National Citizens Coal Law Project
A Project of the Kentucky Resources Council, Inc.
Post Office Box 1070
Frankfort, Kentucky 40602
(502) 875-2845 fax
September 4, 2001
John Tinger Tinger.John@epa.gov
US. Environmental Protection Agency
Engineering and Analysis Division (4303)
Room 615 West Tower
401 M Street SW
Washington, D.C. 20460
Re: Reopened Comment Period
Remining; Coal Mining Point Source Category
66 F.R. 39300 (July 30, 2001)
Thank you for the extension of time from August 29, 2001 until today in order to submit these comments on the reopened comment period on the coal mining point source category remining subcategory.
The National Citizens Coal Law Project (Project) of the Kentucky Resources Council provides legal and technical assistance without charge to citizens throughout the nations coalfields on matters relating to implementation of the 1977 surface mining act. These comments are submitted in the hope that, prior to finalization of the rule implementing the Rahall Amendment to the Clean Water Act, your agency will correct the misdirection of the proposed rule, which is now proposed to be worsened under the reopened proposal. (The prior comments and correspondence of the Project and the Council are herein incorporated by reference as if fully set out below.)
Initially, I must register my strongest objection to the manner in which the public has been given notice and opportunity to be heard on changes as broad and fundamental as are the proposed extension of the rule to post-1977 mines, and extension of the 301(p) alternative effluent limitations approach to solids.
These proposed changes are included under the ambit of a Notice of data availability rather than as a reproposal of the rule that would broaden the scope of the rule. The public notice caption does not fairly inform the reader that what is being entertained is a substantial (and in our mind, unwarranted and unlawful) extension of the Rahall Amendment to include post-1977 mining operations and sedimentation from remining operations neither of which was contemplated in the original proposal. The proposal should be republished under proper caption and a reasonable period of time (of which thirty days is not) should be allowed for public review and comment.
Without waiving the legal objections that I have to the manner in which the proposal to expand the scope of the remining rule has been publicly-noticed, I submit these comments concerning the matters identified in the text of the notice of data availability.
1. The Notice Continues To Reflect The Imprecision
Of The Proposed Rule And Confusion As To The Goal
After reviewing the notice of data availability, it is still unclear to what aspects of the remining operation the EPA intends the alternative limits to apply. In the original rule proposal, 65 F.R. 19443, it was stated by EPA that the existing provisions (referring to the coal mining point source category effluent limitations) would continue to apply to discharges produced or generated in active mining areas, which include the active mining areas of remining operations.
The same proposal continued by stating that any waste stream commingled with another waste stream would be subject to the more rigorous limits applicable to either.
The commenter remains confused as to what EPA intends to address in this rule. If a previously mined area which has AMD is proposed to be remined (and thus to become part of the active mining operation ), it would appear that according to EPA s April 11, 2000 proposal (and not clarified in the 2001 notice) the alternative limits wouldn t apply.
That is decided not what Congress intended. The Rahall Amendment was intended to allow the issuance of a permit modifying effluent limitations with respect to the pH level of preexisting discharges and preexisting discharges of iron and manganese from the remined area of a coal remining operation. (emphasis added). 131 Cong. Rec. H6025-03.
It is hard to understand what the alternative limits are intended to address if not the active remining of the previously mined and unreclaimed area. If an operator cannot include a previously mined area within the active mine operation and be eligible for alternative limits, the rule would appear to have no effect, since the operator will simply route the drainage from the previously mined area around the new mine and avoid the responsibility for treatment of the pre-existing discharge, as has been the case in the past. The operator certainly will not seek to remine that area due to the lack of availability of alternative, site-specific effluent standards.
The rule continues its misguided goal of providing perpetual lowering of standards after mining for areas that are not redisturbed, rather than providing a reasonable degree of relief from otherwise applicable effluent standards during mining where the operator proposes to redisturb and reclaim the previously-mined area.
While the initial proposed rule and the recent notice of data availability studiously avoid the boundaries set by the law and legislative history concerning remining alternative limitations, the legislative history provides controlling guidance on the issues raised in the reopened rulemaking.
