Decision of the Alabama Surface Mining Commission on the Petition of the Black Warrior River Keeper to Designate Certain Lands as Unsuitable for Coal

Transcription

1 Decision of the Alabama Surface Mining Commission on the Petition of the Black Warrior River Keeper to Designate Certain Lands as Unsuitable for Coal Mining Alabama Surface Mining Commission October 28, 2013

2 Abstract The Alabama Surface Mining Commission (ASMC) issues its decision to deny the request by the Black Warrior River Keeper to designate over 40,000 acres of lands along the Mulberry Fork River as unsuitable for coal mining. In September 2012, the Black Warrior River Keeper filed a petition with the ASMC alleging that mining along the Mulberry Fork would threaten the source water supply of the Birmingham Water Works Board Mulberry Fork Intake station which supplies domestic water to over 200,000 households in the greater Birmingham area. Data from mined and un-mined sub-watersheds were compared to determine if primary drinking water standards set by the Environmental Protection Agency and the Alabama Department of Environmental Management were being exceeded due to coal mining. The ASMC concludes that the data does not support declaring the area unsuitable for coal mining. The agency further concludes that on a case-by-case basis, future proposed mining operations might be limited if review of permit applications and cumulative impacts assessments reveal that a proposed operation may threaten the source water supply for the intake station. 1

3 Introduction The Black Warrior River Keeper (BWRK), an Alabama non-profit membership corporation, submitted a petition to the Alabama Surface Mining Commission on September 10, 2012 requesting that we designate lands adjacent to the Mulberry Fork of the Black Warrior River as Unsuitable for coal mining (Exhibit A). The petitioner asks us to designate this area unsuitable for mining because coal mining operations would adversely affect Renewable Resource Lands. As defined in the Alabama Administrative Code 880-X-2A-.06(139), Renewable Resource Lands means geographic areas which contribute significantly to the long-range productivity of the water supply or of food or fiber products. Such lands to include aquifers and aquifer recharge areas. The petitioner alleges that these lands are renewable resource lands because the section of the Mulberry Fork included in the petition area is designated Public Water Supply by the Alabama Department of Environmental Management (McIndoe, 2011) and because a City of Birmingham Water Works Board (BWWB) drinking water intake station is located within the petition area. This water intake services approximately 200,000 people in the Birmingham metropolitan area. This petition was rejected in part and accepted as complete in part (Exhibit B). The section of the Mulberry Fork is also classified Fish & Wildlife and Swimming and Other Whole Body Water-Contact Sports. We prepared a document entitled Inventory of Environmental, Economic and Coal Resources and Data for Evaluation of a Petition to Designate Lands Adjacent to the Mulberry Fork of the Black Warrior River as Unsuitable for Coal Mining (Inventory) in May of This document provides the core data for analysis of this petition. We also reviewed reference material cited by the petitioner and other relevant sources we cited in the Inventory, information submitted by other government agencies, and information submitted during the public comment period. The basis of this petition is Alabama Administrative Code 880-X 7C-.04(2): Upon petition an area may be (but is not required to be) designated as unsuitable for certain types of surface coal mining operations, if the operations will -- (c) Affect renewable resource lands in which the operations could result in a substantial loss or reduction of long-range productivity of water supply or of food or fiber products; Under this section of the Administrative Code, the decision of the agency is discretionary, not mandatory. Our options were to designate the area in whole or in part, not to designate the petitioned land areas, or to place conditions on future operations in all or part of the petitioned area, which would successfully mitigate the impacts of such operations. The Petitioners request for designation alleges that coal mining in the watershed of the petition area will degrade the quality of source water at the intake station and thus cause increases in costs of treatment and/or reduction in the supply of drinking water. BWRK 2

4 outlines allegations of fact and supporting evidence of adverse effects (of coal mining) on drinking water and human health. BWRK maintains that effluent limitations currently applied to coal mining operations under National Pollutant Discharge Elimination System (NPDES) permits issued by the Alabama Department of Environmental Management are not adequate to protect source water for a public water intake system. Pollutants of concern include the standard NPDES limitations for ph, iron, manganese, and suspended solids, as well as other potential pollutants for which the U.S. Environmental Protection Agency has established Primary or Secondary Drinking Water regulations but which are not routinely applied to discharges from coal mines. BWRK cites studies related to heavy metal concentrations found in coals of the Warrior Basin, discharges from abandoned coal mine operations, effects of certain contaminants on human health, and surface water quality assessments of watersheds in which mining has historically occurred both in Alabama and other states. The allegations in support of a designation of the area as unsuitable for mining center around the possibility of contaminants in discharges of water from coal mine operations. The federal Surface Mining Control and Reclamation Act (SMCRA) was signed into law in This act resulted from problems associated with unregulated coal mining across the United States. One of the primary problems targeted by SMCRA was water quality. SMCRA focuses on establishing a set of standards to reduce mine related water quality problems that might occur during and after mining. Alabama adopted a similar act in Since that time, coal mining operations must adhere to rigorous permit requirements as well as performance standards. There is no dispute that pre-smcra mining operations contributed greatly to degradation of surface and ground water resources. The lingering effects of these operations still impact rivers and streams in Alabama even today. Acid mine drainage from abandoned underground mine openings, tailings ponds and refuse piles are prevalent in the surface waters of the Warrior Coal fields. Low ph waters facilitated the leaching of heavy metals and other toxic pollutants from refuse piles and mine spoils. Uncontrolled surface runoff from disturbed areas resulted in siltation of streams and lakes. Requirements imposed on mining operations today are designed to minimize or eliminate these problems. Discharges of water from mining operations are required to be passed first through a treatment facility before being released to a receiving stream. These treatment facilities are usually ponds constructed to control runoff from the mine area that results from rainfall events. As such, these facilities normally discharge only as a result of precipitation. In some cases water may be manually pumped from collection areas such as pit floors to treatment facilities before discharge to receiving waters. Seldom do these facilities discharge on a continuous basis. Rainwater that falls on the mined area either infiltrates into the ground or is conveyed overland to the treatment facility that is located to collect all surface flow. The design of these facilities is tailored to capture and treat a rainfall event of a specific magnitude. The primary pollutants targeted are total suspended solids, total Iron, total Manganese and ph. Other parameter limits may be imposed on permits by the Alabama Department of Environmental 3

5 Management on a case-by-case basis. Other measures are used during mining to limit exposure of toxic and acid forming materials to rainfall thus minimizing the discharge of other pollutants. Prompt revegetation of mined areas is required to minimize sediment loss. The petition area encompasses approximately 40,300 acres (Map 1). Within that area there are numerous pre-smcra mine sites. There two permitted mining operations within the area on which mining has not commenced, the Shepherd Bend and Reed No. 5 mines. There are three post-smcra mines that have been completed and reclaimed. There are no permanent EPA Modernized STORET data stations located within the petition area, therefore, water quality data availability is limited to that submitted to ASMC and ADEM in conjunction with post-smcra permits, data collected by the Environmental Protection Agency (EPA) during 2012 under a special study, and data collected by the BWWB. There are a number of Modernized STORET stations outside of the area, however, for which water quality data is available. These sites include locations in watersheds where extensive coal mining has and is occurring as well as locations where no coal mining has taken place in the watershed. Evaluation of Data In the first phase of our evaluation EPA/ADEM Primary and Secondary Drinking Water standards were used as benchmark limitations. We assumed that if the raw water (untreated) concentrations exceeded a Primary or Secondary standard then treatment difficulties or increased costs would be experienced. Primary drinking water standards are those for which EPA or ADEM has established a Maximum Contaminant Level (MCL) or a Treatment Technique (TT) for public water supply for the characteristic. Secondary Drinking Water Standards are those for which EPA has recommended a limit that is not mandatory. Secondary standards are not related to human health, but to cosmetic or aesthetic effects. These standards apply to the total recoverable concentration of the sample fraction. Water quality parameters or characteristics were examined that might be associated with discharges from coal mining operations regardless of whether EPA or ADEM has established a primary or secondary standard. Table 1 lists the characteristics we examined in this evaluation. In order to characterize water quality within the LUMP area we obtained water quality data from the BWWB that were collected at 8 locations within the Mulberry Fork watershed between 2007 and Four of these locations are within the LUMP area Barney Trestle, Frog Ague, Frog Ague West and Industrial Pump Station. Locations of these sites are shown on Map 2. Table 2 summarizes the number of samples exceeding the drinking water standards. Lead exceeded the Primary DWS in 3 of 544 (0.55%) samples. Aluminum (44% of samples), Iron (16% of samples) and Manganese (24% of samples) exceeded the Secondary DWS. Table 3 summarizes the minimum, maximum, 4

6 ³ 5 < BWWB Mulberry Fork Intake BWRK LUMP Area <all other values> PRMT_STAT ACTIVE CLOSED EXPIRED LUMP Watershed Miles

7 Table 1. Water Quality Characteristics- EPA Drinking Water Standards Characteristic Name Sample Fraction DWS* DWS* Units Type DWS Antimony Total 6 ug/l Primary Arsenic Total 10 ug/l Primary Berylium Total 4 ug/l Primary Cadmium Total 5 ug/l Primary Chromium Total 0.1 mg/l Primary Copper Total 1.3 mg/l Primary Cyanide Total 0.2 mg/l Primary Lead Total 15 ug/l Primary Mercury Total 2000 ng/l Primary Nickel Total 0.1 mg/l Primary** Selenium Total 50 ug/l Primary Sulfate Total 500 mg/l Primary*** Thallium Total 2 ug/l Primary Turbidity Total 1 NTU Primary Aluminum Total mg/l Secondary Chloride Total 250 mg/l Secondary Iron Total 0.3 mg/l Secondary Manganese Total 0.05 mg/l Secondary ph su Secondary Silver Total 100 ug/l Secondary Total dissolved solids 500 mg/l Secondary Zinc Total 5 mg/l Secondary Conductivity umho/cm None Total suspended solids mg/l None *EPA Drinking Water Standard ** The EPA Drinking Water Standard for Nickel has been remanded. The ADEM PDWS is used. *** EPA has no Primary DWS for Sulfate. The ADEM PDWS is used. 6

8 Upper Lost Creek Watershed BWWBSites <all other values> PRMT_STAT ACTIVE CLOSED EXPIRED MulberryForkHUC8 BWRK LUMP Area ³ 7 USGS Jasper Water WorksBlack Water Sipsey- Mulberry Confluence Barney Tressel Frog Ague Industrial Pump Station Map 2. BWWB Monitoring Sites Miles

9 Table 2. BWWB Mulberry Fork Water Data - DWS* Exceedance Characte ristic Number of Sample Sites Number of Samples Number Below Minimum Reporting Limit Percent of Samples Below Minimum Reporting Limit Number of Samples Detected But Not Exceeding DWS Percent of Samples Below Minimum Reporting Limit or Not Exceeding DWS Number Exceeding DWS* Percent of Samples Exceeding DWS* Aluminum % % % Secondary** Antimony % % % Primary Arsenic % % % Primary Barium % % % Primary Beryllium % % % Primary Cadmium % % % Primary Chloride % % % Secondary Chromium % % % Primary Copper % % % Secondary Cyanide 0 0 Primary Iron % % % Secondary Lead % % % Primary Manganese % % % Secondary Mercury % % % Primary Nickel % % % NA*** ph % % % Secondary Selenium % % % Primary Silver % % % Secondary Thallium % % % Primary Sulfate % % % Secondary TDS % % % Secondary Zinc % % % Secondary * EPA/ADEM Drinking Water Standard **The Secondary Drinking Water Standard for Aluminum is.05 to.2 mg/l. The percentage of samples exceeding the standard for Aluminum is based on.05 mg/l. The percentage of Samples exceeding 0.2 mg/l is 7.12% *** The ADEM standard for Nickel is used Type DWS* 8

10 Table 3. BWWB Mulberry Fork Water Data Summary (All sites)* Characterist ic Number of Samples Result Avg StDev Of Result Result Min Result Max Units DWS (ug/l) Type DWS Standard Begin Date End Date Aluminum ug/l 50 Secondary** 4/2/2007 8/6/2013 Antimony ug/l 6 Primary 8/17/2007 8/6/2013 Arsenic ug/l 10 Primary 8/17/2007 8/6/2013 Barium ug/l 2000 Primary 1/20/2010 8/6/2013 Beryllium ug/l 4 Primary 1/20/2010 8/6/2013 Cadmium ug/l 5 Primary 20-Jan Aug-13 Chloride ug/l Secondary 3/7/2007 8/1/2013 Chromium ug/l 100 Primary 7/13/2007 8/6/2013 Conductivity umos/cm Copper ug/l 1300 Primary 8/2/2007 8/6/2013 Iron ug/l 300 Secondary 4/2/2007 8/8/2013 Lead ug/l 15 Primary 7/13/2007 8/6/2013 Manganese ug/l 50 Secondary 4/2/2007 8/6/2013 Mercury ug/l 2 Primary 6/18/2008 9/4/2012 Nickel ug/l 10 Primary*** 1/20/2010 8/6/2013 ph s.u Secondary 1/29/2007 8/21/2013 Selenium ug/l 50 Primary 2/8/2010 8/6/2013 Silver ug/l 100 Secondary 1/20/2010 1/8/2013 Sulfate ug/l Primay**** 3/7/2007 8/1/2013 Thallium ug/l 2 Primary 1/20/2010 8/6/2013 TDS ug/l Secondary 1/29/2007 8/7/2013 Zinc ug/l 5000 Secondary 4/2/2007 8/6/2013 * Summary of values >Mimimum Reporting Limit **The Secondary Drinking Water Standard for Aluminum is.05 to.2 mg/l. The percentage of samples exceeding the standard for Aluminum is based on.05 mg/l. The percentage of samples exceeding.2 mg/l is *** The EPA standard for Nickle has been remanded. The ADEM Primary DWS is used. Exceeds Applicable Standard **** The ADEM Primary DWS is used. 9

