Kentucky Resources Council, Inc.
Post Office Box 1070
Frankfort, Kentucky 40602
(502) 875-2845 fax
June 23, 2002
Inventory and Data Management Branch
Division of Water
14 Reilly Road
Frankfort, Kentucky 40601
Re: Proposed General Permit Reissuance
KPDES Permit No. KYG040000
Public Notice 2002-17
To Whom It May Concern:
These comments are submitted on behalf of the Kentucky Resources Council, Inc., a non-profit environmental advocacy organization whose membership includes individuals dedicated to prudent use and conservation of the state's natural resources.
The Council has reviewed the proposed general permit for the active and post-mining areas that have obtained a valid permanent program surface coal mining and reclamation permit under KRS Chapter 350, and offers these comments:
1. The Council supports the exclusions from coverage under the general permit in Part III A.2., and in particular supports continued exclusion from coverage under the general permit those discharges associated with mining activities within tributaries to publicly-owned lakes and exclusion from the general permit for any surface coal
mining operation at which solid or special wastes, including but not limited to coal combustion wastes, are proposed to be disposed. KRC incorporates its comments on the last reissuance of the general permit, dated December 2, 1996, for technical support for the waste exclusion.
2. The Council believes that the category of streams for which a discharger should be required to obtain an individual permit should include, in addition to coldwater aquatic habitat streams, ORWs, and within five miles upstream of an existing drinking water intake, and any waterbody that is currently supporting a higher water quality than that necessary to maintain the designated use(s).
Because Kentucky has failed to adopt an antidegradation implementation policy that is consistent with the corresponding federal antidegradation policy, EPA has rejected the state regulation and has begun the process of promulgation of a federal antidegradation policy for Kentucky to more broadly define those waters that are subject to "Tier II" analysis because of water quality higher than that necessary to support the designated use(s). However that category is defined (whether through the narrow biological test adopted by Kentucky or more broadly), general permit coverage for those high quality waters is inappropriate since any lowering of water quality must be preceded by an analysis of alternatives and a demonstration of beneficial social and economic impact.
The protection of the Tier II antidegradation policy applies to those waters that in fact meet the criteria, and not merely those designated as meeting the criteria (whether defined as possessing exceptional values in the indices of biological integrity or good values). AS EPA moves forward, in order to avoid extending general permit coverage in contravention of the water quality standards and to assure that those waters meeting the existing state criteria as Tier II or the more liberal criteria anticipated by EPA, the Division must require baseline biological data to supplement baseline water quality data, in order to determine whether a proposed operation is eligible for general permit coverage, and to support review of individual permits for those ineligible because of the quality of the receiving stream.
To that end, any applicant for coverage under a general permit for a receiving water that has not been subject to biological investigation by the Division, and for which such data is unavailable or of inadequate quality, should be required to undertake a biological investigation of any receiving streams.
3. The proposed general permit establishes somewhat differing standards for controlling and monitoring metals depending on whether the mining operation is classified as alkaline or acid/ferruginous. Given the use of sediment structures as the control technology and the ability to modify the pH during the treatment process in order to manage metals prior to discharge, KRC believes that the categories should be collapsed into one category covering new sources and new dischargers into watersheds, and that the more stringent of the iron and manganese standards should apply to both categories.
The differentiation among classes of mines based on the pH or acidity of the discharge also raises, for new sources that have not yet begun to disturb the land surface to support coal removal, an interesting question of how to properly characterize the mine discharge in advance of actual discharge occurring that could be sampled. Reliance on the characterization of the "neutralization potential" in the coal-mining permit is an inadequate basis upon which to project whether the discharge will be acidic, since the Cabinet has allowed a blending of core-sample values when such blending among strata in the field is not uniform or effective in neutralizing potential acid-or toxic-forming discharges.
If the agency persists in creating two categories, the more rigorous of the two sets of standards should apply as a default value until actual data is submitted demonstrating otherwise.
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. In allowing an alternate effluent limitation for pH where the operator determines that meeting the manganese standard necessitates elevating the pH above the 6-9 range, immediate notification to DSMRE and DOW should be required and sampling increased, since the elevation above the tolerance range is limited to a value between 9 and 10, and toxicity can be significant above that narrow range.
6. The use of "dated photographs" as a form of demonstration of precipitation events above the 2 and 10-year frequency, should be eliminated and only precipitation data from recognized meteorological sources should be allowed to document such storm events.
7. It is unclear whether the general permit is intended to apply to, or whether the DOW has exercised jurisdiction over, discharges from underground works that occur as part of the dewatering of a coal waste impoundment. Frequently, as in the case both of the Martin County Big Branch Impoundment and the Harlan Cumberland Totz Impoundment, dewatering of the fines into subjacent underground works occurs, resulting in discharges from "wet seals" or mine entries. All such discharges should be required to be sampled, controlled and monitored.
Additionally, a requirement that the flow be measured through a weir on a daily basis, which would provide early detection of any changes in volume that might indicate a loss of integrity of the outcrop barrier, should be included.
8. KRC disagrees with the Division concerning the language in the statement of basis that the Corps of Engineers has jurisdiction under Section 404 of the Clean Water Act of the placement of waste material associated with a surface coal mining operation into waters of the United States. Such placement of waste is a prohibited activity under the KPDES program and is not authorized under Section 404 of the CWA.
9. The definition of the term "final bond release" should be modified to reflect that the final bond release is the release of any remaining bond at the conclusion of all reclamation work and the successful achievement of the revegetation requirements.
10. Records should be retained for the duration of the mining activity covered under the permit and until final bond release. Allowing destruction of records in a three (3) year period may cause a loss of baseline and during-mining data that is necessary to determine whether the operation has met reclamation requirements in terms of minimizing damage to the prevailing hydrologic balance, restoring recharge capacity, and other water quality, habitat and flow-related requirements.
11. The reopener clause should be expanded to reflect that the permit shall be modified, or revoked and reissued if water quality standards (for example those related to antidegradation implementation) containing different conditions or more stringent requirements are adopted or become applicable to the operation under permit or the receiving waters.
12. 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.
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.
The BMP plan should be a part of the general coal mining permit, 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.
13. Perhaps the most significant issue is that of enforcement. DOW must conduct sufficient compliance sampling and evaluation inspections to determine whether compliance is being achieved with the permit limitations.
Unless DSMRE is willing to commit that as a programmatic matter, it will issue enforcement orders including appropriate penalties consistent with the Clean Water Act, DOW cannot, consistent with its obligations as a delegated agency under the FWPCA, delegate formally or informally the task of enforcement of the permit conditions to DSMRE. DOW must either secure a binding commitment from DSMRE that the conducting of complete (and some partial) inspections will include appropriate sampling to determine compliance with effluent limitations, and that DSMRE will review and issue enforcement orders based entirely on reported violations in the DMRs, without the necessity of field sampling by DSMRE to verify the reported violations, or DOW must itself review and pursue appropriate enforcement actions for DMR-reported violations.
Thank you in advance for your consideration of these comments, and those previously submitted by the Kentucky Waterways Alliance.