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WEST VIRGINIA ENVIRONMENTAL QUALITY BOARD CHARLESTON, WEST VIRGINIA WEST VIRGINIA HIGHLANDS CONSERVANCY, INC., OHIO V ALLEY ENVIRONMENTAL COALITION, and SIERRA CLUB Appellants, v. Appeal No. 1c9. -/3k -&&8 THOMAS 1. CLARKE Director, Division of Mining and Reclamation West Virginia Department of Environmental Protection Appellee. NOTICE OF APPEAL Action Complained Of: The Appellants named above respectfully represent that they are aggrieved by: 1) The renewal ofWV/NPDES Permit WVlO08285 on September 14,2012 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 WVI008285 on September 14,2012 to Alex Energy, Inc. without final and effective selenium limits to ensure compliance with applicable state water quality standards. Relief Requested: The Appellants therefore pray that this matter be reviewed and that the Board grant the following relief: An order vacating WV/NPDES Permit WVlO08285 and directing Appellee: 1) 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; and 3) Any other relief the Board deems appropriate. Specific objections: The specific objections to the above actions, including questions offact 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 of the Board, and only for good cause shown. Dated this 10th day of September 2012. AMY G A WSON (WV Bar No. 11420) JOSEPH LOVETT (W.Va. Bar No. 6926) Counsel for Appellants Appalachian Mountain Advocates P.O. Box 507 Lewisburg, WV 24901 (304) 629-8633 Counsel for Appellants FACTS AND GROUNDS FOR APPEAL I) 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 Sierra Club is dedicated to exploring, enjoying, and protecting the wild places of the 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 of the natural and human environment; and to using all lawful means to carry out these objectives. The Sierra Club's concerns encompass the exploration, enjoyment and protection of surface waters in West Virginia. 2) Appellant Ohio Valley Environmental 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 environment through education, grassroots organizing, coalition building, leadership development and media outreach. The Coalition has focused on water quality issues and is a leading source 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 natural resources. Incorporated in West Virginia in 1967 it is one of the state's oldest environmental advocacy organizations and for over four decades has been a leader in citizen efforts to protect West Virginia'S people, land and water resources from the harmful effects of coal mining. 4) Appellants' members use and enjoy the area and streams near the Whitman No.3 Surface Mine, including the streams that will receive discharges from the outlets covered by the associated NPDES permits. Their aesthetic environmental and recreational interests will be adversely affected by the mine's environmental impacts, including discharges of water pollutants associated with coal mining. BACKGROUND 5) WV/NPDES Permit WVI008285 authorizes discharges from Alex Energy, Inc.'s Whitman No.3 Surface Mine in Logan County of West Virginia near the town of Whitman. 6) Outlets 003, 005, and 006 ofWV/NPDES Permit WVI008285 discharge effluent from surface runoff and mine discharge from Whitman No.3 Surface Mine. 7) Outlets 003, 005, and 006 of WV /NPDES Permit WVl 008285 discharge into Whitman Creek. 8) Whitman Creek is listed on the WVDEP's 2010 and Draft 2012 303(d) lists as biologically impaired and on the Draft 2012 303(d) list as impaired for selenium. Trace Fork of Copperas Mine Fork, another receiving stream ofWV/NPDES Permit WVI008285, is also on the WVDEP's Draft 2012 303(d) list as biologically and selenium impaired. 9) Left Fork of Right Fork of Trace Fork is just over the ridge from WV/NPDES Permit WVI008285, and it is on the WVDEP's 2010 303(d) list as impaired for selenium. 10) Selenium sampling conducted for the WV/NPDES Permit WVI008285 reissuance produced a selenium sample at Outlet 003 of 3.34 Ilg/l. 11) The sampling from Outlet 003 served as a representative sample for Outlets 005 and 006 in the reissuance ofWV/NPDES Permit WVI008285. 12) Whitman No.3 Surface Mine is permitted to operate in seams associated with high concentrations of selenium, including the Stockton and 5-Block coal seams. 13) Alex Energy operates an adjacent mine, mining permit number S505389. That mine also discharges to Whitman Creek with consistent discharges exceeding the water quality criteria for selenium, reaching concentrations of 16.7 I-lgll. 14) Despite the above facts, available to the permit writer, the most recent reissuance of WVINPDES Permit WVI 008285 did not include either limits or monitoring for selenium at any outlet. SPECIFIC OBJECTIONS 1. The WVDEP Failed to Properly Conduct the Necessary Analysis to Determine-if Discharges from Permit WVI008285 have the Reasonable Potential To Cause or Contribute to Violations of the Applicable Water Quality Criteria for Selenium 15) 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 ofCWAnecessaryto: ... (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)(1 )(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). 16) The U.s. EPA has developed guidance for the performance ofa reasonable . potential analysis on toxic pollutants such as selenium. See EPA Office of Water, Technical Support Document for Water Quality-based Toxics Control. § 3 March 1991. Pursuant to this guidance a reasonable potential analysis may be conducted with or without effluent data, but all available information should be taken into account. Id. at § 3.1.3. 17) Variability of effluent in a discharge must be taken into account as a principal part of any reasonable potential analysis performed using effluent data. Id. at § 3.3.2. EPA uses a statistical approach to assess variability and apply it to the measured effluent data. Under this approach a minimum of ten samples is needed to reliably establish a coefficient of variance. Id. at §§ 3.3.2; 5.5.3. Ifless than ten data points are used then a default coefficient of variance can be used based on the typical variability of effluents measured by the EPA. 18) Using the default coefficient of variance and the statistical method employed by EPA to determine reasonable potential to violate the numeric water quality for selenium, the permit writer would have determined a reasonable potential exists to violate selenium limits at Outlets 003, 005, and 006. 19) Upon information and belief, Plaintiffs allege that the variability of selenium in discharges is greater than that of typical toxic pollutants contributing to the default coefficient of variance in EPA's guidance. As such, other information and data, such as those described in EPA's Technical Support Document for Toxics Control should be taken into account when there is insufficient sampling to establish a site-specific coefficient of variance (in other words, when there are less than ten samples). 20) The WVDEP has come up with its own guidance for evaluating the reasonable potential for selenium discharges on a mining operation to violate selenium water quality criteria in the absence of reliable effluent data. EPA has recognized that alternative analyses may be used when there is an absence of reliable effluent data.
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