State proposes new rules for surface mine permits aimed at resolving federal concerns

bestep@herald-leader.comJune 21, 2014 

The state has proposed new permitting rules for coal mines aimed at resolving the concerns of federal environmental authorities who have objected to dozens of new or expanded surface mines in Eastern Kentucky.

State officials say the new rules strengthen protection for streams in the region, but environmental groups argue the provisions still don't go far enough.

For its part, the coal industry has concerns about some of the regulations, but supports moving forward with them as a way to potentially break the stalemate over permits between the state and the U.S. Environmental Protection Agency, an adviser to the Kentucky Coal Association said.

The standards at issue, which make up what is called the general permit for coal, govern discharges of water from mines and processing facilities into streams.

Coal companies must get either a general or individual permit from the state for the water that drains from mines into streams and stream channels because it can contain a number of pollutants, such as sulfates and metals. Individual permits, which are for operations judged to have a potentially greater environmental impact, come with more scrutiny and stricter standards.

The state's general permit must be renewed every five years. The new permit proposed by the state would replace one that expires July 31. It must also win the EPA's approval.

The state has proposed separate general permits for Kentucky's eastern and western coalfields for the first time.

Surface mining on Eastern Kentucky's steep slopes typically involves blasting off the upper reaches of mountains to uncover coal seams, then putting excess rock into nearby valleys, burying sections of streams.

In 2010, the EPA began objecting to permits for surface mines in the region that state officials had already approved. The federal agency said there was growing scientific evidence that runoff from surface mines and valley fills in Appalachia hurts water quality and aquatic life, and that the proposed permits were not adequate to protect water quality.

The state issues mining permits in Kentucky, but the EPA has an oversight role.

The federal agency's move to block permits fueled charges that the Obama administration was carrying out a regulatory "war on coal" — an issue that still burns hot in the region as coal jobs have plunged by about half since early 2012.

Federal regulators vetoed permits for 40 new or expanded surface mines, costing the state jobs and tax revenue and "contributing significantly to the social and economic decline of the entire Eastern Kentucky coal-producing region," Lloyd Cress, a senior policy adviser to the Kentucky Coal Association, said at a meeting last week that state officials held to take comments on the proposed general permit.

Environmental groups applauded the EPA's tougher stance as a long-overdue effort to protect water quality in Appalachia.

Many streams in the region have been degraded by mining, and there is growing evidence of a correlation between mining-related pollution and human health problems, in addition to the environmental damage, environmentalists say.

Analysts have attributed the drop in mining jobs in Eastern Kentucky to a number of factors, including tougher rules to protect air and water quality, but also competition from cheap natural gas and coal from elsewhere in the United States as fuel for power plants.

Far-reaching implications

The general permit has far-reaching implications for surface mining in Kentucky.

For instance, an EPA official said at a June 2012 hearing that the state had allowed 2,500 new and existing mining projects to go forward under the general permit in the prior three years, while issuing just 87 individual permits for surface-mining operations in the same period.

R. Bruce Scott, commissioner of the Kentucky Department for Environmental Protection, said in an interview last week that the proposed new general permit has several requirements that will mean greater protection for Eastern Kentucky streams.

It would set limits on a variety of pollutants in runoff from surface mines, and would require companies to apply for individual permits for any discharge with concentrations of metals that might be in excess of water-quality standards, he said.

It also would have a new requirement to test discharges for toxicity, as well as increased biological and chemical monitoring to check streams for conductivity, an indicator of the level of contaminants in water.

In addition, the permit would include a new requirement for companies to do trend analyses on water samples, and, if water quality declined, to review their practices for controlling pollution.

The proposed permit places a limit for the first time on discharges of selenium, an element that can be released into streams as a result of surface mining. At high enough levels, selenium can cause deformities and other problems in aquatic life, and represents a danger to other life because it accumulates in the food chain.

The permit, if approved, would require electronic reporting of water-quality tests coal companies must perform, with the results available to the public, Scott said.

The permit also would require coal-mining and processing operations within 5 miles upstream of a domestic water intake to plan how to notify the water system of any "catastrophic" releases of pollutants.

Environmental groups expressed concern in recent days because the proposed Eastern Kentucky permit drops a provision that required coal companies to get a more detailed individual permit for any mine discharge within 5 miles upstream of a water-supply intake.