During the July 23, 1985 debate in the House on the Water Quality Renewal Act of 1985, which contained the Rahall Amendment, this was said by sponsor Congressman Rahall of the intent and effect of the amendment:
Industry, in many instances, has not been prone to remine
abandoned coal mine sites because it would then become liable
for treating the preexisting discharges. Treating these discharges is often technically or economically infeasible, especially for the small coal operator.
The provision on remining being offered today is intended to
provide the incentive the industry needs to remine and
reclaim abandoned coal mine sites.
131 Cong. Rec. H6025-03.
The intent was to consider, on a case-by-case basis, what was feasible from a technological and economic standpoint, based on site conditions. The proposal, which seeks to avoid baseline and during mining monitoring and establishment of site-specific BATEA standards, fails to comport with the Act.
2. Date of Applicability for Remining Operations
The EPA has invited public comment on whether the applicability of the remining subcategory should be extended to include mine sites abandoned after enactment of SMCRA and has asked specifically the effect that this could have on creating an incentive for a mine operator to abandon a coal mining operation. EPA also solicited comment on the need to limit the date of applicability of the remining subcategory to the effective date of a final rule for the coal Remining Subcategory.
The short answer to the questions is that EPA does not have the legal authority to expand the Rahall Amendment forward in time, since the Water Quality Act of 1987 limited the authorization for the alternative effluent limitations to a coal mining operation which begins after February 4, 1987, at a site on which coal mining was conducted before August 3, 1977. EPA cannot, under the guise of implementing the Rahall Amendment, propose in an expedited rulemaking process to illegally expand the proposal for alternative and weaker limitations beyond the limited authority granted by Congress.
Additionally, there are legal and practical reasons for limiting the availability of alternative limitations. Mining operations abandoned after August 3, 1977 are subject not only to permitting, bonding and reclamation requirements, but are also legally liable for reclamation and subject to the full panoply of enforcement provisions available under SMCRA, including civil, criminal, individual and corporate penalties under 30 USC 1268, permit blocking under 30 USC 1260, notices of violation and cessation orders under 30 USC 1271, including liability for any deficiencies in reclamation costs above posted bonds. There is legal liability on the part of an operator and permittee, and allowing remining under weaker standards for post-Act mines rewards that operator and a possibly-related successor for the damage caused by allowing remining under lower standards for sites not properly reclaimed; whereas one previously mined and reclaimed would have to meet categorical effluent limits when remined.
Congress may see fit to move forward the timeframe for eligibility for alternative limits under carefully controlled conditions to prevent abuse and discourage abandonment of post-Act mines, but in the absence of Congressional action, EPA cannot and should not enlarge the exemption from categorical standards to include post-Act mines.
3. Alternative Limits for Solids In Preexisting Discharges
The other issue for which EPA is soliciting comment is the extension of the alternative standards for solids. In support of the proposal, EPA erroneously suggests EPA notes, for example, that a pre-existing discharge with a sediment load of greater than one ton per acre may be out of compliance with current effluent limitations on the day the remining permit is issued, even prior to any disturbance of the permit area.
The suggestion is absurd. No operator would be liable under either an NPDES permit or a SMCRA permit for a pre-existing discharge prior to redisturbance, and there is no authority to the contrary. The operator would either divert upland flow and avoid liability, or design the sedimentation pond based on maximum disturbance using one or another computer model, and size the pond accordingly.
The EPA suggests also that allowing alternative limits for TSS and SS in pre-existing discharges is "in accordance with the intent of the Rahall Amendment[.] In fact, alternative sediment standards were not included in the Rahall amendment, and Congress specifically noted in Section 301(p)(4) that the alternative limitations for pH, iron and manganese were not intended to affect the application of SMCRA to any coal remining operation, including the application of such Act to suspended solids. The Surface Mining Control and Reclamation Act of 1977, at 30 USC 1265(b)(10) mandates the prevention of additional contribution of suspended solids to streamflow to the extent possible using the best technology currently available and use of siltation structures and sedimentation ponds. Lowering standards for sediment control is contrary to the Rahall Amendment and the surface mining act.
Additionally, even if there were warrant within the CWA and SMCRA for alternative sediment standards for a class of remining operations, the adoption of such standards would not be authorized by the Rahall Amendment and would have to be accomplished, if at all, after development of an appropriate effluent guidelines development
Document. The record contains only anecdotal information, which is insufficient to establish basis for alternative standard.
