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~~ [~ F WEST VIRGINIA ENVIRONMENTAL QUALITY BOARD CHARLESTON, WEST VIRGINIA OHIO VALLEY ENVIRONMENTAL COALITION, WEST VIRGINIA HIGHLANDS CONSERVANCY, and SIERRA CLUB Appellants, v. Appeal No. l'b-()Lf- fG.13 THOMAS L. CLARKE .~~ [~ f"ffvriff;:~ Director, Division of L.J~? ... L_'::l_._--S'~l :III Mining and Reclamation West Virginia Department n.\ FEB 2 5 2013 I~~:) of Environmental Protection ." ,", ,~., -.. ,,--..~~~---_.,._.~ ....... ,,~ .. , Appellee. ENVlm,;;;vlINTAL OliAUTY UOAHD M1 C)lIi\UTY DON") .....,---,....... ~,.,"'~-~~.-~,,-~-~ --."~~~,-"._. ., .. _~._,,,."""'''''''' NOTICE OF APPEAL Action Complained Of: The Appellants named above respectfully represent that they are aggrieved by: I) The renewal ofWV/NPDES Permit WVI026747 on January 25,2013 in violation of regulations and guidance for the evaluation of the reasonable potential of a discharge to exceed water quality standards; 2) The renewal ofWV/NPDES Permit WVI026747 on January 25,2013 to Carbon Resources Development without final and effective selenium limits to ensure compliance with applicable state water quality standards. Relief Reguested: The Appellants therefore pray that this matter be reviewed and that the Board grant the following relief: An order vacating WV/NPDES Permit WVI026747 and directing the Appellee: I) To conduct a proper reasonable potential analysis for selenium; 2) To modify the permit to include enforceable selenium limits which will ensure compliance with all applicable water quality standards; 3) Any other reliefthe board deems appropriate. Specific Objections: The specific objections to the above actions, including questions of fact and law to be determined by the Board, are set forth in detail in separate numbered paragraphs attached hereto. Amendment of this Notice of Appeal may be had only by leave ofthe Board, and only for good cause shown. Dated this ~~'a~y of February, 2012 J. CHAEL BECHER (WV Bar No.1 0588) J SEPH LOVETT (W.Va. BarNo. 6926) Appalachian Mountain Advocates P.O. Box 507 Lewisburg, WV 24901 (304) 382-4798 Counsel for Appellants FACTS AND GROUNDS FOR APPEAL 1) Appellant Sierra Club is a nonprofit corporation incorporated in California, with more than 600,000 members nationwide and approximately 2,000 members who reside in West Virginia and belong to the West Virginia Chapter. The Siena Club is dedicated to exploring, enjoying, and protecting the wild places ofthe Earth; to practicing and promoting the responsible use of the Earth's resources and ecosystems; to educating and enlisting humanity to protect and restore the quality ofthe natural and human enviromnent; and to using all lawful means to cany out these objectives. The Sierra Club's concerns encompass the exploration, enjoyment and protection of sm-face waters in West Virginia. 2) Appellant Ohio Valley Enviromnental Coalition is a nonprofit organization incorporated in Ohio. Its principal place of business is in Huntington, West Virginia. It has approximately 1,500 members. Its mission is to organize and maintain a diverse·grassroots organization dedicated to the improvement and preservation of the enviromnent through education, grassroots organizing, coalition building, leadership development, and media outreach. The Coalition has focused on water quality issues and is a leading som-ce of information about water pollution in West Virginia. 3) Appellant West Virginia Highlands Conservancy, Inc. is a nonprofit grassroots membership organization whose volunteer board and approximately 1,600 members work for the conservation and wise management of West Virginia's natm-al resom-ces. Incorporated in West Virginia in 1967 it is one of the state's oldest enviromnental advocacy organizations and for over four decades has been a leader in citizen efforts to protect West Virginia's people, land and water resom-ces from the harmful effects of coal mining. 4) Appellants members use and enjoy the area and streams near the Maben Mine No.1, including streams that receive discharges from the mine. Their aesthetic and recreational interests will be adversely affected by the mine's impacts including the discharge of selenium. BACKGROUND 5) WV/NPDES Permit WVI026747 authorizes discharges from Carbon Resource's Maben No.1 mine near Mullens, in Wyoming County, West Virginia. 6) The mine will discharge into unnamed tributaries of/and Slab Fork of the Upper Guyandotte River. 7) In the rationale section ofthe permit, the permit writer states that there is no reasonable potential for selenium because "[o]verburden ABA/Se analyses of Drill Hole ID WPP-I0A representing the interval from the surface through and below the coal seam does not indicate ay Se concentrations (other than the coal itself) above DEP's threshold level of 1 mg/kg. 8) In fact at least one non-coal layer (labeled black shale with coal streaks) had an Se concentration above the 1 mg/kg threshold-at 3.11 mg/kg. In addition the coal layer to be mined had an Se concentration of7.55. 