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

KRC Comments On Proposed Reissuance Of Coal General Water Discharge Permit  Posted: June 18, 2009

June 18, 2009

Peter Goodmann, Assistant Director
Division of Water
200 Fair Oaks
Frankfort, Kentucky 40601

Larry Sowder
Division of Water
200 Fair Oaks
Frankfort, Kentucky 40601

Re: Proposed Reissuance; Coal General Permit
KYG040000, Agency Interest # 35050

Dear Mssrs. Goodmann and Sowder:

These comments are submitted on behalf of the Kentucky Resources Council, Inc., a nonprofit environmental advocacy organization providing legal and technical assistance without charge to low-income individuals, community organizations, and local governments on a range of environmental and energy issues, including the extraction and beneficiation, combustion and disposal of waste products of coal.

These comments are submitted on behalf of Council members who live and work in the coalfields of eastern and western Kentucky, and whose use and enjoyment of the aquatic resources of those coalfields will be adversely affected is the Coal General Permit (CGP) is reissued without substantial revisions, as outlined below.

Let me begin, however, by expressing my gratitude to the Division of Water and to you both for the brief extension of time in which to finalize and submit these comments.
Specific comments follow:

1. KRC has reviewed the comments submitted on the draft CGP, and for the most part concurs with the recommendations that EPA has made (and incorporates those comments herein by reference, with the exceptions noted below).

EPA properly notes that only 12% of waters statewide have been assessed to determine whether the water are impaired, and recommends that because of the direct correlation between TDS/SC level and stream impairment, that specific conductance or TDS be added as an effluent monitoring parameter.

KRC concurs that specific conductance or TDS should be added, since there is ample evidence of downstream impairment, and that compliance monitoring should also be required. The Division is in possession of water quality data indicating that specific conductance values are elevated in streams receiving drainage from valley fills. Elevated specific conductance values are known by the Cabinet to be consistent with adverse impacts on species diversity, indicating that it is a pollutant from coal mining activities causing a violation of narrative water quality protections against introduction of pollutants into stream reaches causing adverse physiological effects on species. Specific conductance should be included both in terms of monitoring and imposition of numerical limits.

With respect to the EPA suggestion that one sample of effluent should be required of existing operators for 13 toxic metals, KRC concurs that the sampling should be undertaken, but believes that one sample is insufficient to allow development or imposition of additional permit limits, and recommends that the requirement be expanded to include six (6) months of baseline data, in order to have a data set that is sufficient to reflect seasonal variations in precipitation and concentration of the metals in the effluent.

2. Additionally, in order to allow for reissuance of a general permit (which by regulation is limited to situations involving “the same or substantially similar types of operations [discharging] the same types of wastes [and requiring] the same effluent limitations or operating conditions [and] the same or similar monitoring and [which in] the opinion of the cabinet, are more appropriately controlled under a general permit than under individual permits[,]” 401 KAR 5:055, Section 5(b)2, the agency must have sufficient information on variations in concentrations of certain pollutants, which vary by overburden and interburden strata disturbed as much as geographically. The Council incorporates by reference two studies supporting the additional chemical, metals and biological monitoring and permit limit parameters (copies of which are submitted as attachments to these comments), Neuail, Dulong and Cecil, Spatial Trends in Ash Yield, Sulfur, Selenium, and Other Selected Trace Element Concentrations in Coal Beds of the Appalachian Plateau Region (USGS Open-File Report 2005-1330); Pond, Passmore, Borsuk, Reynolds and Rose, Downstream effects of mountaintop coal mining: comparing biological conditions using family- and genus-level macroinvertebrate bioassessment tools (North American Benthological Society, 2008).

3. Beyond the requirement for inclusion of sampling for certain toxic metals and for specific conductance or TDS, KRC believes that in order for the Cabinet to lawfully allow coverage to an existing or new source discharger under the CGP, sufficient data must be collected by the proposed discharger to demonstrate that the receiving water is not impaired, or is so close to impairment that the discharge will not cause a stream segment to become impaired. The EPA recommendation for development and implementation of one benthic macroinvertebrate assessment downstream of each outfall “within the term of this permit” should be further clarified so that prior to issuance of coverage to a new discharger, a benthic macroinvertebrate assessment is done in conjunction with sampling for the effluent-limited parameters and metals, to demonstrate that the stream is not impaired for those parameters associated with the proposed discharge and to establish a baseline for determining whether the discharge is causing impairment during the term of the mining permit. Such sampling should occur again at the time prior to midterm review of the mining permit by the DMRE. For existing dischargers, the benthic macroinvertebrate survey should be done prior to initial disturbance and initial discharge from disturbances in any watershed not previously disturbed by the mining operation, and again during midterm review, in order to assure that the discharge would not “cause or contribute to a violation of a water quality standard.” 401 KAR 5:055, sec. 2(7).

Conducting a benthic macroinvertebrate assessment for each receiving stream satisfies an additional obligation, which is the requirement of the stream buffer zone regulations of 405 KAR Chapters 16 and 18 that allow placement of sediment structures or other incursions into the buffer zone only where damage will not occur to significant assemblages of species. In order to assure compliance with this requirement and 401 KAR 5:055, a preliminary biological survey meeting proper quality assurance and quality control standards is essential.

