5/4/2023 2:36 pm Date / Time filed with the Register of Regulations | VA.R. Document Number: R____-______ |
Virginia Register Publication Information
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Transmittal Sheet: Response to Petition for Rulemaking
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Initial Agency Notice
Agency Decision
Promulgating Board: | State Water Control Board |
Regulatory Coordinator: | Melissa Porterfield (804)698-4238 melissa.porterfield@deq.virginia.gov |
Agency Contact: | David Whitehurst (804)774-9180 david.whitehurst@deq.virginia.gov |
Contact Address: | Department of Environmental Quality 1111 East Main Street, Suite 1400 P.O. Box 1105 Richmond, VA 23218 |
Chapter Affected: | |
9 vac 25 - 260: | Water Quality Standards |
Statutory Authority: |
State: Sections 62.1-44.15(10) and 62.1-44.15(3a) of the Code of Virginia Federal: Clean Water Act (33 USC 1251 et seq.) 40 Code of Federal Regulations 131 |
Date Petition Received | 05/04/2023 |
Petitioner | Clintwood JOD, LLC (CJOD) |
On April 25, 2023, Clintwood JOD, LLC (CJOD) petitioned the State Water Control Board
(Board) to promulgate a site-specific aquatic life ambient criterion for selenium.
Specifically, CJOD formally requests that the Board amend the existing surface water
quality criteria for selenium to allow a special standard (9VAC25-260-310) incorporating
EPA's Recommended Aquatic Life Ambient Water Quality Criterion for Selenium in Freshwater,
as published in the Federal Register on July 13, 2016 (Vol. 81, No. 134) and revised
in August 2021. CJOD requests that the special standard be applicable to the following
tributaries to Knox Creek: Race Fork, Pounding Mill Creek, Right Fork of Lester Fork,
and Abner Fork. The reaches included in this petition fall within Knox Creek, a sub-watershed
of the Tug Fork watershed that encompasses approximately 97.8 square miles of Buchanan
County (19% of the county). The Virginia portion of the Knox Creek watershed makes
up 6.2 percent of the Tug Fork watershed, with the remainder downstream in Kentucky
and West Virginia.
CJOD currently holds and operates fifteen (15) surface and deep-mining permits in
the Commonwealth of Virginia under its Coal Surface Mining Reclamation Regulations
(4VAC25-130). Each of these operations is also authorized under an NPDES permit issued
by Virginia Department of Energy's Mined Land Repurposing Division with oversight
by EPA. Six (6) of CJOD's operations are currently permitted to discharge into the
reaches defined above, one of which is currently under a schedule of compliance for
selenium. As these mining operations are permitted activities that generate its primary
source of revenue, CJOD has an interest in the requested action.
CJOD's need for the proposed amendment is directly related to the continuation of
its mining operations. Virginia's current water quality criteria for selenium are
over 30 years old. EPA's recommended criteria reflect the latest scientific knowledge
and provide a more updated method of evaluating selenium impacts to surface waters.
Additional considerations when evaluating the requested amendment are standards associated
with downstream waters. The most downstream reach requested for consideration is Race
Fork. The confluence of Race Fork and Knox Creek is approximately 3.9 stream miles
from Kentucky and 11.8 stream miles from West Virginia. Both Kentucky and West Virginia
have established aquatic life ambient water quality criteria that were modeled after
EPA's recommended criterion. If the petition is found to be reasonable, they ask that
DEQ support utilizing EPA's criterion with any implementation guidance modeled after
the approved West Virginia guidance to provide consistency with the remainder of the
watershed as that guidance has been reviewed and approved by EPA Region 3.
Agency Plan
A 21-day public comment period is being announced in the Virginia Register of Regulations.
Upon completion of the public comment period, the State Water Control Board will consider
the petition at a future meeting and decide whether or not to move forward with the
rulemaking.
Publication Date | 06/05/2023 (comment period will also begin on this date) |
Comment End Date | 06/26/2023 |