Kentucky Challenges EPA Mining Restrictions

Published November 27, 2010

The Commonwealth of Kentucky has joined a lawsuit filed by the Kentucky Coal Association against the U.S. Environmental Protection Agency, challenging how EPA is imposing rules under the Clean Water Act regarding mining permits.

EPA’s Authority Questioned
The Coal Association and the governor’s office allege EPA has delayed or rejected the issuance of coal mining permits for new and expanded facilities based on an April 2010 agency internal memorandum citing water pollution standards as a factor in the decision-making process.

In the complaint, the Coal Association writes, “water quality standards are set by the states,” and EPA “has no authority to establish water quality standards” without first going through a rulemaking procedure that involves formal notice and comment.

“We only want EPA to operate in cooperation with the states in determining the impact and advisability of regulations,” said Dick Brown, a communications official with Kentucky’s Energy and Environment Cabinet. “Yes, the continued actions by the EPA are of concern in that the coal industry’s ability to do business is greatly diminished by the actions of the EPA that do not, in our opinion, follow protocol.”

Economic Harm Cited
The governor’s office estimates EPA’s actions—which Gov. Steve Beshear (D) characterized as “arbitrary and unreasonable,” in a press release—could cause the loss of 18,000 mining jobs.

The 2007-08 Kentucky Coal Facts pocket guide prepared by the Kentucky Office of Energy Policy and the Kentucky Coal Association document the economic benefits of coal mining in the commonwealth. The coal industry brought more than $3.5 billion into Kentucky from outside sales in 2006, and coal companies paid more than $221 million in state taxes between 2006 and 2007, according to the report.

Doubts on EPA’s Science Claims
EPA says it is only trying to protect the environment and is working within the confines of existing law and guidance.

Earlier this year Kentucky requested and received guidance from the agency about permit requirements, EPA spokesman Jalil Isa says.

“EPA issued clear guidance that … [used] the best science available to protect residents from the significant and irreversible damage this practice can have on communities and their water sources,” Isa said.

“EPA has also been guided by the Clean Water Act, and we are confident that this guidance will withstand scrutiny,” Isa said.

The governor’s office, however, says EPA rejected the issuance of 11 permits that were already approved by the Kentucky Division of Water, and that those 11 permits are similar to several that passed federal muster earlier this year.

Cheryl K. Chumley ([email protected]) writes from northern Virginia.