WVDEP ordered to set permit limits for conductivity

March 10, 2011 by Ken Ward Jr.

Word just coming in this afternoon that the West Virginia Environmental Quality Board has ruled for the Sierra Club in a major permit appeal that put the spotlight on conductivity pollution from strip mines and on the U.S. EPA’s effort to crack down on mountaintop removal.

Board members unanimously ordered the West Virginia Department of Environmental Protection to add permit limits for conductivity — and also for sulfates and total dissolved solids, or TDS — to the permit for and International Coal Group permit in Monongalia County.

We’ve written about this permit before, here, and explained:

ICG subsidiary Patriot Mining’s New Hill West Mine would cover about 225 acres, and discharge pollution under a modification to an existing Clean Water Act permit that covers five other adjacent mine sites. In its appeal, the Sierra Club argued that DEP wrongly did not perform detailed studies of the mine’s potential water quality impacts, and ignored the need for specific water discharge limits for electrical conductivity, total dissolved solids and sulfates.

We’ll have more on this in tomorrow’s Gazette.

UPDATED:  Here’s a link to Friday morning’s Gazette story, and here’s a link to a transcript of the EQB’s ruling.

25 Responses to “WVDEP ordered to set permit limits for conductivity”

  1. Vernon says:

    Setting permit limits and enforcing permit limits are two different things. This will only be effective if DEP actually grows some teeth. If they continue to waive compliance simply because compliance cannot be attained, they will once again be getting paid good tax money to do nothing but enable unchecked threats to the people of WV.

  2. Jack Warnock says:

    Do the various states need discharge permits for spreading salt and other chemicals on the roads. Additionally, will conductivity limits be applied to the practice?

    If excessive conductivity is harmful at certain levels then all sources of contributing dissolved solids should be regulated to include the excessive application of herbicides and various fertilizers by homeowners and government agencies. The State of Kentucky will start their annual spraying of roadsides with lethal herbicides soon. Not only does it look terrible but it cannot be good for water quality.

  3. Rob says:

    Does anyone know what sort of waivers would apply during storm events for TDS?

  4. mayflyguy says:

    I know that the Iron criteria goes out the window during a storm event. It could be the same for TDS, no?

  5. yogipsk says:

    If conductivity is bad it needs to apply to everything, not just coal mining in 6 states!!! To bad even your drinking water can’t meet this standard, neither can your municipal discharges or runoff from your average parking lot. And even underground mines can’t come close!!!

  6. Rory McIlmoil says:

    Yogipsky–do you have studies or data that back up the assertion that neither drinking water or parking lot runoff meet the conductivity standard?

  7. yogipsk says:

    take a conductivity meter out and see. The drinking water notation was part of the discussion when this was first proposed. TDS is dissolved minerals, thus a parking lot with salt and other minerals would dissolve in runoff and the limits are very low. I don’t quote studies because bad science is easily skewed. Why would this standard be limited to coal mining in 6 states if it didn’t effect other areas that they don’t want it to effect!!! There are places out west that background conductivity is over 10k per million.

  8. Taylor says:

    Come on, the conductivity standard for this permit has not even been set yet, so there’s no way to know at this point whether anything else could meet it.
    But that is of limited relevance. Conductivity is a function of total dissolved solids (TDS), which are deemed a “secondary” (i.e., non-enforceable) contaminant in drinking water. The goal of drinking water regulations is to protect human health. Secondary contaminants are those that pose no threat to human health. The recommended standard for TDS in drinking water is 500 mg/L, but EPA doesn’t require that it be enforced. So if TDS poses no threat to human health, then neither does conductivity, and there is in fact no drinking water standard for conductivity.
    But EPA has recommended a TDS limit for rivers and streams of only 250 mg/L. Why would they recommend a lower limit for streams than for drinking water? Because these dissolved ionic substances do in fact pose a threat to other organisms which a) not only drink the water, but live in it, and b) are much smaller than humans, so they would suffer adverse effects from a much lower dose.
    Finally–I’m guessing here, but I would think the conductivity of drinking water would be relatively high because of the chlorine that’s added to it.

