction with the impacts of other anticipated mining, the Cabinet is obligated by law to deny the A&G permit application. 405 KAR 8:010 Section 14(3).

Other Comments

In addition to the concerns identified above, the Council is concerned with the potential for failure of the sediment structures and the proximity of the mining operation to the community of Lynch. Additionally, the effect of proposed blasting on the three (3) water tanks (two in active use, one inactive) for the Lynch water system bears substantial scrutiny.

For any and all of these reasons, KRC respectfully requests that the permit application be denied.

Cordially,



Tom FitzGerald
Director

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