11 and average results for BWWB sites. Figures 1-15 graph average concentrations of the parameters of interest at all 8 locations. We also obtained water quality data from the BWWB that was collected at the Mulberry Fork Intake Station from 2010 through Table 4 summarizes the minimum, maximum, and average results for the Intake Station data. Table 5 summarizes the number of samples exceeding the drinking water standards. Cadmium (5% of samples) exceeded the Primary DWS. Aluminum (32% of samples) and Manganese (19% of samples) exceeded the Secondary DWS. There were 106 sample site locations for the Mulberry Fork for which data were contained in the EPA STORET database. We extracted all water quality data for these sites from the database regardless of the date of the sampling. Locations of these sites were plotted using geographic information system software. We then determined whether the sites were located in sub-watersheds where coal mining has occurred or whether they were located in watersheds where no coal mining has occurred. Locations of these sites are shown on Map 3. Sites with no coal mining in their sub-watersheds are located in the northern 1/3 of the Mulberry Fork watershed. It is worth noting that there is one previous coal mining site located within this area of focus. This mine disturbed approximately 109 acres and received complete bond release in For that reason it was deemed not likely to have an impact on water quality at any stations in the area. All water quality data from these stations were extracted from STORET and examined to determine what patterns in water quality, if any, could be differentiated between mined and un-mined watersheds. There were sites in mined and un-mined sub-watersheds for which analyses for the characteristics in Table 1 were available, although not all sites had such data. Although samples were taken over varying periods of time, we verified from our records that mining was occurring in the sub-watersheds during the periods those samples were acquired. Table 6 and Table 7 summarize the minimum, maximum, and average results for sites in mined and un-mined watersheds respectively. Tables 6 and 7 only include data from samples where the characteristic was detected, i.e. the concentration was above the Method Detection Level (MDL). Tables 8 and Table 9 summarize the number of samples exceeding the drinking water standards for mined and un-mined sub-watersheds respectively. Tables 8 and 9 include all samples. Of the water quality characteristics regulated by Primary Drinking Water Standards (PDWS) only one sample each for Arsenic and Mercury were found in concentrations exceeding the standard in mined subwatersheds. Two samples for lead and one for cadmium exceeded the primary drinking water standard from sites located in un-mined watersheds. Sulfate was detected in 98% of samples from mined sub-watersheds and 100% of samples from un-mined subwatersheds. Sulfate exceeded the primary standard in 37% of samples from mined sub- 10

12 Figure 1. BWWB Sites- Total Aluminum (ug/l) ug/l Average Total Aluminum by Site DWS(ug/L) Barney Tressel Black Water Frog Ague Frog Ague West Industrial Pump Station Jasper Water Works Sipsey- Mulberry Confluence USGS Site Figure 2. BWWB Sites- Total Antimony (ug/l) ug/l 4 3 Average Total Antimony by Site DWS(ug/L) Barney Tressel Black Water Frog Ague Frog Ague West Industrial Pump Station Jasper Water Works Sipsey- Mulberry Confluence USGS Site 11

13 Figure 3. BWWB Sites- Total Arsenic (ug/l) ug/l Average Total Arsenic by Site DWS(ug/L) Barney Tressel Black Water Frog Ague Frog Ague West Industrial Pump Station Jasper Water Works Sipsey- Mulberry Confluence USGS Site Figure 4. BWWB Sites- Total Beryllium (ug/l) ug/l Average Total Beryllium by Site DWS(ug/L) Barney Tressel Black Water Frog Ague Frog Ague West Industrial Pump Station Jasper Water Works Sipsey- Mulberry Confluence USGS Site 12

14 Figure 5. BWWB Sites- Total Cadmium (ug/l) ug/l Average Total Cadmium by Site DWS(ug/L) Barney Tressel Black Water Frog Ague Frog Ague West Industrial Pump Station Jasper Water Works USGS Site Figure 6. BWWB Sites- Total Chromium (ug/l) ug/l Average Total Chromium by Site DWS(ug/L) 1 Barney Tressel Black Water Frog Ague Frog Ague West Industrial Pump Station Jasper Water Works Sipsey- Mulberry Confluence USGS Site 13

15 Figure 7. BWWB Sites- Total Copper (ug/l) ug/l Average Total Copper by Site DWS(ug/L) 1 Barney Tressel Black Water Frog Ague Frog Ague West Industrial Pump Station Jasper Water Works Sipsey- Mulberry Confluence USGS Site Figure 8. Average Total Manganese by Site ug/l Average Total Iron by Site DWS(ug/L) Barney Tressel Black Water Frog Ague Frog Ague West Industrial Pump Station Jasper Water Works Sipsey- Mulberry Confluence USGS Site 14

16 Figure 9. Average Total Mercury by Site ug/l Average Total Mercury by Site DWS(ug/L) Barney Tressel Black Water Frog Ague West Industrial Pump Station Jasper Water Works Sipsey- Mulberry Confluence USGS Site Figure 10. Average Total Nickel by Site ug/l Average Total Nickel by Site DWS(ug/L) Barney Tressel Black Water Frog Ague Frog Ague West Industrial Pump Station Jasper Water Works Sipsey- Mulberry Confluence USGS Site 15

17 Figure 11. Average Total Selenium by Site ug/l Barney Tressel Black Water Frog Ague Frog Ague West Industrial Pump Station Jasper Water Works Sipsey- Mulberry Confluence USGS Average Total Selenium by Site DWS(ug/L) Site Figure 12. Average Total Silver by Site ug/l Average Total Silver by Site DWS(ug/L) Barney Tressel Black Water Frog Ague Frog Ague West Industrial Pump Station Jasper Water Works Sipsey- Mulberry Confluence USGS Site 16

18 Figure 13. Average Total Sulfate by Site ug/l Average Total Sulfate by Site DWS(ug/L) Barney Tressel Black Water Frog Ague Frog Ague West Industrial Pump Station Jasper Water Works Sipsey- Mulberry Confluence USGS Site Figure 14. Average Total Thallium by Site ug/l Average Total Thallium by Site DWS(ug/L) Barney Tressel Black Water Frog Ague Frog Ague West Industrial Pump Station Jasper Water Works Sipsey- Mulberry Confluence USGS Site 17

19 Figure 15. Average Total Zinc by Site ug/l Average Total Zinc by Site DWS(ug/L) 1 Barney Tressel Black Water Frog Ague Frog Ague West Industrial Pump Station Jasper Water Works Sipsey- Mulberry Confluence USGS Site 18

20 Table 4. BWWB Mulberry Fork Intake Water Data Summary* Characteristic Site Number of Samples Result Avg StDev Of Result Result Min Result Max Units DWS (ug/l) Type DWS Standard Begin Date Aluminum Mulberry Intake ug/l 50 Secondary** 10/18/2010 8/6/2013 Antimony Mulberry Intake ug/l 6 Primary 10/18/2010 3/26/2013 Arsenic Mulberry Intake ug/l 10 Primary 10/18/2010 3/26/2013 Barium Mulberry Intake ug/l 2000 Primary 1/19/2011 3/26/2013 Beryllium Mulberry Intake ug/l 4 Primary 1/19/2011 2/11/2013 Cadmium Mulberry Intake ug/l 5 Primary 1/19/2011 2/11/2013 Chloride Mulberry Intake ug/l Secondary 8/23/2012 8/23/2012 Chromium Mulberry Intake ug/l 100 Primary 10/18/2010 3/26/2013 Copper Mulberry Intake ug/l 1300 Primary 10/18/2010 3/26/2013 Iron Mulberry Intake ug/l 300 Secondary 1/19/2011 8/6/2013 Lead Mulberry Intake ug/l 15 Primary 10/22/2010 3/26/2013 Manganese Mulberry Intake ug/l 50 Secondary 10/18/2010 8/6/2013 Mercury Mulberry Intake ug/l 2 Primary 6/27/2011 8/30/2012 Nickel Mulberry Intake ug/l 10 Primary*** 1/19/2011 3/26/2013 Selenium Mulberry Intake ug/l 50 Primary 10/18/2010 3/26/2013 Silver Mulberry Intake ug/l 100 Secondary 12/9/ /9/2012 Sulfate Mulberry Intake ug/l Primary**** 9/30/2010 7/30/2013 Thallium Mulberry Intake ug/l 2 Primary 1/19/2011 1/19/2011 TDS Mulberry Intake ug/l Secondary 9/9/2010 8/6/2013 Zinc Mulberry Intake ug/l 5000 Secondary 10/18/2010 3/26/2013 * Summary of data values > Minimum Reporting Limit **The Secondary Drinking Water Standard for Aluminum is.05 to.2 mg/l. The percentage of samples exceeding the standard for Aluminum is based on.05 mg/l. *** The EPA standard for Nickle has been remanded. The ADEM Primary DWS is used. **** The ADEM PDWS for Sulfate is used. Exceeds Applicable DWS End Date 19

21 Table 5. BWWB Mulberry Fork Intake Water Data- DWS* Exceedance Characteristi c Number of Sample Sites Number of Samples Number Below Minimum Reporting Limit Percent of Samples Below Minimum Reporting Limit Number of Samples Detected But Not Exceeding DWS Percent of Samples Below Minimum Reporting Limit or Not Exceeding DWS Number Exceedin g DWS* Percent of Samples Exceeding DWS* Type DWS* Aluminum % % % Secondary** Antimony % % % Primary Arsenic % % % Primary Barium % % % Primary Beryllium % % % Primary Cadmium % % % Primary Chloride % % % Secondary Chromium % % % Primary Copper % % % Secondary Cyanide 1 0 Primary Iron % % % Secondary Lead % % % Primary Manganese % % % Secondary Mercury % % % Primary Nickel % % % NA*** ph 1 0 Secondary Selenium % % % Primary Silver % % % Secondary Thallium % % % Primary Sulfate % % % Primary**** TDS % % % Secondary Zinc % % % Secondary * EPA/ADEM Drinking Water Standard **The Secondary Drinking Water Standard for Aluminum is.05 to.2 mg/l. The percentage of samples exceeding the standard for Aluminum is based on.05 mg/l. The percentage of Samples exceeding 0.2 mg/l is 2.44% *** The EPA standard for Nickel has been remanded. The ADEM PDWS for Nickel is used **** The ADEM Primary DWS for Sulfate is used. 20

22 Storet Stations Mined Watershed Unmined Watershed MulberryForkHUC8 BWRK LUMP Area ³ 21 Map 3. Mulberry Fork STORET Stations Miles

23 Table 6. Mulberry Fork Mined Watershed Sites- Data Summary (Samples with Detected Concentrations) Characteristic Name Sample Fraction Units Number of Samples Result Avg StDevOf Result Result Min Result Max DWS* DWS* Units Type DWS* Standard Begin Date End Date Aluminum Total mg/l mg/l Secondary** 7/17/1996 2/20/2013 Antimony Total ug/l ug/l Primary 6/2/2005 1/22/2013 Arsenic Total ug/l ug/l Primary 7/17/1996 2/20/2013 Beryllium Total ug/l ug/l Primary 1/26/2011 1/22/2013 Cadmium Total ug/l ug/l Primary 7/17/1996 2/20/2013 Chloride Total mg/l mg/l Secondary 7/17/1996 4/9/2013 Chromium Total mg/l mg/l Primary 7/17/1996 2/20/2013 Conductivity Total ms/cm ms/cm NA 4/21/1998 2/8/2011 Conductivity Total umho/cm umho/cm NA 6/11/1996 4/9/2013 Copper Total mg/l mg/l Primary 7/17/1996 2/20/2013 Cyanide Total mg/l mg/l Primary 7/17/1996 2/20/2013 Iron Total mg/l mg/l Secondary 6/11/1996 2/20/2013 Lead Total ug/l ug/l Primary 5/18/1999 2/20/2013 Manganese Total mg/l mg/l Secondary 6/11/1996 2/20/2013 Mercury Total ng/l ng/l Primary 5/18/1999 1/22/2013 Nickel Total mg/l mg/l Primary*** 7/17/1996 2/20/2013 ph su su Secondary 6/11/1996 4/9/2013 Selenium Total ug/l ug/l Primary 6/2/2005 2/20/2013 Silver Total ug/l ug/l Secondary 6/2/2005 2/20/2013 Sulfate Total mg/l mg/l Primary**** 9/24/1997 2/20/2013 Thallium Total ug/l 0 ND 2 ug/l Primary Total dissolved solids mg/l mg/l Secondary 7/17/1996 4/9/2013 Total suspended solids mg/l mg/l NA 6/11/1996 4/9/2013 Turbidity NTU NTU Primary 6/11/1996 4/9/2013 Zinc Total mg/l mg/l Secondary 5/18/1999 2/20/2013 * EPA Drinking Water Standard **The Secondary Drinking Water Standard for Aluminum is.05 to.2 mg/l. The percentage of samples exceeding the standard for Aluminum is based on.05 mg/l. ***- The EPA Primary Drinking Water Standard for Nickle has been remanded. The ADEM Primary Drinking Water Standard is substituted here. **** EPA has no Primary Drinking Water Standarf for Sulfate. The ADEM Primary Drinking Water Standard is substituted here. ND Not Detected 22

