Impact of WVDEP New Coal Permitting Guidance Uncertain in W. Va.
The first permits subject to the guidance could be issued as quickly as three months.
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DEP Secretary Randy Huffman
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DEP Division of Mining and Reclamation Director Thomas Clarke
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New West Virginia Department of Environmental Protection permitting guidance for coal mine water discharges may or may not represent stronger protections for streams below mine fills.
“I think this is a giant leap forward,” said DEP Water and Waste Management Director Scott Mandirola. Released Aug. 12, the guidance has been in development since early this year. At that time, the U.S. Environmental Protection Agency took the extraordinary step of issuing a provisional standard throughout Appalachia for conductivity — salinity, essentially — to protect aquatic communities below surface mines.
The move established a single number, 500 microSiemens per centimeter, as a proxy for complex and less easily implemented “narrative” water quality standards — standards represented in West Virginia law by language like “no significant adverse impact” to aquatic ecosystems.
DEP Secretary Randy Huffman conceded that West Virginia had no protocol for implementing its narrative standards, but he also objected to EPA’s approach.
“The reason that EPA has tried to strictly apply their document to the Appalachian region is because of the region’s uniqueness compared to rest of country,” Huffman said. “I would submit that geology varies enough within the Appalachian region that applying it even just across these six states is just as inappropriate.”
EPA is using its conductivity standard even as the standard remains in a public comment period through the end of this year.
Meanwhile, DEP set out to regain control of its permitting program.
The Guidance
DEP’s guidance requires a suite of water quality tests and feeds the results back into management practices: “a holistic watershed management approach” in the document.
Here’s how it works.
Mine operators will submit pre-mining measures of downstream stream health in their permit applications, along with a new requirement, Aquatic Ecosystem Protection Plans. That is not necessarily only for surface mines, Mandirola explained, but could be applied to any operation where water is in prolonged contact with crushed material.
Except where applicants demonstrate that there is no “reasonable potential” for problems downstream, he said, permits will be subject to Whole Effluent Toxicity limits — also new for coal mine permits. WET testing measures the total effect of a discharge on a sensitive water flea and will be conducted quarterly.
Operators also will monitor the chemistry of pollution discharges and will submit West Virginia Stream Condition Index scores — complex biological assessments of overall stream health — “regularly” during mining, a frequency that Huffman said might be semi-annually.
Everything continues normally unless WET limits are exceeded.
Then operators will have to develop Adaptive Management Plans to meet environmental objectives — the feedback mechanism that Mandirola said will turn evidence of toxicity into better effluent management.
Enforceable aspects of the guidance, those subject to fines or to citizen lawsuits, are the requirements to submit the broad array of monitoring results and to observe WET limits.
Will it Change Mining?
Huffman said operators will have to think differently about the way they mine coal. He used sulfates, a contributor to conductivity, as an example.
“These guys know which part of the geology the sulfates come from, so rather than shove that sulfate-bearing material into the valley fill and let water run through it into the stream and kill aquatic life, they can pack it high up somewhere,” he said.
“That’s one of a thousand things they could do,” he continued. “When you’re talking about hundreds of acres of disturbed land and millions of tons of broken rock, it’s going to require some effort, not only in planning and engineering but also by equipment operators and others on the ground.”
DEP Division of Mining and Reclamation Director Thomas Clarke said change will begin as soon as permits are issued.
“The Aquatic Ecosystem Protection Plans will require operators to do things they have not done in the past to deal with sources of impacts on the aquatic ecosystem,” he said.
Possible AEPP measures include testing overburden with the aim of isolating certain materials, along with minimizing disturbed area and the size of fills, increasing stream buffer zones and expediting reclamation.
In the longer run, Mandirola said, all the new data will help DEP know which best management practices are working and which aren’t. That could lead not only to numeric limits on specific parameters at specific discharge points, he said, but also to new water quality standards.
Reactions
West Virginia Coal Association Vice President Jason Bostic said the WVCA had not completed its review of the document, but he said some of the monitoring is unnecessary. Bostic said operators should have not have to test their discharges at all times but only if problems are discovered downstream.
He said the large amount of new monitoring will be “complicated.”
The coal industry will be paying attention for other activities that might be affecting streams, according to Bostic.
“Downstream stations could be impacted, probably more so, by other activities — logging, construction, things that aren’t held to the standards that coal mining is,” he said.
“We’re going to be watching the activities that go on around us very carefully, and if an activity impacts downstream biology, we’re going to do as much as we can to alleviate those impacts.”
Environmentalists charged in early media reports that the new guidance will not be as protective of aquatic ecosystems as EPA’s conductivity standard.
Mandirola said that’s not certain.
“This could be as restrictive or more restrictive than EPA’s guidance — we don’t know yet,” he said. “I understand that a lot of people are skeptical, and that’s fair, but I don’t think it should be understated,” he continued. “This is not another fancy way to go on and do business the way it’s been done before. It’s a whole new way of doing business.”
Next Steps
Possibly more than 40 permits have been held up awaiting WVDEP’s new guidance.
Clarke said the first permits subject to the guidance could be issued as quickly as three months.
It is not yet certain that EPA will accept the guidance in place of its conductivity standard, but DEP officials expressed confidence that the guidance is in line with the federal Clean Water Act.
By Pam Kasey,
— Pam Kasey is the north-central West Virginia writer for The State Journal. She has been a small business owner and has written about issues affecting business for the past decade. She covers business and leadership stories in the multi-county north-central region of West Virginia. She holds a bachelor’s degree in economics from the University of Chicago and a master’s degree from the Perley Isaac Reed School of Journalism at West Virginia University.
