July 1, 2014
Peter Goodmann, Director
Division of Water
200 Fair Oaks Lane
By email Peter.Goodmann@ky.gov
Re: General Permit for Coal Mining, Processing, and Associated Activities Located in the Eastern Kentucky Coal Field, KPDES No.: KYGE40000, AI No.: 35050
These comments are submitted on behalf of the membership of the Kentucky Resources Council, Inc. (KRC), which include individuals who use and enjoy the water resources of the Commonwealth that are affected by discharges from surface coal mining operations in the eastern and western Kentucky coalfields, and who will be adversely affected and aggrieved within the meaning of the law if the proposed general permits are issued without significant modification.
Specific comments follows.
I. Incorporation By Reference
KRC has reviewed the comments submitted by the Appalachian Mountain Advocates and Appalachian Voices on the proposed reissuance of the General Permit for coal mining operations, and incorporates the substantive arguments contained therein by reference as if fully set forth below.
Additionally, KRC has these comments:
1. The exclusion from General Permit coverage for discharges within five (5) miles of a drinking water intake should be reincluded in the General Permit.
Issuance of a General Permit presupposes that all covered activities substantially share the same discharge profile, and thus are appropriate for more categorical than individualized permit review.
Coal mining-related discharges within five miles upstream of drinking water intakes call for the individualized review that accompanies the exclusion from general permit coverage. The water supply from Looney Creek and Gap Branch to the City of Lynch in Harlan County is perhaps the clearest, though not the only, example of why the specific exclusion should be retained, in order to assure individualized scrutiny and to alert the applicant that electing coverage under the GP is not an option.
2. The proposed exclusion from GP coverage for impaired waters is supported, but the additional requirement that a TMDL have been established for that waterbody before a discharge into that waterbody is deemed ineligible for GP coverage, unduly and unlawfully exposes already impaired waters to additional potential degradation due, in no small part, to resource constraints within the agency that have significantly delayed implementation of TMDLS for such impaired waters. GP coverage should be denied for any water that is impaired, regardless of whether a TMDL has been established for that waterbody. Alternatively, if an applicant seeks GP coverage for such a waterbody, it should fund the development of a TMDL for that waterbody for any pollutants that it intends to discharge which are a cause of the impaired status of the waterbody.
3. Exclusions should include, in addition to discharges directly into protected waterbodies, discharges into tributaries that the Cabinet determines would cause or contribute to a violation of water quality standards or degradation of a protected waterbody.
4. BMPPs should be available for public review when an applicant seeks GP coverage.
5. The General Permit provides that DOW will perform Reasonable Potential Analysis on operations required to submit an electronic NOI (eNOI) and that, should reasonable potential (RP) be demonstrated that an effluent limitation is required for one or more of these pollutants, an individual permit may be required pursuant to Exclusion 5 under Section 1.2 of the permit.
KRC believes that this language, if strengthened and clarified, could potentially allow for the individualized review that is warranted for many surface coal mining operations, and that ?reasonable potential should be more clearly defined, and the obligation to submit an individual permit where the RP is demonstrated based on water sampling should be mandatory.
Thank you for your consideration of these comments.