It’s been a few weeks now since EPA issued its guidance on “Improving EPA Review of Appalachian Surface Coal Mining Operations.” Despite the fact that the guidance was effectively immediately after its April 1, 2010 release, there are still significant questions about what the guidance will mean for new mine permitting in Central Appalachia.
One thing is clear though, the process of permitting a large surface mines just got a lot more stringent. The AP reported on April 1, that Lisa Jackson, Administrator of the EPA said, “You’re talking about either no or very few valley fills, that’s just the truth, that’s the science of it.”
We at ACLC thank EPA for following the science regarding the unchecked harm to our water and our communities that has occurred from large-scale surface mining. The science dictates what the Clean Water Act will allow. We are cautiously optimistic that this heralds a significant change in the way mining is conducted in Eastern Kentucky and Southwest Virginia.
We hope that the change is long lasting, even as we are aware that this guidance is not a statute or a rule and can be easily undone by future administrations.
The Guidance was published in the Federal Register on April 12, 2010. Comments are being accepted at regulations.gov through December 1, 2010. http://www.regulations.gov/search/Regs/home.html#docketDetail?R=EPA-HQ-OW-2010-0315.
What Does the Guidance Mean for §402 Permitting?
Section 402 of the Clean Water Act provides that no discharges of pollutants into waters of the United States can be allowed without a permit. Permits for discharge of pollutants from mines are granted under Section 402 by the states, with oversight by EPA. The discharge points are typically from pipes that drain the mine’s sediment ponds.
Under EPA’s technology-based effluent limits, set in the early 1980s, only pH, iron, manganese, and total suspended solids are limited. Historically, those limits are all that have been applied to Section 402 permits for coal mines.
EPA’s guidance changes the Section 402 permitting situation considerably. The guidance indicates that for most, if not all, surface mines, additional permitting restrictions will be required. These additional restrictions, called water quality based effluent limitations, are needed to ensure that a mine’s discharge does not cause or contribute to a water quality violation in the receiving stream.
The impact of mine discharges on water quality in Appalachia’s streams is significant. The science is uncontroverted. Numerous peer-reviewed scientific studies, as well as EPA’s own studies, indicate that surface mining, and valley fills in particular, have significantly degraded the water quality of Appalachia’s streams. Several pollutants from mines and pollutant indicators, including selenium, total dissolved solids, and conductivity, have been identified as causing significant impairment of stream health and aquatic life.
EPA’s new guidance regarding Section 402 permitting will require that permit limits be put in place to reduce the amount of pollution from surface mines to a level sufficiently low enough to ensure the health of the receiving stream. Under the guidance, new permit applications for most mines will be required to meet limits on discharges of selenium, total dissolved solids, and other pollutants. The limits will be based on data submitted by the mine operator before mining occurs that projects what pollutants will be released by the mine and how much. The state will use those projections to set Section 402 permit limits.
EPA’s guidance specifies benchmarks for conductivity that must be used in determining whether a mine’s discharge has the reasonable potential to cause or contribute to a violation of state water quality standards in the receiving stream. Conductivity is a way of measuring the overall salinity of water. EPA has determined based on scientific evidence that any time in-stream conductivity is 500 μS/cm or greater, a reasonable potential for a water quality violation exists. In such circumstances, new permits can only be issued if EPA, in conjunction with the state, determines that the new discharge is not likely to cause a violation. If a new discharge is likely to result in in-stream conductivity between 300 and 500 μS/cm, EPA will work with the state to ensure permit conditions that will keep the in-stream conductivity below 500 μS/cm.
The guidance indicates that officials at the EPA Regional Offices will use their oversight authority to object to state-issued Section 402 permits that do not provide sufficient documentation. This process will assure that under the conditions imposed by the permit, the mine discharge does not have the reasonable potential to cause or contribute to a violation of water quality standards in the receiving stream. If EPA objects to a state-issued permit, the ultimate authority over whether a permit is issued may pass to EPA.