24 Table 7. Mulberry Fork Un-mined Watershed Sites- Data Summary (Samples with Detected Concentrations) Characteristic Name Sample Fraction Units Number of Samples Result Avg StDevOf Result Result Min Result Max DWS* DWS Units Type DWS Standard Begin Date End Date Aluminum Total mg/l mg/l Secondary** 6/26/ /28/2012 Antimony Total ug/l 0 ND 6 ug/l Primary 3/13/ /13/2003 Arsenic Total ug/l 0 ND 10 ug/l Primary 6/26/ /13/2003 Berylium Total ug/l 0 4 ug/l Primary Not Sampled Cadmium Total ug/l ug/l Primary 3/11/ /13/2003 Chloride Total mg/l mg/l Secondary 2/1/ /28/2012 Chromium Total mg/l mg/l Primary 3/11/ /13/2003 Conductivity Total ms/cm ms/cm NA 9/7/2012 9/7/2012 Conductivity Total umho/cm umho/cm NA 2/1/ /28/2012 Copper Total mg/l mg/l Primary 3/11/ /13/2003 Cyanide Total mg/l mg/l Primary 3/11/ /11/1995 Iron Total mg/l mg/l Secondary 3/11/ /28/2012 Lead Total ug/l ug/l Primary 3/11/ /13/2003 Manganese Total mg/l mg/l Secondary 3/11/ /28/2012 Mercury Total ng/l ng/l Primary 6/26/ /28/2012 Nickel Total mg/l mg/l Primary*** 7/17/ /13/2003 ph su su Secondary 2/1/ /28/2012 Selenium Total ug/l 0 ND 50 ug/l Primary 3/19/ /13/2003 Silver Total ug/l 0 ND 100 ug/l Secondary 3/19/ /13/2003 Sulfate Total mg/l mg/l Primary**** 10/1/1997 7/9/2002 Thallium Total ug/l 0 ND 2 ug/l Primary 3/19/ /13/2003 Total dissolved solids mg/l mg/l Secondary 2/1/ /28/2012 Total suspended solids mg/l mg/l NA 2/1/ /28/2012 Turbidity NTU NTU Primary 2/1/ /28/2012 Zinc Total mg/l 0 ND 5 mg/l Secondary 3/14/ /28/2012 * EPA Drinking Water Standard **The Secondary Drinking Water Standard for Aluminum is.05 to.2 mg/l. The percentage of samples exceeding the standard for Aluminum is based on.05 mg/l. ***- The EPA Primary Drinking Water Standard for Nickle has been remanded. The ADEM Primary DWS for Nickel is substituted here. **** EPA has no Primary Drinking Water Standarf for Sulfate. The ADEM Primary Drinking Water Standard is substituted here. ND Not Detected 23

25 Table 8. Mulberry Fork Water Data (Mined Watershed Sites-) - DWS* Exceedance Characteristic Number of Sample Sites Number of Samples Number Below MDL Percent Below MDL Number of Samples Detected But Not Exceeding DWS Percent of Samples Below MDL or Not Exceeding DWS Number Exceeding DWS* Percent of Samples Exceeding DWS* Aluminum % % % Secondary** Antimony % % % Primary Arsenic % % % Primary Beryllium % % % Primary Cadmium % % % Primary Chloride % % % Secondary Chromium % % % Primary Copper % % % Secondary Cyanide % % % Primary Iron % % % Secondary Lead % % % Primary Manganese % % % Secondary Mercury % % % Primary Nickel % % % Primary*** ph 7069 NA NA % % Secondary Selenium % % % Primary Silver % % % Secondary Thallium % % % Primary Sulfate % % % Primary**** TDS % % % Secondary Turbidity % % % Zinc % % % Secondary * EPA Drinking Water Standard for Total Recoverable sample fraction except for TDS and ph. **The Secondary Drinking Water Standard for Aluminum is.05 to.2 mg/l. The percentage of samples exceeding the standard for Aluminum is base on.05 mg/l. The percentage o Samples exceeding 0.2 mg/l is 50.00% *** The EPA standard for Nickel has been remanded. The ADEM Primary DWS for Nickel was used. **** EPA has no Primary DWS for Sulfate. The ADEM Primary DWS for Sulfate Was Used. MDL -Method Detection Limit Type DWS* 24

26 Table 9. Mulberry Fork (Un-Mined Watershed Sites)- DWS* Exceedance Characteristic Number of Sample Sites Number of Samples Number Below MDL Percent Below MDL Number of Samples Detected But Not Exceeding DWS Percent of Samples Below MDL or Not Exceeding DWS Number Exceeding DWS* Percent of Samples Exceeding DWS* Aluminum % % % Secondary** Antimony % % % Primary Arsenic % % % Primary Beryllium 0 Primary Cadmium % % % Primary Chloride % % % Secondary Chromium % % % Primary Copper % % % Secondary Cyanide % % % Primary Iron % % % Secondary Lead % % % Primary Manganese % % % Secondary Mercury % % % Primary Nickel % % % Primary*** ph 7031 NA NA % % Secondary Selenium % % % Primary Silver % % % Secondary Thallium % % % Primary Sulfate % % % Primary**** TDS % % % Secondary Turbidity % % % Zinc % % % Secondary * EPA Drinking Water Standard for Total Recoverable sample fraction except for TDS and ph. **The Secondary Drinking Water Standard for Aluminum is.05 to.2 mg/l. The percentage of samples exceeding the standard for Aluminum is base on.05 mg/l. The percentage o Samples exceeding 0.2 mg/l is 32.56% *** The EPA standard for Nickel has been remanded. The ADEM Primary DWS for Nickel was used. **** EPA has no Primary DWS for Sulfate. The ADEM Primary DWS for Sulfate Was Used. MDL -Method Detection Limit Type DWS* 25

27 watersheds and 0% of samples from un-mined watersheds. Distributions of Sulfate concentrations are shown in Map 4. Of the characteristics for which EPA/ADEM has established Secondary Standards, several were found to frequently exceed the recommended standard. Aluminum was detected in over 83% of all samples collected in mined sub-watersheds and 64% of all samples in un-mined sub-watersheds. Aluminum exceeded the secondary standard in 82% of the samples from mined sub-watersheds and 56% of the samples from un-mined sub-watersheds. The average Aluminum concentration in samples from mined sub-watersheds was 10 times higher than the SDWS and 7 times higher in un-mined subwatersheds. The distributions of Aluminum concentrations are shown in Map 5. Iron was detected in 98% of samples from mined sub-watersheds and 95% of samples from un-mined sub-watersheds. Iron exceeded the secondary standard in 49% if the samples from mined sub-watersheds and 47% of the samples from un-mined subwatersheds. The distributions of Iron concentrations are shown in Map 6. Manganese was detected in 95% of samples from mined sub-watersheds and 83% of samples from un-mined sub-watersheds. Manganese exceeded the secondary standard in 71% of samples from mined sub-watersheds and 49% of samples from un-mined subwatersheds. The distributions of manganese concentrations are shown in Map 7. Total dissolved solids (TDS) were detected in almost all samples from mined and unmined sub-watersheds. TDS exceeded the secondary standard in 37% of samples from mined sub-watersheds and less than 1% of samples from un-mined sub-watersheds. Distributions of TDS concentrations are shown in Map 8. Sulfate is more than likely the primary contribution to TDS in mined sub-watersheds. Throughout the entire watershed, ph tended to be in the range of s.u. Over 92% of samples from mined sub-watersheds were within secondary standard range, 84% of samples from un-mined sub-watersheds were within the secondary standard range. The distributions of ph levels are shown in Map 9. During 2011,2012 and 2013 ADEM collected water quality samples from three Level IV eco-reference streams in conjunction with a study on potential impacts from coal mining on water quality. These sites were BERT-4 (Site 367) located on Bear Creek in Tuscaloosa County, INMW-1 (Site 648) located on Inman Creek in Winston County and BRSL-3 (Site 405) located in Lawrence County. We conducted similar evaluations of data collected from these sites. Tables 10, 11, and 12 summarize the data from these sites. Of the characteristics regulated by PDWS, Antimony was detected in concentrations exceeding the standard (1 sample out of % from Site 367) and Turbidity exceeded the PDWS in over 90% of the samples from all three sites. 26

28 ³!!!!! 27!!!!!!!!!!!!!!!!!!!! Sulfate Mg/L Result! Not Detected MDL - < 250 Mg/L! > 250 Mg/L BWRK LUMP Area <all other values> PRMT_STAT ACTIVE CLOSED EXPIRED Mulberry Fork STORET Data -Parameter Concentration Distribution Miles

29 ³ 28 Aluminum Mg/L Result NotDetected or Below SDWS >0.05 and <- 0.2 (SDWS) BWRK LUMP Area <all other values> PRMT_STAT ACTIVE CLOSED EXPIRED Mulberry Fork STORET Data -Parameter Concentration Distribution Miles

30 Iron-Mg/L Result <all other values> PRMT_STAT ACTIVE CLOSED EXPIRED MulberryForkHUC8 BWRK LUMP Area ³ 29 Map 6. Mulberry Fork STORET Data-Parameter Concentration Distributions Miles

31 ³ 30 Manganese Mg/L Result Not Detected MDL - < 0.05 Mg/L > 0.05 Mg/L BWRK LUMP Area <all other values> PRMT_STAT ACTIVE CLOSED EXPIRED Mulberry Fork STORET Data -Parameter Concentration Distribution Miles

32 ³ 31 Total Dissolved Solids Mg/L Result Not Detected MDL - < 500 Mg/L > 500 Mg/L BWRK LUMP Area <all other values> PRMT_STAT ACTIVE CLOSED EXPIRED Mulberry Fork STORET Data -Parameter Concentration Distribution Miles

33 ³ 32 ph s.u. Result s.u s.u. > 8.5 s.u. BWRK LUMP Area <all other values> PRMT_STAT ACTIVE CLOSED EXPIRED Mulberry Fork STORET Data -Parameter Concentration Distribution Miles

34 Table 10. Reference Site 367- Drinking Water Standard Exceedance Characte ristic Number Sample Below Fraction Number of Samples MDL % Below MDL Number Detected % Detected Number Exceeding DWS % Exceeding DWS Aluminum Total % % % Secondary** Antimony Total % % % Primary Arsenic Total % % % Primary Beryllium Total % % % Primary Cadmium Total % % % Primary Chloride Total % % % Secondary Chromium Total % % % Primary Copper Total % % % Secondary Cyanide Total % % % Primary Iron Total % % % Secondary Lead Total % % % Primary Manganese Total % % % Secondary Mercury Total % % % Primary Nickel Total % % % Primary*** ph % % % Secondary Selenium Total % % % Secondary Silver Total % % % Primary Sulfate Total % % % Primary**** Thallium Total % % % Primary Total dissolved solids % % % Secondary Turbidity % % % Primary Zinc Total % % % Secondary * EPA/ADEM Drinking Water Standard for Total Recoverable sample fraction except for TDS and ph. **The Secondary Drinking Water Standard for Aluminum is.05 to.2 mg/l. The percentage of samples exceeding the standard for Aluminum is base on *** The EPA standard for Nickel has been remanded. The ADEM PDWS 0.1 mg/l was used. **** EPA has no Primary DWS for Sulfate. The ADEM Primary DWS for Sulfate Was Used. MDL -Method Detection Limit Type DWS* 33

35 Table 11. Reference Site 405- Drinking Water Standard Exceedance Characte ristic Number Sample Below Fraction Number of Samples MDL % Below MDL Number Detected % Detected Number Exceeding DWS % Exceeding DWS Aluminum Total % % % Secondary** Antimony Total % % % Primary Arsenic Total % % % Primary Beryllium Total % % % Primary Cadmium Total % % % Primary Chloride Total % % % Secondary Chromium Total % % % Primary Copper Total % % % None Cyanide Total % % % Primary Iron Total % % % Secondary Lead Total % % % Primary Manganese Total % % % Secondary Mercury Total % % % Primary Nickel Total % % % Primary*** ph % % % Secondary Selenium Total % % % Secondary Silver Total % % % Primary Sulfate Total % % % Primary**** Thallium Total % % % Primary Total dissolved solids % % % Secondary Turbidity % % % Primary Zinc Total % % % Secondary * EPA/ADEM Drinking Water Standard for Total Recoverable sample fraction except for TDS and ph. **The Secondary Drinking Water Standard for Aluminum is.05 to.2 mg/l. The percentage of samples exceeding the standard for Aluminum is base on *** The EPA standard for Nickel has been remanded. The ADEM PDWS 0.1 mg/l was used. **** EPA has no Primary DWS for Sulfate. The ADEM Primary DWS for Sulfate Was Used. MDL -Method Detection Limit Type DWS* 34

36 Table 12. Reference Site 648- Drinking Water Standard Exceedance Characte ristic Number Sample Below Fraction Number of Samples MDL % Below MDL Number Detected % Detected Number Exceeding DWS % Exceeding DWS Aluminum Total % % % Secondary** Antimony Total % % % Primary Arsenic Total % % % Primary Beryllium Total % % % Primary Cadmium Total % % % Primary Chloride Total % % % Secondary Chromium Total % % % Primary Copper Total % % % None Cyanide Total % % % Primary Iron Total % % % Secondary Lead Total % % % Primary Manganese Total % % % Secondary Mercury Total % % % Primary Nickel Total % % % Primary*** ph % % % Secondary Selenium Total % % % Secondary Silver Total % % % Primary Sulfate Total % % % Primary**** Thallium Total % % % Primary Total dissolved solids % % % Secondary Turbidity Total % % % Primary Zinc % % % Secondary * EPA/ADEM Drinking Water Standard for Total Recoverable sample fraction except for TDS and ph. **The Secondary Drinking Water Standard for Aluminum is.05 to.2 mg/l. The percentage of samples exceeding the standard for Aluminum is base on *** The EPA standard for Nickel has been remanded. The ADEM PDWS 0.1 mg/l was used. **** EPA has no Primary DWS for Sulfate. The ADEM Primary DWS for Sulfate Was Used. MDL -Method Detection Limit Type DWS* 35