  9. cindy rank says:

    Yogipsk,

    To ask and posit: “Why would this standard be limited to coal mining in 6 states if it didn’t effect other areas that they don’t want it to effect!!! There are places out west that background conductivity is over 10k per million.”

    First and foremost this permit appeal addresses West Virginia law and West Virginia Water Quality Standards, not ‘6 states’.

    1) West Virginia stream sampling downstream of mining discharges high in conductivity (~ 250-300) has shown negative impacts to aquatic life in those streams which is a violation of the narrative standards of WV Water Quality Standards and the Clean Water Act.

    2) Sampling of watersheds throughout WV have shown increasingly higher than background levels of conductivity in a number of watersheds – especially those impacted by mining. The increases are worrisome enough to have prompted DEP to include a numeric standard for conductivity in its regulation changes proposed this year — a proposed standard that has only weeks ago been (unwisely IMHO) rejected by the WV Legislature.

    Documentation and more background for the proposed change can be found in the Water and Waste Management pages of the WVDEP website — including presentations eg:
    http://www.dep.wv.gov/WWE/Programs/wqs/Documents/Triennial%20Review/May%2018,%202009/17155_tds.pdf

    3) Conductivity levels “out west” may well be as high as you state, however that is just not the case here in West Virginia. Many of our headwater streams (including the ones in my community) are below 50. These are often the receiving streams for discharges from surface mines in the state.

    4) A bit further afield from the specific appeal and Board decision discussed in this post it is good to note that in addition to impacting aquatic life, high conductivity levels in the Monongahela River watershed between Morgantown and Pittsbugh have caused problems during the low flow periods of the late summer & fall since 2008. Those problems included fouling drinking water for thousands and crusting pipes and inner workings of home and industrial equipment (eg. home dishwashers and power plant equipment). People in that area are greatly concerned and have lobbied hard for a conductivity standard because it is important not only for their health and well being, but also for the economic future of the area that depends on the river for its industry, tourism and development in general. …Due to similar problems Pennsylvania has already instituted a conductivity standard.

  10. Ken Ward Jr. says:

    Rob,

    I believe the alternative effluent limitations for rainfall events are contained here in this EPA regulation, http://www.gpo.gov/fdsys/pkg/CFR-2009-title40-vol29/pdf/CFR-2009-title40-vol29-sec434-63.pdf

    They refer to iron, settleable solids and pH.

    Ken.

  11. mayflyguy says:

    In my experience, I have never seen extremely high conductivitity levels coming off of parking lots (e.g., 1000). And even if it did occur, it would be an ephemeral event (i.e., in response to rainfall only. Take this week for example. If there was a significant application of salt at the beginning of the week to combat ice and snow, it would quickly dissolve in the rain and snow melt. This would result in a high conductivity for a brief period until the salts were depleted and then the levels would drop quickly to a level that may be elevated above the normal, would still very likely be below 500.

    In contrast, the conductivities observed below valley fills and associated with mining discharges are not ephemeral, but consistent when compared to urban runoff.

  12. Ken Ward Jr. says:

    Thanks for those comments, Cindy and Taylor…

    We’ve talked before on this blog about the question of why EPA is currently applying its conductivity permit guidance only to coal-mining operations in Appalachia, and not to a variety of activities nationwide … http://blogs.wvgazette.com/coaltattoo/2010/04/02/new-epa-standards-is-this-only-about-coal/

    EPA has said in its guidance:
    Permits for discharges associated with activities other than surface coal mining should also be evaluated to determine whether they are likely to result in in-stream conductivity levels above 500 …
    … EPA should coordinate with the permitting authority to consider relevant information when conducting a reasonable potential analysis for other activities on a case by case basis.

    But the agency also said:

    We believe that circumstances unique to surface coal mining, however, are principally responsible for the increase in conductivity levels observed in surface waters downstream of mining practices. Surface coal mining involves disturbing large volumes of rock and dirt, land clearing, and spoil disposal activities at a scale not typically associated with activities such as development practices or forestry.
    We do not have studies of other non-mining activities demonstrating a likelihood that they will have a reasonable potential to cause or contribute to an exceedance of water quality standards.

    Cindy, I’m not sure where you got your figure when you wrote:

    Many of our headwater streams (including the ones in my community) are below 50.

