West Virginia Environmental Quality Board Rules

e  By order dated October 23, 2007, the West Virginia Environmental Quality Board reversed WVDEP’s application of the 5-mile rule for manganese to a Jacks Branch Coal Company NPDES permit.  The order effectively reinstates the prior technology-based limits of 2.0 mo. av/4.0 daily max. in lieu of a water-quality based limit of 1.0 mg/l.  The opinion is notable for the EQB’s willingness to apply common sense and to apply the manganese standard flexibly so that it does not work unintended results.

BACKGROUND

     Manganese has proven an intractable treatment and regulatory problem for the coal industry in West Virginia.  In the 1970s, USEPA established technology-based NPDES permit limits for the coal industry.  These included limits of 2.0 mg/l as a monthly average and 4.0 as a daily maximum for manganese discharges.  In the 1980s and much of the 1990s, West Virginia also maintained a manganese water quality standard of 1.0 mg/l for streams supporting both aquatic life uses and serving as drinking water supplies.  The same regulations provided that all waters would be presumed to support aquatic life uses, but would not be considered to serve as drinking water supplies unless they actually supported that use.  Because the coal industry is forced to use in-stream ponds to control its sediment and because even when it does not use in-stream ponds the receiving streams have little dilution capacity, the application of a 1.0 mg/l in-stream standard caused WVDEP to lower effluent limits for manganese in many cases from the 2.0/4.0 mg/l imposed by the technology-based standards to 1.0 mg/l.  This increased both water treatment and pond cleaning costs at many mines.  In addition, it required some operators to increase the pH in their treatment systems to 10.0 or higher and to use two-stage treatment simply to avoid re-dissolving aluminum in the effluent.

     Because there was no federally recommended aquatic life criterion for manganese and because increasing evidence showed that the coal industry’s treatment of manganese to meet a 1.0 mg/l permit limit threatened to cause more harm than good, the State dropped its aquatic life criterion for manganese altogether, based largely on the work of Tiff Hilton.  Coal operators thought that they would soon return to technology-based limits.  Soon after, however, WVDEP claimed that it was required to presume that all waters serve as drinking water supplies in addition to supporting aquatic life.  Because the manganese criterion for drinking water is also 1.0 mg/l, WVDEP continued to apply limits based on that standard.  Later, to accommodate the industry without backing off its treatment of all waters as drinking waters, WVDEP issued the so-called 5-mile rule for manganese, which considers a stream to be a drinking water only in the 5 miles upstream of a known water intake. 

JACKS BRANCH PERMIT APPEAL

     Jacks Branch discharges into tributaries of the Kanawha River a short distance upstream of their confluence with the Kanawha.  The points of discharge are less than 5 miles upstream of a public water intake on the Kanawha.  The discharges are from an inactive mine that had technology-based limits applied to it for years.  Then, in a renewal, WVDEP applied the so-called 5-mile rule in a manner that lowered the existing limits to 1.0 mg/l. 

     The drinking water criterion for manganese applies within the 5-mile zone upstream of a drinking water intake.  Here, the tributaries into which Jack Branch discharges do not and cannot serve as drinking water sources, and no amount of manganese discharged from the mining operations into them could have caused the concentration of manganese to exceed 1.0 mg/l in the Kanawha River.  Nonetheless, WVDEP imposed a water-quality based limit of 1.0 mg/l because it measures the 5-mile zone upstream not only in the main stem of the stream serving the drinking water use, but also upstream into all tributaries.   

     Here, the EQB reversed because in these unique circumstances it made little sense to impose additional costs on Jacks Branch to meet the new limit.  The decision is notable for the flexibility the EQB applied to the 5-mile rule—something WVDEP was unwilling to do.  To WVDEP’s credit, though, it did agree to submit this matter to the Board on a set of stipulated facts. 

    

     This article was authored by Robert G. McLusky, Jackson Kelly PLLC. For more information on the author see here.