# Water: Common Permit Violations

by ekpeterman , jfreemanfilm , junior_walk1337 | 20 Jan 14:35

This is another installment in a series on common permit violations that are enforceable by citizen monitors. See also this post on ground related violations.

#### What to look for:

Black water spills are citizen enforceable violations. These can come from sludge dams, broken pipes, failed pumps, and other mine operations (i.e., rainwater accumulation around stockpiled coal). Watch for places where water changes color at the convergence of two streams, or any obvious discoloration of water.

** It is really important that these issues are reported promptly (while still running and visible). The WVDEP is notorious for waiting until spills are washed away, at which point they can't definitively identify a violation**

Sedimentation runoff from sites is another common issue. Companies often use hay bales and sediment fences to try to avoid this, but these measures sometimes fail. Issues with sediment control - i.e., brush in ditches, overfill, cracked ditches, leaking sediment ponds - can all generate violations.

Diesel smell near water is another common issue - report this if you notice it.

You might also find conductivity, pH, and selenium issues. There is some possibility for success in testing puddles and pools for water quality. A past advocacy effort focusing on water chemistry yielded enough water quality violations to shut down a mining operation.

People can use digital monitoring reports to track these violations - cumulatively, these can cost companies a lot of money. Years ago, Massey accrued over 4,000 water violations, self-reported to the WVDEP. The DEP didn't have the staffing capacity to receive the reports, and didn't take action. This pattern of violation came to the attention of the EPA, which attempted to cite the coal company; ultimately, the case settled for $20 million. Another fine of$27 million came down the pipe a few years later.

#### Relevant Policies + Regulations

Some general notes, to start:

The West Virginia Surface Mining and Reclamation Rule defers to federal code for water quality standards (specifically, 30 CFR 816). West Virginia code (22-3) specifies that state water quality standards for surface mines are never more stringent than federal standards. Further, in West Virginia state code regarding surface mining, water quality of discharges, effluence, and runoff from mine sites are set to be in compliance with "state and federal water quality laws and regulations". This refers, specifically, to:

West Virginia Code - Chapter 22: Environmental Resources,

Article 3 - Surface Coal Mining and Reclamation Act

Article 11 - Water Pollution Control Act

Article 12 - Groundwater Protection Act

... and,

West Virginia Surface Mining Reclamation Rule

WVDEP Water Resources Legislative Rule 47CSR2 (Requirements Governing Water Quality Standards)

WVDEP Office of Mining and Reclamation Legislative Rule 38CSR2F (Groundwater Protection Rules Coal Mining Operations)

As for federal laws and regulations:

SMCRA (Surface Mining Control and Reclamation Act) is the bread-and-butter federal regulatory framework for environmental standards, inspection, and enforcement (including citizen action).

Specific water quality standards come from the Clean Water Act, which is the common name for Chapter 26, Water Pollution Prevention and Control (CFR Title 33, Chapter 26).

Specific water quality standards (i.e., allowable pH, selenium, etc.) are set forth in 40 CFR - part 434 (Coal Mining Point Source Category BPT, BAT, BCT Limitations and New Source Performance Standards).

Broader environmental standards are delineated in 30 CFR 816 (Code of Federal Regulations - Title 30, Mineral Resources, Chapter VII, Office of Surface Mining Reclamation and Enforcement, Department of the Interior, Subchapter K, Part 816: Permanent Program Performance Standards - Surface Mining Activities).

#### Appendix

Black water + Spills

Relevant Law / Regulation Official Language Common Language / Notes
CWA - 1313 - Water Quality Standards and Implementation Plans
This is a long section of policy that sets the specific allowable levels of pollutants, pH, etc.
This section of the Clean Water Act lays out specific federal standards for water quality - state regulation points back to this section of the CWA, and is set to be in accordance with these standards, not stricter, according to WV Code articles 3 and 10 (Surface Coal Mining and Reclamation Act and Water Pollution Control Act, respectively). In the case of spills or black water, these are the key standards being violated.
Surface Mining Control and Reclamation Act - Section 515, Environmental Protection Performance Standards