37 Of the characteristics regulated by Secondary Drinking Water Standards, Aluminum, Iron and ph exceeded the standards in significant numbers of samples. Manganese exceeded the standard in over 15% of the samples from two of the sites and in over 4% of samples from the other site. Summary statistics for the three sites are presented in Tables 13, 14 and 15. The second phase of our evaluation concentrated on water quality criteria (WQC) established by the Alabama Department of Environmental Management (ADEM) for Freshwater Aquatic Life (FALC, Acute and Chronic) and for Human Health Criteria (HHC) for consumption of organism or water plus organism. Some of the inorganic water quality criteria are Hardness dependent and must be adjusted for the actual Hardness of the water sample. Water Quality Criteria established by ADEM are shown in Table 16. We compared results of analyses with applicable water quality criteria (adjusted for Hardness where applicable). With the exception of Mercury and Selenium, water quality criteria apply to the dissolved form of the characteristic. Tables 17 and 18 summarize the results for un-mined and mined sub-watersheds respectively. Only two of the characteristics exceeded the Acute or Chronic Freshwater Aquatic Life Criteria. One sample out of 249 from a mined watershed site exceeded the Acute and the Chronic Freshwater Criteria for Mercury. Two samples out of 58 for lead from un-mined sub-watersheds and one sample out of 237 from mined sub-watersheds exceeded the Chronic Freshwater Aquatic Life Criteria. Lead was detected in 3.5% (2 of 58) of samples from un-mined sub-watersheds and all of those samples exceeded the chronic criteria. Lead was detected in 3% (7 of 236) of samples from mined subwatersheds and 0.42% (1 of 236) of samples exceeded the chronic criteria. The percentage of samples in which the characteristics analyzed were below the MDL was similar for every characteristic. Arsenic, Copper and Thallium were found in levels that exceeded either the HHC for consumption of fish and water or the HHC for consumption of fish in both mined and unmined sub-watersheds. Copper exceeded the HHC in 1 out of 236 (0.42%) samples from mined sub-watersheds and 2 samples out of 58 (3.45%) from un-mined sub-watersheds. Arsenic and Thallium exceeded one or both of the HHC in every sample in which they were detected above the MDL. Arsenic was detected in 13.7% percent of samples from mined sub-watersheds and 20.75% of samples from un-mined sub-watersheds. The WQC and HHC for Arsenic are based on the dissolved trivalent state of the characteristic. Analyses did not differentiate the concentration of the trivalent state of Arsenic in the sample. The comparison of a total dissolved concentration of Arsenic to a WQC or HHC may not be valid since the trivalent concentration of the sample fraction will likely be less than the total. Thallium was detected above MDL in 1 of 53 (1.89%) samples from un-mined sub-watersheds and that one sample exceeded the HHC. Thallium was detected above MDL in 4 out of 78 samples from mined sub-watersheds and all 4 (5.13%) exceeded the HHC. Summary statistics of data from mined and un-mined sub-watersheds are presented in Tables 19 and 20 respectively. 36

38 Table 13. Reference Site 367 Data Summary (Samples with Detected Concentrations) Characteristic Name Sample Fraction Units Number of Samples Avg Of Result StDev Of Result Min Of Result Max Of Result Aluminum Total mg/l mg/l 7/2/2002 2/19/2013 Antimony Total ug/l ug/l 4/7/2003 6/16/2003 Arsenic Total ug/l ug/l 5/25/2011 5/25/2011 Cadmium Total ug/l ug/l 2/22/2011 2/22/2011 Chloride Total mg/l mg/l 3/27/2007 2/19/2013 Conductivity Total umho/cm None 5/6/1997 2/19/2013 Iron Total mg/l mg/l 3/20/2002 2/19/2013 Lead Total ug/l ug/l 4/7/2003 4/7/2003 Manganese Total mg/l mg/l 8/8/2002 2/19/2013 Mercury Total ng/l ng/l 5/4/2011 9/26/2012 ph s.u su 5/6/1997 2/19/2013 Sulfate Total mg/l mg/l 1/14/2011 2/19/2013 Total dissolved solids mg/l mg/l 3/20/2002 2/19/2013 Total suspended solids mg/l None 3/20/2002 2/5/2013 Turbidity NTU NTU NTU 5/6/1997 2/19/2013 Zinc Total mg/l mg/l 2/22/2011 2/22/2011 * EPA Drinking Water Standard **The Secondary Drinking Water Standard for Aluminum is.05 to.2 mg/l. The percentage of samples exceeding the standard for Aluminum is based on.05 mg/l. ***- The EPA Primary Drinking Water Standard for Nickle has been remanded. EPA Water Quality Criteria for Human Consumption of Water and Organism for Dissolved Nickle ND Not Detected Exceeds Applicable Standard DWS* DWS* Units Begin Date End Date 37

39 Table 14. Reference Site 405 Data Summary (Samples with Detected Concentrations) Characteristic Name Sample Fraction Units Number of Samples Avg Of Result StDev Of Result Min Of Result Max Of Result Aluminum Total mg/l mg/l 8/6/2002 2/21/2013 Arsenic Total ug/l ug/l 8/23/ /5/2012 Beryllium Total ug/l ug/l 1/31/2011 1/31/2011 Cadmium Total ug/l ug/l 3/29/2011 3/29/2011 Chloride Total mg/l mg/l 3/29/2007 4/4/2013 Conductivity Total umho/cm NA 3/20/2002 4/4/2013 Iron Total mg/l mg/l 3/20/2002 2/21/2013 Manganese Total mg/l mg/l 6/18/2007 2/21/2013 Mercury Total ng/l ng/l 6/7/2011 6/7/2011 ph None su 3/20/2002 4/4/2013 Selenium Total ug/l ug/l 6/3/2004 6/3/2004 Sulfate Total mg/l mg/l 1/19/2011 2/21/2013 Total dissolved solids mg/l mg/l 3/20/2002 4/4/2013 Total suspended solids mg/l NA 3/20/2002 4/4/2013 Turbidity NTU NTU NTU 3/20/2002 4/4/2013 * EPA/ADEM Drinking Water Standard Exceeds Applicable Standard DWS* DWS* Units **The Secondary Drinking Water Standard for Aluminum is.05 to.2 mg/l. The percentage of samples exceeding the standard for Aluminum is based on.05 mg/l. ND Not Detected Begin Date End Date 38

40 Table 15. Reference Site 648 Data Summary (Samples with Detected Concentrations) Characteristic Name Sample Fraction Units Number of Samples Avg Of Result StDev Of Result Min Of Result Max Of Result Aluminum Total mg/l mg/l 3/20/2002 2/21/2013 Arsenic Total ug/l ug/l 5/24/2011 8/23/2011 Beryllium Total ug/l ug/l 6/29/2011 6/29/2011 Chloride Total mg/l mg/l 6/24/1993 2/21/2013 Chromium Total mg/l mg/l 6/9/1999 6/9/1999 Conductivity Total umho/cm NA 6/24/1993 2/21/2013 Iron Total mg/l mg/l 7/15/1997 2/21/2013 Lead Total ug/l ug/l 4/26/2011 4/26/2011 Manganese Total mg/l mg/l 8/17/1999 1/10/2013 Mercury Total ng/l ng/l 5/6/2011 6/7/2011 ph None su 6/24/1993 2/21/2013 Sulfate Total mg/l mg/l 7/15/1997 2/21/2013 Total dissolved solids mg/l mg/l 7/15/1997 2/21/2013 Total suspended solids mg/l NA 7/15/1997 2/21/2013 Turbidity NTU NTU NTU 6/24/1993 2/21/2013 DWS* DWS* Units * EPA/ADEM Drinking Water Standard **The Secondary Drinking Water Standard for Aluminum is.05 to.2 mg/l. The percentage of samples exceeding the standard for Aluminum is based on.05 mg/l. ND Not Detected Exceeds Applicable Standard Begin Date End Date 39

41 Table 16. ADEM Hardness-dependent Metals Freshwater Aquatic Life Criteria (All criteria are for the dissolved form of the metal) Hardness 50 mg/l as CaCO 3 Acute Criterion, ug/l Enter ambient water hardness here Chronic Criterion, ug/l Cadmium Chromium Copper Lead Nickel Silver N/A Zinc (Chronic Criterion = Acute Criterion) Aquatic Life Criteria ADEM Other Criteria Human Health Criteria FW Acute FW Chronic Consumption of Fish and Water Consumption of Fish only Antimony ug/l ug/l Arsenic (Tri) 340 ug/l 150 ug/l 0.12 ug/l 0.30 ug/l Copper See Table Above ug/l MCL Nickel See Table Above ug/l ug/l Mercury(Total) 2.4 ug/l ug/l 0.04 ug/l 0.04 ug/l Thallium 0.17 ug/l 0.27 ug/l Selenium(Total) 20 ug/l 5.0 ug/l ug/l ug/l Zinc See Table Above ug/l ug/l 40

42 Table 17. Freshwater Aquatic Life Criteria (FALC) and Human Health Criteria (HHC) Exceedance- Un-Mined Watersheds Chacteristic Number of Samples Number Below MDL* % Below MDL Number Above MDL % Above MDL Number Exceeding WQC % Exceeding WQC Antimoney (Dissolved) % % % Arsenic (Dissolved) % % % Cadmium (Dissolved) % % % Chromium (Dissolved) 0 Copper (Dissolved) % % % 2 3 1,2 Lead(Dissolved) % % % 2 Mercury (Total) % % % Nickel(Dissolved) % % % Selenium(Total) % % % Silver(Dissolved) % % % Thallium(Dissolved) % % % 2 Zinc(Dissolved) 0 * MDL- Method Detection Limit 1 FALC/HHC are for Arsenic 3 - results were reported as total dissolved arsenic with no diffeentiation 2 Exceeded HHC for organism or oranism+water 3 FALC/HHC are for Chromium 3 41

43 Table 18. Freshwater Aquatic Life Criteria (FALC) and Human Health Criteria(HHC) Exceedance- Mined Watersheds Chacteristic Number of Samples Number Below MDL % Below MDL* Number Above MDL % Above MDL Number Exceeding WQC % Exceeding WQC Antimoney (Dissolved) % % % Arsenic (Dissolved) % % % Cadmium (Dissolved) % % % Chromium (Dissolved) % % % 3 1,2 Copper (Dissolved) % % % 2 Lead(Dissolved) % % % Mercury (Total) % % % 4 Nickel(Dissolved) % % % Selenium(Total) % % % Silver(Dissolved) % % % Thallium(Dissolved) % % % 2 Zinc(Dissolved) % % % * MDL- Method Detection Limit 1 FALC/HHC are for Arsenic 3 - results were reported as total dissolved arsenic with no diffeentiation 2 Exceeded HHC for organism or oranism+water 3 FALC/HHC are for Chromium 3 4 Exceeded Acute and Chronic Freshwater Aquatic Life and HHC WQC 42

44 Table 19. Mined Watershed Data Summary*- Dissolved Fraction Characteristic Count of Samples Above MDL Result (ug/l) Avg STD DEV Result Min Result Max Begin Date End Date Antimony (Dissolved) 0 6/2/ /7/2012 Arsenic (Dissolved) /6/2002 2/20/2013 Cadmium (Dissolved) /6/2002 2/20/2013 Chromium(Dissolved) /6/2002 2/20/2013 Copper(Dissolved) /6/2002 2/20/2013 Lead(Dissolved) /6/2002 2/20/2013 Mercury (Total) /26/91 1/22/13 Nickel(Dissolved) /6/2002 2/20/2013 Selenium (Total) /19/03 2/20/13 Silver(Dissolved) 0 6/2/2005 2/20/2013 Thallium(Dissolved) /2/ /7/2012 Zinc(Dissolved) 0 1/9/2013 2/20/2013 * Samples detected above MDL- Method Detection Level 43

45 Table 20. Un-Mined Watershed Data Summary*- Dissolved Fraction Characteristic Count of Samples Above MDL Result (ug/l) Avg STD DEV Result Min Result Max Begin Date End Date Antimony (Dissolved) /19/ /28/2012 Arsenic (Dissolved) /19/2003 7/2/2012 Cadmium (Dissolved) /19/ /28/2012 Chromium(Dissolved) Copper(Dissolved) /14/ /28/2012 Lead(Dissolved) /14/ /28/2012 Mercury (Total) /26/ /28/2012 Nickel(Dissolved) /19/ /28/2012 Selenium (Total) 0 3/19/ /13/2003 Silver(Dissolved) 0 3/19/ /28/2012 Thallium(Dissolved) /19/ /28/2012 Zinc(Dissolved) 0 * Samples detected above MDL- Method Detection Level 44

46 Similar evaluations were conducted on data collected from the three Level IV ecoreference streams. Tables 21, 22 and 23 summarize the results of these data. Criteria were adjusted for hardness where applicable. Concentrations of Antimony, Arsenic, Copper, Lead, Mercury and Silver were detected in one or more samples at some sites. Arsenic, Copper, Lead and Silver concentrations exceeded one or more water quality criteria in a few samples. Summary statistics for these sites are presented in Tables 24, 25 and 26. Of the water quality characteristics examined in all of the data available, Aluminum, Manganese and Sulfate were the only ones that were consistently higher in concentration in mined versus un-mined sub-watersheds. Of these, sulfate is the most difficult to remove from the water column. Sulfate must be removed by the addition of massive amounts of lime or lime-aluminate or anion exchange according to ADEM. We used available data to determine the amount of sulfate that would have to be added to the Mulberry Fork to elevate concentrations above the SDWS and PDWS at the BWWB Intake Station. None of the data obtained from the BWWB included flow measurements. We used flow data obtained from USGS Station located at the Barney Trestle site also monitored by BWWB. This site is located approximately 7.5 miles above the BWWB Mulberry Fork Intake Station (Map 10). Flow in the reach of the Mulberry Fork where the BWWB intake is located is influenced by rainfall and controlled discharges from Lewis Smith Dam upstream and Bankhead Dam downstream. Even during extreme drought, flow is above the expected minimum at times due to periodic discharges from Lewis Smith Dam resulting from hydroelectric power generation. As such, flow conditions do not follow normal hydrographic models. It should be noted that some flow rates recorded during this period were negative values indicating reverse flow from the normal direction, a phenomenon caused by the impoundments upstream and downstream of the site. For this reason, BWWB data from the Barney Trestle site was matched with daily mean rather than instantaneous flow data from the USGS station. Mean daily flows were calculated using instantaneous daily flow data available from 2009 through We compared this data with discharge data from mine outfalls collected in the Mulberry Fork watershed in conjunction with the ADEM water quality assessment study conducted from Average, maximum, and minimum concentrations from these outfalls were used to determine the measured sulfate load in mg/day based on measured flow rates from the outfalls. The same was done for observed concentrations of sulfate at the Barney Trestle. Measured Load (mg/day)=[dailymeanflow(cfs)]*[ (l/cfs)]*[sulfate(mg/l)] We then calculated the sulfate load in mg/day which would equate to the PDWS of 500 mg/day and the SDWS of 250 mg/day using the average, maximum and minimum mean daily flows which yielded the corresponding average, maximum and minimum loads of sulfate at the Barney Trestle (Table 27). DWS Load (mg/day)=[avg, Max, or Min DailyMeanFlow (cfs)]*[ (l/cfs)]*[dws (mg/l)] 45

