Ohio Valley Environmental Coal v. Fola Coal Company, LLC

Filing

OPINION ATTACHMENT. [16-1024]

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Release Date: August 12, 2010

Justification and Background for Permitting Guidance for
Surface Coal Mining Operations to Protect West Virginia’s
Narrative Water Quality Standards, 47 C.S.R. 2 §§ 3.2.e and 3.2.i
PURPOSE
The West Virginia Department of Environmental Protection (“DEP”) adopts this
Justification and Background for its “Permitting Guidance for Surface Coal Mining Operations
to Protect West Virginia’s Narrative Water Quality Standards” (the “Guidance”). The Guidance
is intended to facilitate compliance with applicable statutory and regulatory requirements and to
provide reasonable means of effectuating the intent of the narrative criteria, as well as to enforce
the mandate of the Clean Water Act (“CWA”) that every permit contain effluent limitations that
reflect the practicable pollution reduction a state can achieve.1

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The Guidance was developed in accordance with the West Virginia Water Pollution
Control Act (“WVWPCA”), which states that “the public policy of the State of West Virginia to
maintain reasonable standards of purity and quality of the water of the State consistent with (1)
public health and public enjoyment thereof; (2) the propagation and protection of animal, bird,
fish, aquatic and plant life; and (3) the expansion of employment opportunities, maintenance and
expansion of agriculture and the provision of a permanent foundation for healthy industrial
development.”2

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As it must, the Guidance also recognizes the intent of the West Virginia Legislature,
which has formally resolved as follows:
That any interpretation and implementation of West Virginia’s narrative
water quality standards is the responsibility of the West Virginia
Department of Environmental Protection;
That the requirements of the narrative criteria are met when a stream (a)
supports a balanced aquatic community that is diverse in species
composition; and (b) contains appropriate trophic levels of fish (in
streams with sufficient flows to support fish populations); and (c) the
aquatic community is not composed only of pollution tolerant species or
1

American Paper Institute, Inc. v. United States Environmental Protection Agency, 996 F.2d
346, 349 (D.C. Cir., 1993)
2
W. Va. Code § 22-11-2(a).

Promoting a healthy environment.

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the aquatic community is composed of benthic invertebrate assemblages
sufficient to perform the biological functions necessary to support fish
communities within the assessed reach (or, if the assessed reach has
insufficient flows to support a fish community, in those downstream
reaches where fish are present); and
That interpretation of West Virginia’s narrative water quality standards
must faithfully balance the protection of the environment with the need
to maintain and expand opportunities for employment, agriculture, and
industry as set forth in the Legislature’s statement of public policy as
contained in the West Virginia Water Pollution Control Act.3
BACKGROUND
West Virginia has had primacy of the NPDES program since 1982 and has narrative
water quality standards that predate its NPDES primacy. These criteria are found in West
Virginia’s Code of State Rules, which states, in pertinent part, “No significant adverse impact to
the chemical, physical, hydrologic, or biological components of aquatic ecosystems shall be
allowed.”4

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In light of its goals to advance, wherever attainable, water quality that provides for
recreation and the protection and propagation of fish, shellfish, and wildlife,5 and to assure that
surface mining operations are conducted so as to protect the environment,6 DEP reviewed its
NPDES permitting and compliance assessment protocols vis-à-vis West Virginia’s narrative
water quality standards and solicited public comment regarding these issues. As a result, DEP
adopts the Guidance, which describes the procedures DEP will implement in the development of
NPDES permits for the coal mining industry. These new procedures shall take effect
immediately. In light of the changing nature of the policy concerns addressed herein, this
document is intended to be dynamic and will likely be modified in the future as technology and
best management practices develop and improve.

