During the first week of April 2010, the Obama administration USEPA completed its attempt to wrest Clean Water Act Control over surface mining in Central Appalachia from other federal and state agencies. On April 1, 2010, it issued the following three documents:
1. A detailed guidance document entitled: “Improving EPA Review of Appalachian Surface Coal Mining Operations Under the Clean Water Act, NEPA, and the Environmental Justice Executive Order”
2. “A Field-Based Aquatic Life Benchmark for Conductivity in Central Appalachian Streams”
3. A draft report entitled: “The Effects of Mountaintop Mines and Valley Fills on Aquatic Ecosystems of the Central Appalachian Coalfields”
Together, these documents seek to impose specific conductance (conductivity) limits on discharges from valley fills that would ensure in-stream conductivity levels do not exceed 300-500 uS/cm.
The following day, on April 2, 2010, USEPA published its long-awaited Proposed Determination to “veto” the “fill” permit issued by the Corps of Engineers for Mingo Logan’s Spruce No. 1 Mine in Logan County, West Virginia. See 75 Fed. Reg. 16788 (April 2, 2010). The first of these documents is reviewed below.
Detailed Guidance: “Improving EPA Review of Appalachian Surface Coal Mining Operations Under the Clean Water Act, NEPA, and the Environmental Justice Executive Order”
This document, which is addressed to EPA Regions 3, 4 and 5, starts with a recitation of USEPA work designed to show impacts from surface mining. It claims that:
• A recent EPA study found that 9 out of every 10 streams downstream from surface mining operations were impaired based on genus-level assessment of aquatic life.
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• Recent studies correlate loss of mayfly taxa to increased levels of specific conductance (conductivity) or total dissolved solids.
• There are “elevated levels” of “highly toxic and bioaccumulative selenium in streams downstream of valley fills.”
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• Appalachian deforestation has been linked to significant changes in aquatic communities as well as to modified storm water runoff regimes, accelerated sediment and nutrient transport, reduced organic matter inputs, shifts in the stream’s energy base and altered thermal regimes.
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The Guidance, which is effective immediately, requires that Regions 3, 4 and 5 take the following steps as to state-issued NPDES permits and Corps-issued §404 permits:
• Reasonable Potential Analyses Required:
– USEPA determined that a number of state-issued NPDES permits did not evaluate whether proposed discharges had a “reasonable potential” to violate either “numeric” or “narrative” water quality standards. The guidance requires Regions to ensure that State NPDES authorities are conducting such analyses for new and renewed NPDES permits.
– For numeric standards, the in-stream concentrations of substances such as iron and aluminum, the Guidance requires new operations to project their likely water quality from nearby operations and requires existing operations to use site-specific data to project likely future concentrations.
– For narrative water quality standards (which typically prohibit “significant adverse impacts to the chemical, physical, hydrologic, or biological components of aquatic ecosystems”), USEPA expects NPDES permit authorities to document how they determine whether a proposed or existing operation will violate the narrative standards and to impose effluent limits on other permit conditions to prevent violations of the standards.
– The difficulty here will be for states to devise methods for measuring compliance with narrative standards and to develop any required effluent or permit conditions. USEPA’s Guidance cites its own work by Pond, et al. as showing impacts at the genus level to mayflies as grounds for applying in-stream limits on conductivity of 300-500 uS/cm—a nearly impossible standard—even though there is not a national conductivity standard.
– While the Guidance states that discharges associated with activities other than mining should be evaluated to determine whether they are likely to result in in-stream conductivity levels above 500 uS/cm, USEPA does not have studies showing that non-mining activities are reasonably likely to exceed conductivity “standards” and believes that “circumstances unique to surface coal mining . . . are principally responsible for the increase in conductivity levels. . . .” A quick review of data on the USGS website shows, however, that many of the streams and rivers in parts of Virginia unaffected by mining typically exceed a mean conductivity level of 500 uS/cm, including: Maury River at Rockbridge Baths (near Lexington, Va.), 834 uS/cm; New River at Radford, 535 uS/cm; Appomattox River near Farmville, 538 uS/cm; and the Jackson River near Bacova, 532 uS/cm.
• Antidegradation Analysis
Where water quality is better than required by water quality standards, NPDES programs prohibit significant degradation with a demonstration that there are important social and economic reasons for allowing limited degradation down to the allowable in-stream concentration.
