Kentucky Department for Natural Resources and Division of Water Continue Emphasis on KPDES Permitting Compliance
Compliance with Clean Water Act obligations continues to be a major point of emphasis for Kentucky environmental regulators. In late 2010, the Cabinet began an industry-wide investigation into coal company practices with respect to monitoring, testing, and reporting requirements under the KPDES permit program. This investigation, along with several high-profile Clean Water Act citizen suits filed by environmental groups, revealed widespread industry confusion regarding KPDES permitting requirements. As a result of these events, the Energy and Environment Cabinet (Cabinet) has begun to take steps to clarify many issues related to the obligations of mining companies under the KPDES permitting program.
The most important recent guidance issued by the Cabinet is Reclamation Advisory Memorandum #150 (RAM 150), issued by the Department for Natural Resources. RAM 150, which took effect in mid-2011, clarifies that every new mining permit must also have KPDES permit coverage for its discharges prior to surface disturbance. Prior the issuance of RAM #150, many in the regulated community believed that disturbance of the permitted area could commence before KPDES permit coverage was obtained, so long as a KPDES permit application (or application for coverage under the KPDES General Permit for Coal Mining Activities) had been submitted to the Division of Water, and the operation’s discharges complied with the effluent limitation guidelines for coal mining activities.
RAM 150 also makes clear that coal mining operations must submit discharge monitoring reports (DMRs) for all outfalls listed in a surface mining or KPDES permit application, and that DMRs must be submitted even when there is no discharge from the outfall. This is a particular concern for the coal industry, because most surface mining facility outfalls are sedimentation structures that collect stormwater runoff, and in many cases these outfalls rarely, if ever, discharge. Where a coal company submits a “no flow” or “no discharge” DMR, RAM 150 requires that supporting data also be provided to demonstrate why no discharge took place. DMRs must also now be submitted even for outfalls that are listed in a permit, but have not yet been constructed, or have been removed. These non-existent outfalls are common in the industry because the sedimentation structures are only constructed as necessary to control stormwater runoff, and may be removed after reclamation of the mine site has taken place. RAM 150 makes clear that a DMR must still be submitted for these outfalls, and that the DMR should indicate that the outfall has not yet been constructed or has been removed.
Another major point of emphasis for the Cabinet is the performance of contract wastewater monitoring and testing laboratories, who are often hired to handle DMRs for coal companies. RAM 150 clarifies that each DMR cover sheet must contain the name of the laboratory providing data on the DMR, even though the DMRs are still reviewed and certified for compliance by a responsible company official. The Cabinet also plans to issue regulations implementing a wastewater laboratory certification process in late 2012. Once these regulations are issued, contract wastewater laboratories will be required to obtain Cabinet certification of their processes prior to performing KPDES monitoring, testing, or reporting.
Although the contours of many KPDES permitting requirements applicable to coal mining operations are still being developed, RAM 150 is an important step in this process. Given the increased scrutiny on the coal industry with respect to KPDES permit issues and discharge monitoring reporting, companies should continue to review their operations and take appropriate steps to ensure they are in compliance.
To view a complete PDF of the March/April 2012 issue of the Environmental Letter, click HERE.