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While DEP appreciates EPA’s recent effort to assist the states in interpreting their various
narrative water quality standards, DEP finds that the Guidance is the more appropriate approach
for West Virginia for several reasons. First, it involves subject matter uniquely within DEP’s
expertise and special knowledge. Further, while this document specifically addresses concerns
related to the mining industry, it is designed to be adapted in the future to address all discharges
to water bodies that will cause, or that have the reasonable potential to cause or contribute to,
excursions from water quality standards. Finally, it does not use an overbroad, generic criterion
(i.e. conductivity) to set unattainable limits, but instead identifies specific pollutants that can be
managed through the inclusion of appropriate whole effluent toxicity (“WET”) monitoring
and/or limits and best management practices (“BMPs”) in NPDES permits, where there is
reasonable potential to cause or contribute to excursions from water quality criteria. If the
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H.C.R. 111 (2010 Regular Session).
47 C.S.R. 2 § 3.2.i
See 33 U.S.C. § 1251(a)(2)
See 30 U.S.C. § 1202(d)
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applicant cannot demonstrate, by means of its chemical and biological monitoring and the
control measures outlined in the plans it will submit with its application, that it does not have
reasonable potential (“RP”) to cause or contribute to an excursion above the narrative criteria,
the permit writer should treat new or expanded discharges as if they have RP and include WET
limits in the permit, in accordance with 40 C.F.R. § 122.44(d)(1)(v). Alternatively, if the
operator identifies toxic pollutants that can be regulated through the use of numeric limits, DEP
will put a regulatory control number for those pollutants in the operator’s permit.
PROTECTION OF THE AQUATIC ECOSYSTEM
As stated above, the narrative water quality criteria set out in 47 C.S.R. 2 § 3.2.i prohibits
the introduction of wastes that cause significant adverse impact to the chemical, physical,
hydrologic or biological components of aquatic ecosystems. These criteria are valid components
of West Virginia water quality standards that have been properly promulgated by the West
Virginia Legislature and approved by the EPA. The phrase “significant adverse impact” is not
defined in the CWA or the WVWPCA, the regulations promulgated thereunder or in any
literature or guidance published by the EPA. DEP has determined that “significant adverse
impact” is more than a change in the numbers or makeup of the benthic macroinvertebrate
community in a segment of a water body downstream from a point source discharge. It is,
instead, a material decline in the overall health of an aquatic ecosystem.7 A goal of the CWA
and the WVWPCA is to protect the aquatic ecosystem as a whole; it is a holistic standard that
requires a holistic approach to ecosystem assessment. In contrast to numeric water quality
criteria, which can be applied by analysis of samples of water taken at any discharge or
monitoring point in a stream, compliance with a standard that protects the aquatic ecosystem
must be assessed in the broader area comprising the ecosystem. An ecosystem does not exist at a
single point and, accordingly, its health cannot be assessed at a single point.

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The Pond-Passmore Study, upon which EPA relied in the development of its guidance on
this subject, concludes that West Virginia’s narrative standard is violated by surface coal mining
operations based on the Study’s application of two biologic assessment tools, the West Virginia
Stream Condition Index (“WVSCI”) and the draft Genus Level Index of Most Probable Stream
Status (“GLIMPSS”), to samples of benthic macroinvertibrate life taken from these streams.
This conclusion is flawed for two reasons. First, West Virginia does not use the draft GLIMPSS
in its assessment of the biologic health of State streams. Second, these tools are just that – tools.
They are not stand-alone determinants of compliance with the narrative standard. Any
application of these assessment tools in determining compliance with the narrative standard must
faithfully apply the language of the standard itself, which prohibits significant adverse impacts
on the chemical, physical, hydrologic or biological components of the aquatic ecosystem. Thus,
DEP’s Guidance follows long-standing EPA guidance, which indicates that biosurveys cannot
fully characterize an entire aquatic community and its many attributes, and accordingly suggests
that “State standards should contain biological criteria that consider various components (e.g.

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An aquatic ecosystem is a dynamic complex of plant, animal, and microorganism communities
and their non-living environment interacting as a functional unit within water. See, Coweeta
Long Term Ecological Research “Glossary of Terms.”
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algae, invertebrates, fish) and attributes (measures of structure and/or function) of the larger
aquatic community.”8
Through implementation of the Guidance, DEP continues its existing practice of using
WVSCI in addition to consideration of other factors affecting the aquatic ecosystem to enforce
its narrative water quality standards. By way of background, WVSCI was developed for EPA by
national experts to assess biological integrity in West Virginia’s waterways through “careful
measurement of the natural aquatic ecosystem and its constituent biological communities,”9
including the evaluation of benthic macroinvertebrate communities. It was specifically designed
for assessment of the biological component of the 47 C.S.R. 2 § 3.2.i narrative criteria and has
been used as a tool in developing the Impaired Streams List (“303(d) List”) and the TMDLs
resulting therefrom for almost a decade.10 WVSCI acknowledges that “[i]t is the responsibility
of West Virginia’s [Department] of Environmental Protection to maintain and protect the
ecosystem health of the state’s waters[,]” and “[i]n keeping with the Clean Water Act and
technical guidance from USEPA, DEP developed water quality standards for the protection of
ecosystem health.”11
DEP’s Guidance is the appropriate methodology for implementing West Virginia’s
narrative water quality standards, because it is consistent with the Federal Regulations regarding
establishing limitations, standards, and other permit conditions for NPDES programs, and it
incorporates a holistic approach to ecosystem assessment and protection. The CWA’s
implementing regulations require WET testing and limits when the State finds that a discharge
has RP to cause or contribute to excursions from water quality standards.

