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Update on National Mining Association Case and Environmental Groups’ Petition for Federal Conductivity Water Quality Standards in Kentucky


As previously reported in the Environmental Letter, EPA has appealed a federal court decision striking down the agency’s guidance on coal mine permitting under the Clean Water Act which instructed EPA regional offices to object to wastewater discharge permits for coal mines where the anticipated discharge was expected to exceed EPA’s conductivity “benchmark” level.  The federal court ruled that EPA violated the Administrative Procedures Act by adopting the conductivity benchmark without notice and comment, and that EPA improperly interfered with state authority under the CWA because the benchmark was in effect a water quality standard.  The CWA grants primary authority to establish such standards to the states.

EPA and environmental interest groups have now filed their legal briefs in the case, which is pending before the District of Columbia Circuit Court of Appeals.  Industry groups and the states of Kentucky and West Virginia are due to file their briefs in July.  After all briefs are filed, the appeals court will likely hear oral arguments.  This means that a decision is still several months away.

In the meantime, Kentucky regulators continue to face opposition from EPA when attempting to issue Clean Water Act permits for coal mining operations.  Negotiations over the impact of the litigation and specific permitting actions remain ongoing, but permitting activity has not significantly increased following the ruling.

In an action that appears to be directly related to the D.C. federal court’s decision overturning EPA’s guidance, on May 6, 2013, a host of environmental interest groups represented by EarthJustice filed a petition with EPA seeking to force the agency to set a federal water quality standard for conductivity in the six Appalachian states originally subject to the guidance (Kentucky, Ohio, Pennsylvania, Tennessee, Virginia, and West Virginia).  In their petition, the groups argue that EPA must exercise its authority under a provision of the CWA which allows EPA to set federal water quality standards in cases where states have failed to set appropriate standards for certain pollutants.  Under the CWA, EPA has 180 days to respond to the petition by either denying it or announcing its intention to set its own conductivity standard in the six states.

The petition to set a conductivity water quality standard has potential impacts for all industries, not just coal mining.  Although coal mining impacts were a motivating factor for the petition, the petition itself seeks a new water quality standard that would apply to all discharges, not just those from coal mines.  We will continue to monitor EPA’s progress with the petition in the Environmental Letter.

To view a complete PDF of the March/April 2013 issue of the Environmental Letter, click HERE.

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