Kentucky’s new General Permits for Coal Mining mean five more years of polluted streams

The Kentucky Energy and Environment Cabinet’s Division of Water yesterday 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 wastewater. Most coal mines, coal processing facilities and coal slurry impoundments in Kentucky are currently covered under a single general permit, which expired in August.

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.

The water division has developed 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. A public hearing for each permit was held on June 18. The two new permits will go into effect on October 1, and will be valid for five years (through September 2019).

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. 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. According to the agency's own reports, the majority of waterways in eastern Kentucky are already polluted, likely due to coal mining, but the state has not developed clean up plans for many of them required under the Clean Water Act.

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

Eric Chance, Water Quality Specialist for Appalachian Voices: “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."

Mary Love, member of Kentuckians For The Commonwealth: “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.”

Tim Joice, Water Policy Director for Kentucky Waterways Alliance: “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. These final permits fall well short of providing the necessary protection of our water resources, and our communities, from coal mining pollution.”

Alice Howell, co-chair of the Sierra Club Cumberland Chapter’s Mining Committee: “A general permit is completely inappropriate to cover surface coal mining in Kentucky. Even states like West Virginia use an individual permitting system which allows for greater public involvement and regulatory scrutiny to safeguard public health and the environment. So it’s disappointing to see that the Division of Water has approved these permits. Particularly concerning is that it appears the agency actively ignored most of the constructive feedback that citizen groups and experts offered to make sure these permits are sufficiently protective of aquatic life and human health.”

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