• Background
• Expiration of KPDES General Permit
• Potential Provisions of Reissued KPDES General Permit
– Applicability - Exclusions
– Whole Effluent Toxicity (WET) Testing
– Biologic Assessment
– In-Stream Monitoring
– Selenium Monitoring
– Time Schedule for Compliance with New Requirements
• Potential Conditions of Future KPDES Individual Permits

Section 402 of the Clean Water ACT regulates point source discharges.
The Kentucky Pollution Discharge Elimination System
(KPDES) program is administered by the Division of Water,
Department for Environmental Protection (DEP).
General KPDES coverage imposes uniform technology-based monitoring and effluent limitation requirements that are not subject to EPA objection authority and are not subject to administrative appeal by the permittee.
Individual KPDES permits impose both technology-based monitoring and effluent limitation requirements and water qualitybased requirements, are subject to EPA objection authority and are subject to administrative appeal by the permittee.

April 1, 2010 EPA issues Interim Guidance on CWA permit procedures for Appalachian surface mines.
Sept. 2010
July 21, 2011 EPA issues Final Guidance on issuance of CWA permits.
Sept. 2011 EPA issues Specific Objection letter on 19 additional IPs.
June 2012
EPA issues Specific Objection letter on 21
Individual KPDES permits for new or expanded surface mining activities in Eastern Kentucky.
???
Public Hearings held to address 36 IPs subject to
EPA Specific Objection.
EPA Action on Specific Objection IPs

Oct. 2010
Feb. 2011
July 2012
Sept. 2012
July 2013
???
KCA filed suit against EPA in U.S. District Court for the Eastern District of Kentucky
Case consolidated and transferred to Federal
District Court in the District of Columbia.
Federal District Court rules in favor of KCA, NMA and KY EEC.
EPA appeals to U.S. Court of Appeals.
Appeal briefs filed.
Oral Arguments, Court Decision

KPDES Coal General Permit expires July 31,
2014.
KPDES Individual Permit impasse could affect reissuance of KPDES Coal General
Permit.
Many of the new requirements proposed for the KPDES Individual
Permit Template likely to be incorporated into KPDES Coal General
Permit.
Existing coverage under the KPDES Coal General Permit would continue in effect post expiration. New or expanded coverage would not be authorized should the current General Permit expire without reissuance.

Only one Individual KPDES Permit has been approved for new or expanded surface mining in Eastern Kentucky subsequent to EPA’s
Interim Guidance of April 1, 2010.
Both DOW and Industry have worked to address requirements for new or expanded surface mines in Eastern Kentucky that would allow
EPA to withdraw its permit objections.
Significant changes to current requirements will be required to address EPA’s on-going concerns.

Although EPA’s Final Guidance of July 21, 2011 was set aside in the
September 2012 DC District Court Ruling, EPA’s position generally remains:
• Benchmark conductivity levels should be established with numeric limits (Final Guidance recommended 300 μS/cm).
• CWA Permitting authorities have flexibility to apply other approaches such as biological assessment, toxicity testing and offsets in lieu of numerical standards.
• Science Advisory Board recommended EPA limit the applicability of its Final Guidance to West Virginia and
Eastern Kentucky.

Kentucky Narrative Water Quality Standard Total dissolved solids or specific conductance shall not be changed to the extent that the indigenous aquatic community is adversely affected.
Biologic Assessments and Whole Effluent Toxicity Tests will act as surrogate for numeric conductivity limits.

Requirements per DRAFT KPDES IP Template.
• Whole Effluent Toxicity (WET) Testing
• Biologic Assessment
• In-Stream Sampling
• Selenium Sampling
• Precipitation Based Sampling of Bench Ponds
Requirements imposed based upon mine type, mine status, geographic setting.
Review on-going, changes to current proposal likely to occur.
KPDES Coal General Permit likely to incorporate similar modifications upon reissuance in August 2014.

WET Testing
Biologic
Assessment
Eastern Kentucky
Surface - In-Stream Ponds (Active)
Surface - In- Stream Ponds (Recl)
Surface - Bench Ponds (Active)
Surface - Bench Ponds (Recl)
Underground (Active / Recl)
Prep Plants / Refuse (Active / Recl)
Western Kentucky
Surface (Active / Recl)
Underground (Active / Recl)
Prep Plants (Active / Recl)
Chronic
Chronic
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-----
Acute / Chronic
Acute / Chronic
Acute / Chronic
Acute / Chronic
Acute / Chronic
???
???
???
Yes
Yes
-----
-----
Yes
Yes
In-Stream
Sampling
???
???
???
Yes
Yes
-----
-----
Yes
Yes
Selenium
Sampling
Yes
Yes
Yes
Yes
Yes
Yes
Yes
Yes
Yes

