KRC Comments Support EPA's Proposed Veto of 36 Coal Mining Discharge Permits
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KRC Comments Support EPA's Proposed Veto of 36 Coal Mining Discharge Permits Posted: June 22, 2012
Environmental Protection Agency
Washington D.C. 20004
By email ow-docket@epa.gov
Docket ID EPA-HQ-OW-2012-0315
To Whom It May Concern:
These comments are submitted on behalf of the membership of the Kentucky Resources Council, Inc., and on behalf of numerous individuals whom we represent in matters relating to the adverse consequences of water pollution associated with discharges from surface coal mining and reclamation operations in the eastern Kentucky coalfields. The Council membership includes numerous individuals who reside, live, work, and recreate in the eastern Kentucky region, and who have been adversely affected by the failure of the Commonwealth of Kentucky to impose water quality-based effluent limitations and monitoring conditions sufficient to assure that the water quality of receiving streams are not impaired by such discharges. Specific comments follow.
I. EPA Is Acting In Full Accord With the Clean Water Act In Requiring The Inclusion of Water Quality-Based Effluent Limits In The 36 Permits
KRC strongly supports the objections that have been filed by the EPA concerning the thirty-six (36) draft Kentucky Pollutant Discharge Elimination System (KPDES) permits referenced in the April 16, 2012 Notice of Public Hearings. Despite data collected by then-Division of Water staff reflecting that elevated levels of dissolved solids, resulting from the interaction of baseflow and rainwater with disturbed strata containing sulfates and carbonates, were associated with surface coal mining operations, the Cabinet failed to impose monitoring conditions sufficient to allow an adequate ?reasonable potential analysis (RPA) in accordance with 40 CFR Part 122.44(d). The peer-reviewed literature amply demonstrates that, absent the incorporation of measures intended to minimize damage to the hydrologic balance from excessive leaching of minerals from the disturbed strata, the conductivity values will exceed those levels at which adverse impacts to aquatic populations will result.
40 CFR 123.44(c) specifically empowers the EPA to object to NPDES permits proposed to be issued by a state under a delegated program where, as here, the permit fails to apply, or to ensure compliance with, any applicable requirement of this part[.] Additionally, where the effluent limits of a permit fail to satisfy the requirements of 40 CFR 122.44(d) EPA is empowered to object to such a permit. Kentuckys water quality standards are found at 401 Kentucky Administrative Regulation (KAR) Chapter 10. The default classification for all streams of the Commonwealth is as warmwater aquatic habitat, with some stream segments in the eastern coalfields designated as coldwater aquatic habitat.
In addition to numeric water quality criteria adopted in order to protect the suitability of streams for supporting warmwater aquatic species, Kentuckys regulations at 401 KAR 10:031 Section 2 include minimum water quality criteria applicable to all surface waters, and intended to backstop specific numeric criteria and criteria developed through toxics translator mechanisms.
The Section 2 criteria include, in relevant part, a mandate that [s]urface waters shall not be aesthetically or otherwise degraded by substances that. . . (d) injure, are chronically or acutely toxic to or produce adverse physiological or behavioral responses in fish, and other aquatic life[.] 401 KAR 10:031 Section 2(1)(d).
There can be little argument that the disturbance and rubbilization of various strata overlying coal seams in the Appalachian region in order to access the coal by surface mining methods creates the potential for changes, sometimes dramatic, in the water chemistry of base flow or precipitation that infiltrates through fills where excess spoil material is disposed. The peer-reviewed literature demonstrates clearly that typical spoils handling practices in eastern Kentucky surface coal mines, with end- or wing-dumped fills of blended strata and area mining configurations where extended periods of exposure to the elements occurs prior to reclamation of disturbed areas, result in levels of dissolved solids that adversely affect the diversity and health of species in receiving streams.
Historically, the Commonwealth has issued both general and individual KPDES permits controlling precipitation-based discharges using a combination of categorical effluent limitations and water quality-based limits for iron. Mine engineering has focused primarily on treatment to address these numeric parameters. As both peer-reviewed scientific studies and field data collected from individual mining operations and from more broad-based water quality assessments reflect, the exposure of strata with soluble constituents (including carbonates, sulfates, and other metals) to saturation through precipitation and base flow, can leach dissolved solids into the water column in a manner that exceeds the carrying capacity of the headwater reaches and impairs the ability of these reaches to support warmwater aquatic life.