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vie . . . that a discharge causes,
[W]hen the permitting authority,determines
has the reasonable potential to cause, or contributes to an in-stream
024 within an applicable State water
excursion above a narrative criterion
6-1 must contain effluent limits for whole effluent
quality standard, the permit
o. 1on whole effluent toxicity are not necessary where the
toxicity. Limits
N
permitting authority demonstrates in the fact sheet or statement of basis of
the NPDES permit . . . that chemical-specific limits for the effluent are
sufficient to attain and maintain applicable numeric and narrative State
water quality standards.12

WET testing allows flexibility where appropriate (e.g. allowing time to collect additional data for
RP determination to supplement limited data sets) and is consistent with DEP’s policy that
8

EPA’s Policy on the Use of Biological Assessments and Criteria in the Water Quality Program
(May 1991) (“1991 Policy”)
9
A Stream Condition Index for West Virginia Wadeable Streams, March 28, 2000 (Rev. July 21,
2000) (“Stream Condition Index”).
10
However, a stand-alone WVSCI score has never been the sole determinant of compliance or
non-compliance with the narrative standard. This is because WVSCI scores are influenced by
many factors (e.g. habitat, geology, and pH).
11
Stream Condition Index
12
40 C.F.R. § 122.44(d)(1)(v)
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permittees develop robust monitoring plans with the intention of identifying any causative
pollutants and adjusting their methods of operation so that those problems may be remedied
before the aquatic community suffers a significant breakdown.
WVSCI considers various components (e.g. algae, invertebrates, fish) and attributes
(measures of structure and/or function) of the larger aquatic community. “Because biological
integrity is a strong indicator of overall ecological integrity, it can serve as both a meaningful
goal and a useful measure of environmental status. . . .”13 Based on the 5th percentile of
reference values, the current WVSCI score that indicates the integrity of a benthic
macroinvertebrate community in West Virginia’s wadeable streams is 68.0. The threshold for
inclusion on the 303(d) List has historically been 60.6. That value subtracts a precision estimate
from the 5th percentile of reference values, and its historical use was intended to take into
account sampling error and to aid DEP in allocating its resources so as to avoid misclassifying
non-impaired waters as impaired. WVSCI and its application in the 303(d) listing process are
consistent with methodologies implemented to assess protection of aquatic ecosystems by all of
West Virginia’s neighboring states.
CAUSATIVE POLLUTANTS / PROTECTIVE THRESHOLDS

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EPA has recently set a numeric limit on conductivity at 500 µS/cm, finding that
conductivity levels below 300 µS/cm generally will not cause a water quality standard violation
and that in-stream conductivity levels above 500 µS/cm are likely to be associated with adverse
impacts that may rise to the level of exceedances of narrative state water quality standards. 14
However, DEP’s data shows that more than a simple conductivity measurement is necessary to
determine the health of a stream. As proof that a number for specific conductance is an
inappropriate gauge, FIGURE 1 below illustrates that a stream can have a low level of specific
conductance and a WVSCI score firmly within the range for impairment; conversely, a stream
can have a high level of specific conductance and a WVSCI score that indicates the stream is
above the threshold for impairment. WVSCI scores are affected by many factors: habitat, other
uses of the stream and the surrounding land, other pollutants unrelated to conductivity (e.g. fecal
coliform), inter alia. Certain stream reaches simply cannot attain a “good” WVSCI score
because of those factors.

