By Bethany Baxter, Staff Member

Under the Clean Water Act (CWA) the EPA has authority to review state issued permits pursuant to §402(d)(2). 33 U.S.C.A. §1342 (d)(2). Kentucky, in assuming responsibility for implementing the CWA, must provide the EPA with notice of permits the state plans to issue, and the EPA may then object to the requirements defined by the state in the permit.

Historically the EPA has been reluctant exercise this authority. However, an EPA report published in April of this year has prompted the Agency to utilize §402 authority in imposing heightened requirements specifically affecting mining permits under the CWA. The EPA released “Detailed Guidance for Appalachian Coal Streams,” in which the EPA links coal mining activity to increases in conductivity levels in waters. 75 Fed. Reg. 18,500 (April 1, 2010). The report sets benchmarks for conductivity levels, based on scientific finding that increased conductivity adversely affects aquatic life in streams. The report explicitly states that the report should be used to “clarify EPA’s expectations,” and states that the EPA expects that Regions 3, 4, and 5 “begin using this interim final guidance immediately in your review of Appalachian surface coal mining activities.” 75 Fed. Reg. 18500 at 1-2.

Kentucky’s narrative water quality standards state, “total dissolved solids or specific conductance shall not be changed to the extent that the indigenous aquatic community is adversely affected.” 401 KAR 10:031, §4(1)(f). Based on this standard and the newly released report, the EPA rejected several Kentucky permits, finding that the Kentucky Division of Water failed to consider emerging science regarding coal mining affects on water, and failed to incorporate available science concerning conductivity. The Kentucky Coal Association (KCA) filed suit last week against the EPA and Administrator Jackson, claiming that scientific underpinnings of the report are seriously flawed and hence the Agency’s reliance on the report is arbitrary and capricious.

See

complaint, at 19-20. KCA publically called EPA action an “illegal agenda to end coal mining in Kentucky,” and Governor Beshear, who joined the suit stated, “the arbitrary and unreasonable decisions being made by the EPA threaten to end the responsible mining of coal and eliminate the jobs of an estimated 18,000 Kentucky miners who depend on mining for their livelihood.” Dori Hjalmarson,

Coal industry, Beshear administration sue EPA over coal mining permits

, Oct 19, 2010, Lexington Herald Leader. Both the National Mining Association and the state of West Virginia filed similar suits.

Coal mining is central to the cultural and economic identity of Kentucky. Recently industry practices, particularly mountain top removal, have received much critical attention on the national level. The EPA, in rejecting state permits, is more proactively addressing water quality and pollution associated with coal mining. It is no surprise that the industry and state are resistant. It will be interesting to see how this suit reflects the broader coal debate and tensions between economic growth and environmental protection.

To review the Kentucky Coal Association’s complaint:

http://www.kentuckycoal.com/documents/Complaint.pdf

To read the EPA’s “Detailed Guidance for Appalachian Coal Stream:”

http://www.epa.gov/owow/wetlands/guidance/pdf/appalachian_mtntop_mining_detailed.pdf