5/4/2023 2:36 pm
Date / Time filed with the Register of Regulations
VA.R. Document Number: R____-______
Virginia Register Publication Information

Transmittal Sheet: Response to Petition for Rulemaking
Initial Agency Notice
Agency Decision
Promulgating Board: State Water Control Board
Regulatory Coordinator: Melissa Porterfield


Agency Contact: David Whitehurst


Contact Address: Department of Environmental Quality

1111 East Main Street, Suite 1400

P.O. Box 1105

Richmond, VA 23218
Chapter Affected:
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)
 Petitioner's Request
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