MCoal Corporation – Rosa Mine
Proposed Issuance of NPDES Permit AL0080080
Blount County
RESPONSE TO COMMENTS
October 21, 2009
The proposed draft issuance of National Pollutant Discharge Elimination System (NPDES) permit AL0080080, MCoal Corporation (MCoal or the applicant) Rosa Mine was placed on Public Notice May 14, 2009. Although no comments were received during the public notice comment period which ended on June 14, 2009, the Department reviewed all comments which were received prior to making a final permit determination. Listed below is the summary of comments received. To view the comments in their entirety the reader should refer to the facility file which is located at ADEM, 1400 Coliseum Boulevard, Montgomery, AL 36110. Although there is no regulatory obligation to do so, in this circumstance the Department has provided a response to the comments received.
COMMENT 1:
Comments were made that the facility will not be an economic benefit to the surrounding area.
RESPONSE 1:
MCoal Corporation has submitted as part of its application an antidegradation review as required by ADEM Admin. Code Chapter 335-6-10. The Department has reviewed and considered the antidegradation demonstration information submitted by MCoal Corporation along with the rest of the application and associated materials and has determined that the proposed new discharges to a Tier 2 water are necessary for important economic or social development, in the area in which the waters are located.
COMMENT 2:
Specific concerns include the water quality of local streams being affected by the 60+ waste water discharge locations. These stations will discharge both coal slurry/sludge, as well as toxic chemicals into local streams feeding into the Locust Fork River which flows into the Black Warrior Watershed which supplies water to Birmingham, Cullman, Oneonta, Locust Fork, and Jasper to name a few.
RESPONSE 2:
The requirements of the proposed draft NPDES permit are designed to protect water quality by minimizing the discharges of pollutants from the proposed facility to waters of the state. The pollutants of concern, based on the studies conducted by EPA and based on Departmental experience, are pH, total iron, total manganese, total lead, total silver and total suspended solids (TSS). The draft permit requires compliance with all applicable water quality standards. The wastewater treatment facilities have been designed by a professional engineer (PE), registered in Alabama, to provide effective treatment to meet proposed permit limitations. Based on our analysis, there is not a reasonable potential that treated discharges will contain pollutants of concern that will exceed applicable water quality standards, including those standards applicable for those receiving waters classified as a public water supply.
Please note the proposed draft NPDES permit requires the operator to treat all surface drainage and storm water runoff prior to discharging from the facility, requires that all runoff must be directed through a permitted point source and monitored to assure that it does not cause or contribute to a contravention of state water quality standards, and does not authorize the operator to discharge pollutants to groundwater.
The applicant is also required to submit a Pollution Abatement and/or Prevention (PAP) plan to the Alabama Surface Mining Commission for review and approval. The submitted PAP plan is enforceable under the NPDES permit. The PAP plan for this facility has been prepared by a professional engineer (PE) registered in the State of Alabama and is designed to ensure reduction of pollutants in the waste water to a level that, if operated properly, compliance with the conditions and limitations in the permit will ensure that the facility will not contribute to the impairment in Locust Fork.
In addition, the proposed draft permit requires the applicant to design and implement a Spill Prevention Control and Countermeasures (SPCC) plan for all stored chemicals, fuels, and/or stored pollutants that have the potential to discharge to groundwater and/or surface waters of the state. This plan must meet the minimum engineering requirements as defined in 40 CFR Part 112 and must provide for secondary containment adequate to control a potential spill.
Part II,B.,4.,a. of the proposed draft NPDES permit also prohibits the operator from violating applicable state water quality standards. Part II. A. 1. of the NPDES draft permit requires the applicant at all times to operate and maintain all facilities and systems of treatment and control to achieve compliance with the conditions of this permit. This provision requires operation of backup or auxiliary facilities when necessary to comply with the conditions of this permit. Part II. A. 7. requires the applicant upon loss or failure of any treatment facility to maintain compliance with the applicant’s permit, including discharge limitations, or cease, reduce, or otherwise control production and/or all discharges until treatment is restored.
COMMENT 3:
Comments were received concerning public safety and health issues in the mining areas, the potential for increased truck traffic (specifically in the vicinity of Mountain Gap Road), damage to roads, and the impact on canoe and kayak races downstream of the discharge(s).
RESPONSE 3:
The scope of the Department’s jurisdiction is limited to whether the applicant can satisfy the requirements of applicable environmental laws and regulations. Comments concerning truck traffic should be addressed to the Alabama Department of Transportation, the Alabama Department of Public Safety and/or other appropriate agencies or commissions.