(10) minimize the disturbances to the prevailing hydrologic balance at the mine-site and in associated offsite areas and to the quality and quantity of water in surface and ground water systems both during and after surface coal mining operations and during reclamation by –

(A) avoiding acid or other toxic mine drainage by such measures as, but not limited to –

(i) preventing or removing water from contact with toxic producing deposits;

(ii) treating drainage to reduce toxic content which adversely affects downstream water upon being released to water courses;

This section of SMCRA explicitly disallows the release of toxic + acidic water into nearby streams
West Virginia Code: 22-3-13
(10) Minimize the disturbances to the prevailing hydrologic balance at the mine site and in associated off-site areas and to the quality and quantity of water in surface and groundwater systems both during and after surface mining operations and during reclamation by: (A) Avoiding acid or other toxic mine drainage by such measures as, but not limited to: (i) Preventing or removing water from contact with toxic producing deposits; (ii) treating drainage to reduce toxic content which adversely affects downstream water upon being released to water courses;
This is the language in WV code outlining standards for water impacts on surface mining. See (ii) in particular - black water / spills would be in direct violation of the need to “treat drainage” and “reduce toxic content”
CWA - 1311 §(2)

The Administrator or the State may only issue a permit pursuant to paragraph (1) if the applicant demonstrates to the satisfaction of the Administrator or the State, as the case may be, that the coal remining operation will result in the potential for improved water quality from the remining operation but in no event shall such a permit allow the pH level of any discharge, and in no event shall such a permit allow the discharges of iron and manganese, to exceed the levels being discharged from the remined area before the coal remining operation begins. No discharge from, or affected by, the remining operation shall exceed State water quality standards established under section 1313 of this title.

(A) Coal remining operation: The term ‘‘coal remining operation’’ means a coal mining operation which begins after February 4, 1987 at a site on which coal mining was conducted before August 3, 1977.

(B) Remined area: The term ‘‘remined area’’ means only that area of any coal remining operation on which coal mining was conducted before August 3, 1977.

Relevant only to areas that were mined prior to 1977; sets water quality standards in such cases. Just worth noting that the Clean Water Act explicitly set standards for water quality impacts of “remining”.
38 CRS 2 (Surface Mining Reclamation Rule), 14.5.f.
Co-mingling of Waters. Unless otherwise approved by the Secretary, water from underground works shall not be co-mingled with surface drainage. When separate treatment facilities are used for discharges from underground works, they shall be designed to adequately treat the anticipated quantity and quality of the raw discharge.
Disallows mixing water from any underground operations with above-ground streams / water - not directly relevant to surface mining in most cases, but worth keeping in mind! This section of code deals with mine reclamation.

Sedimentation + Runoff
Law / Regulation Official Language Common Language + Notes

SMCRA - Section 515 – Environmental Protection Performance Standards [30 U.S.C. 1265]

(8) create, if authorized in the approved mining and reclamation plan and permit, permanent impoundments of water on mining sites as part of reclamation activities only when it is adequately demonstrated that –

(A) the size of the impoundment is adequate for its intended purposes;

(B) the impoundment dam construction will be so designed as to achieve necessary stability with an adequate margin of safety compatible with that of structures constructed under Public Law 83-566 (16 U.S.C. 1006);

© the quality of impounded water will be suitable on a permanent basis for its intended use and that discharges from the impoundment will not degrade the water quality below water quality standards established pursuant to applicable Federal and State law in the receiving stream;

(D) the level of water will be reasonably stable;

(E) final grading will provide adequate safety and access for proposed water users; and

(F) such water impoundments will not result in the diminution of the quality or quantity of water utilized by adjacent or surrounding landowners for agricultural, industrial, recreational, or domestic uses;

