Georgia - Indiana - Kentucky - Tennessee - Virginia - Washington, D.C. KEY WATER QUALITY ISSUES RELATED TO SURFACE MINING Tennessee Mining.

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KEY WATER QUALITY ISSUES RELATED TO SURFACE

MININGTennessee Mining Association

William L. Penny

Stites & Harbison, PLLC

KEY ISSUES

• Stream Definition: Need for Guidance on Consistent stream determinations

• Triennial Review of WQS– Selenium– Changes in Antidegradation Procedure

• EPA’s Enhanced Coordination Project: Unnecessary and unlawful

STUMBLING TOWARD STREAM DEFINITION: WET WEATHER

CONEYANCE RULES AND GUIDANCE

Waters of the State

• “Waters” are defined to mean “. . . any and all water, public or private, on or beneath the surface of the ground, which are contained within, flow through, or border upon Tennessee...” except bodies of water confined to private property. Tenn. Code Ann. § 69-3-103(32).

STREAM THAT BEGINS AND ENDS

• Non Navigable Stream

• 225 feet=$44,000 in mitigation

Georgia - Indiana - Kentucky - Tennessee - Virginia - Washington, D.C. www.stites.com

Wet Weather ConveyanceSB632

• . . . man-made or natural watercourses, including natural watercourses that have been modified by channelization: (1) That flow only in direct response to precipitation runoff in their immediate locality; (2) Whose channels are at all times above the groundwater table; (3) That are not suitable for drinking water supplies; and (4) In which hydrological and biological analyses indicate that, under normal weather conditions, due to naturally occurring ephemeral or low flow there is not sufficient water to support fish, or multiple populations of obligate lotic aquatic organisms whose life cycle includes an aquatic phase of at least two (2) months.

STREAM

• ( ) "Obligate lotic aquatic organisms" means organisms that require flowing water for all or almost all of the aquatic phase of their life cycles;

• “Stream” means a surface water that is not a wet weather conveyance;

• “Watercourse” means a man-made or natural hydrologic feature with a defined linear channel which discretely conveys flowing water, as opposed to sheet-flow;

IMPACT OF STREAM DEFINITION

• WWC-can fill without permit with minimum requirements

• Stream-Requires a Permit– Requires Antideg review– Could prevent project all together if Impaired or High

Quality – Public Notice and Maybe hearing– Cost of design and permitting– Mitigation Costs

A NEW DAY IN APPLYING THE DEFINITION OF STREAM

• Within ninety (90) days of the effective date of this act, the commissioner shall develop and submit to the board proposed rules necessary for accurate and consistent wet weather conveyance determinations. These rules shall include at a minimum:– (1) Standard procedures for making stream and wet weather

conveyance determinations that take into consideration biology, geology, geomorphology, precipitation, hydrology, and other scientifically based principles; and

– (2) A certification program for department staff and other persons who wish to become certified hydrologic professionals.

• Within ninety (90) days of the effective date of this act, the commissioner shall develop and submit the following to the board for comment:– (1) Proposed guidance that provides instructions,

examples and definitions based upon scientifically based principles for consistently and accurately making hydrologic determinations; and

– (2) Proposed guidance that provides minimum qualifications for staff who are responsible for making or reviewing wet weather conveyance determinations.

PRESUMPTIVE HYDROLOGICAL DETERMINATIONS

• MUST BE BY HYDROLOGIC PROFESSIONAL– bachelor's degree in biology, geology, ecology, engineering or

related sciences, having at least five (5) years of relevant experience in making hydrologic determinations, AND

– IF the department has begun certifying hydrologic professionals pursuant to rules promulgated by the board, having obtained that certification.

• Must Contain Requirements in the Rules• Must have a certification• Department can reject if it affirmatively determines that

there is a significant question and states in writing reasons

• Applicant can appeal within 30 days.

TMA COMMENTS ON RULES

• Rules did not provide the set of standards required by the legislature; instead delegating those to the Guidance

• Allowed use of so-called Secondary Indicators which is contrary to statute.

