401 KAR 5:040. Treatment requirements, coal remining operations.

      RELATES TO: KRS Chapter 224

      STATUTORY AUTHORITY: KRS 224.10-100, 224.16-060, 224.70-100, 224.70-110, 33 U.S.C. A sec. 1311

      NECESSITY, FUNCTION, AND CONFORMITY: This administrative regulation establishes treatment requirements for coal remining operations seeking Kentucky Pollutant Discharge Elimination System (KPDES) permits. The administrative regulation establishes a method for establishing best available technology economically achievable (BAT), using best professional judgment (BPJ). The method for establishing BAT is identical to that existing in 33 USCA sec. 1331(p), the Rahall Amendment to the Federal Clean Water Act. It will allow the establishment of permit-specific BAT, instead of BAT based on 40 CFR Part 434.

      Section 1. Definitions. Unless defined in this section, all terms mean as defined by KRS 224.005; KRS 350.010, 401 KAR 5:029; 401 KAR 5:050, Section 1; and 405 KAR 7:020.

      (1) "Coal remining operation" means a surface coal mining operation which begins after the effective date of this administrative regulation at a site on which a coal mining operation was conducted before August 3, 1977. "Coal remining operation" also means an existing surface coal mining operation which receives a permit revision from the Department for Surface Mining Reclamation and Enforcement (DSMRE) in accordance with 405 KAR 8:010, Section 20, for a site on which a coal mining operation was conducted before August 3, 1977.

      (2) "Preexisting discharge" means any discharge at the time of applying for a KPDES permit under this administrative regulation.

      (3) "Remined area" means only that area of any coal remining operation on which a coal mining operation was conducted before August 3, 1977.

      Section 2. Applicability. The provisions of this administrative regulation shall apply to all discharges of pH, iron and manganese from or affected by coal remining operations to waters of the Commonwealth.

      Section 3. Treatment Requirements. All persons who discharge pollutants from or affected by coal remining operations to waters of the Commonwealth shall meet the following treatment requirements:

      (1) The discharge shall comply with all water quality standards, as set forth in 401 KAR 5:026 through 401 KAR 5:031, inclusive.

      (2) The discharge shall comply with all Kentucky Pollutant Discharge Elimination System (KPDES) program requirements, as set forth in 401 KAR 5:050 through 401 KAR 5:085, inclusive.

      (3) The discharge shall comply with all permit conditions imposed by the Department for Surface Mining Reclamation and Enforcement (DSMRE), as set forth in 405 KAR Chapters 7 through 24, inclusive.

      Section 4. Modified Requirement for KPDES Permits. (1) The director may issue a KPDES permit to an applicant proposing to discharge pollutants from or affected by a coal remining operation which modifies the requirement to apply best available technology economically achievable, as set forth in 401 KAR 5:065, Section 4(2) and 401 KAR 5:080, Section 1(2)(c)1.

      (2) The modified requirement of this section will impose best available technology economically achievable on a case-by-case basis, using best professional judgment, as set forth in 401 KAR 5:080, Section 1(2)(c)2.

      (3) The modified requirement of this section may apply to the following pollutants:

      (a) pH level of any discharge from a remined area existing at the time of KPDES permit application;

      (b) Preexisting discharges of iron and manganese from the remined area of the coal remining operation; and

      (c) pH level or level of iron or manganese in any preexisting discharge affected by the coal remining operation.

      (4) The director may employ the document entitled "Coal Remining - Best Professional Judgment Analysis: Preexisting Pollutional Discharge Data Input Module, Baseline Statistical Calculation Module, Water Treatment Cost Calculation Module, Surface Mine Materials Handling and Cost Simulator, User Manual" and accompanying software published by the Pennsylvania Department of Environmental Resources, Mining Engineering Section; Pennsylvania State University and Kohlmann Ruggiero Engineers, P.C. (1988).

      Section 5. Application Requirements. An applicant for a KPDES permit with the modified requirement of Section 4 of this administrative regulation shall comply with the application requirements of this section.

      (1) The applicant shall comply with all KPDES permit application requirements, as set forth in 401 KAR 5:060.