– USEPA’s Guidance stresses that state antidegradation analyses must include a two-part analysis: demonstration of the extent to which a discharge is “necessary” in the manner and magnitude proposed and of its importance for social and economic development.
• Oversight of “General” NPDES Permits
– USEPA believes that state authorities which authorize coal mine discharges with General Permits should instead require Individual Permits “in all instances.” This statement is aimed squarely at Region 4 and Kentucky.
Strengthen USEPA’s Review of § 404 Permits Based by the Corps of Engineers
USEPA set out its “expectations for the analyses necessary to . . . achieve full compliance with the 404(b)(1) Guidelines,” including compliance with water quality standards, prevention of significant degradation and full analysis of avoidance, minimization and mitigation:
• Meeting Water Quality Standards
USEPA observed that the §404(b)(1) Guidelines require compliance with water quality standards. Even though states must “certify” that a proposal meets water quality standards and the Corps is required to accept that certification, USEPA claims that concerns with meeting narrative water quality standards and states’ past failures to adopt numeric conductivity standards have caused it to use its §404 oversight authority to restrict permits over what are really NPDES issues. While it notes that its Guidance sets out NPDES permit requirements to ensure compliance with water quality standards, it claims that the §404(b)(1) Guidelines “establish an independent obligation to address potential violations of water quality standards.”
• Preventing Significant Deterioration
In addition to the antidegradation provisions of the NPDES program, USEPA claims that the §404(b)(1) Guidelines impose an independent obligation on the Corps and USEPA to prohibit “significant degradation” to water quality. Here, it relies on its own conductivity studies to claim:
– Conductivities below 300 uS/cm will protect 95% of “native benthic species.”
– Conductivities above 500 uS/cm “are likely to be associated with adverse impacts that could rise to the level of significant adverse degradation of the aquatic ecosystems,” and that any permit allowing for in-stream increases above 500 uS/cm should demonstrate, “based on site or receiving water-specific information,” how the permit is consistent with the §404(b)(1) Guidelines.
– Projects which propose conductivity levels above 300 uS/cm should include permit conditions and adaptive management plans to prevent conductivities from rising to levels that may cause significant degradation.
– Permits should “sequence” their approval of valley fills so that only one fill at a time is permitted.
• Monitoring
USEPA sets out a list of specific substances for which monitoring should be conducted. It also provides that applicants should use the methodology used by the state for determining whether streams are “impaired” under §303(d) of the Clean Water Act. To the extent those methods (such as the WVSCI) are comprised of biological indices measuring macroinvertebrates only to the “family” level, applicants should be evaluating them to the “genus” level.
• Ensuring Independent Water Quality Protection from §404 Permits
Requires USEPA Regions to ensure that §404 permit includes additional limits to meet water quality standards.
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• Assessing and Mitigating for Affected Stream “Functions”
– USEPA says that applicants or the Corps should conduct “functional stream impact assessments” and ensure that they are used to “quantify the environmental effects” and to ensure that the “mitigation adequately replaces lost stream functions.” The document does not purport to describe or define the “functions” that must be evaluated5 or how they can be “replaced” by mitigation.
– USEPA states that groin and sediment ditches, however, do not replace stream function and should not be given mitigation credit.
• Ensuring Environmental Justice
– Where a permit will result in adverse human health or environmental effects on lower income or minority populations, Regions are to suggest ways to avoid or mitigate for the impacts.
• Sequencing Multiple Valley Fill Projects
– Valley fills generally should be constructed one at a time unless site-specific data suggest “no potential downstream water quality concerns.”
– New fills should not be constructed until previously constructed fills meet water quality standards.
– A conductivity “trends” analysis should be conducted and evaluated against two “threshold” values: the first a value at which a “trend toward causing a water quality standard degradation is identified and triggers an “adaptive management plan”; and the second a value at which the permittee would be prohibited from constructing additional fills until remediation has caused discharges from past fills to meet water quality standards. Based on the remainder of the document and USEPA’s recent comments on a § 404 permit for the “Hobet 45” permit, the two values are likely to be 300 uS/cm and 500 uS/cm respectively.
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• Minimizing Excess Spoil Generation
• Certifying Mine Plan and Ensuring Full Utilization of Fill Disposal Sites
• Minimizing Conductivity Impacts and In-Stream Impoundments
– Ensure that rock has been tested for acid, selenium, heavy metals or “soluble strata that are likely to lead to high conductivity and that these materials are handled to minimize exposure to rainwater and groundwater.
