Discussion Paper on Water Quality Issues Related to Coal Remining
Abandoned mines are responsible for many of the greatest impairments to water quality throughout the United States. Thousands of stream miles are severely impacted by drainage and runoff from abandoned mines, which are the single largest source of adverse water quality in several states. A 1995 EPA Region III survey found that 5,100 miles of streams in four Appalachian states are impacted by acid mine drainage (AMD), predominantly from abandoned coal mines. (EPA Region III Fisheries Study, 1995) Many of these streams, if the AMD could be remediated, would be excellent resources for drinking water, propagation and maintenance of aquatic life, and would support waterbased recreation.
Section 303(d) of the Clean Water Act provides that states are to list waters for which point source technology-based limits do not assure attainment of water quality standards, identify the pollutants causing a violation of the standards, and establish total maximum daily loads (TMDLs) that will meet water quality standards for each listed water. Generally, a TMDL identifies what must be done to meet water quality standards in a particular water or watershed. In the last 7 or 8 years, EPA and the states have increased their emphasis on TMDL activities. The increased emphasis is consistent with the increased attention to watershed programs that is gradually replacing the historical focus on point source tech no logy-based controls. TMDL analyses have/will identify AMD emanating from abandoned mines as the pollutant that inhibits attainment of water quality standards for thousands of stream miles.
When water quality impairments are identified and TMDLs are established, a water quality-based process begins, not ends. A TMDL improves water quality not when a TMDL is established, but when the pollutant allocations are implemented. TMDLs are not self-implementing. Remining is one of a limited number of mechanisms available for achieving water quality standards in waters where TMDLs identify abandoned mines as the source of impairment.
Remining is the removal of coal that was left on an abandoned mine site following pre-SMCRA (pre1977) mining and then reclaiming the entire site to current reclamation standards. In numerous instances, remining projects have been successful in reducing acid mine drainage pollution emanating from abandoned mines in conjunction with reclamation of abandoned mine lands.
During remining operations, some of the acid-forming materials are removed with the extraction of the coal. Other acid-forming materials may be handled so as to avoid the acid formation process (isolation from air/water). Remining also affords the opportunity to incorporate alkaline materials into the reclaim/remined site to neutralize residual acid-producing material. When combined with other AMD abatement/treatment programs, the cumulative result would be an improvement in the water quality of our Nation's streams.
EPA Region 3, OSM and several states have signed a Statement of Mutual Intent to improve and restore water quality that has been polluted by mine drainage from abandoned coal mines. Toward this goal, the parties have committed to support efforts to establish and implement an effective remining program.
Remining is envisioned as one element in a comprehensive watershed restoration program. It will complement AMD abatement and treatment projects accomplished under the Appalachian Clean Streams Initiative, the AMD set-aide provision of SMCRA, section 319 and 104(b)(3) projects, and various initiatives of the U.S. Army Corps of Engineers and the Natural Resource Conservation Service. In some coal regions, where surface mining is declining, a narrow window exists to make the most of the opportunities offered by remining through partnerships between state and federal governments and the regulated industry. These opportunities and partnerships should go hand-in-hand with the Clean Water Initiatives recently announced by Vice President Gore in terms of reducing public threats posed by water pollution; more effectively controlling polluted runoff; and promoting water quality protection on a watershed basis.
Under section 301(a) of the Clean Water Act (CWA) the discharge of any pollutant by any person is unlawful, except in compliance with sections 301, 302, 306, 307, 318, 402 and 404. The National Pollutant Discharge Elimination System (NPDES) program under section 402 of the CWA can be used to authorize such discharges. NPDES permits can contain both technology-based effluent limitations as well as water quality-based effluent limitations. In the case of coal mining operations, the technology-based effluent limitations are set forth in regulations issued by the USEPA (40 C.F.R Part 434). Where the technology- based permit effluent limitations are insufficient to assure that State water quality standards will be met, additional water quality-based limitations are included in the NPDES permit in order to meet the water quality standards. These limits are intended to protect beneficial uses of waterbodies, and consider factors such as dilution, environmental fate, and the sensitivity of the resident aquatic community.