EPA appears to be approaching the issue with an attitude that Congress didn t understand the issue of remining, or it would have expanded the amendment to the CWA to include post-Act mines and sediment.
In reality, the Rahall Amendment was carefully structured, negotiated exhaustively, and written precisely in order to limit the scope of the alternative limits to address the AMD problem. The record did not, and does not support, a conclusion that sediment controls cannot handle sediment loads from pre-existing mined areas, and the expansion is unwarranted and unjustified. Sedimentation ponds, which are required of all mining operations and through which all drainage from disturbed areas must pass, can and do effectively control sediment loads from virgin and previously-mined and unreclaimed areas, and second cut mining routinely occurs on previously mined areas. The anecdotal, rather than analytical approach that has been taken is insufficient basis for such a broad expansion of the availability of alternative limits.
4. Failure to Set Alternative Numeric Effluent Limitations
At Level Above Baseline Violates Clean Water Act and SMCRA
The proposed rule, which is now proposed to be extended to solids limitations, is in flat contradiction of the legislative history and language of the CWA. The proposal would set numeric limits at baseline, and would rely on non-numeric permit provisions that would be established using best professional judgment to evaluate the adequacy of the selected BMPs contained in a pollution abatement plan that would be developed by the applicant and would demonstrate that the remining operation will result in the potential for improved water quality[.]
The proposal to set numeric standards only at baseline and then to set permit conditions requiring BMPS, flatly contradicts the mandate of Section 301(p), which provides for modified requirements for pH, iron and manganese in any pre-existing discharge affected by the remining operation, but demands that [s]uch modified requirements shall apply the best available technology economically achievable on a case-by-case basis, using best professional judgment, to set specific numerical effluent limitations in each permit. (Emphasis added).
The proposed rule as reopened violates this mandate in two respects first, it fails to consider what is BATEA for the particular operation, instead defaulting to generic best management practices and it fails to translate the performance goal for the technology to be required to be applied into a numeric effluent limitation.
Section 301(p)(1) demands alternative, enforceable, numeric values not merely for baseline, but in lieu of the categorical standards and based on a case-specific determination of what level of treatment is achievable. The contrast between the economic and technology-based determinations of Pennsylvania and Kentucky with the default BMP approach in the proposed rule is significant.
The legislative history is also instructive that numeric limits for what constitutes case-by-case BATEA, not merely for baseline conditions, is mandated. Sponsor Congressman Rahall described the working of the amendment this way:
The coal operator would, however, have to apply best available
technology economically achievable on a case-by-case basis to
these pre-existing discharges, using best professional judgment, as well as practices required by the Surface Mining
Control and Reclamation Act of 1977. This requirement would
replace the BAT and BCT requirements contained in the national guidelines for the specified discharges, but would still lead to the inclusion of specific, albeit modified, numerical effluent limitations in the applicant s permit.
131 Cong. Rec. H6025-03 (Italics added).
If Congress had intended merely to direct that the numeric values be set at baseline and that BMPs be mandated to satisfy the potential for improvement, it could have done so. Instead, Congress directed that on a case-by-case site-specific basis, specific alternative numeric effluent limits be set based on those pollution reductions during mining that are economically and technologically achievable. This approach is lost in the proposed rule.
5. Failure to Set Alternative Numeric Effluent Limitations
At Level Above Baseline Undercuts State s Efforts To Implement The Rahall Amendment
The reopened rule suggests that these rules are needed because most states are reluctant to pursue remining without EPA approval and guidelines. The premise is mistaken. The effect of these rules will be to undercut efforts by states such as Kentucky to develop effective BPJ permits containing numeric and non-numeric alternative limitations that demand and enforce more than merely baseline in perpetuity.
In its letter of May 7, 1998, Kentucky informed Greg Conrad of the IMCC that setting effluent limits at baseline and relying on BMPs rather than setting site-specific alternative limits based on site-specific monitoring and the application of such controls as were economically achievable given site conditions and pollution loadings, would not be appropriate. Kentucky s letter is incorporated herein by reference and is being sent under separate cover, along with a sample of Kentucky s permitting approach. EPA is specifically asked to review that approach and to either adopt the approach or to justify the failure to do so.