The combined 303/305 reports developed by the Commonwealth of Kentucky reflect that significant reaches of streams in the coalfields are impaired, with the cause of impairment for suspended and dissolved solids thought to be coal mining, as well as timber and oil and gas operations.
The reengagement of the EPA in overseeing the implementation of the Section 402 and 404 programs with respect to placement of fill material and discharges into headwater reaches, has created an environment in which significant progress can be made in achieving the goals of the Clean Water Act of improving and safeguarding waters for a range of beneficial uses, and of the Surface Mining Control and Reclamation Act that mining technology would follow best reclamation practices rather than dictate them, and that the reclamation would contemporaneously follow land disturbance while minimizing the time from initial disturbance of a mining area until successful reestablishment of a permanent vegetative cover.
The EPA is acting well within its authority and the scientific information in demanding that, rather than kicking the can down the road by issuing another five-year cycle of individual permits with monitoring only conditions on sulfates and conductivity, action be taken during this permit cycle to require that the discharges of dissolved solids be minimized and avoided through incorporation of practices intended to result in moderation of the creation and liberation of dissolved solids from disturbed areas.
Clearly, addressing dissolved solids and conductivity issues will require significant re-engineering of mine plans, and management of generated and excess spoil. Just as limitations on selenium discharges have caused changes in handling of spoil through separate removal and management of strata with high selenium leaching potential, new engineering practices and designs will need to be developed and tested to determine whether they can lower the liberation and movement of constituents of concern into the receiving waterbodies. KRC offers below a suggested approach that would do so, in lieu of specific numeric limitations but with specific triggers that would cause a reopening of the permit if TDS/Specific Conductance values reach a point at which impairment may occur.
2. The Permits Should be Vetoed Unless Specific And Enforceable Best Management Practices Are Incorporated Into The KPDES Permits In Order to Minimize Discharges of Dissolved Solids, Including Sulfates and Carbonates.
KRC has reviewed the May 30, 2012 letter from Evelyn MacKnight of the Water Protection Branch for EPA Region III regarding the Hampden Coal Company LLC NPDES permit, and believes that the general approach outlined by EPA in that letter provides an appropriate path to imposition of meaningful controls on discharges of dissolved solids. In that letter, EPA agreed that the measures proposed for compliance with West Virginias narrative water quality criteria would be sufficient to meet the state obligation under the Clean Water Act. Specific measures included a combination of mine design and operational techniques, as well as a commitment to future actions (if need) to protect water quality and biological integrity.
KRC recommends that, utilizing the authority vested in the EPA (unless the state agrees to do so and avoids the necessity of a veto) under 40 CFR 122.44(k), best management practices be required to be implemented and monitored, including as appropriate:
1. That each strata within the overburden be analyzed separately by a certified laboratory of the leaching potential of that strata for carbonates, sulfates and other constituents of concern, using appropriate EPA or ASTM long-term leaching potential tests. This avoids the blending of strata which could mask the potential for discharge of sulfates and other dissolved solids.
2. That the permits will contain monitoring requirements for sulfates, and for each strata reflecting a leaching potential for sulfates, that strata would be managed as other acid or toxic-producing strata are under SMCRA, i.e. managed high and dry and placed against the foot of the highwall or otherwise handled in order to minimize potential for saturation and leaching.
3. That whole effluent toxicity testing be conducted periodically.
4. That specific practices be utilized by mining companies for placement, design and construction of fills, which may, at a minimum, include such measures (as appropriate) as:
a. Identification of sources of base flow into fills areas and installation of low-permeability diversions to divert base flow away from the fill footprint in order to minimize saturation of filled material and liberation of soluble constituents of concern;
b. Development of a system to collect and divert any discharges from stress-relief fracture aquifers into the fill area;
c. Requiring a complete chemical analysis of the overburden to identify leachable toxic material in the strata and develop a toxic material handling / disposal plan to manage the material high in the backfill and capping it with low permeability material.
d. Use of compacted, constructed fills in lifts from the bottom-up compacted to 90% of standard proctor, to minimize precipitation infiltration into the fills, with an unconsolidated zone above the compacted core to encourage tree growth. No fill should be approved without a constructed underdrain of sufficiently large non-slaking and non-leaching material placed within the fill to serve as a continuous drainage conduit for any seeps, springs, or other base flow.
e. Interception and collection of any discharges from the base of the fill prior to discharge into waters of the Commonwealth and reuse of such flows (similar to capture of landfill leachate) on the mined area for irrigation or other non-discharge purposes.