47 Table 21. Reference Site 367- Water Quality Criteria Exceedance Characteristic Number of Samples Number Below MDL % Below MDL Number Detected % Detected Number Exceeding FALC/HHC % Exceeding FALC/HHC Antimony(Dissolved) % % % Arsenic(Dissolved) % % % 3 Cadmium(Dissolved) % % % Chromium(Dissolved) % % % Copper(Dissolved) % % % Lead(Dissolved) % % % 2 Mercury (Total) % % % Nickel(Dissolved) % % % Selenium(Total) % % % Silver(Dissolved) % % % ThalliumDissolved) % % % Zinc(Dissolved) % % % 1 Exceeded Fresh Water Aquatic Life Acute Water Quality Criteria-FALC 2 Exceeded Fresh Water Aquatic Life Chronic Water Quality Criteria-FALC 3 Exceeded Human Health Criteria for consumption of Fish or Fish plus Water -HHC 46

48 Table 22. Reference Site 405- Water Quality Criteria Exceedance Number of Samples Number Below MDL % Below MDL Number Detected % Detected Number Exceeding FALC/HHC % Exceeding FALC/HHC Characteristic Antimony(Dissolved) % % % Arsenic(Dissolved) % % % 3 Cadmium(Dissolved) % % % Chromium(Dissolved) % % % Copper(Dissolved) % % % 1,2 Lead(Dissolved) % % % 2 Mercury (Total) % % % Nickel(Dissolved) % % % Selenium(Total) % % % Silver(Dissolved) % % % ThalliumDissolved) % % % Zinc(Dissolved) % % % 1 Exceeded Fresh Water Aquatic Life Acute Water Quality Criteria-FALC 2 Exceeded Fresh Water Aquatic Life Chronic Water Quality Criteria-FALC 3 Exceeded Human Health Criteria for consumption of Fish or Fish plus Water -HHC 47

49 Table 23. Reference Site 648- Water Quality Criteria Exceedance Characteristic of Samples Below MDL % Below MDL Number Detected % Detected Exceeding FALC/HHC % Exceeding FALC/HHC Antimony(Dissolved) % % % Arsenic(Dissolved) % % % Cadmium(Dissolved) % % % Chromium(Dissolved) % % % Copper(Dissolved) % % % Lead(Dissolved) % % % Mercury (Total) % % % Nickel(Dissolved) % % % Selenium(Total) % % % Silver(Dissolved) % % % ThalliumDissolved) % % % 1,2 Zinc(Dissolved) % % % 1 Exceeded Fresh Water Aquatic Life Acute Water Quality Criteria-FALC 2 Exceeded Fresh Water Aquatic Life Chronic Water Quality Criteria-FALC 3 Exceeded Human Health Criteria for consumption of Fish or Fish plus Water -HHC 48

50 Table 24. Reference Site 367 Data Summary -Dissolved Fraction Characteristic Name Units Count of Samples Result Avg Result STDev Result Min Result Max Begin Date End Date Antimony NOT DETECTED 7 3/11/ /31/2012 Antimony ug/l /16/2003 6/16/2003 Arsenic NOT DETECTED 15 8/8/2002 2/5/2013 Arsenic ug/l /19/2013 2/19/2013 Cadmium NOT DETECTED 24 8/8/2002 2/19/2013 Chromium NOT DETECTED 24 8/8/2002 2/19/2013 Copper NOT DETECTED 30 3/20/2002 2/19/2013 Lead NOT DETECTED 29 3/20/2002 2/19/2013 Lead ug/l /7/2003 4/7/2003 Mercury NOT DETECTED 15 3/20/ /31/2012 Nickel NOT DETECTED 24 8/8/2002 2/19/2013 Selenium NOT DETECTED 8 3/11/ /31/2012 Silver NOT DETECTED 22 3/11/2003 2/5/2013 Silver ug/l /19/2013 2/19/2013 Thallium NOT DETECTED 8 3/11/ /31/2012 Zinc NOT DETECTED 4 1/9/2013 2/19/2013 Exceeds FALC or HHC 49

51 Table 25. Reference Site 405 Data Summary -Dissolved Fraction Characteristic Name Units Count of Samples Result Avg Result Min Result Max Begin Date End Date Antimony NOT DETECTED 12 3/18/2003 8/6/2007 Arsenic NOT DETECTED 15 3/18/2003 2/21/2013 Arsenic ug/l /17/2007 7/17/2007 Cadmium NOT DETECTED 23 3/18/2003 2/21/2013 Chromium NOT DETECTED 23 3/18/2003 2/21/2013 Copper ug/l /17/2007 8/6/2007 Copper NOT DETECTED 26 3/20/2002 2/21/2013 Lead NOT DETECTED 27 3/20/2002 2/21/2013 Lead ug/l /25/2007 4/25/2007 Mercury NOT DETECTED 14 3/20/2002 8/6/2007 Mercury ug/l /18/2007 6/18/2007 Nickel NOT DETECTED 23 3/18/2003 2/21/2013 Selenium NOT DETECTED 8 3/18/2003 8/6/2007 Silver NOT DETECTED 23 3/18/2003 2/21/2013 Thallium NOT DETECTED 11 3/18/2003 8/6/2007 Zinc NOT DETECTED 3 3/29/2011 2/21/2013 Exceeds FALC or HHC 50

52 Table 26. Reference Site 648 Data Summary -Dissolved Fraction Characteristic Name Units Count of Samples Result Avg Result Min Result Max Begin Date End Date Antimony NOT DETECTED 8 3/18/ /18/2004 Arsenic NOT DETECTED 13 3/18/2003 2/21/2013 Cadmium NOT DETECTED 21 3/18/2003 2/21/2013 Chromium NOT DETECTED 21 3/18/2003 2/21/2013 Copper NOT DETECTED 26 3/20/2002 2/21/2013 Lead NOT DETECTED 26 3/20/2002 2/21/2013 Mercury NOT DETECTED 12 3/20/ /18/2004 Nickel NOT DETECTED 21 3/18/2003 2/21/2013 Selenium NOT DETECTED 4 3/18/ /12/2003 Silver NOT DETECTED 18 3/18/2003 2/21/2013 Silver ug/l /26/2011 2/21/2013 Thallium NOT DETECTED 8 3/18/ /18/2004 Zinc NOT DETECTED 3 1/10/2013 2/21/2013 Exceeds FALC or HHC 51

53 BWWBSites MulberryForkHUC8 BWRK LUMP Area ³ UTpo Barney Tressel Frog Ague 52 Industrial Pump Station Map 10. USGS Site Miles

54 Table 27. Calculated Sulfate Load Necessary to Equal Primary and Secondary Drinking Water Standard at the Barney Trestle Site Average Daily Flow Maximum Daily Flow* Minimum Daily Flow** Average Daily Flow Maximum Daily Flow* Minimum Daily Flow** *Flow at maximum measured sulfate load **Flow at minimum measured sulfate load DWS Limit (mg/l) Flow (cfs) Flow (L/day) DWS Load (mg/day) E E E E E E E E E E E E+11 53

55 The difference (Remaining Load Capacity) in the measured load and DWS load was calculated and compared to outfall loads to determine the percent of remaining load represented by the outfall loads (Table 28). (The maximum or minimum flow used corresponds to the flow measured for the sample that yielded the maximum or minimum measured load) Remaining Load Capacity (mg/day)=dws Load Measured Load The maximum outfall load represented <3% of the remaining load capacity of the river for the PDWS at the measured minimum actual concentration of Sulfate in the river and 6% of the remaining load capacity of the river for the SDWS. The average outfall load was 1.74% of the remaining load capacity for the SDWS. An outfall would have to discharge more than 242,175 mg/l at 1 cfs to raise the concentration of sulfate in the river above the PDWS based on the minimum concentration of sulfate observed in the river. This is 33 times the observed maximum outfall discharge concentration rate. Similarly, an outfall would have to discharge more than 114,425 mg/l of sulfate at 1 cfs to raise the sulfate concentration in the river above the SDWS based on the minimum concentration of sulfate observed in the river. This is 15 times the observed maximum outfall discharge concentration rate. Summary and Decision The data we have examined is the best data available at this time regarding water quality characteristic influences from coal mining. Our evaluation focused on determining if there are indications in that data that certain water quality characteristics are being discharged from mine outfalls in levels that would cause treatment problems for the Birmingham Water Works Board at the Mulberry Fork Intake in meeting primary or secondary drinking water standards. From this data we determined that Aluminum, Manganese and Iron are found throughout the watershed of the Mulberry Fork in concentrations exceeding secondary drinking water standards. The percent of samples exceeding the standard for Iron are the same in mined and un-mined sub-watersheds. The percent of samples exceeding the standard for Aluminum and Manganese are somewhat higher in mined than un-mined sub-watersheds. Concentrations of Aluminum and Manganese in samples taken at the BWWB intake station are slightly lower than upstream of the intake. Concentrations of characteristics regulated by primary drinking water standards were rarely detected and when detected rarely exceeded the standard. The exception is Sulfate. Sulfate is not regulated by an EPA primary drinking water standard but is regulated by an ADEM primary drinking water standard. EPA at one time considered establishing a primary standard for Sulfate because of health concerns that ingestion of water containing high levels of sulfate might cause diarrhea. In 1999 EPA and the Centers for Disease Control and Prevention (CDC) published a study entitled Health Effects from Exposure to High Levels of Sulfate in Drinking Water, (EPA 815-R , January, 1999) The experimental trials conducted during this study did not find a significant dose-response association between acute exposure to sodium sulfate in water (up to 1200 mg/l) and 54

56 Table 28.Comparison of Sulfate Loads Measured at Mine Outfalls to Sulfate Load Capacity at Barney Trestle Based on Primary and Secondary Drinking Water Standards Measurement Concentration at Barney Trestle Measured Sulfate Load (mg/day) Measured Flow (cfs) DWS Limit DWS Load minus Measured Sulfate (mg/day) Outfall Maximum Sulfate Discharge (mg/day) Outfall Maximum % of Remaining Load Outfall Average% of Remaining Load Outfall Minimum % of Remaining Load Average Daily Concentration 1.98E mg/l 5.14E E E E % 0.10% % Average Daily Concentration 1.98E mg/l 2.47E E E E % 0.21% % Maximum Daily Concentration 1.49E mg/l 2.72E E E E % 0.02% % Maximum Daily Concentration 1.49E mg/l 1.29E E E E % 0.04% % Minimum Daily Concentration 1.44E mg/l 6.11E E E E % 0.85% % Minimum Daily Concentration 1.44E mg/l 2.98E E E E % 1.74% % Outfall Avgerage Sulfate Discharge (mg/day) Outfall Minimum Sulfate Discharge (mg/day) 55

57 reports of diarrhea. A subsequent workshop conducted by EPA and CDC (EPA 815-R , January 1999) on health effects of sulfate concluded that there was not enough scientific evidence on which to base a regulation (primary) for Sulfate. The panel instead recommended a health advisory where levels in drinking water exceed 500 mg/l. Our analysis of available data indicates that while sulfate may be discharged from mine outfalls at concentrations and rates far exceeding either standard, the total daily volume of sulfate discharged would have to exceed any yet observed value an extremely large amount to raise the concentration in the river above the either standard. That possibility is highly unlikely if not impossible. We conclude the same for Aluminum and Manganese. In any case these pollutants do not pose a significant health threat. Although our focus was primarily on drinking water standards, our consideration of Water Quality Criteria, both FALC and HHC, for receiving stream yielded similar results. Dissolved (or total recoverable for Mercury and Selenium) concentrations of characteristics in mined and un-mined sub-watersheds were rarely detected, and when detected rarely exceeded water quality criteria. The exception was Thallium. In all of the samples in which Thallium was detected from both mined and un-mined sub-watersheds (< 4%), the concentration exceeded the HHC. In addition to these evaluations of data we also examined EPA Form 2C data reports from outfalls and representative outfalls in the Mulberry Fork watershed that were submitted in applications for NPDES permits. A detailed summary of these reports is not presented here, but copies are in Appendix C. These reports support the data analyzed above. It is our conclusion that the available data do not support a designation of the area in question as unsuitable for mining. We believe that existing permit application requirements and regulations of both ASMC and ADEM sufficiently protect the source water of the BWWB Mulberry Fork intake. We therefore decline to designate the area in question as unsuitable for mining. We will, however, conduct reviews of future permit applications in this section of the Mulberry Fork with special scrutiny for the potential for discharge of Aluminum, Manganese and Sulfate at levels that may raise the concentration of these characteristics in the river beyond the limits set as drinking water standards. Such determinations will be used to limit the location of mines or outfall structures as may be necessary to ensure that the cumulative effects of all past and future mining in the watershed above the intake will not jeopardize the source water supply. Within 30 days of the date of this decision, any party to this proceeding may petition the Commission for review of this decision. A Petition for Review may be mailed or delivered to Honorable Rene Williams, Chairman, Alabama Surface Mining Commission nd Avenue, P.O. Box 2390 Jasper, Alabama

58 57

59 APPENDIX A LANDS UNSUITABLE FOR MINING PETITION

60 BEFORE THE ALABAMA SURFACE MINING COMMISSION ) ) ) A Petition To Designate Lands Adjacent ) To The Mulberry Fork ) Of the Black Warrior River ) As Unsuitable For Coal Mining ) ) ) ) PETITION Petitioner Black Warrior Riverkeeper (Riverkeeper), in accordance with Ala. Admin. Code r. 880-X-7A-.05, petitions the Alabama Surface Mining Commission (ASMC) to designate as lands unsuitable for surface coal mining operations the area encompassed by the proposed Shepherd Bend and Reed Minerals No. 5 mines that have not yet been issued an ASMC permit, an area encompassing approximately 2,241 acres. 1 These two mines represent an imminent threat to the source drinking water provided by the Mulberry Fork of the Black Warrior River and the ASMC should designate the areas as lands unsuitable for mining under Ala. Admin. Code r. 880-X-7A-.05. In so doing, we also urge the ASMC to take up the larger issue of what other areas along the Mulberry Fork designated Public Water Supply should be protected by a lands unsuitable designation, as the identical facts which support the designation of Shepherd Bend and Reed No. 5 also support the designation of other lands that drain to the Mulberry Fork. Beyond the imminent threats of Shepherd Bend and Reed No. 5 mines, we propose that the ASMC also designate a larger area of the Mulberry Fork drainage that constitutes Public Water Supply as lands unsuitable for mining under Ala. Admin. Code r. 880-X-7A This figure is calculated based upon the 1773 acres proposed for Shepherd Bend Mine (less the 38 acres that have been permitted previously) added to the 506 acres proposed for Reed No. 5 Mine.