9) Another core sample, taken at Drill Hole ID WPP-5-10, and apparently not considered by the permit writer shows that there are significant quantities of selenium bearing strata near the proposed mine. This sample revealed 12 non-coal and 2 coal samples above the 1 mg/kg threshold. 10) Despite the facts available to the permit writer, the issuance of Permit WVI026747 did not contain limits for selenium. SPECIFIC OBJECTIONS 1. The WVDEP Failed to Properly Conduct the Necessary Analysis to Determine if Discharges from Permit WV1026747 have the Reasonable Potential To Cause or Contribute to Violations of the Applicable Water Quality Criteria for Selenium 11) In order to protect water quality and ensure compliance with applicable water quality standards, federal regulations applicable to West Virginia's NPDES program provide: Each NPDES permit shall include conditions meeting the following requirements when applicable .... (d) Water quality standards and State requirements: any requirements in addition to or more stringent than promulgated effluent limitations guidelines or standards under sections 301, 304, 306, 307, 318, and 405 ofCWA necessary to: ... (1) Achieve water quality standards established under section 303 of the CWA, including State narrative criteria for water quality. (i) Limitations must control all pollutants or pollutant parameters (either conventional, nonconventional, or toxic pollutants) which the Director determines are or may be discharged at a level which will cause, have the reasonable potential to cause, or contribute to an excursion above any State water quality standard, including State narrative criteria for water quality. (ii) When determining whether a discharge causes, has the reasonable potential to cause, or contributes to an in-stream excursion above a narrative or numeric criteria within a State water quality standard, the permitting authority shall use procedures which account for existing controls on point and nonpoint sources of pollution, the variability of the pollutant or pollutant parameter in the effluent, the sensitivity of the species to toxicity testing (when evaluating whole effluent toxicity), and where appropriate, the dilution of the effluent in the receiving water. (iii) When the permitting authority determines, using the procedures in paragraph (d)(l )(ii) of this section, that a discharge causes, has the reasonable potential to cause, or contributes to an in-stream excursion above the allowable ambient concentration of a State numeric criteria within a State water quality standard for an individual pollutant, the permit must contain effluent limits for that pollutant. 40 C.F.R 122.44 (applicable to state NPDES programs pursuant to 40 C.F.R. § 123.25). 12) The WVDEP Division of Mining has developed guidance for determining the reasonable potential for a mine to violate selenium water quality criteria is the absence of effluent data. This guidance provides for an analysis of the selenium concentration of the strata to be mined. It provides "[alII overburden, including the coal seam(s), will be sampled for selenium ..." WVDEP Division of Mining and Reclamation, Selenium Implementation Guidance (November 2007). 13) The guidance further provides "If the total selenium concentration of any strata is equal to or greater than I mg/kg, then the activity will be deemed to have reasonable potential to violate selenium WQC[water quality criteria] ... " Id. 14) Finally, the guidance states, "[t]he WV INPDES for any activity determined to have reasonable potential to cause or contribute to selenium exceeding the WQC [water quality criteria] will include selenium effluent limitations and self-monitoring requirements." Id. 15) Applying the WVDEP's mining guidance for selenium would have resulted in a finding of a reasonable potential to violate water quality standards for selenium at the Maben No.1 mine. 16) The WVDEP did not perform any justifiable reasonable potential analysis for selenium discharged on Permit WV 1026747. 2. The Permit Does Not Contain Selenium Limits Necessary to Ensure Compliance with Water Quality Standards. 17) Appellants incorporate by reference all allegations made in paragraphs 1 through 16 supra. 18) Both the Clean Water Act and the West Virginia Water Pollution Control Act require compliance with numeric and narrative water quality standards. 33 U.S.C. § 1313; W.Va. Code § 22-11-7b; 47 C.S.R. § 1-1 et seq. 19) A permit cannot be issued "[w ]hen the imposition of conditions carmot ensure compliance with applicable water quality requirements." 47 C.S.R. § 30-2-3.2.a.7. 20) A permit carmot be issued "[w ]hen the conditions of the permit do not provide for compliance with the applicable requirements of the [Clean Water Act] and [the West Virginia Water Pollution Control Act.]" 47 C.S.R. § 30-3.2.a.1. 21) Data submitted with the permit application and available to the permit writer indicate that discharges from the Maben No. 1 mine have the reasonable potential to cause an exceedance of applicable water quality criteria for seleniujm. 22)Permit WVI026747 does not contain effluent limits for selenium and will not ensure compliance with applicable water quality standards.
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