This federal law sets the standard for runoff and water management on mine sites; with specific standards about stability of dams + impoundments.
West Virginia Code: 22-3-13
(10) Minimize the disturbances to the prevailing hydrologic balance at the mine site and in associated off-site areas and to the quality and quantity of water in surface and groundwater systems both during and after surface mining operations and during reclamation by: (iii) casing, sealing or otherwise managing boreholes, shafts and wells and keep acid or other toxic drainage from entering ground and surface waters; (B) conducting surface mining operations so as to prevent to the extent possible, using the best technology currently available, additional contributions of suspended solids to streamflow or runoff outside the permit area, but in no event may contributions be in excess of requirements set by applicable state or federal law; constructing an approved drainage system pursuant to paragraph (B) of this subdivision, prior to commencement of surface mining operations, the system to be certified by a person approved by the  secretary to be constructed as designed and as approved in the reclamation plan; (D) avoiding channel deepening or enlargement in operations requiring the discharge of water from mines; (E) unless otherwise authorized by the  secretary, cleaning out and removing temporary or large settling ponds or other siltation structures after disturbed areas are revegetated and stabilized, and depositing the silt and debris at a site and in a manner approved by the  secretary; (F) restoring recharge capacity of the mined area to approximate premining conditions;

This part of the WV code specifies runoff and drainage standards, as it relates to off-site water quality impacts. See in particular the part about removing temporary ponds / managing erosion - these issues are very visible from drones!
38 CRS 2 (Surface Mining Reclamation Rule)

4.10.a.7. Drainage ditches shall be constructed and maintained to prevent uncontrolled drainage over the road surface and embankment;

5.1. Natural Drainways. Natural drainways in the permit area shall be kept free of overburden except where overburden placement has been approved. Overburden placement and haulageways constructed across natural drainways shall not materially increase the sediment load, or materially affect stream quality.

5.4.a. All runoff from the disturbed area shall pass through a sedimentation control system. All such systems or other water retaining structures used in association with the mining operation shall be designed, constructed, located, maintained, and used in accordance with this rule and in such a manner as to minimize adverse hydrologic impacts in the permit and adjacent areas, to prevent material damage outside the permit area and to assure safety to the public.

[Sediment control structures must] 5.4.b.7. Be cleaned out when the sediment accumulation reaches sixty percent (60%) of design capacity. Clean-out elevation shall be to a level so as to restore design storage capacity as indicated on plans submitted for each structure. Sediment removal and disposal shall be done in a manner and at a frequency that minimizes adverse impacts on surface and groundwater quality.

This rule deals with reclamation, but again, violations here are super visible. Look for overfill, debris, etc. in ditches.

Water Quality / Chemistry

Law / Regulation Official Language Common Language
40 CFR Part 434: EPA Effluent Guidelines and Standards, Coal Mining Point Source Category BPT, BAT, BCT Limitations and  New Source Performance Standards
Extensive section of code that sets standards for allowable concentrations of pollutants and other water quality metrics - specific to coal mining.
This part of the Code of Federal Regulations outlines allowable concentrations of specific pollutants, allowable pH ranges, etc. State water quality standards refer back to this part of the code.
West Virginia Code: 22-3-13
(10) Minimize the disturbances to the prevailing hydrologic balance at the mine site and in associated off-site areas and to the quality and quantity of water in surface and groundwater systems both during and after surface mining operations and during reclamation by: (A) Avoiding acid or other toxic mine drainage by such measures as, but not limited to: (i) Preventing or removing water from contact with toxic producing deposits; (ii) treating drainage to reduce toxic content which adversely affects downstream water upon being released to water courses; and (iii) casing, sealing or otherwise managing boreholes, shafts and wells and keep acid or other toxic drainage from entering ground and surface waters;
Again, this is the state code on toxic pollution from surface mines. Should be in compliance with EPA standards (above), but note that the language is at times less-than-firm (i.e., “minimize”, “avoid”).
38 CRS 2 (Surface Mining Reclamation Rule)
14.5.b. Effluent Limitations. Discharges of water from areas disturbed by surface mining activities shall be made in compliance with all applicable State and Federal water quality laws and regulations and with the effluent limitations for coal mining promulgated by the U.S. Environmental Protection Agency set forth in 40 CFR part 434.

Deals specifically with reclamation; refers to federal rules. See above!

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