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1991 Policy
EPA’s Detailed Guidance: Improving EPA’s Review of Appalachian Surface Coal Mining
Operations under the Clean Water Act, National Environmental Policy Act, and the
Environmental Justice Executive Order (April 1, 2010) (“April 1 Memo”)
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Scatterplot of WVSCI Scores vs Conductivity All Comparable Samples
n = 5505

90
80
70
WVSCI Score

60
50
40
30
20
10
0

Sp. Conductance (uS)

0

500

1000

1500

2000

2500

3000

3500

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The Pond-Passmore Study found a shift in the benthic macroinvertibrate community
downstream from mining activity, but did not otherwise correlate this finding with any
significant or adverse impairment of the ecosystem. Where the only impacts to this component
of the ecosystem are diminished numbers of certain genera of mayflies, without evidence that
this has had any adverse impact of any significance on the rest of the ecosystem, the State cannot
say that there has been a violation of its narrative standard. Various scientific studies and
evaluations performed by DEP indicate that lowered biological condition is associated with
increased ionic strength, but scientists remain less than certain about the specific causative
pollutant(s) and the concentration(s) responsible for impairment. Additional uncertainty is
present in correlative studies, because the effects of increased ionic strength cannot be
completely distinguished from the effects of other stressors that often co-occur (e.g. organic
enrichment, sedimentation). In fact, most available information attempts to relate biological
condition to a surrogate parameter, such as specific conductance.

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Because conductivity represents the combined concentrations of all different dissolved
ions, each with potential varying toxic effects, regulation solely via an indicator such as specific
conductance is not the best way to protect against excursions from narrative standards. For
example, the elevated dissolved pollutants most commonly associated with mining discharges
are sulfate and bicarbonate alkalinity. EPA has not published national recommended aquatic life
protection criteria for those pollutants. Similarly, chloride, for which West Virginia has adopted
EPA’s recommended numeric aquatic life protection water quality criteria, may also be present
in some cases. But because chloride seldom exists in the absence of sulfates or alkalinity,
singular control of chloride cannot be expected to resolve all ionic stress.
DEP has performed a correlative evaluation of benthic condition and specific
conductance. This evaluation suggests that native aquatic life is protected at various values and
ranges of specific conductance. This finding supports the basic scientific principle that
correlation is not cause and effect. Even though the DEP evaluation applied various filters to the
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evaluated dataset to address complicating factors listed above, the biological condition of a
stream may be different from the condition predicted by specific conductance. In situations such
as these, where DEP has determined that it is infeasible to calculate a numeric effluent limit to
implement a narrative water quality standard, DEP will include in the permit appropriate WET
limits and BMPs to control or abate the discharge of pollutants, in accordance with 40 C.F.R. §
122.44(k)(3).
DEP routinely identifies biological stressors when developing TMDLs for biologically
impaired waters. Stressor identification employs a strength-of-evidence approach that considers
multiple information sources. Researchers evaluate water quality monitoring data, physical
habitat data, field notes, and the composition of the biological assemblage concurrently to
identify significant stressors. DEP’s most recent stressor identification protocols, as used in the
EPA-approved TMDL process, include the guidelines shown in FIGURE 2 below for evaluating
water chemistry to determine if ionic strength is a significant stressor:

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Based on FIGURE 2, it is clear the EPA limits of 300 – 500 µS/cm established in the April 1
Memo are far more stringent than what it has long approved for West Virginia’s TMDL process.
As shown above, conductivity in the 300 – 500µS/cm range is “Equivocal or No Trend” as a
stressor. Conductivity does not even become a “Likely Stressor” of a stream under this EPAapproved approach until it reaches three to five times these limits: 1075-1532.9 µS/cm. This is
additional support for the State’s conclusion that reliance on the single surrogate of specific
conductance to implement and/or enforce the State’s narrative water quality standards is
improper. It also demonstrates that EPA’s proposed limits are too narrowly focused on a single
parameter and single aquatic species to determine the health of the impacted watershed.
Only the West Virginia Legislature can adopt a numeric water quality standard for
conductivity (or any other pollutant); DEP has no authority to immediately or unilaterally
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implement numeric standards. Through adoption of H.C.R. 111, the West Virginia Legislature
has given DEP direction as to how it should implement its narrative water quality standards.
Even if the Legislature does adopt a numeric standard for conductivity, DEP cannot implement it
until after it is approved by the EPA. Based on the loose and questionable causal relationship
between conductivity and stream impairment, it remains unclear whether EPA would approve
such a numeric limit. EPA’s duly promulgated regulation endorses establishment of WET limits
where, as here, a state is unable to use a limit for a surrogate parameter. DEP can implement
new permitting controls based on the agency’s best professional judgment of actions necessary to
protect the State’s waters using its narrative criteria, with follow-up monitoring and
contingencies for unsatisfactory outcomes. Thus, DEP is protecting against excursions from its
narrative water quality standards by establishing WET limits and verifying impacts to a stream
(or lack thereof) by requiring an extensive, comprehensive monitoring plan for the entire
watershed.

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