Kentucky enters lawsuit against the EPA over coal mining

Kentucky Governor Steve Beshear has directed the state’s Energy and Environment Cabinet to partner with the Kentucky Coal Association in suing the Environmental Protection Agency. In a federal lawsuit filed yesterday, the state is challenging the EPA’s rules, guidance and oversight of coal mining permits under the Clean Water Act (CWA).

According to the Governor’s comments on the case, the EPA regulations are “arbitrary,” and may put 18,000 jobs at risk. The focus of the case is on interim guidance issued earlier this year by the EPA which set benchmarks for measuring the conductivity of water in streams and waterways that coal mining operations within certain areas of Appalachia must achieve for environmental safety. The benchmarks effect CWA 402 permits for coal mining also known as the Kentucky Pollution Discharge Elimination System (KPDES) permitting program.

In March 2010, after multiple discussions with EPA regarding several proposed draft CWA 402 permits, EPA allowed the issuance of those revised draft permits by the Kentucky Division of Water. However, the state alleges that the EPA refused EPA refused to apply the same standards to 11 similarly proposed CWA 402 permits, instead objecting to their issuance.

For individual CWA 402 permits where the state is unable to resolve the EPA objection in the 90-day period allowed, EPA will become the permitting and enforcement authority for those mining operations for the life of that permitting action. The state further claims that the EPA is under no time frame to take any final action in response to their objection letter.

The 11 permits were declined after new standards for conductivity went into place in April. According to the EPA, coal mining in these 11 areas has caused significant damage to the environment, thus requiring the regulation and refusal of permits.

The case will go forward in U.S. District Court, Eastern District of Kentucky, Pikeville Division.

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