61 I. INTRODUCTION The proposed Shepherd Bend and Reed No. 5 mines are located on the Mulberry Fork of the Black Warrior River. This portion of the Mulberry Fork is also the site of a primary drinking water intake for the Birmingham Water Works Board (BWWB). Water discharged from the proposed Shepherd Bend Mine would enter the Mulberry Fork upstream, and across from, a BWWB surface water intake that serves approximately 200,000 people in the Birmingham area. Birmingham Water Works Board July 6, 2010 ASMC Comment Letter for Shepherd Bend Mine (Exhibit 1, incorporated here by reference in its entirety) at p. 1. Water discharged from the proposed Reed No. 5 Mine will enter the Mulberry Fork upstream from the same surface water intake. Birmingham Water Works Board August 9, 2011 ASMC Comment Letter for Reed No. 5 Mine (Exhibit 2, incorporated here by reference in its entirety) at p. 1. The Mulberry Fork of the Black Warrior River is designated Public Water Supply from the junction of the Locust and Mulberry Forks past Burnt Cane Creek (9 miles below Cordova) all the way to Frog Ague Creek. See Ala. Admin. Code r On October 19, 2010 the ASMC issued Permit P-3945 to Shepherd Bend LLC. However, the only land potentially covered by the terms of that permit is the proposed mine s first increment of 286 acres. ASMC Permit P-3945 (Exhibit 3, incorporated here by reference in its entirety) at p. 1. The permit area is further limited by permit condition #3, which states that until sufficient bond is posted for that entire first increment, the permit only covers the first 38 acres for which Shepherd Bend LLC has posted bond. Id. at p. 2. According to an received from ASMC Director Dr. Randall Johnson on August 31, 2012, to date Shepherd Bend has not posted a performance bond beyond the proposed mine s initial 38 acres. Under the express terms of the permit, then, only these first 38 acres are actually covered by P

62 The bulk of the land and mineral rights for the proposed Shepherd Bend Mine are held by the University of Alabama. As recently as September 4, 2012, Dr. Guy Bailey, University of Alabama President, stated the university has not been approached about leasing the land for mining and has no current plans to offer it for lease. CBS 42 September 4, 2012 Interview. No mining has occurred at Shepherd Bend. 2 The Reed No. 5 Mine permit application (P-3957) is pending and the public comment period ends on September 10, A significant part of the mineral rights for Reed No. 5 Mine are owned by the City of Cordova s Industrial Development Board. Mine, According to the ASMC comments filed by the BWWB for the proposed Shepherd Bend [t]he proximity of the proposed mining operation to such a major municipal water supply is unprecedented to our knowledge, and represents an incompatible use. This operation could result in discharge of mining related pollutants directly to the intake. The NPDES permit and this [ASMC] permit application do not appear to have adequately considered the drinking water use, and are wholly inadequate to protect the Board and its customers from many pollutants commonly associated with mining activities. Birmingham Water Works Board July 6, 2010 ASMC Comment Letter for Shepherd Bend Mine ( Exhibit 1) at p. 1. Similarly, as stated in the BWWB s ASMC comments for the proposed Reed No. 5 Mine, [o]ur Mulberry Intake will be used to provide drinking water to the Birmingham Metropolitan Area for many years in the future and this mine would negatively impact the drinking water supply. Given what is at stake, we feel that this mining permit should not be issued. 2 Both the ASMC and NPDES permits issued to Shepherd Bend LLC for the mine are subject of current litigation. The issuance of NPDES Permit No for Shepherd Bend Mine is being challenged in Black Warrior Riverkeeper v. Alabama Department of Environmental Management and Shepherd Bend LLC, (Ala. Civ. App. No ). The issuance of ASMC permit P-3945 is being challenged in The Water Works Board of the City of Birmingham v. the Alabama Surface Mining Commission and Shepherd Bend LLC (ASMC Division of Hearings and Appeals). 3

63 Birmingham Water Works Board August 9, 2011 ASMC Comment Letter for Reed No. 5 Mine. (Exhibit 2) at p. 1. The BWWB s NPDES permit comment letter for Reed No. 5 elaborates: [t]he proximity of the proposed mining operation to such a major municipal water supply intake poses a potential hazard to drinking water users. The proposed permit appears to have been developed primarily from federal guidelines for coal mining operations. These guidelines were developed for use in permitting typical mining operations across the entire nation, not for the circumstances where a surface mining operation would be conjoined with a major municipal water supply intake. A review of these guidelines and their supporting documents reveals that protection of major public water supplies was not explicitly considered in their development. The permit limits and monitoring requirements are wholly inadequate to protect the Board and its customers from many pollutants commonly associated with mining activities. Birmingham Water Works Board December 16, 2010 ADEM Comment Letter for Reed No. 5 Mine. (Exhibit 4, incorporated by reference in its entirety) at p. 1 (hereinafter ADEM Comment Letter). The receiving waters for both proposed mines are considered source drinking water by the State s Water Use Classifications (see generally Ala. Admin. Code r ) as well as the BWWB. State law also includes an anti-degradation policy, which is designed to maintain water quality to fully protect existing uses. See Ala. Admin. Code r The BWWB s public comments for the Reed No. 5 NPDES permit incorporate a Shepherd Bend December 2010 PowerPoint presentation (Appendix D) which suggests that the Board deems the areas covered by both Shepherd Bend and Reed No. 5 mines to be renewable resource lands in which the operations could result in a substantial loss or reduction of long range productivity of water supply.... ADEM Comment Letter (Exhibit 4) at p. 35. Moreover, the BWWB also states that much of the Reed No. 5 Mine falls within the Source Water Protection Area for the Mulberry Intake, located just downstream. This area defines the critical, or special, area in the immediate vicinity of a surface water plant intake that is closely scrutinized for contaminant 4

64 sources. Birmingham Water Works Board August 9, 2011 ASMC Comment Letter for Reed No. 5 Mine. (Exhibit 2) at p. 2. We assert that all of the area along the section of the Mulberry Fork designated Public Water Supply should be considered part of the Source Water Protection Area. In addition to the possible contamination of surface water flowing to the Mulberry Fork intake, the pollution of groundwater in the area of the proposed mines is also a major concern. The groundwater underlying the proposed Reed Minerals No. 5 mine is in direct hydraulic communication with surface water in the Mulberry Fork, which is designated for public water supply. Due to the nature of groundwater flow at this site, contaminants introduced to groundwater from mining operations will discharge to the Mulberry Fork. Further, the groundwater directly underlying the site is likely designated as an "Underground Source of Drinking Water" (USDW) by ADEM Admin. Code r. 335 Division 6 Regulations, defined as "an aquifer or portion thereof 1) which currently supplies drinking water for human consumption, or 2) in which the ground water contains fewer than 10,000 mg/l of total dissolved solids. Id. at p. 3. We believe this to also be the case at Shepherd Bend Mine. Whether by direct discharge to surface water or through infiltration into groundwater, surface coal mining in the areas of the proposed Shepherd Bend and Reed No. 5 mines (or elsewhere in the drainage) will substantially harm the source drinking water provided by the Mulberry Fork. Independently, but also in view of the substantial concerns expressed by the BWWB, numerous individual residents and drinking water customers have expressed opposition to the location of surface coal mining operations in close proximity to source drinking water. On behalf of their many residents served by the Mulberry Fork drinking water intake, the Birmingham City Council has passed unanimous resolutions opposing Shepherd Bend and Reed No. 5 mines. See Exhibits 5 and 6. The following organizations, groups and businesses have also expressed opposition to Shepherd Mine because of the impact it will have on source 5

65 drinking water and drinking water treatment: Alabama Environmental Council, Alabama Rivers Alliance, Avondale Brewing Company, Birmingham Audubon Society, Cahaba Brewing Company, Cahaba Riverkeeper, Cahaba River Society, Coalition of Alabama Students for the Environment, Choctawhatchee Riverkeeper, Citizens Opposed to Strip Mining on the Black Warrior River, Coosa Riverkeeper, enact, Episcopal Diocese of Alabama's Task Force for the Stewardship of Creation, GASP, Glen Iris Neighborhood Association, Greater Birmingham Ministries, Green Initiative at UAB, Good People Brewing Company, Hurricane Creekkeeper, League of Women Voters of Alabama, Metro-Birmingham NAACP, Mobile Baykeeper, Montevallo Environmental Club, Occupy Birmingham, Patriots for Conservation, Restoring Eden at Samford, Southern Environmental Law Center, Tennessee Riverkeeper, UA ECo, UA NAACP, UA Student Government Association, UAB Student Government Association, Waterkeeper Alliance, and Wild South. With respect to Reed No. 5 Mine, the following organizations, groups and businesses have expressed their opposition: Alabama Environmental Council, Alabama Rivers Alliance, Beth Maynor Young Conservation Photography, Birmingham Audubon Society, Birmingham City Council, Blue Horizon Enterprises, Coalition of Alabama Students for the Environment, Citizens Opposed to Strip Mining on the Black Warrior River, Coosa Riverkeeper, Friends of the Locust Fork River, Good People Brewing Company, Green Initiative at UAB, League of Women Voters: Birmingham Chapter, Montevallo Environmental Club, Occupy Birmingham, Patriots for Conservation, Public Health Student Association at UAB, Restoring Eden at Samford, Ruffner Mountain Nature Center, Sierra Club: Alabama Chapter, UA ECo, UAB Student Government Association, Tennessee Riverkeeper and Wild South. 6

66 In addition to the specific concerns raised about the effect of coal mines which discharge to the Mulberry Fork and their demonstrated effect on source drinking water, this Petition also raises two other related and critical issues. The first is, despite the extensive coal mining that has occurred in the area both currently and historically, there has never been a comprehensive study of the cumulative impacts of mining on source drinking water in the Mulberry Fork, nor any meaningful consideration of how the operations of two (or even more) additional mines will further contribute to these impacts. Just as importantly, there have never been any scientific studies of how concentrated coal mining along the Mulberry Fork may affect the health of those who live nearby or who rely on this intake for their drinking water. It is past time for these kinds of studies to be conducted and incorporated in decisions about where and under what circumstances coal mining should occur along the Mulberry Fork when the integrity of source drinking water is at stake. The second related issue concerns the fact that, even if these mines are permitted with the best of regulatory intentions, permit exemptions exist which suspend supposedly protective permit limits in their entirety during certain rain events. Unfortunately, there is no consideration or plan provided in the existing regulatory framework of how (when unregulated discharges or a catastrophic event occurs) source drinking water and public heath will be preserved and protected. II. BACKGROUND Congress passed the Surface Mining Control and Reclamation Act of 1977 (SMCRA) (30 U.S.C et seq.) to "establish a nationwide program to protect society and the environment from the adverse effects of surface coal mining operations." 30 U.S.C. 1202(a). SMCRA further provides that the Secretary of the Interior or the relevant state authority, depending on 7

67 which entity is responsible for the enforcement of SMCRA in the particular region, has discretion "[u]pon petition pursuant to subsection (c) of this section, [to] designate an area as unsuitable for all or certain surface coal mining," id. 1272(a)(2), where surface mining is incompatible with existing state or local land-use plans; affects fragile or historic lands on which such operations could cause significant damage to important historical, cultural, scientific and aesthetic values and natural systems; affects renewable resource lands (such as forest lands and farmland); or affects natural hazard lands such as lands prone to earthquakes. 30 U.S.C. 1272(a)(3)(A)-(D). On May 20, 1982, the ASMC achieved primacy under SMCRA and assumed responsibility for the regulation of coal mining operations in Alabama, including the process for delegating lands unsuitable for mining. The ASMC process for designating lands unsuitable for mining is codified at Ala. Admin. Code r. 880-X-7A-.01 through 880-X-7D-.11. The ASMC must designate lands unsuitable for mining if reclamation is not technologically and economically feasible under the Act. Ala. Admin. Code r. 880-X-7C-.04(1). The ASMC may (but is not required to) designate an area if it meets certain other requirements. Ala. Admin. Code r. 880-X-7C-.04(2). Specifically, areas that "affect renewable resource lands in which such operations could result in a substantial loss or reduction of long-range productivity of water supply" are eligible. See Ala. Admin. Code r. 880-X-7C-.04(2)(c). ASMC regulations do not define renewable resource lands but regulations developed under SMCRA do. They are geographic areas which contribute significantly to the long-range productivity of water supply or of food or fiber products, such lands to include aquifers and aquifer recharge areas. 30 C.F. R Courts have looked at protection of drinking water as a valid reason to consider the lands unsuitable 8

68 designation. See, e.g., Pleasant City v. Ohio DNR, 617 N.E.2d 1103 (Ohio 1993); Appolo Fuels, Inc. v. US, 381 F. 3d 1338 (D.C. Cir. 2004). The only areas potentially excluded from the lands unsuitable for mining petition process are lands covered by a permit or lands where, prior to the passage of SMCRA, significant legal or financial commitments had been made or actual mining was occurring. See Ala. Admin. Code r. 880-X-7C-.05(b). There are no time limits specified for when a petition must be filed. However, [a]ny petitions received after the close of the public comment period on a permit application relating to the same permit area shall not prevent the State Regulatory Authority from issuing a decision on that permit application. Ala. Admin. Code r. 880-X-7D-.06(1)(g) (emphasis added). Moreover, the ASMC may return any petition received thereafter to the petitioner with a statement why the State Regulatory Authority cannot consider the petition. Id. That suggests that the converse is also true: as long as a permit has not been issued that covers the lands at issue or the public comment period is open, a petition to designate lands unsuitable for mining may be timely filed. A petition to designate lands unsuitable for surface coal mining operations may be filed as a matter of right by [a]ny person having an interest which is or may be adversely affected.... Ala. Admin. Code r. 880-X-7D-.05(1). This is the identical language that allows citizens to file public comments or request an informal conference on pending permit applications (which Riverkeeper has used extensively in the past). See Ala. Admin. Code r. 880-X-8K (b) and 880-X-8K A petitioner is required only to provide (a) (b) (c) The location and size of the area covered by the petition; Allegations of facts and supporting evidence which would tend to establish that the area is unsuitable for all or certain types of surface coal mining operations; A description of how mining of the area has affected or may adversely affect people, land, air, water or other resources; 9

