Energy and Environment MonitorFour environmental organizations have filed a formal petition asking the U.S. Environmental Protection Agency (“U.S. EPA”) withdraw approval of Kentucky’s National Pollution Discharge Elimination System (“NPDES”) program on the grounds that it inadequately controls discharges from coal mining operations. The Clean Water Act (“CWA”) vests in U.S. EPA the primary authority to regulate discharges into the nation’s water. The CWA also, however, permitted states to submit their NPDES programs to U.S. EPA for approval. Approval by U.S. EPA allows a state to regulate discharges to the waters within its boundaries, with EPA exercising minimal oversight authority. A petition seeking U.S. EPA’s withdrawal of delegation of a state program is a drastic step effectively requesting the agency to take over regulation of discharges into the state’s waters. The issues raised in the petition are summarized as follows.
1. Toxicity testing. The petition cites to Whole Effluent Toxicity “WET” testing by EPA in West Virginia and Kentucky, claiming that all 8 of the sites sampled in Kentucky exhibited toxicity in excess of State standards. According to page 4 of the petition, EPA conducted the WET testing at sites with conductivity over 1000 uS/cm. It appears that about half the sites had conductivity values over 2,000. Toxicity appeared greater in Kentucky than in West Virginia from similar conductivity levels. The WET test report indicates that EPA took pH measurements at each site, but Table 1 of the report does not include those measurements.
2. Selenium. The petition charges that Kentucky has effectively “exempted” the coal industry from the chronic water quality criterion of 5 ppb. The petition urges a requirement that core sampling be required for selenium bearing strata (as is required in certain seams and geographic areas in WV). The petition includes a map with USGS core sampling results across West Virginia and Kentucky as likely hot spots, and on page 15 discusses reported selenium concentrations at one site in eastern Kentucky.
3. General Water Quality Standards Issues
a. Conductivity: the petition claims that Kentucky has failed to “enforce its narrative standard for conductivity.” It notes that the Kentucky standard provides that “total dissolved solids or specific conductance shall not be changed to the extent that the indigenous aquatic community is adversely affected.” The petition cites the EPA "Pond-Passmore" study as evidence of a strong correlation between benthic impacts and conductivity. That study, however, “double counted” sensitive mayfly species to the genus level. Recent work by WVDEP shows that conductivity is a poor indicator of benthic impacts when more conventional benthic matrices are used.
b. Iron: The petition claims that Kentucky has gutted the chronic criterion for iron by applying it only where there has been demonstrated
c. Aluminum: the petition claims that Kentucky has failed to adopt an aquatic life criterion despite the fact that coal mine effluent (not necessarily in-stream) concentrations frequently exceed EPA's recommended acute criterion of 750 ug/L and despite the fact that West Virginia has such a standard.
4. The petition complains about the pace of 303(d) stream listing (the list of "impaired" streams) and the issuance of Total Maximum Daily Loads (“TMDL's”) to achieve water quality standards.
5. The petition contends that Kentucky must make someone hold NPDES permits at abandoned mine sites—both pre and post-SMCRA sites. In West Virginia, these same lawyers have secured rulings in federal court requiring WVDEP to hold NPDES permits where it is the trustee of the State's reclamation bond pool at post-SMCRA forfeiture sites.
To view a copy of the petition, click here: http://wvgazette.com/static/coal%20tattoo/KYwaterpetition.pdf
This article was authored by Chris M. Hunter, Jackson Kelly PLLC. For more information on the author see here.
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