COMMENT 4:
Comments were received concerning the air quality, noise, coal dust, and potential damage to property and people and the livestock in the area.
RESPONSE 4:
The Department does not have the statutory authority to regulate blasting activities and noise. Comments concerning blasting should be addressed to the Alabama Department of Industrial Relations (ADIR) and/or the State Fire Marshall. These agencies may be able to address the safe handling and transportation of explosives, as well as the timing of blasting operations.
Comments regarding air issues (air quality and coal dust) should be addressed in a separate document and submitted to the Air Division of ADEM.
COMMENT 5:
Comments were received concerning the potential for the facility’s activities to cause loss of a natural habitat and wildlife and the threat to threatened and endangered species (i.e. Beaver, Flattened Musk Turtle, Mussels, Snails, Largemouth Bass, Smallmouth Bass, Bluegill, Salamanders, Tadpoles, Minnows, Grey Herons, Kingfishers, and Wild Ducks).
RESPONSE 5:
The U.S. Fish & Wildlife Service (USFWS) is the federal agency and the Alabama Department of Conservation & Natural Resources (ADCNR) is the state agency with primacy and statutory authority to address any concerns regarding potential impacts to endangered or threatened species. If the proposed activities have the potential to result in an impact to or taking of endangered or threatened species through habitat destruction or other actions outside of the scope of the NPDES program, that potential impact can be appropriately addressed through the Endangered Species Act that is implemented and enforced by the USFWS. A copy of the application and proposed draft permit which contains detailed information relative to the operation of the facility was provided to the USFWS and ADCNR. USFWS and ADCNR can evaluate the facility, conduct any necessary surveys, cooperate with other entities as appropriate to have surveys performed, communicate directly with the applicant/permittee to require the applicant/permittee to conduct surveys as appropriate, and take actions as appropriate to ensure full compliance with the Endangered Species Act and other applicable laws or regulations under the jurisdiction of USFWS and ADCNR. No comments were received concerning the proposed permit from the USFWS or ADCNR.
COMMENT 6:
Comments were received concerning the safety of coal washing facilities and a 10,000 gallon fuel facility being located within feet of residences and the negative impact on property values in the area.
RESPONSE 6:
The socio-economic issues in this comment are certainly legitimate concerns for the public. However, the proposed facility would be located in an area that is not within any planning and/or zoning body’s jurisdiction, meaning that there is no established governmental forum for consideration of all these issues. The Department does not have statutory authority to consider such issues in permitting decisions, with the exception of the antidegradation analysis as required by the NPDES permit regulations.
COMMENT 7:
Comments were received concerning the potential impacts of the facility’s activities will have on water quality of both public and private wells providing drinking water. The discharge is located within the Cleveland Water System Source Assessment Area. Concerns were voiced about the potential health problems resulting from mining-related contamination. In addition, the mine would be located in the groundwater recharge well-head protection area for the municipal wells.
RESPONSE 7:
The ADEM Groundwater Branch and Drinking Water Branch were consulted on any potential impacts from the proposed facility on the Source Water Assessment Area and public/private drinking wells. The review concluded that there did not appear to be any specific issues of concern.
COMMENT 8:
Specific concerns include the water quality of groundwater being affected by leaching of coal slurry/sludge.
RESPONSE 8:
See Response #7
COMMENT 9:
The draft permit should not be issued because such an issuance would violate Ala. Admin. Code 335-6-6-.04. Section 335-6-6-.04 prohibits, among other things, the following: (1) the issuance of a permit that cannot ensure compliance with water quality standards; (2) issuance of permit that does not comply with the Alabama Water Pollution Control Act (AWPCA) and Federal Water Pollution Control Act (FWPCA or Clean Water Act); and (3) issuance of a permit for a new source where the discharge will cause or contribute to an existing violation of water quality standards.
The draft mining permit, impacting over 3000 acres in the Locust Fork Watershed, proposes 62 outfalls into tributaries of the Locust Fork River. The receiving section of the Locust Fork River is currently not meeting existing water quality standards and is listed on the 303(d) list for siltation. Additionally, Dry Creek, one of the tributaries into which many of the outfalls are proposed is also currently on the 303(d) list.
There is clear evidence that the proposed activities will cause and contribute to a violation of state water quality standards. According to Ala. Admin. Code 335-6-10-.04(2), [e]xisting instream water uses and the level of water quality necessary to protect the existing uses shall be maintained and protected.” “Existing uses” include the designated use classifications developed by ADEM for waters of the state. Ala. Admin. Code 335-6-10-.02 (3).
