EPA’s Science Advisory Board Seeks Nomination to Panel to Review Studies on MTR and Conductivity in Water Discharges: Review is Likely Precursor to Effort to Regulate Conductivity

EPA’s Science Advisory Board (“SAB”) has issued two federal register notices seeking nominations to a proposed panel that would review and provide advice on two draft documents prepared by EPA which address surface mining in Central Appalachia. The first notice, issued in September 2009, requested nominations to an ad hoc panel. 74 Fed. Reg. 48952 (Sept. 25, 2009). That panel would provide expert advice to EPA on its draft assessment of the ecological impacts “associated with a surface coal mining technique known as mountaintop mining and valley-fill where mining overburden is placed in adjacent valleys.” A list of current nominees to that panel includes representatives of the mining industry, private consultants and university professors. Among the nominees is Emily Bernhardt, a professor at Duke University who has testified against the holders of “fill” permits issued by the Corps in litigation pending in the Southern District of West Virginia. A full list of the current nominees may be found on EPA’s SAB website.  

Before nominees were selected to the ad hoc panel, EPA issued a second federal register notice in February 2010. 75 Fed. Reg. 5589 (Feb. 3, 2010). That notice seeks nomination of experts to conduct a peer review of EPA’s draft “Advisory Value for Conductivity Using Field Data: an Adaptation of the USEPA’s Standard Methodology for Deriving Water Quality Criteria.” In that federal register notice, EPA observed that its Office of Research and Development has developed a report that uses field data to derive an aquatic life advisory value for conductivity that may be applied to waters in the Appalachian region. In the same notice, EPA’s SAB noted that it has decided to form one expert panel under the auspices of the SAB to cover the necessary expertise for the review of both the draft assessment on ecological impacts of mountaintop mining and the proposed advisory value for conductivity using field data.  

It is widely believed in the mining industry that EPA Region 3 is using both of these reports to impose unachievable limits on conductivity in NPDES and Clean Water Act Section 404 permits.    EPA maintains a set of national recommended water quality criteria to protect aquatic life. It has never issued a national standard for specific conductance (conductivity), but claims that its research shows “impairment” to aquatic insect populations at specific conductance levels as low as 300-500 uS/cm. These numbers are well below levels at which state officials in West Virginia and Kentucky believe there are substantial impacts and are so low as to be unachievable by coal mines and any large-scale earth disturbance. 

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