clean water act section 402 issues facing kentucky

22
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

Upload: keiki

Post on 08-Jan-2016

40 views

Category:

Documents


0 download

DESCRIPTION

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 - PowerPoint PPT Presentation

TRANSCRIPT

Page 1: Clean Water Act Section 402 Issues Facing Kentucky

Clean Water Act Section 402Issues Facing Kentucky

Kentucky Professional Engineers

in Mining SeminarSeptember 6, 2013

Lloyd Cress, Kentucky Coal Association

Larry Adams, Booth Energy

Page 2: Clean Water Act Section 402 Issues Facing Kentucky

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

Page 3: Clean Water Act Section 402 Issues Facing Kentucky

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.

Page 4: Clean Water Act Section 402 Issues Facing Kentucky

EPA Actions

April 1, 2010 EPA issues Interim Guidance on CWA permitprocedures for Appalachian surface mines.

Sept. 2010 EPA issues Specific Objection letter on 21 Individual KPDES permits for new or expanded surface mining activities in Eastern Kentucky.

July 21, 2011 EPA issues Final Guidance on issuance of CWA permits.

Sept. 2011 EPA issues Specific Objection letter on 19 additional IPs.

June 2012 Public Hearings held to address 36 IPs subject to EPA Specific Objection.

??? EPA Action on Specific Objection IPs

Page 5: Clean Water Act Section 402 Issues Facing Kentucky

Industry Actions

Oct. 2010 KCA filed suit against EPA in U.S. District Court for the Eastern District of Kentucky

Feb. 2011 Case consolidated and transferred to Federal District Court in the District of Columbia.

July 2012 Federal District Court rules in favor of KCA, NMA and KY EEC.

Sept. 2012 EPA appeals to U.S. Court of Appeals.

July 2013 Appeal briefs filed.

??? Oral Arguments, Court Decision

Page 6: Clean Water Act Section 402 Issues Facing Kentucky

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, 2014.

KPDES Individual Permit impasse could affect reissuance of KPDES Coal General Permit.

Page 7: Clean Water Act Section 402 Issues Facing Kentucky

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.

Page 8: Clean Water Act Section 402 Issues Facing Kentucky

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.

Page 9: Clean Water Act Section 402 Issues Facing 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.

Page 10: Clean Water Act Section 402 Issues Facing Kentucky

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.

Page 11: Clean Water Act Section 402 Issues Facing Kentucky

Significant Changes – Monitoring / Reporting

WET TestingBiologic

AssessmentIn-Stream Sampling

Selenium Sampling

Eastern Kentucky

Surface - In-Stream Ponds (Active) Chronic Yes Yes Yes

Surface - In- Stream Ponds (Recl) Chronic Yes Yes Yes

Surface - Bench Ponds (Active) ----- ----- ----- Yes

Surface - Bench Ponds (Recl) ----- ----- ----- Yes

Underground (Active / Recl) Acute / Chronic Yes Yes Yes

Prep Plants / Refuse (Active / Recl) Acute / Chronic Yes Yes Yes

Western Kentucky

Surface (Active / Recl) Acute / Chronic ??? ??? Yes

Underground (Active / Recl) Acute / Chronic ??? ??? Yes

Prep Plants (Active / Recl) Acute / Chronic ??? ??? Yes

Page 12: Clean Water Act Section 402 Issues Facing Kentucky

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

Page 13: Clean Water Act Section 402 Issues Facing Kentucky

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

Page 14: Clean Water Act Section 402 Issues Facing Kentucky

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.

Page 15: Clean Water Act Section 402 Issues Facing Kentucky

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.

Page 16: Clean Water Act Section 402 Issues Facing Kentucky

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.

Page 17: Clean Water Act Section 402 Issues Facing Kentucky

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.

Page 18: Clean Water Act Section 402 Issues Facing Kentucky

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 samplingrequired with 8.2 µg/g whole body tissue limit.

Adopted limits are subject to EPA review.

Page 19: Clean Water Act Section 402 Issues Facing Kentucky

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.

Page 20: Clean Water Act Section 402 Issues Facing Kentucky

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.

Page 21: Clean Water Act Section 402 Issues Facing Kentucky

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

Number of Ponds

WET Testing @ $1,500

Biologic Assessment

@1,500

Selenium Sampling @

$15

Eastern Kentucky

Surface - In-Stream Ponds (Active) 3,083 $18,498,000 $4,624,500 $1,109,880

Surface - In- Stream Ponds (Recl) 1,367 $8,202,000 $2,050,500 $492,120

Surface - Bench Ponds (Active) 9,089 ----- ----- $3,272,040

Surface - Bench Ponds (Recl) 2,072 ----- ----- $745,920

Underground (Active / Recl) 2,468 $14,808,000 $3,702,000 $888,480

Prep Plants / Refuse (Active / Recl) 1,218 $7,308,000 $1,827,000 $438,480

Western Kentucky

Surface (Active / Recl) 504 $3,024,000 ??? $181,440

Underground (Active / Recl) 175 $1,050,000 ??? $63,000

Prep Plants (Active / Recl) 61 $366,000 ??? $21,960

TOTAL 20,037 $53,256,000 $12,204,000 $7,213,320

Page 22: Clean Water Act Section 402 Issues Facing Kentucky

Questions?

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