Kentucky Resources Council, PO Box 1070, Frankfort, KY 40602 Phone [502] 875-2428

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

Coal Mine General Water Discharge Permit Conditions Tightened  Posted: July 7, 2009
The Kentucky Resources Council and the Kentucky Coal Association were the only commenters on the proposed reissuance of the “general” permit authorizing discharges of stormwater from disturbed areas associated with surface coal mining into waters of the Commonealth

KRC supported the requirement for monitoring conductivity, echoing EPA’s insistence that either specific conductance or Total Dissolved Solids be included as monitored parameter. KRC noted that 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.

The Division of Water rejected the suggestion by the Kentucky Coal Association (KCA) that conductivity be eliminated as a monitored pollutant.

KRC supported and the KCA opposed, the EPA recommendation for development and implementation of one benthic macroinvertebrate assessment downstream of each outfall.

While EPA recommended that the assessment be done within the permit term, KRC argued 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. KRC argued that the “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).

The Division of Water maintained the requirement at EPA’s insistence, and recommended (but did not make mandatory) the requirement that permittees perform and submit the assessments with the Notice of Intent to seek coverage under the general permit.

With respect to Tier II antidegradation, which prohibits a new or expanded discharge into a water whose actual quality exceeds the minimum necessary to support the designated use, KCA opposed public notice and comment and suggested that DOW make a blanket statewide finding that lowering water quality was justified for coal mining. DOW rejected the suggestions, and accepted KRC’s suggestion that the obligation to satisfy the alternatives analysis and socioeconomic demonstration be incorporated into the CGP itself, making clearer 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.

Public notice of a decision by the DOW that lowering of water quality is necessary and justified will be published on the DOW web page for a 15-day comment period.

For existing facilities, the agency proposed that renewal of coverage for existing facilities shall not require compliance with the Tier II antidegradation implementation regulation unless the facility is “expanding[.]” KRC had asked for clarification 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, KRC recommended that the agency 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, KRC argued 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.

The Division removed the ambiguous language and clarified that any alteration of an existing mining operation that results in new discharges or an the increase in discharge levels from existing discharges triggers Tier II Antidegradation review and a demonstration by the discharger that the discharge will not result in lowering of water quality unless alternatives are exhausted and a socioeconomic benefits test is met.

With respect to the EPA suggestion that one sample of effluent should be required of existing operators for 13 toxic metals, KRC concurred that the sampling should be undertaken, but argued that one sample is insufficient to allow development or imposition of additional permit limits, and recommends that the requirement be expanded to include a minimum of six (6) months (and preferably a year) 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. DOW rejected that suggestion but retained the metals monitoring over the objections of KCA.

Finally, KRC argued that the DOW should reconsider allowing a waiver of sampling for oil and grease based on submittal of a best management practices plan. KRC reminded DOW that both EPA and Kentucky had argued in the remining rulemaking that BMPs are not an effective surrogate for monitoring because there is no predictable correlation between implementation of a BMP plan and a lowering of pollution loading, and because even where a BMP plan is in place, the continued monitoring for oil and grease is necessary to determine the effectiveness of the plan.

KRC noted that EPA stated 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.

KRC reminded DOW what it had stated regarding BMPs as part of the comment record for that rulemaking:

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.

KRC noted that 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.

DOW rejected the KRC recommendation that 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.

DOW did acknowledge that while DOW would maintain the sampling waiver as an incentive to operators to develop BMPs, the permit did include a general prohibition against discharges that cause a sheen.

KRC had asked for clarification that the grab samples 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.

DOW responded that the samples taken must be representative of the volume and nature of the discharge, that “no discharge” events are not sufficient, and that the DOW places the burden on the discharger to provide meteorological data justifying use of the “alternate” limitations for greater than 10-year, 24-hour storm intensities.

Finally, KRC asked that the coal general permit 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. DOW noted that the permit automatically excludes discharges into any impaired water for which the impairment is due to one or more pollutants associated with mining.

Any challenge to the reissuance of the general permit for coal mining must be filed by July 31. KRC is evaluating certain key areas, including the oil and grease monitoring waiver, the decision not to require the benthic macroinvertebrate assessment prior to any new or expanded discharge, and the decision not to include conductivity limits for covered discharges, and the decision to require only one rather than 6-12 metals samples, and may either administratively challenge the issued permit and/or petition EPA to reject the permit.

KRC appreciates very much the efforts by DOW to tighten up the terms and conditions of the CGP, and the very difficult personnel status for permit reviewers in the DOW, which makes issuance of only individual permits for these discharges into Tier II waters unrealistic.

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