TITLE 9. ENVIRONMENT
STATE WATER CONTROL BOARD
Agency Decision
Title of Regulation: 9VAC25-260. Water Quality Standards.
Statutory Authority: § 62.1-44.15 of the Code of Virginia.
Name of Petitioner: Clintwood JOD, LLC.
Nature of Petitioner's Request: On April 25, 2023, Clintwood JOD, LLC (CJOD) petitioned the State Water Control 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 Environmental Protection Agency (EPA) Recommended Aquatic Life Ambient Water Quality Criterion for Selenium in Freshwater, as published in 81 FR 45285-45287 (July 13, 2016) 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% of the Tug Fork watershed, with the remainder downstream in Kentucky and West Virginia.
CJOD currently holds and operates 15 surface and deep-mining permits in the Commonwealth of Virginia under the Virginia Coal Surface Mining Reclamation Regulations (4VAC25-130). Each of these operations is also authorized under a National Pollutant Discharge Elimination System permit issued by Virginia Department of Energy's Mined Land Repurposing Division with oversight by EPA. Six of CJOD's operations are currently permitted to discharge into the reaches defined in this petition, 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, CJOD asks that the Department of Environmental Quality 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 Decision: Request granted.
Statement of Reason for Decision: Comments were received on the petition, and the State Water Control Board considered those comments. At its meeting on August 23, 2023, the board authorized Department of Environmental Quality staff to proceed with initiating a rulemaking to incorporate site specific selenium criteria as a special standard in Virginia's Water Quality Standards regulation (9VAC25-260) consistent with the petition request for the Knox Creek drainage in Buchanan County.
Agency Contact: David Whitehurst, Department of Environmental Quality, 1111 East Main Street, Suite 1400, P.O. Box 1105, Richmond, VA 23218, telephone (804) 774-9180, or email david.whitehurst@deq.virginia.gov.
VA.R. Doc. No. PFR23-29; Filed August 24, 2023, 11:26 a.m.