f. Weep berms placed immediately down gradient of the toe of the fill pond, with discharge diverted into weep berms both to filter water coming out of the pond in addition to mimicking typical vegetated areas that would normally be found in the area prior to land disturbance, thus reducing peak flow and also reducing pollutant loading and providing passive treatment of the diffuse flow.
g. Maintaining watershed boundaries such that the drainage areas are not altered as a result of the final regrade configuration.
h. To reduce the interaction of groundwater with the excess spoil within the fill, groundwater flow should be intercepted along the down-dip outcrop of the mine floor with a French drain and route the flow to the groin ditches. In addition fills should be located to minimize intersection with basal groundwater flow; therefore they should be constructed on the up dip side of a project.
i. In order to reduce the infiltration of water into the fill, horizontal low permeability zones should be constructed within the outslope of the fill so that any surface water infiltrating the fill is stopped from seeping all of the way through the fill where it could dissolve adverse elements or increase its level of dissolved solids.
j. Finally, the flat decks and step outslopes of traditional fills do not match the pre-mining configuration, and the presence of large deck areas increases the potential for surface water to infiltrate into the fill. Flow into the fill influences the water quality at the toe of the fill and also increase the amount of water to interact with the excess spoil. The use of landforming on the top surface of the fill adds natural slopes to the zone and also increases the slope angle so that it closely resembles the pre-mining slope and drainage patterns. Replicating premining slope also encourages pre-mining vegetation which in turn reduces water infiltration.
5. To the extent that deployment of any of these measures would require departure from design standards required by the DNR through the SMCRA program, the permittee would agree to propose those changes expeditiously as experimental practices.
6. The monitoring of these best management practices, to the extent possible, would be coordinated with the requirement surface and groundwater monitoring required for individual mining operations under SMCRA, and with the monitoring required to support a Cumulative Hydrologic Impact Assessment analysis and finding of no material damage by the mining agency (as well as the trend stations to be established by DNR and OSM)
In closing, KRC supports the proposed action by the EPA, and believes that in the absence of state action to incorporate these measures as controls in the current KPDES permits, that EPA should finalize the permit veto for the 36 operations and move forward to developing NPDES permits incorporating these measures as appropriate.
Cordially,
/s/
Tom FitzGerald
Director
Environmental Protection Agency
Washington D.C. 20004
By email ow-docket@epa.gov
Docket ID EPA-HQ-OW-2012-0315
To Whom It May Concern:
These comments are submitted on behalf of the membership of the Kentucky Resources Council, Inc., and on behalf of numerous individuals whom we represent in matters relating to the adverse consequences of water pollution associated with discharges from surface coal mining and reclamation operations in the eastern Kentucky coalfields. The Council membership includes numerous individuals who reside, live, work, and recreate in the eastern Kentucky region, and who have been adversely affected by the failure of the Commonwealth of Kentucky to impose water quality-based effluent limitations and monitoring conditions sufficient to assure that the water quality of receiving streams are not impaired by such discharges. Specific comments follow.
I. EPA Is Acting In Full Accord With the Clean Water Act In Requiring The Inclusion of Water Quality-Based Effluent Limits In The 36 Permits
KRC strongly supports the objections that have been filed by the EPA concerning the thirty-six (36) draft Kentucky Pollutant Discharge Elimination System (KPDES) permits referenced in the April 16, 2012 Notice of Public Hearings. Despite data collected by then-Division of Water staff reflecting that elevated levels of dissolved solids, resulting from the interaction of baseflow and rainwater with disturbed strata containing sulfates and carbonates, were associated with surface coal mining operations, the Cabinet failed to impose monitoring conditions sufficient to allow an adequate ?reasonable potential analysis (RPA) in accordance with 40 CFR Part 122.44(d). The peer-reviewed literature amply demonstrates that, absent the incorporation of measures intended to minimize damage to the hydrologic balance from excessive leaching of minerals from the disturbed strata, the conductivity values will exceed those levels at which adverse impacts to aquatic populations will result.
40 CFR 123.44(c) specifically empowers the EPA to object to NPDES permits proposed to be issued by a state under a delegated program where, as here, the permit fails to apply, or to ensure compliance with, any applicable requirement of this part[.] Additionally, where the effluent limits of a permit fail to satisfy the requirements of 40 CFR 122.44(d) EPA is empowered to object to such a permit. Kentuckys water quality standards are found at 401 Kentucky Administrative Regulation (KAR) Chapter 10. The default classification for all streams of the Commonwealth is as warmwater aquatic habitat, with some stream segments in the eastern coalfields designated as coldwater aquatic habitat.
