Clean Water Act Section 402 Issues Facing Kentucky Kentucky Professional Engineers in Mining Seminar September 6, 2013 Lloyd Cress, Kentucky Coal Association Larry Adams, Booth Energy

Overview Background Expiration of KPDES General Permit Potential Provisions of Reissued KPDES General Permit –Applicability - Exclusions –Whole Effluent Toxicity (WET) Testing –Biologic Assessment –In-Stream Monitoring –Selenium Monitoring –Time Schedule for Compliance with New Requirements Potential Conditions of Future KPDES Individual Permits

Background Section 402 of the Clean Water ACT regulates point source discharges. The Kentucky Pollution Discharge Elimination System (KPDES) program is administered by the Division of Water, Department for Environmental Protection (DEP). General KPDES coverage imposes uniform technology-based monitoring and effluent limitation requirements that are not subject to EPA objection authority and are not subject to administrative appeal by the permittee. Individual KPDES permits impose both technology-based monitoring and effluent limitation requirements and water quality- based requirements, are subject to EPA objection authority and are subject to administrative appeal by the permittee.

EPA Actions April 1, 2010 EPA issues Interim Guidance on CWA permit procedures for Appalachian surface mines. Sept. 2010EPA issues Specific Objection letter on 21 Individual KPDES permits for new or expanded surface mining activities in Eastern Kentucky. July 21, 2011EPA issues Final Guidance on issuance of CWA permits. Sept. 2011EPA issues Specific Objection letter on 19 additional IPs. June 2012Public Hearings held to address 36 IPs subject to EPA Specific Objection. ???EPA Action on Specific Objection IPs

Industry Actions Oct KCA filed suit against EPA in U.S. District Court for the Eastern District of Kentucky Feb. 2011Case consolidated and transferred to Federal District Court in the District of Columbia. July 2012Federal District Court rules in favor of KCA, NMA and KY EEC. Sept. 2012EPA appeals to U.S. Court of Appeals. July 2013Appeal briefs filed. ???Oral Arguments, Court Decision

KPDES Coal General Permit Many of the new requirements proposed for the KPDES Individual Permit Template likely to be incorporated into KPDES Coal General Permit. Existing coverage under the KPDES Coal General Permit would continue in effect post expiration. New or expanded coverage would not be authorized should the current General Permit expire without reissuance. KPDES Coal General Permit expires July 31, KPDES Individual Permit impasse could affect reissuance of KPDES Coal General Permit.

KPDES Draft Individual Permit Template Both DOW and Industry have worked to address requirements for new or expanded surface mines in Eastern Kentucky that would allow EPA to withdraw its permit objections. Significant changes to current requirements will be required to address EPA’s on-going concerns. Only one Individual KPDES Permit has been approved for new or expanded surface mining in Eastern Kentucky subsequent to EPA’s Interim Guidance of April 1, 2010.

EPA Position Although EPA’s Final Guidance of July 21, 2011 was set aside in the September 2012 DC District Court Ruling, EPA’s position generally remains: Benchmark conductivity levels should be established with numeric limits (Final Guidance recommended 300 μS/cm). CWA Permitting authorities have flexibility to apply other approaches such as biological assessment, toxicity testing and offsets in lieu of numerical standards. Science Advisory Board recommended EPA limit the applicability of its Final Guidance to West Virginia and Eastern Kentucky.

DOW Approach Kentucky Narrative Water Quality Standard - Total dissolved solids or specific conductance shall not be changed to the extent that the indigenous aquatic community is adversely affected. Biologic Assessments and Whole Effluent Toxicity Tests will act as surrogate for numeric conductivity limits.

Significant Changes – Monitoring / Reporting Requirements per DRAFT KPDES IP Template. Whole Effluent Toxicity (WET) Testing Biologic Assessment In-Stream Sampling Selenium Sampling Precipitation Based Sampling of Bench Ponds Requirements imposed based upon mine type, mine status, geographic setting. Review on-going, changes to current proposal likely to occur. KPDES Coal General Permit likely to incorporate similar modifications upon reissuance in August 2014.