RESPONSE 9:
The Department believes the conditions of the permit accurately reflect the concerns raised by the impairment in Locust Fork downstream of the discharges. ADEM’s Water Quality Branch was consulted on the methods used to achieve compliance with all applicable in-stream criteria. Compliance with the conditions and limitations in the permit will ensure that the facility will not contribute to impairment in Locust Fork.
COMMENT 10:
Comments were received concerning the sediment ponds for the site. What is being done to assure that these ponds will be successfully contained? What is to assure that the linings to these will not leak? What will be done should a breach occur? Do newer regulations require liners for the “holding ponds” to prevent seepage of contaminants into the groundwater?
RESPONSE 10:
The Department performs periodic inspections of all NPDES permitted facilities. If the ponds observed during the inspection do not meet appropriate design criteria (i.e. the criteria outlined by the Pollution Abatement (PAP) Plan for the facility) or are in any way contributing to a violation of the permit, then appropriate enforcement action will be taken to correct any deficiencies. Please contact the Alabama Surface Mining Commission (ASMC) for questions concerning specific pond design regulations.
COMMENT 11:
If any of the discharges are documented by “certified water quality testers” to exceed pH limits as described in the “permit”: what action (and in what time frame) will ADEM respond?
RESPONSE 11:
If a “certified water quality tester” discovers an issue of concern related to the facility, then a complaint should be filed with the Department. The Department responds to complaints in a timeframe commensurate with available resources and the seriousness of the concern.
COMMENT 12:
Will ADEM respond to evidence that may be found by local inhabitants that indicate that MCoal Corp. is operating outside the restrictions set forth in this permit, or are ADEM inspections the only route for corrective action?
RESPONSE 12:
ADEM will investigate any complaint received from citizens that has the potential to cause a violation of state water quality criteria, the issued NPDES permit, or any applicable provision of the ADEM Administrative Code. In cases where the potential is present, it is standard procedure for the Department to then dispatch an inspector to investigate. Potentially, any violation of the aforementioned rules/permits determined during response to complaints along with the routine inspections conducted by the Department would be a cause for corrective action.
COMMENT 13:
Comments were received stating concerns related to the potential contamination of Locust Fork with heavy metals and silt.
RESPONSE 13:
Several receiving streams associated with this draft permit drain into a segment of Locust Fork that is listed on the 2008 Alabama 303(d) list for siltation. ADEM has determined that compliance with the conditions and limitations in the permit will ensure that the facility will not contribute to impairment in Locust Fork.
COMMENT 14:
Comments were received that requested that the permit public comment period be “re-opened” and a public hearing be held.
RESPONSE 14:
The Department has made a determination that an additional public comment period and a public hearing are not warranted. Procedures to request a hearing before the Alabama Environmental Management Commission are set forth in ADEM Admin. Code 335-6-2.
COMMENT 15:
It is absolutely critical that another assessment of the recovering habitats in this area be done before permitting a coal mining operation that could damage endangered or threatened species.
RESPONSE 15:
The Department believes the conditions of the permit accurately reflect the requirements and intent of state and federal regulations. If the permit is adhered to by MCoal, the Department expects water quality to be protected. In addition, see Response 5 for consideration of endangered or threatened species.
COMMENT 16:
Failure to review PAP Plan: The permit rationale for this mine prepared on April 16th, 2009 states that “ADEM authority regarding mining operations is limited to water quality issues. ADEM regulates the discharge of treated drainage to surface waters and any potential impacts to instream water quality from mining operations.” In order to fulfill this obligation, it is absolutely imperative that ADEM review the PAP Plan developed for each surface coal mine. The PAP Plan is a site-specific, detailed plan outlining the measures a mining operation will use to limit any potential impacts to instream water quality. Without reviewing a PAP Plan, there is no meaningful way for ADEM to assert its authority and properly regulate the discharge of treated drainage to surface waters. However, the permit rationale states, “By Memorandum of Understanding with Alabama Surface Mining Commission (ASMC) the PAP for coal operations is reviewed/approved by ASMC.” This statement implies not only ADEM has not reviewed the PAP Plan to ensure that this mining operation will minimize impacts to instream water quality, but that ADEM has relegated its most important task in regulating the discharge of treated drainage to surface waters to an agency with no authority regarding issues of water quality.