69 (d) (e) The petitioner's name, address, and telephone number; and Identification of the petitioner's interest which is or may be adversely affected. Ala. Admin. Code r. 880-X-7D-.05(1). III. LOCATION AND SIZE OF THE PETITION AREA As stated previously, the Petition area includes those portions of the proposed Shepherd Bend and Reed No. 5 mines that are not covered by an ASMC permit, an area encompassing approximately 2,241 acres. The location and size of each mine is depicted in the attached permit maps. See Exhibit 7 (Shepherd Bend Mine Permit Map) and Exhibit 8 (Reed No. 5 Mine Permit Map). But as stated previously and for the identical reasons, Petitioner believes that the ASMC should also consider other lands that similarly drain to the Mulberry Fork public water supply for the designation. (Exhibit 9) We have compiled a map as a minimum starting point to encompass the area that should be considered for a lands unsuitable designation. However, we encourage the ASMC in evaluating our Petition to consult with the BWWB and other stakeholders to ensure that any such designation is properly inclusive of all lands that have the potential to affect the source water quality of the Mulberry Fork, even if they are not included on Petitioner s Exhibit 9. 3 IV. ALLEGATIONS OF FACT AND SUPPORTING EVIDENCE OF ADVERSE EFFECTS ON DRINKING WATER AND HUMAN HEALTH As proposed, Shepherd Bend and Reed No. 5 mines join a cluster of three other large coal mines on the Mulberry Fork that are reclaimed or currently in reclamation: Horse Creek Mine, 3 There are many existing, well-respected resources available to help in considering the protection of source drinking water. For example, the Trust for Public Land is one such organization that has been at the forefront of developing plans for local communities that preserve land to ensure clean drinking water. The Trust has compiled Protecting the Source, a handbook for source water protection, and also offers many other resources in collaboration with national and state partners. 10

70 Red Star Mine and Quinton Mine. Horse Creek Mine is just across the Mulberry Fork from the Reed No. 5 site, situated on the river s edge and north of Horse Creek. Red Star Mine is across the Mulberry Fork from Shepherd Bend, on the river s edge just upstream and on the same side as the BWWB s Mulberry Fork intake. Shepherd Bend Mine is approximately 3 miles from Reed No. 5 at their closest points; the BWWB s Mulberry Fork intake is about 5.4 miles downstream of the southernmost portion of Reed Mine No. 5. Quinton Mine is to the east of the Mulberry Fork intake, southeast of Burnt Cane Creek, which enters the Mulberry Fork just downstream of the Mulberry Fork intake. Despite the number of coal mines currently and historically on, or near, the Mulberry Fork, there are no peer-reviewed studies available which assess the cumulative impacts of these mines on source drinking water quality or public health. 4 In addition to current mining, pre-smcra mine sites contribute many contaminants of concern to source water: acid mine drainage associated with these sites showed elevated concentrations of arsenic, iron, copper, zinc and selenium. Goldhaber, et al., Dispersion of Arsenic from Arsenic-enriched Coal and Gold Ore in the Southern Appalachians (1999). EPA observed in late 2010 that [d]espite the amount of data Alabama has collected for Clean Water Act 303(d) listing purposes, there is a scarcity of information available specifically pertaining to in-stream water quality in coal mining areas and that much remains to be done in assessing waters in areas of active coal mining in Alabama. See EPA October 1, 2010 Comment Letter (Exhibit 10) at p. 2. Coal mining activities rank as the second largest source of impairment for stream miles in our state. Id. (citing Table 2-7 of ADEM s 2010 Integrated Water Quality Monitoring and Assessment 305(b) Report). Most coal mines 4 We understand that both ADEM (impacts of surface coal mining near wadeable streams in the coal-mining regions of Alabama) and EPA (surface mining impacts on drinking water in the Black Warrior basin) are engaged in studies that may represent a start to the process of assessing the impacts of surface mining on source water quality. 11

71 discharge to rivers and streams yet remarkably 77% of Alabama s rivers and streams have not been assessed for water quality purposes. Id. EPA conducted a recent study that found nine out of every ten streams downstream from surface mining operations were impaired based on a genus-level assessment of aquatic life. Downstream Effects of Mountaintop Coal Mining, Downstream Effects of Mountaintop Coal Mining. Given the data available that conclusively ties coal mining to stream impairment, Alabama regulatory agencies can no longer turn a blind eye to this connection and must address the important question of how to protect source drinking water from the contamination caused by surface mining. Shepherd Bend and Reed No. 5 mines will both discharge immediately upstream of the BWWB s Mulberry Fork drinking water intake. According to evidence developed during the ADEM and ASMC permit comment process, both Shepherd Bend and Reed No. 5 mines have a high potential for adverse impacts to the Birmingham drinking water supply. See Birmingham Water Works Board July 6, 2010 ASMC Comment Letter for Shepherd Bend Mine (Exhibit 1) at p. 1; Birmingham Water Works Board August 9, 2011 ASMC Comment Letter for Reed No. 5 Mine. (Exhibit 2) at p. 1. As a result, many citizens, including Riverkeeper, have asked the ASMC not to permit these mines because (as the BWWB observes) surface mining operations and drinking water withdrawals are such incompatible uses. We are taking that request one step further and asking the ASMC to protect source drinking water and to demonstrate that, based on competent, scientifically sound data, that either safe, affordable drinking water and coal mining can coexist in close proximity (which we do not believe) or designate the lands covered by the proposed Shepherd Bend and Reed No. 5 mines, as well as the Mulberry Fork Public Water Supply drainage area, as unsuitable for mining. 12

72 Individually, according to currently available science, mining in these areas will significantly degrade source water quality as it exists today. Cumulatively, given the documented history of previous mining in the area, the permitting of these two (or any other) mines will push the source water quality of the Mulberry Fork into the red zone where the best case scenario is only that treatment costs will rise, which is an unacceptable outcome. The worst case scenario is that a catastrophic pond or treatment failure, or even a substantial rain event, will contaminate source water and shut down an intake that serves 200,000 people. 5 The Safe Drinking Water Act (SDWA) was established to protect the quality of drinking water in the U.S. See 42 U.S.C. 300f et seq. (1974). The law, amended in 1986 and 1996, includes many provisions to protect drinking water and its sources. Originally, the SDWA focused more on treatment as the primary means to keep drinking water safe. Significantly, however, the 1996 amendments recognize and this Petition makes the case that source water and watershed protection must be an essential component of safe drinking water. 6 5 The harm addressed by this Petition is not theoretical and could lead to the shutdown of the Mulberry Fork intake. For example, in late 2006 the BWWB began to note elevated levels of dangerous disinfection byproducts in Mulberry Fork source drinking water. As a result, on November 1, 2006 the Mulberry Fork drinking water intake had to shut down completely. In November 2007, sampling on the Mulberry Fork detected elevated levels of industrial bromide waste, which was the cause of the increase in the disinfection byproducts at the Western Filter Plant, located some 100 miles downstream from its source. On May 21, 2007 (during drought conditions) the BWWB was finally able to turn the intake back on, after obtaining a court order that limited the loading of bromide by the responsible industrial party. Because of the drought, the BWWB could not meet the area s drinking water needs without the restoration of the Mulberry Fork intake. 6 Enforcement of an NPDES or ASMC permit, even if it were prompt and rigorous, does not adequately protect source drinking water, which is why Riverkeeper has filed the Petition. Enforcement, typically after-the-fact remedies like fines and engineering fixes, may seek to correct the problem for the future but in no way can reverse the immediate harm to source water. An illustrative and analogous example of this fact is the July 15, 2011 coal slurry spill at North River Underground Mine No. 1 located in Fayette and Tuscaloosa Counties, Alabama. Although not a surface mining operation, this spill dumped 600,000 to 1 million gallons of coal slurry containing elevated levels of suspended solids, arsenic and lead into tributaries of the North River upstream of Tuscaloosa s drinking water. This spill was far enough from the drinking water intake such that it did not cause direct harm; however, if a catastrophic event like this occurred at a surface mine in close proximity to the Mulberry Fork intake (even a much smaller magnitude spill), no amount of fines or fixes could protect the source drinking water, at least for the short term. 13

73 The SDWA authorizes EPA to establish minimum standards to protect tap water and requires all owners or operators of public water systems to comply with these standards. Under this delegation of authority, EPA has established both primary (i.e., at the tap) and secondary (i.e., at the source) drinking water standards. See 40 C.F.R. Parts 141 and 143. The SDWA contains secondary maximum contaminant levels (MCLs) for total iron of 0.3 mg/l and total manganese of mg/l. 40 C.F.R Currently, the levels allowed by the proposed NPDES permits for both Shepherd Bend and Reed No. 5 mines are 10 times the MCL for iron and 40 times the MCL for manganese. By comparison, the BWWB s 2007 daily average raw water concentrations for iron and manganese at the Mulberry Fork s Western Filtration Plant were mg/l and 0.079, respectively. See ADEM Comment Letter (Exhibit 4) at p. 2. Thus, it is well documented that surface coal mining at Shepherd Bend and Reed No. 5 (or any other) mines will cause significant degradation of current source water quality. 1. Contaminants Known to Be Present in Petition Area and Documented Effects Iron and manganese are known to cause serious aesthetic and treatment problems for drinking water. Secondary limits established for iron and manganese are currently based on these aesthetic concerns only. In higher concentrations, iron and manganese cause the following documented problems: Staining: Iron and manganese stain laundry and water use fixtures. Taste: Iron and manganese cause a metallic or vinyl type taste in the water. They can combine with tea, coffee and alcohol to create an inky dark appearance and a harsh offensive taste. Vegetables cooked in water with high iron can turn dark and look unappetizing. Appearance: Iron and manganese will often appear as an oily, "crusty" sheen to the water's surface. Sulfur Taste: The same conditions that liberate iron and manganese underground can liberate hydrogen sulfide from the soil or rock. Clogging: Iron and manganese support the growth of iron and manganese bacteria, which can clog strainers, pumps, and valves. 14

74 See New Hampshire Department of Environmental Services Fact Sheet on Iron and Manganese. At present, EPA has not set health standards for either iron or manganese in drinking water; however, a health-based standard for manganese is possible in the future because manganese may affect neurological and muscle function in humans. Id. See also National Institute of Environmental Health Sciences Manganese and Brain Damage, (Manganese known to cause neurological effects following inhalation exposure, particularly in occupational settings, and there have been epidemiological studies that report adverse neurological effects following extended exposure to very high levels in drinking water, although the validity of these results may also be influenced by other factors). The BWWB states unequivocally that any increase in iron and manganese levels (as well as sediment) will lead to greater demands on treatment operations as well as increased treatment costs. See ADEM Comment Letter (Exhibit 4) at p. 2. Costly operational changes to the treatment plant may be required if iron and manganese precipitation and subsequent reduction occurs in the raw water storage tanks or the sedimentation basins. Id. Higher particle loading from total suspended solids, iron and manganese will require additional operations and maintenance at the water treatment plant as well as reduce the plant s overall treatment flow rating. Id. These costs will be paid by consumers, not the mines which create or contribute to the problem. Total Suspended Solids (TSS) and total dissolved solids (TDS) are pollutant categories that are of utmost importance when considering permits for coal mines along Public Water Supply river segments. ADEM s Surface Water Quality Screening Assessment of the Cahaba and Black Warrior River Basins (2002) ADEM s Surface Water Quality Screening Assessment of the Cahaba and Black Warrior River Basins (2002) demonstrates that this particular segment 15

75 of the Mulberry Fork is seriously at risk. A review of the water quality assessment demonstrates major impairment from mining and sedimentation to the area of the Mulberry Fork designated Public Water Supply. For instance, Appendix D of the document lists the impairment potential due to mining of the sub-watershed as High. Appendix I of the document shows that this subwatershed carries the highest sediment load in terms of tons/per acre/per year in the entire Mulberry Fork watershed, and that the largest contributor of sediment is mined lands. Appendix M indicates that the sub-watershed has higher concentrations of TDS than anywhere else in the Black Warrior River basin. In addition to iron, manganese and sediment, there are many other contaminants of concern associated with coal that affect source water, drinking water quality and treatment costs. And while aesthetic issues of taste or economic issues of treatment costs are important for drinking water, these additional contaminants represent a potential danger to human health. The BWWB points to arsenic (described by the USGS as well above the average for all U.S. coal ), sulfur, salinity, mercury, lead, zinc, copper and cadmium (among others) as elements that are associated with Alabama s coal deposits, specifically those near the Mulberry Fork and the drinking water intake. Id. See also Coal Mine Drainage and Water Quality Study and Surface Water Quality Analysis (Exhibit 4, Appendices B and C) at pp ) (Coal samples taken in Mulberry Fork drainage area show relatively high concentrations of aluminum, arsenic, lead and mercury). It is well established that the Warrior Coal Field has locally elevated concentrations of mercury, as well as elevated levels of arsenic, molybdenum, selenium, copper and thallium. See Gold, Dielhaber and Hatch, Modes of Occurrence of Other Trace Elements in Coals from the Warrior Field, Black Warrior Basin, Northwestern Alabama (April 27, 2004) (incorporated here 16