Significant Changes – Monitoring / Reporting

Whole Effluent Toxicity (WET) Testing Whole Effluent Toxicity (WET) refers to the aggregate toxic effect to aquatic organisms from all pollutants contained in a facility's effluent. Acute Toxicity Tests (flow duration < 96 hours) Species Water Flea (Ceriodaphnia dubia, Daphnia magna, or Daphnia pulex), Fathead Minnow (Pimephales promelas) Test Procedures Two 48 hour static non-renewal toxicity tests Results based on mortality

Whole Effluent Toxicity (WET) Testing Chronic Toxicity Tests (Eastern Kentucky in-stream ponds or flow duration > 96 hours) Species Water Flea (Ceriodaphnia dubia), Fathead Minnow (Pimephales promelas) Test Procedures One short term static renewal toxicity test Results based on mortality, growth, reproduction

Whole Effluent Toxicity (WET) Testing WET Test failure requires accelerated retesting. Retest failure initiates Toxicity Reduction Evaluation (TRE) Toxicity Reduction Evaluation (TRE) - A site-specific study conducted in a stepwise process, designed to identify the causative agents of effluent toxicity, isolate the sources of toxicity, evaluate the effectiveness of toxicity control options, and then confirm reductions in effluent toxicity. Toxic Identification and Evaluation (TIE) - A process that identifies the toxic components of an effluent or ambient medium by chemically manipulating the effluent or medium and testing the resulting material.

Biologic Assessment Annual benthic surveys and in-stream physical and chemical monitoring required to demonstrate protection of narrative water quality standards. Sampling locations will be established in association with development of Quality Assurance Project Plan (QAPP). The pre-mining survey will establish baseline conditions. Comparison of annual surveys to baseline used to determine the effect mining operations are having on the receiving waters. Best Management Practices (BMP) review required when there is a decrease in the stream scoring from the baseline. A categorical decline from the baseline stream condition is considered a permit violation.

In-Stream Sampling EPA has expressed concerns that annual biologic assessments will not timely identify stream impacts. As a result quarterly physical and chemical in-stream monitoring is now proposed. Requirements per DRAFT KPDES IP Template. The permittee shall commence once per quarter physical and chemical monitoring for comparison with the pre-mining background conditions of each in-stream monitoring point. Data shall be collected concurrently with the collection of discharge samples from the contributing KPDES outfalls. Parameters: Flow, Total Suspended Solids, Specific Conductivity, and Total Sulfate.

In-Stream Sampling (Continued) BMP Review will be initiated if: The quarterly average pollutant concentrations in the discharge are greater than the in-stream baseline concentrations for those pollutants; and The rolling average of two consecutive calendar quarters of in-stream concentrations for the same pollutants are: 10 percent greater than the baseline concentrations for two consecutive calendar quarters, or 20 percent greater than the baseline concentrations for any calendar quarter.

Selenium Sampling Requirements per DRAFT KPDES IP Template. Based on expressed concerns, Selenium would be monitored semi- monthly at all sites regardless of reasonable potential analysis. Previous Limits: 20 μg/L Acute 5.0 μg/L Chronic New selenium standards were promulgated during Kentucky’s Triennial Review of water quality standards. Adopted Limits: 258 μg/L Acute 5.0* μg/L Chronic *If chronic water analysis >= 5 µg/L, then fish tissue sampling required with 8.2 µg/g whole body tissue limit. Adopted limits are subject to EPA review.

Precipitation Based Sampling of Eastern Kentucky Bench Ponds Requirements per DRAFT KPDES IP Template. The permittee shall sample the discharge, if any, from each bench pond after local precipitation events of 0.5 inches or greater. Such samples may be substituted on a one to one basis for the required semi-monthly samples provided the samples were not collected during the same discharge event or within 72 hours of the previous 0.5 inch precipitation event.

Implementation / Compliance Period The permittee shall attain compliance with all requirements of this permit on the effective date of this permit unless otherwise provided. WET testing shall be initiated within one year of the effective date of the permit. The effective date of new effluent limitations for newly promulgated water quality standards or new interpretations of an existing water quality standard shall be one year from the effective date of the permit.

Annual Costs – If Applied to Permitted Outfalls Under KPDES Coal General Permit

Questions ? Get Involved! - Opportunities to participate in on- going discussions with DOW and EPA through the KCA Environmental Committee.