Robert G. McLusky, Esquire

Robert G. McLusky, Esquire
500 Lee Street, E, Charleston, WV 25301
Phone: 304-340-1381 • Fax: 304-340-1272
rmclusky@jacksonkelly.com • www.jacksonkelly.com
I. SMCRA’s Stream Protection Rule
A. History/Bragg v. WVCA
SBZ Rule historically prohibited
mining w/in 100' of intermittent/
perennial streams unless could
show no violation of w.q.s.
Was intended to require “filter
strip”
Not intended to address VFs
permitted under CWA § 404
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B. Bragg v. Robertson
SDWV (Haden): SBZ prohibits VFs
Rev’d by 4th Cir. on jurisdictional
grounds
Merits not addressed by
Industry vulnerable to
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C. OSM’s “Old” New Rule: 2008
Required spoil minimization
Not finalized until Dec. 2008
EIS took 3-4 years
Challenged as Bush “giveaway”
in D.C. court in early 2009
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Obama administration tried to
“cave”
OSM requested that court
vacate/remand rule
Court declined: pursue merits
ruling or new rule
OSM embarked on new rule/EIS
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Leaked draft EIS
Loss of > 10,000 jobs in
Appalachia
Would impact deep mining,
too, but those job losses ≠
counted
OSM fired EIS contractor
Reason?
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II. Selenium
A. Geochemistry
Located in certain seams/near
coal shale
Entrained by water
Discovered in WV waters ~
2000-02 by USEPA
Attributed to VF locations
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Material handling key to future
prevention/SMCRA permits
Treatment costs: can be
prohibitive
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B. Water Quality Standards
5 ppb to protect aquatic life
Was 30 ppb until 1987
Dropped to 5 ppb: Belews Lake
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2004: EPA proposed fish tissue
std.
Se affects fish through
bioaccumulation
Bioaccumulation rates vary
Flowing vs. ponded waters
Poor correlation between
water concentration and
fish impacts
Proposal stalled
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C. Permit Limits
1. WVDEP
2004: sampling & 3 yr.
compliance schedule
2007: 3 yrs. extended to 2010
Extension withstood admin.
appeals to EQB
2010: Extension requests
denied: appeals/stays pending
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2. KDOW
General NPDES permits for
existing mines
Effective Aug. '09 – Aug. '14
No ext. past '14?
No Se limits
Requires one-time sample
for metals (incl. Se); timing
not specified
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Permit = shield until '14?
8/14: day of reclaiming?
New mines/mods.:
[McGuire]
Representative sampling
required “up front”
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D. Control Technologies
1. Prevention
Identification/spoil handling
Existing protocols adequately
supported?
More work needed to ensure
future permits
OSM AMD Guideline?
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2. Treatment
Passive: engineered wetlands
Advantages
Cheaper
Limitations:
Temperature variation
Need uniform contact
w/organic media
Flow control
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Active:
Biological
AB Met
FBR
Others(?)
Chemical
Zero Valent Iron
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Mechanical
RO
Considerations: Still
need flow control; less
constrained by space/
temperature, but big $
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E. Lawsuits
1. CWA citizens suits
Authorizes actions for
penalties/injunction:
for on-going violations of
NPDES permit limits;
in absence of “diligent
prosecution” by EPA/State
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2. WV: Sierra Club
Patriot Coal
2009 signed consent decree
to meet Se limits by March
2010
Held in contempt: Oct. 2010
Obligated to install active
biological system by mid
2013 ($)
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Pending actions against
Arch, Massey, ICG and Maple
EQB stays ruled ineffective
Effects of prior EPA/State
actions as “diligent
prosecution” an issue
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3. Ky.
Notices of Intent to Sue
ICG/James River
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Claim violations of w.q.s./
SMCRA
No effluent limits yet
effective
CWA permit shield
defense
No express limit, but
KDOW contemplated
possibility of Se
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SMCRA cannot trump
CWA
OSM not anxious to
use its authority
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III. Conductivity/TDS and Narrative
WQS
A. Specific Conductance
Measure of ability of a solution
to conduct electricity
Dependent on level of ions/
dissolved solids
Ions = molecules/atoms where
electrons/protons aren’t
balanced
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Can cause osmotic imbalance/
toxicity in aquatic organisms
Correlation between
conductivity and toxicity not
high because different ions
have different effects
 no numeric w.q.s. for
conductivity
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B. Narrative W.Q.S.
WV Narrative W.Q.S.
3.2.e. Materials in concentrations
which are harmful, hazardous or
toxic to man, animal or aquatic
life;
3.2.i. . . . no significant adverse
impact to the chemical, physical,
hydrologic, or biological
components of aquatic
ecosystems shall be allowed.
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Ky. Narrative W.Q.S.
(f) Total dissolved solids or
specific conductance.
Total dissolved solids or
specific conductance shall not
be changed to the extent that
the indigenous aquatic
community is adversely
affected;
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C. Claims by Sierra Club/EPA
The following instream levels
will violate narrative w.q.s.:
Conductivity 300 – 500 μS/cm
Sulfate: 50 mg/l
Basis of claims:
Loss of sensitive mayfly
species occur at these levels
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D. How Measure Compliance with
Narrative Standards
1. Most states use biological indices
WVSCI: a “family”-based index
of bugs
Compares types/
proportions of bugs to
“reference” streams
Change from reference
conditions = assumed bad
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2. Sierra Club/EPA
Want states to use more
sensitive “genus” level bug
indices
Attributes more importance
to loss of mayflies than
WVSCI
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Claims synchronous loss of
sensitive mayfly genera at
300 μS/cm conductivity and
50 mg/l sulfate
Rely on EPA Benchmark &
WVDEP/Ky. benthic data
Who gets to decide on proper
measurement tool?
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3. WVDEP
Poor correlation between
conductivity and WVSCI
scores
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E. Causal Connections and Setting
Standards
1. Does “conductivity” or its
constituents “cause” loss of
species or is there only a
correlation?
WVEQB issued inconsistent
findings
Did not I.D. at what
concentration or how to
measure compliance
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Review of EPA Conductivity
Benchmark by SAB
p. 15 SAB Draft Report of 9/28/10 (Appellant’s Ex. 14)
Conductivity itself is not a pollutant, but is a surrogate measure for the constituent ions in the
mixture. Thus, the supporting information presented by the authors may be representative of a
combination of effects of the constituent ions. **** The EPA document should include more
information on the likely mechanisms of extirpation produced by the constituent ions because
stress is not due to conductivity itself, but rather is linked to volume regulation, ion
regulation and osmoregulation.
p. 17: SAB Draft Report of 9/28/10 (Appellant’s Ex. 14)
The Panel emphasizes the importance of clarifying the relationship between conductivity and the
matrix ions that generate conductivity. The document as a whole has not provided sufficient
clarity regarding the relative importance of conductivity (i.e., the effect of salinity/ionic
strength on an organism’s ionic balance) versus specific ionic constituents as causal
variables. This contributes to the lack of clarity in whether sulfate, total ionic strength, or
some other single combination of chemicals is the most appropriate causal factor. Species
sensitivity distributions should be presented for each of the ions (e.g., sulfate and bicarbonate)
thought to play a potentially important mechanistic role in the extirpation of macroinvertebrate
species.
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