In 1987, the Clean Water Act (CWA) was amended to include Section 301(p) in order to provide incentives for remining and reclaiming abandoned mine lands that pre-date the passage of the Surface Mining Control and Reclamation Act (SMCRA) in 1977. This change to the CWA, known as the Rahall Amendment, established that BAT effluent guideline limits for iron, manganese and pH (found at 40 CFR Part 434) are not required for pre-existing discharges affected by remining. Instead, site-specific BAT limits determined by Best Professional Judgment (BPJ) may be applied to the preexisting discharges, although the permit effluent limits for iron, manganese and pH (or acidity) may not exceed pre-existing "baseline" levels.
There are several impediments and inhibitions to realizing the full potential environmental benefits of remining, including significant improvement in surface water quality. The most onerous are the costs associated with collecting and analyzing water quality data to obtain a remining permit and the potential liability associated with meeting effluent limitations during and especially after mining. Numerous potential remining sites with significant pre-existing discharges have been avoided because mine operators have not been willing to risk perpetual treatment liability. At many potential remining sites, pre-existing discharges are too costly to treat to compliance with conventional requirements. Others are logistically infeasible to treat due to steep slopes, proximity to streams, or other site constraints. If major AMD discharges emanating from abandoned mines are to be addressed in remining permits, further incentives must be developed that are acceptable to all stakeholders.
After more than ten years of successful water quality improvements and abandoned mine land reclamation through remining, it is now time to reevaluate the regulatory mechanisms that were originally developed and to advance the process by judiciously removing some disincentives embedded in the present remining program. The removal of the impediments will likely contribute to the implementation of TMDLs and result in notable improvements to surface and ground water. Finally, at some point in the process, mechanisms should be developed to minimize liability and risk concerns of mine operators, state and federal regulatory agencies, watershed groups and landowners.
I. Improvements to Existing Remining Permits Issued Pursuant to the Rahall
Experience with remining permits issued pursuant to the Rahall Amendment has been positive and encouraging. However, the experience has been fairly limited given the restrictions placed on operators based on applicable numeric limits. It is time to explore the possibility of promulgating a specific effluent limit for pre-existing discharges at remining operations as a class of discharges and possibly eliminating the need to go through a site-specific BPJ process. Based on past experience with remining permits, the effluent limits should be baseline. Among the applicable requirements for such an enhanced Rahall remining permit that should be addressed are the following:
A. Promulgate New Effluent Limits for Pre-existing Discharges and, in the Interim,
Streamline the Current BPJ Process
EPA and the states should work to develop new effluent limits that would be applicable to preexisting discharges at remining sites. These new effluent limits would be based on the experience of the states to date pursuant to existing Rahall permits and will likely be focussed on baseline. During the time that EPA and the states are developing these new standards, each state SMCRA agency should work with their state EPA counterpart to determine what is needed to streamline the existing BPJ process so that basic regulatory requirements are met without unnecessary data collection and analysis. This may require that a remining permit incorporate sufficient best management practices (BMPs) that will be deemed to satisfy BPJ, thus requiring no further analysis. See paragraph I.C for a listing of possible BMPs.
B. Baseline Data Gathering re: Pollution Loads
The present baseline data collection and monitoring requirements are a disincentive to obtain a remining permit. The goal should be to increase the economy of the baseline data collection process, so that the mine operator's cost and time requirements to obtain a remining permit are no greater than a typical surface mining permit - without compromising the quality of the baseline data.
- Data collection and analysis by state regulatory agencies should significantly reduce the applicant's costs and time to obtain a remining permit for selected watersheds and key discharge locations (e.g. large deep mine pool complexes, AMD watersheds with good potential for environmental improvement through remining). In addition, federal and state funding assistance such as the federal Small Operators Assistance Program (SOAP) and Pennsylvania's Remining Operators Assistance Program (ROAP) should provide adequate funds for baseline data collection for pre-existing discharges and watersheds where baseline data has not been collected by the state agency.
- Allow the use of concentration, rather than load, baselines where circumstances warrant, provided there is no expected impact on recharge rates. This could be on individual large discharges or at critical watershed monitoring points. Reduce the number of sampling points" consider upstream and downstream sites only, and reduced time frames for sampling. Support data collection with existing data in the watershed, such as regulatory (e.g. quarterly) monitoring points that coincide with a proposed remining area.
- Strategy: Each state should work with their respective state EPA counterparts to streamline the baseline data collection process and develop site-specific criteria where appropriate,
C. Abatement Plans that Incorporate BMPs
- Pollution abatement plan - develop an expanded list of BMPs specific to remining operations at abandoned surface mines, abandoned deep mines, and refuse piles that will work in conjunction with new effluent limits for pre-existing discharges (baseline = BAT). Examples include the following:
- Regrading and revegetation of previously affected unregraded spoil.