Kentucky was right then and remains so BMPs are supplemental to, but not a surrogate for, technology-based controls included with enforceable numeric standards based on demonstrated technology such as sedimentation ponds with pH adjustment to precipitate iron and manganese prior to discharge, and isolation and burial of acid and toxic-forming material during the remining.
The effect of the final rule, in states such as Kentucky which are mandated to adopt and be no more stringent than federal effluent guidelines, is that Kentucky s program will be weakened by EPA s rule. Better no federal guidance in an area where the states have taken the lead, than guidance that undercuts the progress that has been made.
6. Effect of Rule On Existing Operations & Anti-Backsliding
If EPA moves forward with the ill-considered approach of allowing operators to default during and after mining to a numeric baseline plus BMPs approach, which makes the baseline standards the only enforceable effluent limits, EPA must clarify that the alternative limitations are not available for any mining operation which has previously operated under a NPDES permit where the new subcategory limitations would allow a lower standard of performance in pollution control or greater amount of pollutants in the effluent. The fact that the permits have been issued with stricter standards and that the operation has gone forward provides proof certain that no alternative standard is needed or justified.
Additionally, reissuance of a permit with alternative limitations that would lower performance goals or requirements would violate anti-backsliding provisions of the Clean Water Act.
7. Distinction Between AMD and Solids Post-Mining
Invalid No Lower Standards Should Be Allowed Post-Mining
In proposing to expand the rule to allow alternative (i.e. lower) standards for sedimentation control, EPA suggests that the control of sediment is much less complex than the control of pH, iron and manganese, and therefore perpetual lower standards would not be justified and the alternative limits for sediments might be justified only until the BMPs can be implemented.
The EPA holds out the possibility, however, that for pH, iron and manganese and sediment, perpetual lower limits might be established.
The logic behind the proposal is, in theory, that the full extent of the acid mine drainage problem may bit be completely known at the time of remining thus necessitating perpetually lower standards to encourage remining.
The logic is fundamentally flawed. At the time of the proposed remining operation, the operator will have been required to collect at least six-months of baseline data, to have conducted core drilling, overburden chemical analysis, and other testing to identify acid and toxic-forming strata and material, and to propose both the management of the material during mining and the permanent solution for the material, which must, under SMCRA, result in isolation of the material from the environment. The problem is not one of not knowing whether there is an AMD problem, but is a question of treatability a question directly related to cost. There is no justification or need for perpetually lower standards; in fact, the operator is obligated under SMCRA to propose a mining and reclamation plan that will result in reclamation of the site and elimination of the source of the AMD.
The allowance of perpetually-lower effluent standards undercuts the intent of the amendment that accepting lower but enforceable standards during mining, set at a level that might be lower than categorical standards but still at what was BATEA, was acceptable because the post-mining quality, after reclamation, would be required to have the potential for improvement of water quality. Congress intended the potential for language to require an EPA or state conviction that it is probable that there will be actual improvement in water quality after mining because of the remining and reclamation. Allowing perpetually lower standards encourages remining without such improvement.
The floor statement of Congressman Clinger of Pennsylvania during the floor debate on the Water Quality Act of 1987, at which time the Rahall Amendment was enacted into law, reflects that the goal was to provide a during-remining alternative limit in order to eliminate the pollution source, not to perpetuate lower quality. This bill will provide the kind of incentive to get producers to go in and start cleaning them up. Cong. Rec. H178, January 8, 1987.
Instead of modifying during mining standards to get the clean up started, the proposal is to allow baseline in perpetuity a standard far too lax to satisfy the requirements of Section 301(p).
In conclusion, I respectfully request that EPA withdraw the proposed rule and notice of data availability, and reproposed an implementation strategy and effluent guidelines for the pre-1977 abandoned mine lands that is consistent with the case-specific application of BATEA and alternative numeric limits based on the economic and technological achievability of reductions for a specific operation, as intended by Congress.
Thank you in advance for your consideration of these comments. The May 7, 1998 Kentucky Letter, and a copy of a sample remining NPDES permit issued by Kentucky along with the statement of basis explaining Kentucky s methodology, will follow under separate cover.