Public water supplies

The provision doesn't come into play in very many cases, but it helped citizens in their effort to block a request by a coal company to mine on the flanks of Black Mountain, above the historic mining town of Lynch, said Tom FitzGerald, head of the Kentucky Resources Council, who represents the citizens.

The company, A&G Coal, wanted to extend a mine from Virginia onto the Kentucky side of the mountain — Kentucky's highest peak — below an area at the top protected from mining and logging.

A number of residents have opposed the company's permit because of fears the mining would hurt the town's water supply, which is fed by water coming off the massive mountain.

The proposed mine would have cut through streams that supply water for Lynch and Benham, another century-old coal town just downstream, said Roy Silver, a college professor and member of Kentuckians for the Commonwealth who has been active in opposing the A&G permit.

The water that comes off the mountain enters an underground reservoir, emerging clean and clear, said Silver and Bennie Massey, a retired underground miner and Lynch City Council member.

The quality of the water is so good that there has been interest in bottling it, which would create jobs in the beleaguered area, the two said.

Clean water also cuts down on treatment costs for the two cities and is important to their efforts to boost tourism, according to Silver and Massey.

"If they disturb the water, I don't know how we can fix it," Massey said. "It'd just mess up this whole area."

Scott said dropping the requirement for individual permits for discharges within 5 miles of a water intake would not erode protection for water systems.

A separate regulation that applies to all industry requires special authorization from the Division of Water for any discharge within 5 miles upstream of a public-water intake, he said.

In addition, the draft general permit would give the Division of Water authority to require an individual permit in any case where the agency felt that would be more appropriate.

"We're certainly not going to lessen the protection for any of our public water supplies," Scott said.

Still, FitzGerald said it would be better to keep the 5-mile exclusion in the general permit.

"I think it's better for all concerned if we have a bright line," he said.

Scott said the state will most likely put the ban on general permits for discharges within 5 miles of water intakes back in the document to remove concerns about the issue.

Environmental groups have other concerns about the proposed permit, however, even though they acknowledge it has improvements over the current rules.

Concerns

Representatives of Kentuckians for the Commonwealth, the Sierra Club, the Kentucky Waterways Alliance, the Kentucky Environmental Foundation, Appalachian Voices and the Kentucky Student Environmental Coalition raised various objections to the proposed permit at a public meeting last week.

Several said it's not proper to issue permits to put pollutants into water under general provisions because that's not sufficient to deal with the varying conditions at each mine.

"Each mine site is unique," said Lane Boldman, with the Kentucky Environmental Foundation.

The general permit also limits citizen comment on proposed mines because it's in effect for five years, several people said.

Environmentalists also said that the general permit would not adequately control conductivity because it does not set a strict limit, and that the method for testing for selenium would be difficult to enforce and would weaken protection for water quality.

Only 6 percent of the waterways in Eastern Kentucky fully support aquatic life, and conductivity is one key reason, said Judith Petersen, head of the Kentucky Waterways Alliance.

"I want Kentucky to protect our rivers and streams and the health of the people who live there," Petersen told state officials at the comment meeting.

Several groups sued last year after the EPA approved the state's move to change how it tests for selenium, from measuring it in water to measuring the concentration in fish tissue.

The groups said that approach would not adequately protect all streams or aquatic life, though state officials disagree and the EPA approved the change.

Another criticism by environmentalists is that the state has not set pollutant limits that recognize the condition of the stream receiving mine runoff, arguing that means impaired streams could get worse.

The coal industry's concerns about the general permit include the increased toxicity testing for effluent from mines, Cress told state regulators.

Coal companies would have to test at 5,500 discharge points, at a cost of about $6,000 per discharge each year, meaning the rule would cost the industry more than $100 million over the five-year term of the permit, Cress said.

The requirement would be an excessive burden on an industry already struggling to survive, Cress said.

But the coal association, which represents companies that account for 90 percent of the state's coal output, supports having a new general permit in place, Cress said.

State and federal agreement on a new set of rules is essential to resolving the impasse over permits in Eastern Kentucky that has "plagued" the industry for several years, Cress said. The new rules could allow some mining projects to go forward, to the extent they still make economic sense, Cress said.

"Re-issuance of Kentucky's general permit holds the potential for resolving the permit stalemate and breathing new life into Eastern Kentucky's economy," Cress told state regulators.

Bill Estep: (606) 678-4655. Twitter: @billestep1

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