Whole Effluent Toxicity (WET) refers to the aggregate toxic effect to aquatic organisms from all pollutants contained in a facility's effluent.
Acute Toxicity Tests (flow duration < 96 hours)
Species
Water Flea (Ceriodaphnia dubia, Daphnia magna, or Daphnia pulex), Fathead Minnow ( Pimephales promelas)
Test Procedures
Two 48 hour static non-renewal toxicity tests
Results based on mortality

Chronic Toxicity Tests (Eastern Kentucky in-stream ponds or flow duration > 96 hours)
Species
Water Flea (Ceriodaphnia dubia), Fathead Minnow
( Pimephales promelas)
Test Procedures
One short term static renewal toxicity test
Results based on mortality, growth, reproduction

WET Test failure requires accelerated retesting.
Retest failure initiates Toxicity Reduction Evaluation (TRE)
Toxicity Reduction Evaluation (TRE) - A site-specific study conducted in a stepwise process, designed to identify the causative agents of effluent toxicity, isolate the sources of toxicity, evaluate the effectiveness of toxicity control options, and then confirm reductions in effluent toxicity.
Toxic Identification and Evaluation (TIE) A process that identifies the toxic components of an effluent or ambient medium by chemically manipulating the effluent or medium and testing the resulting material.

Annual benthic surveys and in-stream physical and chemical monitoring required to demonstrate protection of narrative water quality standards.
Sampling locations will be established in association with development of Quality Assurance Project Plan
(QAPP).
The pre-mining survey will establish baseline conditions. Comparison of annual surveys to baseline used to determine the effect mining operations are having on the receiving waters.
Best Management Practices (BMP) review required when there is a decrease in the stream scoring from the baseline.
A categorical decline from the baseline stream condition is considered a permit violation.

EPA has expressed concerns that annual biologic assessments will not timely identify stream impacts. As a result quarterly physical and chemical in-stream monitoring is now proposed.
Requirements per DRAFT KPDES IP Template.
• The permittee shall commence once per quarter physical and chemical monitoring for comparison with the pre-mining background conditions of each in-stream monitoring point. Data shall be collected concurrently with the collection of discharge samples from the contributing KPDES outfalls.
• Parameters: Flow, Total Suspended Solids, Specific Conductivity, and Total Sulfate.

BMP Review will be initiated if:
The quarterly average pollutant concentrations in the discharge are greater than the in-stream baseline concentrations for those pollutants; and
• The rolling average of two consecutive calendar quarters of in-stream concentrations for the same pollutants are:
• 10 percent greater than the baseline concentrations for two consecutive calendar quarters, or
• 20 percent greater than the baseline concentrations for any calendar quarter.

Requirements per DRAFT KPDES IP Template.
Based on expressed concerns, Selenium would be monitored semimonthly at all sites regardless of reasonable potential analysis.
Previous Limits: 20 μg/L Acute 5.0 μg/L Chronic
New selenium standards were promulgated during Kentucky’s
Triennial Review of water quality standards.
Adopted Limits: 258 μg/L Acute 5.0* μg/L Chronic
*If chronic water analysis >= 5 µg/L, then fish tissue sampling required with 8.2
µg/g whole body tissue limit.
Adopted limits are subject to EPA review.

Requirements per DRAFT KPDES IP Template.
The permittee shall sample the discharge, if any, from each bench pond after local precipitation events of 0.5 inches or greater.
Such samples may be substituted on a one to one basis for the required semi-monthly samples provided the samples were not collected during the same discharge event or within 72 hours of the previous 0.5 inch precipitation event.

The permittee shall attain compliance with all requirements of this permit on the effective date of this permit unless otherwise provided.
• WET testing shall be initiated within one year of the effective date of the permit.
• The effective date of new effluent limitations for newly promulgated water quality standards or new interpretations of an existing water quality standard shall be one year from the effective date of the permit.

Number of
Ponds
WET Testing
@ $1,500
Biologic
Assessment
@1,500
Selenium
Sampling @
$15
Eastern Kentucky
Surface - In-Stream Ponds (Active)
Surface - In- Stream Ponds (Recl)
Surface - Bench Ponds (Active)
Surface - Bench Ponds (Recl)
Underground (Active / Recl)
Prep Plants / Refuse (Active / Recl)
Western Kentucky
Surface (Active / Recl)
Underground (Active / Recl)
Prep Plants (Active / Recl)
TOTAL
504
175
61
20,037
3,083
1,367
9,089
2,072
2,468
1,218
$18,498,000
$8,202,000
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-----
$14,808,000
$7,308,000
$3,024,000
$1,050,000
$366,000
$53,256,000
$4,624,500
$2,050,500
-----
-----
$3,702,000
$1,827,000
???
???
???
$12,204,000
$1,109,880
$492,120
$3,272,040
$745,920
$888,480
$438,480
$181,440
$63,000
$21,960
$7,213,320