In addition to numeric water quality criteria adopted in order to protect the suitability of streams for supporting warmwater aquatic species, Kentuckys regulations at 401 KAR 10:031 Section 2 include minimum water quality criteria applicable to all surface waters, and intended to backstop specific numeric criteria and criteria developed through toxics translator mechanisms.
The Section 2 criteria include, in relevant part, a mandate that [s]urface waters shall not be aesthetically or otherwise degraded by substances that. . . (d) injure, are chronically or acutely toxic to or produce adverse physiological or behavioral responses in fish, and other aquatic life[.] 401 KAR 10:031 Section 2(1)(d).
There can be little argument that the disturbance and rubbilization of various strata overlying coal seams in the Appalachian region in order to access the coal by surface mining methods creates the potential for changes, sometimes dramatic, in the water chemistry of base flow or precipitation that infiltrates through fills where excess spoil material is disposed. The peer-reviewed literature demonstrates clearly that typical spoils handling practices in eastern Kentucky surface coal mines, with end- or wing-dumped fills of blended strata and area mining configurations where extended periods of exposure to the elements occurs prior to reclamation of disturbed areas, result in levels of dissolved solids that adversely affect the diversity and health of species in receiving streams.
Historically, the Commonwealth has issued both general and individual KPDES permits controlling precipitation-based discharges using a combination of categorical effluent limitations and water quality-based limits for iron. Mine engineering has focused primarily on treatment to address these numeric parameters. As both peer-reviewed scientific studies and field data collected from individual mining operations and from more broad-based water quality assessments reflect, the exposure of strata with soluble constituents (including carbonates, sulfates, and other metals) to saturation through precipitation and base flow, can leach dissolved solids into the water column in a manner that exceeds the carrying capacity of the headwater reaches and impairs the ability of these reaches to support warmwater aquatic life.
The combined 303/305 reports developed by the Commonwealth of Kentucky reflect that significant reaches of streams in the coalfields are impaired, with the cause of impairment for suspended and dissolved solids thought to be coal mining, as well as timber and oil and gas operations.
The reengagement of the EPA in overseeing the implementation of the Section 402 and 404 programs with respect to placement of fill material and discharges into headwater reaches, has created an environment in which significant progress can be made in achieving the goals of the Clean Water Act of improving and safeguarding waters for a range of beneficial uses, and of the Surface Mining Control and Reclamation Act that mining technology would follow best reclamation practices rather than dictate them, and that the reclamation would contemporaneously follow land disturbance while minimizing the time from initial disturbance of a mining area until successful reestablishment of a permanent vegetative cover.
The EPA is acting well within its authority and the scientific information in demanding that, rather than kicking the can down the road by issuing another five-year cycle of individual permits with monitoring only conditions on sulfates and conductivity, action be taken during this permit cycle to require that the discharges of dissolved solids be minimized and avoided through incorporation of practices intended to result in moderation of the creation and liberation of dissolved solids from disturbed areas.
Clearly, addressing dissolved solids and conductivity issues will require significant re-engineering of mine plans, and management of generated and excess spoil. Just as limitations on selenium discharges have caused changes in handling of spoil through separate removal and management of strata with high selenium leaching potential, new engineering practices and designs will need to be developed and tested to determine whether they can lower the liberation and movement of constituents of concern into the receiving waterbodies. KRC offers below a suggested approach that would do so, in lieu of specific numeric limitations but with specific triggers that would cause a reopening of the permit if TDS/Specific Conductance values reach a point at which impairment may occur.
2. The Permits Should be Vetoed Unless Specific And Enforceable Best Management Practices Are Incorporated Into The KPDES Permits In Order to Minimize Discharges of Dissolved Solids, Including Sulfates and Carbonates.
KRC has reviewed the May 30, 2012 letter from Evelyn MacKnight of the Water Protection Branch for EPA Region III regarding the Hampden Coal Company LLC NPDES permit, and believes that the general approach outlined by EPA in that letter provides an appropriate path to imposition of meaningful controls on discharges of dissolved solids. In that letter, EPA agreed that the measures proposed for compliance with West Virginias narrative water quality criteria would be sufficient to meet the state obligation under the Clean Water Act. Specific measures included a combination of mine design and operational techniques, as well as a commitment to future actions (if need) to protect water quality and biological integrity.