    BUT, I believe that EPA said in its conductivity report, http://cfpub.epa.gov/ncea/cfm/recordisplay.cfm?deid=220171#Download (See section 3.5) that the “background values” for conductivity were 72 for southern WV and 153 for north-central WV.

    Ken.

  13. jpd22 says:

    The road salting issue is not relavent since the EPA guidance specifically pertains to salts dominated by sulfate and bicarobonate, not sodium chloride or calcium chloride typically used in roads. Parking lot runoff would not have the sulfate signature. EPA is acknowledgeing that sulfate and bicarbonate are the nasty boogers here and acknowledge that road salt is not near as toxic. Thus, the guidance is not applicable to many of the source some of you are questioning. Sulfate and bicarbonate are much more toxic than sodium and chloride. Conductivity is an excellent indicator for the class of streams EPA is trying to protect in Appalachia.

  14. Thomas Rodd says:

    Great discussion above — think about where else this kind of informative and accessible-to-everyone back-and-forth public and civil discussion could occur, except for this blog. I’d say nowhere.

    My reaction is that this is a good decision by the EQB, showing that science can play a meaningful role in mining regulation in West Virginia, and that citizen action can make a difference. That gives hope and encouragement, which is sometimes in short supply!

    Of course, the mining company will probably not see it that way, and they have the courts, if they like, to try to show that the EQB overstepped its bounds. We shall see.

    Also, we can hope and probably expect that the Board’s written opinion will have detailed findings and conclusions, based on the scientific tertimony, that address some of the issues raised in this discussion.

    Great work by the Sierra Club, its members, and their legal team!

  15. cindy rank says:

    Ken,

    You wondered where i got my figure “below 50″ when i wrote: “Many of our headwater streams (including the ones in my community) are below 50. ”

    I’m afraid the report is not online, but EPA’s Draft Environmental Impact Statement re: Holly Grove Coal Company NPDES Permit Application (Little Kanawha/Burnsville Dam Area) West Virginia issued in September 1981 is the source of that information.

    Appendix B-2 (and referred to in the narrative of the study) contains Water Quality Data for Little Kanawha River collected by WAPORA (consultant group for EPA)(1980), Holly Grove Coal Company (1978-1980), Friends of the Little Kanawha (my home community group) (1979 and 1980), WV Department of Natural Resources (1979) and Hutchins (1980).

    B-2-7 and B-2-12 are the pages/figures that refer specifically to Conductivity in our headwater streams.

    In addition, my own recent conductivity readings in the stream that flows through our property continue to be well below 50.

  16. jpd22 says:

    Taylor made good points that :
    “Why would they recommend a lower limit for streams than for drinking water? Because these dissolved ionic substances do in fact pose a threat to other organisms…” This is true.

    I have seen in the media where coal officials claim Budweiser is 600, apple juice is 2000, etc. I have read that chocolate milk is 8,000 uS/cm. I dont understand the point that people make that if our drinking water is >500, then what’s the problem in streams? Should we expect fish and maylfies to live in apple juice?

    Taylor, I dont think chlorine (as a gas) would lead to high conductivity. It is just the overall cumulation of a variety of salts (TDS as you say). Most drinking water has calcium and magnesium salts, some sodium, but little sulfate. If sulfate is too high, it causes gastrointestinal problems (e.g., diarrhea). Small children and the elderly would be at high risk from drinking water high in sulfates (like in the Coal River). So would pets and farm animals. Valleyfills often leach >500 mg/l sulfate.

  17. Jack Warnock says:

    The next time you see Sugar Maples and White Pines dying on the downstream side of a road you can bet road salt helped do them in!

  18. WaterDog says:

    Yes – there are drinking water systems with finished water higher than 500 conductivity. Not many, but there are some. There are also bottled water that is higher. I would note however that conductivity for water for consumption is not the same concern as aquatic habitat. It is a great soundbite but it’s not an appropriate comparison.

    That said, a conductivity standard is the wrong approach that has been pushed by EPA and EPA has been made aware of that is now receptive to other approaches as will be evidenced in the very near future. A better approach than conductivity, for example, would be to address the primary ion of concern like sulfate. Alternatively, measuring actual instream biology is a far better approach than measuring conductivity which may yield both false positives and negatives.