      (2) The applicant shall submit documentation from DSMRE that the proposed coal remining operation will be located on a remined area, and shall certify that the proposed coal remining operation will be located on a remined area.

      (3) The applicant shall also:

      (a) Describe the hydrologic balance for the proposed coal remining operation, including:

      1. Results of a detailed water quality and quantity monitoring program, including seasonal variations, variations in response to precipitation events, and modeled baseline pollution loads using the monitoring program; and

      2. Monitoring for pH, alkalinity, acidity, total iron, total manganese, sulfates, total suspended solids, and any other water quality parameters requested by the director;

      (b) Submit the application for a permit from DSMRE;

      (c) Submit, if not submitted in the application for a permit from DSMRE;

      1. Plans, cross-sections, and schematic drawings describing the techniques for reducing the discharge of acid-forming materials, iron and manganese;

      2. A description and an explanation of the range of abatement levels that probably can be achieved, costs, and each step proposed to reduce the discharge of acid-forming materials, iron and manganese;

      3. A description of the spoil handling practices necessary to reduce the discharge of acid-forming materials, iron and manganese;

      4. A detailed topographic map of the proposed coal remining operation, including the locations of preexisting and proposed discharges; and

      (d) Continue the water quality and quantity monitoring program described in paragraph (a) of this subsection, and submit the results to the director on a periodic basis until the director makes a final permit decision. The cabinet will evaluate the KPDES monitoring program and the DSMRE monitoring program for each applicant to avoid duplication and inconsistencies.

      (4) The applicant may submit the information described in the document entitled "Coal Remining - Best Professional Judgment Analysis: Preexisting Pollutional Discharge Data Input Module, Baseline Statistical Calculation Module, Water Treatment Cost Calculation Module, Surface Mine Materials Handling and Cost Simulator, User Manual" and accompanying software published by the Pennsylvania Department of Environmental Resources, Mining Engineering Section; Pennsylvania State University and Kohlmann Ruggiero Engineers, P.C. (1988).

      (5) An applicant with an existing surface coal mining operation seeking a permit revision from DSMRE pursuant to 405 KAR 8:010, Section 20, shall also demonstrate to the satisfaction of the director that:

      (a) The applicant discovered discharges within the proposed coal remining area after the applicant's DSMRE permit was issued; and

      (b) The applicant has not caused or contributed to the discharges.

      Section 6. Prohibitions. In addition to the prohibitions contained in 401 KAR 5:055, Section 2, the following prohibitions apply to this administrative regulation:

      (1) No KPDES permit containing the modified requirement of Section 4 of this administrative regulation shall be issued unless the coal remining operation has applied for a permit from DSMRE, as set forth in 405 KAR Chapters 7 through 24, inclusive. The effective date of the KPDES permit shall be no sooner than the effective date of the permit issued by the Department for Surface Mining Reclamation and Enforcement.

      (2) No KPDES permit containing the modified requirement of Section 4 of this administrative regulation shall be issued for a surface coal mining operation which is not a coal remining operation located on a remined area.

      (3) No KPDES permit containing the modified requirement of Section 4 of this administrative regulation shall be issued which would allow the discharges of acid-forming materials, iron or manganese to exceed the levels being discharged from the remined area before the coal remining operation begins.

      (4) No KPDES permit containing the modified requirement of Section 4 of this administrative regulation shall be issued if the applicant fails to demonstrate to the satisfaction of the director that the coal remining operation will result in the potential for improved water quality from the remining operation over that existing prior to the remining operation, and that the information provided in the application is adequate for the director to make an informed final permit decision.

      (5) In addition to the prohibitions of subsections (1) through (4) of this section, no KPDES permit containing the modified requirement of Section 4 of this administrative regulation shall be issued for an existing surface coal mining operation unless:

      (a) The applicant receives a permit revision from DSMRE in accordance with 405 KAR 8:010, Section 20;

      (b) The applicant discovered discharges within the proposed coal remining area after the applicant's DSMRE permit was issued; and

      (c) The applicant has not caused or contributed to the discharges since August 3, 1977. (16 Ky.R. 2286; Am. 2680; eff. 7-11-90.)