KRC recommends that, utilizing the authority vested in the EPA (unless the state agrees to do so and avoids the necessity of a veto) under 40 CFR 122.44(k), best management practices be required to be implemented and monitored, including as appropriate:
1. That each strata within the overburden be analyzed separately by a certified laboratory of the leaching potential of that strata for carbonates, sulfates and other constituents of concern, using appropriate EPA or ASTM long-term leaching potential tests. This avoids the blending of strata which could mask the potential for discharge of sulfates and other dissolved solids.
2. That the permits will contain monitoring requirements for sulfates, and for each strata reflecting a leaching potential for sulfates, that strata would be managed as other acid or toxic-producing strata are under SMCRA, i.e. managed high and dry and placed against the foot of the highwall or otherwise handled in order to minimize potential for saturation and leaching.
3. That whole effluent toxicity testing be conducted periodically.
4. That specific practices be utilized by mining companies for placement, design and construction of fills, which may, at a minimum, include such measures (as appropriate) as:
a. Identification of sources of base flow into fills areas and installation of low-permeability diversions to divert base flow away from the fill footprint in order to minimize saturation of filled material and liberation of soluble constituents of concern;
b. Development of a system to collect and divert any discharges from stress-relief fracture aquifers into the fill area;
c. Requiring a complete chemical analysis of the overburden to identify leachable toxic material in the strata and develop a toxic material handling / disposal plan to manage the material high in the backfill and capping it with low permeability material.
d. Use of compacted, constructed fills in lifts from the bottom-up compacted to 90% of standard proctor, to minimize precipitation infiltration into the fills, with an unconsolidated zone above the compacted core to encourage tree growth. No fill should be approved without a constructed underdrain of sufficiently large non-slaking and non-leaching material placed within the fill to serve as a continuous drainage conduit for any seeps, springs, or other base flow.
e. Interception and collection of any discharges from the base of the fill prior to discharge into waters of the Commonwealth and reuse of such flows (similar to capture of landfill leachate) on the mined area for irrigation or other non-discharge purposes.
f. Weep berms placed immediately down gradient of the toe of the fill pond, with discharge diverted into weep berms both to filter water coming out of the pond in addition to mimicking typical vegetated areas that would normally be found in the area prior to land disturbance, thus reducing peak flow and also reducing pollutant loading and providing passive treatment of the diffuse flow.
g. Maintaining watershed boundaries such that the drainage areas are not altered as a result of the final regrade configuration.
h. To reduce the interaction of groundwater with the excess spoil within the fill, groundwater flow should be intercepted along the down-dip outcrop of the mine floor with a French drain and route the flow to the groin ditches. In addition fills should be located to minimize intersection with basal groundwater flow; therefore they should be constructed on the up dip side of a project.
i. In order to reduce the infiltration of water into the fill, horizontal low permeability zones should be constructed within the outslope of the fill so that any surface water infiltrating the fill is stopped from seeping all of the way through the fill where it could dissolve adverse elements or increase its level of dissolved solids.
j. Finally, the flat decks and step outslopes of traditional fills do not match the pre-mining configuration, and the presence of large deck areas increases the potential for surface water to infiltrate into the fill. Flow into the fill influences the water quality at the toe of the fill and also increase the amount of water to interact with the excess spoil. The use of landforming on the top surface of the fill adds natural slopes to the zone and also increases the slope angle so that it closely resembles the pre-mining slope and drainage patterns. Replicating premining slope also encourages pre-mining vegetation which in turn reduces water infiltration.
5. To the extent that deployment of any of these measures would require departure from design standards required by the DNR through the SMCRA program, the permittee would agree to propose those changes expeditiously as experimental practices.
6. The monitoring of these best management practices, to the extent possible, would be coordinated with the requirement surface and groundwater monitoring required for individual mining operations under SMCRA, and with the monitoring required to support a Cumulative Hydrologic Impact Assessment analysis and finding of no material damage by the mining agency (as well as the trend stations to be established by DNR and OSM)
In closing, KRC supports the proposed action by the EPA, and believes that in the absence of state action to incorporate these measures as controls in the current KPDES permits, that EPA should finalize the permit veto for the 36 operations and move forward to developing NPDES permits incorporating these measures as appropriate.
Cordially,
/s/
Tom FitzGerald
Director
By Kentucky Resources Council
on 06/22/2012 5:32 PM
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The Kentucky Resources Council is a non-profit, 501(c)(3) organization dedicated to the conservation and prudent use of Kentucky’s natural resources. Since 1984, we have dedicated ourselves to protecting Kentucky’s land, air, water, and communities.