    In addition, it is also correct that there are multiple other activities that yield conductivity levels higher than EPA’s proposed “benchmark”, which by the way is NOT a water quality standard and thus has no legal basis at present. The fact the other activities can have temporal levels of elevated conductivity is yet another reason why EPA’s original thoughts were flawed. You can have temporal levels of elevated conductivity and not have stream impacts.

    Again, you will start seeing other approaches starting to be used very soon that are superior to EPA’s April 1st interim guidance which is the current subject of litigation and likely illegal.

  19. Moderate says:

    WaterDog is 100% correct and accurate on this.

  20. Ken Ward Jr. says:

    All,

    As I believe we’ve discussed here before, a Science Advisory Board panel had this to say about EPA’s use of conductivity —

    “Regarding the use of conductivity as a surrogate stressor, the Panel recommends that the 17 draft EPA report should acknowledge that measures such as total dissolved solids (TDS) or 18 conductivity are relatively coarse indicators of water quality because the relative toxicity of 19 cations and anions varies greatly. Although conductivity is an integrated measure of cations and 20 anions that cause stress, the Panel believes that EPA should consider developing a more robust 21 characterization of MTM-VF effluents since it would improve the mechanistic understanding of 22 toxicological effects associated with releases from MTM-VF activities.”

    http://yosemite.epa.gov/sab/SABPRODUCT.NSF/81e39f4c09954fcb85256ead006be86e/C96A8AB60CC69873852577AE004A8415/$File/SAB+MTM-VF+Aquatic+Effects+letter-9-28-10+Draft.pdf

    Ken.

  21. yogipsk says:

    it has kind of already been covered here but a conductivity meter doesn’t separate sulfates and calcides, it just measures the total. One thing that I can see also happen from this is that mines will recirculate water by pumping to prevent discharge, thus eliminating all water from the stream because the mine produced all the water in the stream and thus eliminating all aquatic life in the stream and do so legally because it isn’t considered “state water” until it discharges out he outlet!!! So if we force mines to take this action how is it protecting the life of the stream…

  22. Ken Ward Jr. says:

    yogipsk,

    That seems pretty far-fetched … and it would probably implicate the state’s fairly new water use law.

    http://www.legis.state.wv.us/WVCODE/ChapterEntire.cfm?chap=22&art=26

    You write:

    “… it isn’t considered “state water” until it discharges out he outlet!!! ”

    Could you provide some example of a court case where that’s been concluded to be the case?

    That water use law i mentioned says:

    “The waters of the State of West Virginia are hereby claimed as valuable public natural resources held by the state for the use and benefit of its citizens. The state shall manage the quantity of its waters effectively for present and future use and enjoyment and for the protection of the environment. ”

    Ken.

  23. Lance E. Schultz says:

    Last April I attended my eighth annual convening of the West Virginia Mine Drainage Task Force. The task force was originally convened to specifically mitigate and address issues arising from public and regulatory discontent over acid-mine-drainage (AMD) in predominantly northern seam appalachian coal. Additionally, previous central appalachian regulatory compliance programs have traditionally focused exclusively on monitoring and managing specific ions or benthic isotopes with statistically significant known correlation or causation to adverse human health conditions. As I’m sure everyone is aware the central appalachian mining industry water quality standards have been significantly regulated under a known quantitative specific ion/isotope numeric standards under SMCRA and Section 404 of the Clean Water Quality Act and NOT a broader loosely defined conductivity standard with no known causation to adverse human health conditions. However, as evidenced from the attached we have now very recently entered a new age of federal regulatory water quality oversight establishing just such a broad narrative highly qualitative standard. As evidenced from all three (3) attachments the US EPA is now promulgating its own rules and standards to force central appalachian and surrounding region mining operators to immediately adhere at minimum to a broad conductivity standard set at 300 microSiemens per centimeter without any respective known statistically significant correlation or causation to adverse human health conditions. The effects of this regulatory change are broad sweeping and have been characterized as a “watershed” moment for US mining interests.