Triennial Review

• A three year review of Water Quality Standards– Uses– Criteria to support uses– Antidegradation

• Entire set of rules is available for comment, but TDEC made two significant proposed changes– Change to 1998 Selenium criterion– Change in third party justification challenge for

antidegradation

TMA Comments

• Promulgate the 2004 Draft Selenium Criterion as updated by the 2008 Blue Gill Study– Acute criterion=417 ug/l for selenate and 258 ug/l for

selenite– Chronic=7.9 ug/g of fish tissue

• If procedures are change to consolidate the third party challenge with the permit, hearing must be within 120 days. Permit cannot be stayed past the Board hearing.

Change is Needed

• Selenium criterion is far too low to make scientific sense and could eliminate mining, permit appeals and lawsuits

• Antidegradation process for 3d party appeals is broken– EPA requires public involvement but not the

level we are providing– Agreement reached in court case may tie the

Board’s hands absent legislation.

Enhanced Coordination Procedures

• June 11, 2009— “unprecedented” step to reduce impact of mountaintop mining in Appalachia– NWP 21 suspended– 79 permits delayed (of 83)– NPDES permits delayed for all surface mining though

ECP applied only to Valley Fills– Water Quality certification (401) delayed

• Selection of the 79 sites were based on a detailed MIRA analysis

• No warning that it would impact 402 permits in non valley fill sites.

EPA ACCUSES TDEC OF NOT CONDUCTING A PROPER REASONABLE POTENTIAL

ANALYSIS• Right out the page from certain

environmental groups who want to stop coal mining by imposing stringent numeric limits

• The rise of specific conductance criteria

• Obvious a Headquarters initiative

• Tennessee has no Valley fill sites

EPA SPECIFIC COMMENTS ON DAVIS CREEK ENERGY MINE

AREA NO. 4• TDEC ready to issue permit on 12/7/09

• EPA requests additional time to comment

• January 25, 2010 Region IV sends letter that had to have come from headquarters– TDEC did not provide a proper reasonable

potential analysis relating to water quality standards.

• information indicates that coal mine discharges are causing impairments of WQS throughout Appalachian coal mining regions. A growing body of evidence demonstrates that certain pollutants associated with coal mine discharges are causing or contributing to violations of narrative water quality standards. Recent studies have shown that there is a direct correlation between stream impairment and discharge of total dissolved solids (TDS)/specific conductivity (SC) due to coal mining and coal processing.

EPA Recommendations

• Translate narrative WQS into numeric effluent limits for TDS and SC.

• Whole Effluent Toxicity testing and a WET limit.• Better description in the rationale sheet on compliance

with the siltation TMDL• Additional BMPs related to conductivity and have

permittee submit a Water Quality Standards Protection Plan within 120 days of issuance..

• A whole host of additional monitoring for specific conductivity. If SC reaches 400 micro Siemens per cubic cm under critical flow conditions, then additional monitoring is required. If it reaches 500, they must reduce the footprint of the permit.

Problems with Approach

• Board has not adopted narrative criteria for TDS or Specific Conductivity

• Conductivity in Eco-Region 68 and 69 not statistically related to biological impairment

Flawed Use of Scientific Reports

• Kennedy 2003 Study– SC in streams studied was 7,750 to 8,750– Highest found in 15 years in 68 and 69 was 1,809 and

most are under 1,000– Ephemoroptera, most sensitive, not impacted until SC

reached 3,000• Kennedy 2005 Study- ionic contribution

– Growth not effected until SC exceeded 3,000• 2008 Pond Study-Looked only at Valley Fills

which ignores the impact of upstream headwater fill.

TDEC responds

• Disagrees with EPA on SC-Will not develop numeric for TDS and SC

• Will require measurement of instream SC• Will require a WQS Protection Plan to implemented if SC

exceeds 500 which will trigger additional monitoring.• WET testing not necessary• EPA wrong in using Clear Fork TMDL for Davis Creek• And by the way Tennessee does not permit valley fills

DIRECTIONS

• Constitutes new interpretation of 40 CFR 434 industry specific guidelines

• Cannot change long standing well established regulatory interpretations absent rulemaking

• Could lead to litigation to stop unlawful procedures.