4. The Council supports the continued recognition by the Division of the alternative effluent standard for settleable solids of .5 ml./l as an instantaneous maximum. KRC requests that the Division coordinate with DSMRE to assure that the sediment structures are being designed individually or in series to meet that standard as an instantaneous standard.

5. The proposal to allow waiver of sampling for oil and grease if a BMP plan is adopted should be reconsidered. Even where a BMP plan is in place, the continued monitoring for oil and grease is necessary to determine the effectiveness of the plan. As EPA noted in a rulemaking concerning discharge limits for western coal mining, “it is difficult to project the results, in terms of measured improvements in pre-existing pollutant discharges, that will be produced through the application of any given BMP or group of BMPs at a particular site. . . Additionally, application of these estimates is subject to substantial, site-specific uncertainties. In some cases, despite appropriate design and implementation of a BMP plan, there is the potential for little improvement over baseline discharges. For these reasons, it is not feasible to project the expected numeric improvements that will occur for a specific pre-existing discharge through application of a particular BMP plan.” 67 Fed.Reg. 3,379.

Surface coal mining operations utilize significant amounts of oil and grease to maintain earth-moving and other equipment. Historically, oil and grease from the mine shops and from the changing out of oil from equipment resulted in discharges onto the mine spoil of the spent free liquids. A BMP plan has not historically been required as part of the surface mining permit, and although the applicant is required to explain how non-coal wastes will be managed, the response is usually perfunctory and general, providing little information and no enforceable obligation.

So too, the Division of Water has previously acknowledged that compliance with BMPs does not equate with satisfaction of water quality-based or categorical effluent limits. The Cabinet noted in comments expressing concern with the EPA rules on remining that BMPs are not intended as a surrogate for point source controls and effluent limitations:

With regards for the substitution of BMPs for effluent limitations, the application of BMPs are for the prevention of environmental degradation from sources which are not easily controlled through the application of point source requirements. BMPs can also be used as a supplement to a point source program, but they are not a stand-alone control device. As an example, the Division of Water requires the use of BMPs on all mining and remining sites as a supplement to the point source requirements. Kentucky has developed a BMP guidance document with recommended BMPs for use by the industry, however none of these BMPs have a documented reproducible correlation between the application of a BMP and a quantifiable improvement in water quality.

The BMP plan should be a part of the general coal mining permit as a supplement to, but not an alternative to imposition of narrative and numeric monitoring and WQBEL/effluent limits on oil and grease, and should require that the use and management of oil and grease and the collection, storage and disposal of spent oil and grease be subject to recordkeeping and management standards to prevent releases into the environment during material and waste handling, storage and use. Coordination with DSMRE should be developed so that the BMP plan is also submitted as part of the mining permit application and thus becomes enforceable by both agencies.

6. Clarification is needed that the grab samples that are required twice per month shall be representative samples taken during or after precipitation events where there is a discharge from the sedimentation ponds, and shall be correlated with meteorological data from the nearest reporting station regarding the strength and duration of the storm event, in order that the agency can determine compliance with the primary or alternate effluent limits. With sampling being undertaken as infrequently as 2/month, KRC appreciates the provision under “D. Monitoring and Reporting” indicating that samples are not to be taken from the sediment structure when there is no discharge, but believes additional clarification is needed that “no discharge” reports are insufficient to demonstrate compliance with the permit limits, and that sampling events are not to be scheduled where there is no discharge.

7. The CGP must be revised to expressly note that the permit is unavailable for discharges into receiving waters that are impaired and for which a TMDL has not been established. In such an instance, no new discharge that would contribute pollutants is allowable absent establishment of a TMDL for that stream segment.

8. The fact sheet explains how the Tier II antidegradation requirements will be implemented with respect to coal mining-related discharges under the CGP, but the obligation to satisfy the alternatives analysis and socioeconomic demonstration are not incorporated into the CGP itself. Language should be included in the permit itself that the permit coverage is unavailable absent a demonstration that the discharge will not degrade existing water quality of any high quality water, or a successful demonstration that no alternatives exist and that the socioeconomic demonstration has been made.

9. For existing facilities, the agency proposes that renewal of coverage for existing facilities shall not require compliance with the Tier II antidegradation implementation regulation unless the facility is “expanding[.]”

Clarification is needed as to when Tier II compliance would be required for an existing facility. Since, by virtue of the exemption from Tier II antidegradation requirements that was contained in the remanded Kentucky water quality standards, there are a significant number of mining operations that have not made the requisite demonstration, the agency should limit the exemption of existing operations to those that are not “expanding” into a new watershed. For any mining operation that, after the date of the new CGP, proposes to commence mining in a new watershed that drains to a Tier II water, there is no basis for exempting the permittee from undertaking the Tier II demonstration prior to allowing general permit coverage for the discharges into that water.

Thank you for your consideration of these comments.

Cordially,


Tom FitzGerald
Director

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