    Previously US Mine Operators focused exclusively on specific ions like iron (hence AMD) and other trace “metals,” and most recently focusing on selenium in applying strict regulatory water quality compliance programs but have never focused on TDS/conductivity.

    Because the fact is we all “know” mining operations move a significant volume of earthen soil, dirt, rock, debris, [overburden] etc. which is sure to significantly increase salinity or conductivity but was only thought to be hazardous if presenting or containing known harmful trace metals or other “watch list” elements ALL WHICH ARE FOUND IN NATURE. Although the language is focusing on surface mining operations and discharges from valley fills, top industry officials warn the capstone of this regulation affects all mining methods.

    Although, they ARE accepting a “public comment” period before permanently promulgating the new rules and standards, as cited in the memorandum in the interim, the EPA is approaching their regulatory authority and responsibility as though the rules are “in-effect” in the interim.

    Specifically, the newly created conductivity/salinity standard is established at <300 microSiemens per centimeter which translates to 400 microSiemens per cm, an immediate “remediation plan” must be executed to return operations to <300 levels and the operator shall be subject to certain and significant financial penalties. Upon any Section 404c permitted mining operation found to exceed 500 microSiemens per cm, the permit shall be revoked and mining operations will be forced to immediately cease production/operations and the operator shall be subject to certain and significant financial penalties.

    Given the Herculean capital invested throughout central appalachian mining, the size and significance of the mining industry and most importantly that this standard is brand new [<30 days]; the potential effects on the industry are severe.

    I'll leave you with several bullet points from my notes from the comments of Randy Huffman, Cabinet Secretary West Virginia Department of Environmental Protection regarding the proposed changes:

    An overview of the Obama administration's approach to the regulation of coal mine discharge under the Clean Water Act

    * The new paradigm of total-dissolved-solids (TDS)

    * They've launched an all-out "assault" on approved permits

    * They have a "stranglehold" on the central appalachian mining industry

    The Problem: as contained in the attached according to EPA reads…cumulative impacts, force, environmental justice, degradation of aquatic life (narrative)

    According to the EPA's own author of the memorandum: "We put all of the objections in there because we didn't know which one would stick."

    * Targeted "discharges" from the toe of valley fills, particularly. We have specific "numeric" regulatory standards today with known causation or statistically significant correlation to known adverse human health effects, this narrative standard while still maintaining the need for numeric standards for specific ions abandons causation. For which they replied to us: "We would argue is not a qualitative parameter, merely a measurement."

    * Which we know is being based on a loose general statistical correlation between conductance (benthic) qualitative measurements but nothing which could be characterized as causative or statistically significant [as expertly documented/expressed in one of the key speaker presentations which may also be found on the task force web site referenced in the first attachment]

    * What does all this mean? We view this (meaning Secretary Huffman and WV Governor Joe Manchin) as "environmental terrorism."

    * Dissolved Solids = 70% specific conductance

    * E.P.A. estimates regulatory specific conductance between 400 microSiemens/cm and escalate to >500 microSiemens/cm ultimately culminating in complete mine shutdown and permit suspension

    * This is with no regard towards identifying the specific component or particle [ions/isotopes] which are specifically attributable to verifiable degradation of aquatic life.

  24. mayflyguy says:

    “Which we know is being based on a loose general statistical correlation between conductance (benthic) qualitative measurements but nothing which could be characterized as causative or statistically significant [as expertly documented/expressed in one of the key speaker presentations which may also be found on the task force web site referenced in the first attachment]”

    If this the speaker I think your are referring to, then the speaker made several fatal analysis errors.

  25. Vernon says:

    Lance, just because an element is “found in nature” doesn’t make it okay to put in the water at elevated levels. All but a handful of elements are “found in nature.” Reminds me of the statement to the effect of “it’s okay, everything in this is on the periodic table.” Petroleum is “found in nature,” but we frown on things like letting offshore wells spew petroleum into water. It does no good to have a lengthy narrative using Randy Huffman’s words as an authoritative source, considering that his incorrect testimony to the Senate was debunked by his own scientist. And please don’t tell those of us suffering the effects of MTR on our lives that the EPA’s actions are “environmental terrorism.”

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