Sierra Club Seeks to Impose Conductivity and Sulfate Limits on Discharges from Kentucky Mines

The Sierra Club and Kentuckians for the Commonwealth have appealed an NPDES permit issued to a coal operator in Kentucky which could have industry-wide implications in that State.  The appeal raises two issues that should concern everyone in the coal business. 

Chronic vs. Acute Water-Quality Based Effluent Limits

The appeal claims that the permit should likely include water quality based limits for the chronic water quality criteria, but instead includes limits based only on the higher acute criteria.  The appeal says that chronic standards are based on 96 hours of exposure, and that a “reasonable potential” (to violate the standard) analysis must show that there will not be 96 hours or discharge before it can impose limits only to meet the acute standards. 

Conductivity, TDS and Sulfate Limits

The appeal claims that the permit should include limits for total dissolved solids (TDS), specific conductance (conductivity) and sulfate to prevent a violation of the narrative water quality standard.  This claim is apparently similar to one raised in a challenge in West Virginia to an NPDES permit in West Virginia. There, the Sierra Club relied on testimony from Margaret Palmer (U. Md.), Emily Bernhardt (Duke) and Ryan King (Baylor) to argue that there is a high degree of correlation between unacceptable benthic impacts and conductivity at levels as low as 277 μS/cm.  The in-stream limits that the Sierra Club seeks to impose through this process are generally considered unachievable by the mining industry without reverse osmosis—a technology not affordable to the surface mining industry.  

The West Virginia Environmental Quality Board originally ruled that the West Virginia Department of Environmental Protection (WVDEP) should impose effluent limits on conductivity, TDS and sulfate, but the case has been remanded to the Board by the Circuit Court of Kanawha County.  See http://eem.jacksonkelly.com/2011/12/wv-eqb-lifts-conductivity-stay-but-probably-provides-no-real-help-to-mine-operators.html. 

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