The permit rationale also asserts that “the Pollution Abatement/Prevention (PAP) plan for this facility has been prepared by a professional engineer (PE) registered in the state of Alabama and is designed to ensure reduction of pollutants in the waste stream to a level that, if operated properly, the treated discharge will not contribute or cause a violation of the applicable State water quality standards.” How can ADEM make this assertion in good conscience when, by the Department’s own admission, ADEM has not actually reviewed the PAP plan to evaluate whether or not it “is designed to ensure reduction of pollutants in the waste stream…?”
Furthermore, the Memorandum of Understanding (MOU) with ASMC referenced in the Department’s permit rationale is invalid for several reasons. First, it purports to suspend regulations without notice and comment rulemaking, in violation of the Alabama Administrative Procedure Act. Second, it violates the federal Environmental Protection Agency’s delegation of the NPDES program to ADEM, and the requirement that ADEM may not issue NPDES permits without ensuring that such permits will not cause a violation of water quality standards. Third, it is contrary to the Alabama Water Pollution Control Act. And finally, the MOU expired nearly 20 years ago, in 1989. If ADEM were to issue this permit without reviewing the PAP Plan, the Department would be in violation of its own regulations requiring that any NPDES permit for a surface mining operation “shall be based on a determination by the Department that the pollution abatement and/or prevention plan and accompanying data submitted by the applicant is adequate to provide protection of water quality.” (Ala. Admin. Code r. 335-6-9-.05 [emphasis added]). By issuing a permit in violation of its own regulations, ADEM would be opening the permit up for appeal.
RESPONSE 16:
The Department believes the conditions of the permit accurately reflect the requirements and intent of State and Federal Regulations. If the permit is adhered to by MCoal, the Department expects water quality to be protected. The ASMC is the appropriate agency to review PAP Plans as pond design criteria is regulated through them. The PAP Plan must be submitted to ASMC and available for ADEM review prior to an application being deemed complete. If there are any issues that arise during NPDES permit development that require a detailed review of the PAP Plan, the plan is available through the ASMC.
It should be noted that a new Memorandum of Understanding (MOU) with ASMC was completed in 2009 which confirms the PAP review procedure between the Department and ASMC.
COMMENT 17:
In ADEM vs. ARA and FOHC 2007 WL 4555339, Ala. Civ. App. December 28, 2007 (No. 2050995, 2050974), the Alabama Court of Civil Appeals cited testimony provided by ADEM experts in determining the following:
“Alabama water-quality standards for surface waters are designed to protect the different designated uses that the State has assigned to its waters and to restore those waters when they are not adequate for their designated uses… The classified use of the North Fork [of Hurricane Creek] is ‘fish and wildlife.’… Waters that are not supporting their designated use are considered to be impaired waters. A body of water that has a classified use of ‘fish and wildlife’ is a body of water that is suitable for fishing, propagation of fish, aquatic life, and wildlife… Impaired waters, or those that are determined not to be supporting their designated uses, are added to the ‘303(d) list.’”
In this case the court determined that placement on the 303(d) list is prima facie evidence that the North Fork is not meeting its use classification and should be considered impaired. Furthermore, the court determined that a new source of water discharge from a surface mine would contribute to the existing violation of water quality standards. Therefore, the court decided that ADEM violated Ala. Admin. Code 335-6-6-.04 by issuing a permit to Tuscaloosa Resources, Inc. for a new coal mine on the North Fork of Hurricane Creek.
The facts at issue in ADEM vs. ARA and FOHC are nearly identical to those in the case of the proposed permit for Rosa Mine. If issued, the permit would authorize new point source discharges to the Locust Fork of the Black Warrior River. This section of Locust Fork is currently not meeting its use classification of “fish and wildlife”, and appears on the 303(d) list of impaired streams due to excessive siltation, which constitutes an existing violation of water quality standards. According to the NPDES application for this mine, the operation of the mine will result in numerous discharges of suspended solids, which contribute to siltation in the receiving stream. Therefore discharges from this mine would contribute to the existing violation of water quality standards. Issuance of this permit would constitute a clear violation of Ala. Admin. Code 335-6-6-.04.
RESPONSE 17:
The facility has submitted information to the Department which reveals the following:
· A a portion
of the site is currently a pre-law (pre-reclamation law) abandoned mining site
· the proposed facility will implement sediment and erosion control procedures in accordance with NPDES and ASMC permit requirements
· the siltation loading from the proposed site will be less once the site is active
As a result, if the permit is adhered to by MCoal, discharges from the mine should neither cause nor contribute to the contravention of any 303(d) limited parameter because the siltation loading from the proposed site will be reduced below existing levels by the implementation of limitations and/or requirements contained in the permit and PAP Plan.