– Encourages “compaction” of fills to retard surface infiltration, leaving the top six feet unconsolidated (presumably to encourage root growth after mining) and discourages the use of “end dump” fills.
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– Minimize the number of in-stream sediment “ponds located below valley fills.”
• Reduce Drainage Area Through Fills
– Encourages use of sidehill fills and drains in fills to intercept and divert groundwater
– Encourages the use of natural drainage through coal and rock formations that divert flow away from surface waters.8
This article was authored by Robert G. McLusky, Jackson Kelly PLLC. For more information on the author see here.
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1Historically, the WVDEP has used a macroinvertebrate index developed for use in West Virginia by USEPA to measure stream health. That index, known as the West Virginia Stream Condition Index (“WVSCI”), relied on relative proportions of pollution intolerant insects (mayflies, stoneflies, and caddisflies) at the family level. The genus level is more specific. While many types of mayflies are frequently absent downstream of surface mines, the waters draining those mines frequently are not “impaired” using the WVSCI.
Pond, an EPA employee, has long worked to show the impacts of mining on the aquatic environment. He and his cohorts developed their own genus-level biological index, which emphasizes the loss of mayflies to show impairment. Their index has never been submitted to rulemaking.
2 The 2002 study cited by USEPA examined fills that were constructed before regulators and mine operators knew there was selenium present in their overburden. Since then, WVDEP has required mine operators in selenium-prone areas to sample coreholes for the presence of selenium in advance of mining and to selectively handle material with higher concentrations of selenium to minimize the potential for it to leach into area streams.
3 USEPA’s citation for these propositions is a 1992 study done at the Coweeta Institute that had nothing to do with mining. One of its authors, Bruce Wallace former professor at the University of Georgia, testified at length in OVEC v. Aracoma, 479 F. Supp. 2d 607 (S.D. W.Va. 2007), rev’d. 556 F.3d 177 (4th Cir. 2009), the case in which anti-mining activists’ arguments were rejected by the Fourth Circuit Court of Appeals.
4 Alone among virtually all industries that obtain § 404 permits, effluent from “filled” areas is controlled by an NPDES permit issued under § 402 of the Clean Water Act because SMCRA requires that water contacting areas disturbed by surface mining pass through a sediment control structure. Discharges of fill into wetlands and other waterbodies by other industries are not otherwise controlled by NPDES permits. For these industries it makes sense that the § 404 program evaluates whether matter dispersed from the fill area will violate water quality standards by diffusing into adjacent waters. Where, however, those discharges are controlled by an NPDES permit which is required to meet water quality standards and where the state certifies that the project will meet those standards, USEPA’s policy works only to give it oversight authority it does not possess.
5 The Corps uses the § 404(b)(1) Guidelines at 40 C.F.R. Part 230 to review applications. 40 C.F.R. § 230.11(e) requires the Corps to determine the effect that the proposed discharge will have on “the structure and function of the aquatic ecosystem.” That term is not expressly defined, but the rule requires that “consideration shall be given to . . . changes in substrate characteristics and elevation, water or substrate chemistry, nutrient, currents, circulation, fluctuation, and salinity on the recolonization and existence of indigenous aquatic organisms and communities.” In OVEC, anti-mining activists argued that the term “function” required an analysis of the rate of change in temperature, sediment flux, leaf litter breakdown and nutrient spiraling because these were generally accepted “functions.” See OVEC v. Aracoma, 479 F. Supp. 2d 607 (S.D. W.Va. 2007). The Fourth Circuit disagreed, and deferred to the Corps, but there is no clear definition of this term currently in use. 556 F.3d 177 (4th Cir. 2009).
6 See discussion in note 8, below.
7 This practice will likely promote faster runoff and higher peak flows than do end dump fills. In West Virginia, where surface mining permittees must demonstrate that their mines will not increase peak discharges compared to pre-mining conditions, this will likely require the construction of larger in-stream ponds below valley fills to serve as detention devices.
8 This is likely a reference to conditions on which USEPA insisted in the Hobet 45 permit where it encouraged the operator to let water accumulate in mine pits where “it will seep into the coal seams which are natural aquifers.” See Correspondence from EPA Region Admin. to Corps’ Col. Peterson re: Hobet 45 Permit (Jan. 4, 2010).
