State’s new general permits for coal mining mean five more years of polluted streams

The Beshear administration this week issued two new general permits for coal facilities that fail to fully address the ongoing and substantial harm to humans and aquatic life from polluted mine wastewater.

That's despite strong citizen testimony at a public hearing in June that pointed out many of the flaws in the proposed permits and made suggestions for improving.

The chief complaint of residents of eastern Kentucky is that the permits will allow some streams to actually become more polluted from mining waste rather than improving and protecting their quality.

“While the final permits are a slight improvement over the expiring permit, it bears reiterating that a great many streams throughout Kentucky coal mining areas are currently impaired from discharges allowed by the expiring permits," said Tim Joice, the Water Policy Director for Kentucky Waterways Alliance. "These final permits fall well short of providing the necessary protection of our water resources, and our communities, from coal mining pollution.”

KFTC member Doug Doerrfeld echoed this point. “The utter failure of Kentucky’s general permit for coal is clearly illustrated by the fact that over 80 percent of the Big Sandy River, which runs through coal-producing counties, cannot fully support aquatic life. Resource extraction under general permits for surface coal mining has been the source of much of the pollution that is killing the Big Sandy River.”

Most coal mines, coal processing facilities and coal slurry impoundments in Kentucky are currently covered under a single general permit, which expired in at the end of July.

The Kentucky Energy and Environment Cabinet’s Division of Water developed the two new permits for coal mining, one for mines in eastern Kentucky  and one for those in western Kentucky, although the two permits are largely identical. The two new permits will go into effect on October 1, and will be valid for five years (through September 2019). The agency expects between 1,200 and 1,500 facilities across the state to seek coverage under the new permits, although individual permits are expected to be required at some of these facilities. General permits are considered a blanket approval mechanism. They require less scrutiny than individual permits and do not compel site-specific environmental assessments nor individual public comment processes.

Many who testified in June said that the general permit should be done away with and individual permits required for all pollution sources.

The permits contain several additions, such as some limits on selenium and “whole effluent toxicity, which is a measure of water’s toxicity to test species, as well as new electronic reporting requirements. However, they include no limits on many pollutants commonly associated with coal facilities, such as aluminum and sulfate, which can be extremely toxic to aquatic species, and conductivity, an indicator of many pollutants, including toxic heavy metals.

The general permits contain limits for selenium that are based on Kentucky's newly adopted water quality standards for that pollutant. Those new standards were adopted over the objections of the U.S. Fish and Wildlife Service. They are weaker and more complicated than those they replaced, and are currently being challenged in court by a number of organizations concerned about water quality in the state, including KFTC. Selenium is an element commonly discharged from coal mines and coal ash ponds. It is extremely toxic to fish, building up over time and leading to deformities, reproductive failure and even death.

To require further protection for streams already damaged by mining and other pollution, the new permits rely on the state first listing the stream as damaged and developing a management plan for that stream. This Clean Water Act program, known Total Maximum Daily Load, serves to identify streams that are impaired for specific uses, such as drinking, fishing and aquatic life, and requires a plan to clean them up.

As Doerrfeld pointed out, and according to the agency's own reports, the majority of waterways in eastern Kentucky are already polluted but the state has no cleanup plans for many of them as required under the Clean Water Act.

The U.S. Environmental Protection Agency has ultimate authority to approve or deny Kentucky’s new general permits.

“These new permits are an improvement, but still fall short, and will continue to allow thousands of coal mines to poison streams across the state," said Eric Chance, a Water Quality Specialist for Appalachian Voices.

Added KFTC member Mary Love, “I applaud the Division of Water including the limit on discharges within five miles of a municipal water intake, but wish that they had done away with the general permit process altogether. Each permit application should be considered individually since each location has its own particular characteristics.”