- Daylighting of underground mine workings.
- Importation of alkaline material to offset the production of AMD.
- Elimination of pit impoundments and enclosed depressions to prevent the production of
- AMD by infiltration.
- Construction of diversions to eliminate off site water impacts on project areas.
- Construction of appropriately sized and designed passive treatment systems subject to Regulatory Authority approval prior to permit issuance.
- Construction of appropriate sized and designed highwall drains to prevent groundwater from contacting AMD producing materials.
- Removal or proper placement of AMD forming materials from previously affected areas.
- Removal or reconstruction and reclamation of coal refuse piles.
- Clay or fly ash capping of regraded areas to prevent infiltration.
- Approved soil amendments (e.g. fly ash, biosolids, etc.)
- Strategy: The states should work with EPA to develop "BNIP Standard Practices for Coal Remining Sites"
II. Alternative Remining Permits - BMP Implementation Based
- Provide an alternative to conventional remining permits with specific numerical effluent limits, where implementation of BMPs is the central focus of permitting, inspection and enforcement. Providing that the overall quality of the stream is not degraded, the regulatory focus can be on implementation of BMPs, not specific effluent limits. A suite of B-Ws would be incorporated in the mining plan that is designed to achieve a range of expected effluent quality with some degree of certainty (indicators of performance). An outline of an alternative remining permit approach follows:
- Suite of BMPs with a range of expected performance to substitute for numeric limits for Mn, pH and Fe for preexisting discharges after mining.
- Develop "BMP Standard Practices for Coal Remining Sites" - a manual of approved BMPs that will assure that pollutional discharges are abated or significantly improved. This would draw from the work of the ADTI and other well recognized studies and reports.
B. Inspections and Monitoring
- Increased inspection frequency to determine continuing effectiveness of BMPs. This will include site visits, water monitoring and significant interaction between mine operators and the Regulatory Authority regarding implementation of BMPs.
C. Contingencies and Compliance Enforcement Procedures
- Monitoring will be in place to determine whether a stream is being degraded and to check on the implementation of the abatement plan and its effect upon pre-existing discharges.
- A reopener provision will be included in the permit conditions to address contingencies if the abatement plan is found to be lacking. The reopener could include increasing the level of effort for certain BMPs, implementing additional BMPs or considering other measures to promote better reclamation and prevent pollution.
- If additional BMPs are not practical, other pollution abatement procedures could be considered such as passive treatment systems or in situ treatment. Conventional enforcement approaches (i.e. permit suspension or revocation; failure-to-abate cessation orders) are available if monitoring indicates the operation should cease in order to prevent further degradation
- The overall objective is to insure no reduction in environmental protection.
III. Relationship to Total Maximum Daily Loads (TMDLs) and other Watershed Approaches.
Section 303 of the CWA contains requirements for water quality standards (WQS), including provisions relating to wasteload allocations (WLA) and total maximum daily loads (TMDLs). The statute contains provisions related to development of WQS by the States, review and approval or disapproval of those standards by the Administrator, and the triennial review of WQS by the States.
EPA's regulations dealing with WQS and the WQS process are contained in 40 C.F.R. Parts 130 and 1312. These regulations do provide for the ability for the State to provide for some flexibility to deal with certain site-specific situations, including the ability to issue site-specific criteria, provide for variances from otherwise applicable water quality standards, or change a designated use of a receiving water. However, in its review of such provisions, EPA strives to continue to move toward eventual compliance with the designated use.
Section 303(d) of the CWA provides for the States to identify waters for which technology-based limitations are not stringent enough to achieve WQS, develop a priority ranking of waters, and develop total maximum daily loads (TMDL) for those pollutants identified by the Agency under section 304(a).
These TMDLs are to be submitted by the States to EPA for approval or disapproval. EPA disapproves, it has the ability to establish TMDLs for the State. EPA's regulations provide that a TMDL is the sum of wasteload allocations (WLA), load allocations (LA) and natural background. WLAs are that portion of a receiving water's loading, capacity allocated to an existing or future point source and LAs are that portion of a receiving water's loading capacity allocated to an existing or future non-point source or natural background source.