76 by reference in its entirety) (hereinafter Trace Elements in Coal). The presence of these and other toxic elements associated with coal mining in an area where local residents get their drinking water (as well as swim, and fish) make it imperative that the ASMC carefully evaluate these areas for a possible designation as lands unsuitable for mining. We believe that the only way to adequately protect both human health and the environment in these circumstances is to protect source drinking water prophylactically through a lands unsuitable designation. If, as stated in Trace Elements in Coal, iron and manganese are present in concentrations that greatly exceed recommended levels for safe drinking water, it is also reasonable to expect that the other toxic pollutants associated with coal mine drainage may also be present at levels that are potentially dangerous to human health and water quality. Sampling in the area of the two proposed mines performed by the BWWB s engineering firm, Malcolm Pirnie, on two different occasions emphasizes this important point. Based on the [acid base accounting] tests, this coal bearing material is expected to generate acidic conditions. As no reported natural neutralization potential exists in these samples, the acidic waters produced are likely runoff dumps during rain events.... Should acidic conditions become pervasive, these coal bearing materials are likely to leach metals into the environment, some at concentrations above current creek levels and various local and federal limits. Based upon the [synthetic leaching tests] the metals of greatest concern are: aluminum, arsenic, iron, manganese and zinc. Coal Mine Drainage and Water Quality Study (Exhibit 4, Appendix B) at p. 19. Arsenic, lead and mercury in drinking water all pose significant human health risks. If they increase in source drinking water, the BWWB is going to have to install additional treatment technology. At the public hearing for Shepherd Bend Mine, Darryl R. Jones, the BWWB s Assistant General Manager for Operations and Technical Services, voiced the concern 17

77 that in a worst case scenario, certain levels of certain pollutants might not even be treatable given existing equipment and that the intake would have to be shut down until proper equipment could be installed. Mr. Jones also voiced the opinion that since 1989, the Mulberry Fork public drinking water was the most difficult source for the BWWB to treat due to multiple threats. For those pollutants that can affect human health, their possible increase and an inability to treat them in the near term with current equipment and processes is alarming. The non-cancer effects of arsenic can include thickening and discoloration of the skin, stomach pain, nausea, vomiting; diarrhea; numbness in hands and feet; partial paralysis; and blindness. Arsenic has been linked to cancer of the bladder, lungs, skin, kidney, nasal passages, liver, and prostate. EPA: Arsenic in Drinking Water. Arsenic in drinking water also increases mortality from cardiovascular and kidney disease. See Meliker, et al., Arsenic in Drinking Water, etc (2007). Lead in drinking water causes a variety of adverse health effects: [i]n babies and children, exposure to lead in drinking water above the action level can result in delays in physical and mental development, along with slight deficits in attention span and learning abilities. In adults, it can cause increases in blood pressure. Adults who drink this water over many years could develop kidney problems or high blood pressure. EPA: Lead in Drinking Water. Mercury well in excess of the maximum contaminant level for many years can cause kidney damage. EPA: Mercury in Drinking Water. Moreover, copper and selenium (also found in Warrior coal deposits) also pose health risks. In the near term, copper in drinking water can cause gastrointestinal distress; in the long term, it can result in liver or kidney damage. EPA: Drinking Water Contaminants. Selenium can cause hair or fingernail loss, lead to numbness in the fingers or toes, and cause circulatory problems. Id. 18

78 Recent public health studies focusing on quantity of coal mined in a given area irrespective of mining type (surface or underground) have found a significant mining effect on increased risk of low-birthweight deliveries (Ahern et al.,2010) as well as health effects for adults in coal mining areas of Appalachia. See, e.g., Hendryx, et al., Mortality from heart, respiratory, and kidney disease in coal mining areas of Appalachia (2009); Hendryx, et al., A geographical information system-based analysis of cancer mortality and population exposure to coal mining activities in West Virginia (2010). These studies identify a variety of environmental contributors to the problems studied, including increased ground and surface water pollution from mining. While these cited studies have focus on central Appalachia, it is reasonable to conclude that some of these same health effects may also be present in southern Appalachia. Although Alabama has been excluded from the defined six-state Appalachian region by EPA, EPA Region 4 has recently indicated in another context that some of the same types of mining concerns identified in the defined Appalachian region are also at issue in Alabama. See, e.g., December 17, 2010 EPA Letter to the U.S. Army Corps of Engineers in re: Swann s Crossing Mine (Tuscaloosa County, Alabama); February 23, 2011 EPA Letter to the U.S. Army Corps of Engineers in re: Reese s Branch Mine No. 2 (Walker County, Alabama); February 24, 2011 EPA Letter to the U.S. Army Corps of Engineers in re: Cedar Lake Mining (Blount County, Alabama). The northern 37 counties of Alabama have long been considered part of the Appalachian region by the federal Appalachian Region Commission. Moreover, along with Tennessee and Kentucky, the Black Warrior River watershed (and much of Alabama s coal) is contained in Eco-region 68; the state of Alabama actually produces nearly seven times the amount of coal 19

79 produced by the Appalachian state of Tennessee. 7 Alabama coal mines produced 20.6 million tons of coal in 2008 (1.8% of the U.S. total). Similarly, coal production statistics and reports include Alabama in the Appalachian region. See, e.g., Appalachian Region Coal Production. Although mountaintop mining may be different in scale in Alabama, the process whereby mountains and hills are blown up to expose coal seams; overburden is scraped and shaped into piles or deposited as fill in streams; and surface and groundwater are substantially disturbed to extract coal are essentially the same whether it occurs in central or southern Appalachia. 8 While it is not known whether some of the adverse health effects documented as a result of mining in central Appalachia are also present in Alabama, the conclusions reached in these peer-reviewed studies are extremely concerning. In view of the similarities between surface mining in central and southern Appalachia, and the documented impact that the Shepherd Bend and Reed No. 5 mines would have on source drinking water, it would be reckless to permit these operations without assessing what the human health and drinking water impacts will be. Unless the ASMC can scientifically establish that surface mining can occur in such close proximity to source drinking water with no demonstrable adverse health effects, the lands covered by the proposed Shepherd Bend and Reed No. 5 mines as well as the Mulberry Fork drainage, should be designated as unsuitable for mining. 7 With 2.7 million tons of coal mined in 2008, Tennessee is one of the lesser coal mining states, making up only 0.2% of U.S. coal production Coal Production Statistics for Alabama and Tennessee. 8 Mountaintop mining creates large-scale impairment of surface water and groundwater. (Palmer et al., 2010; Ghose, 2007; McAuley and Kozar, 2006; Hitt and Hendryx, 2010; U.S. Department of Labor, 2010). Some chemicals associated with the processes (such as mercury, lead, arsenic, selenium, cadmium, chromium, iron and manganese) which are also present in the Warrior Coal Field (and specifically, the Shepherd Bend, Reed No. 5 and Mulberry Fork drainage areas) have been shown in animal and/or human studies to pose adverse developmental or reproductive risks (Agency for Toxic Substances and Disease Registry, 2010). 20

80 2. Precipitation Event Exemptions and Possible Catastrophic Failures The NPDES permits for both Shepherd Bend and Reed No. 5 mines contain manganese and precipitation event exemptions, which have the demonstrated potential to swallow the rule of the express permit limitations that are supposedly in place to protect source drinking water at Shepherd Bend and Reed No. 5 mines. The exemption states in pertinent part that any discharge or increase in the volume of a discharge which is caused by an applicable 24-hour precipitation event... and which occurs during or within 24-hours after such event may be exempt under the discharge limitations. The fact that the precipitation event exemption is based upon federal guidelines (40 C.F.R ) begs the question of whether the exemption is justified or protective of water quality where drinking water is concerned. Much like the recommended NPDES permit limits, these exemptions were crafted with surface coal mining, not source drinking water, in mind. In addition to being exempt from federal effluent guidelines, permit limits based upon the reasonable potential analysis are suspended and become report only if the precipitation exemption is invoked. The only parameters that are potentially restricted during precipitation events are ph (a prescribed range of 6.0 s.u. to 9.0 s.u.); iron (7.0 mg/l daily maximum) and settleable solids (.5 ml/l daily maximum). Particularly where source drinking water is concerned, precipitation event exemptions have the demonstrated potential to significantly degrade source water quality. Dr. Robert Angus, an emeritus biology professor at the University of Alabama at Birmingham, has testified that the past use of these exemptions for iron, manganese and TSS as well as the failure to impose limits for TDS, sulfate, chlorides, aluminum and other heavy metals at all have caused a violation of Alabama s water quality standards. See Affidavit of Dr. Robert Angus (Exhibit 11). Dr. Angus also states that precipitation events carry the most potential for 21

81 harm in the receiving waters from a mine site. The stormwater leaving the site carries heavy metals and other toxic pollutants from mining activities yet few, if any, limits are imposed if the precipitation exemption is invoked. Id. See also Affidavit of Warner Golden (Exhibit 12) (The exemption of discharges of iron, manganese and TSS in most precipitation events at Shepherd Bend Mine will cause a violation of water quality standards for the receiving waters because the discharges are not effectively treated or controlled). The BWWB is similarly concerned about these exemptions and failures: [t]he NPDES Permit could allow large slugs of suspended solids to Mulberry Fork. The permit included no limits for total suspended solids in stormwater runoff (only settleable solids), essentially allowing unlimited discharges of fine, non settleable suspended solids such as clays and fine silts. Given the extreme land disturbance associated with surface mining---and high rate of erosion expected---this could allow large slugs of suspended solids in runoff from even small precipitation events. This in turn could have deleterious effects on aquatic life and greatly increase solids removal costs in the water treatment plant. Of special concern is the potential for catastrophic movement of solids into the stream during large storm events, whether as the result of impoundment failure or precipitation-induced mass wastage of mining materials on high slopes. The permit includes no limits on solids for 10-year storm events, essentially providing no protection from such events.... Catastrophic solids loading events could not only affect the water quality at the intake, it could endanger the intake itself by burial, clogging, or other damage. See ADEM Comment Letter (Exhibit 4) at p. 5. The record establishes that Shepherd Bend and Reed No. 5 mines will significantly increase the loading of solids and contaminants to source drinking water and that the BWWB is concerned about its ability to treat these pollutants. What is clearly missing from the record is how the ASMC will keep this increased loading from occurring or ensure that source drinking water will not decline significantly if these (or additional) mines are permitted in the Mulberry Fork drainage. 22

82 For the foreseeable future, coal mining will continue in the Black Warrior River basin. However, this accepted fact begs the question of whether it is sensible, appropriate or protective of the public health to locate coal mines in established source drinking water areas or at water intakes. Given the known link between coal mining, stream impairment and possible adverse public health effects, the ASMC must carefully weigh and scientifically support putting coal mines on top of source drinking water. Just as importantly, the ASMC must evaluate the public health consequences of such a choice. When the ASMC does, the only appropriate outcome is to designate the areas covered by the Shepherd Bend and Reed No. 5 mines (as well as other lands that drain to the Mulberry Fork public water supply) as lands unsuitable for mining. V. PETIONER S INTEREST THAT IS ADVERSELY AFFECTED Petitioner Black Warrior Riverkeeper, Inc. is an Alabama nonprofit membership corporation with over 2,000 members that is dedicated to the preservation, protection and defense of the Black Warrior River and its tributaries. Riverkeeper actively supports effective implementation and enforcement of environmental laws, including SMCRA and the ASMC regulations, on behalf and for the benefit of its members, as well as all who use and enjoy the River. Many members of Riverkeeper use and value the Mulberry Fork of the Black Warrior River for drinking water, not to mention recreation (including but not limited to canoeing, kayaking, fishing, swimming, wildlife observation, nature and landscape observation and photography, and for aesthetic enjoyment). Their use and enjoyment of the Mulberry Fork for drinking water will be adversely affected by the proposed Shepherd Bend and Reed No. 5 mines, (or any other mines on lands that drain to the Mulberry Fork public water supply). They will use the Mulberry Fork less for drinking water if the water is degraded or not safe to drink. If the 23

83 BWWB has to increase treatment or install new treatment technology as a result of the proposed Shepherd Bend and Reed No. 5 mines, these members of Riverkeeper (and the general public) may pay more for their drinking water. If the ASMC protects source drinking water with a lands unsuitable for mining designation, members of Riverkeeper will rely on and enjoy the Mulberry Fork drinking water more in the future because they can be confident that the water is clean and safe to drink. Moreover, they will not have to pay additional treatment costs. Members of Riverkeeper are among the 200,000 customers of the BWWB who use and value the Mulberry Fork intake for drinking water now and plan to do so in the future. See Standing Affidavits (Exhibit 12). They are representative of Riverkeeper members and the general public who rely on the BWWB s Mulberry Fork intake for clean, safe and affordable drinking water. If the ASMC does not designate the areas covered by the proposed Shepherd Bend and Reed No. 5 mines as well as the Mulberry Fork public water supply drainage as lands unsuitable for mining, their use and aesthetic enjoyment of the Mulberry Fork for drinking water will suffer and decline. They will use and enjoy the Mulberry Fork intake more in the future (as well as pay less for drinking water) if the ASMC protects these areas as lands unsuitable for mining. VI. CONCLUSION The goal of this Petition is not to stop coal mining, but to protect an important resource: clean, safe and affordable drinking water. The Birmingham region has invested substantially in the Mulberry Fork intake; it currently serves 200,000 of the BWWB s 680,000 customers. The drinking water supplied by the Mulberry Fork of the Black Warrior River represents a unique, site-specific resource with a value clearly superior to that of coal in these circumstances. 24

84 Regulatory permit challenges, although critically important to ensure that permits are drafted to be properly protective of water quality, present a somewhat imperfect means to protect drinking water. The emphasis in those proceedings is whether the applicant meets minimal regulatory requirements for a permit, and they fail to effectively consider larger issues like cumulative effects or source drinking water protection. By contrast, the lands unsuitable for mining process is comprehensive and preventative in nature; it is specifically designed to protect valuable drinking water sources like the Mulberry Fork. The ASMC must now directly consider the effect coal mining will have on the source water quality of the Mulberry Fork. This segment is extraordinarily valuable to the Birmingham region, and the ASMC must determine whether, as this Petition asserts, surface coal mining in close proximity to the Mulberry Fork intake harms and devalues the river as a drinking water source. As established by the Petition, the only logical and reasonable result is to designate as unsuitable for mining the areas covered by the Shepherd Bend and Reed No. 5 mines, as well as the identified Source Water Protection Area of the Mulberry Fork public water supply. Respectfully submitted, BLACK WARRIOR RIVERKEEPER Eva L. Dillard ASB-4118-A59E Attorney for Petitioner Black Warrior Riverkeeper, Inc th Street South Birmingham, AL (205) Office (205) Facsimile edillard@blackwarriorriver.org 25

85 APPENDIX B PETITION ACCEPTANCE LETTER

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