Update on State of Kentucky and Mining Industry Suit Over EPA Coal Permitting Guidance
The National Mining Association and Kentucky Coal Association, along with the states of Kentucky and West Virginia, are continuing their litigation against EPA regarding the agency’s guidance on coal mine permitting. As previously reported in the Environmental Letter, on October 6, 2011, the federal District Court for the District of Columbia agreed with the states and industry that EPA’s April 1, 2010 “Interim Guidance” on Clean Water Act coal mine permitting reviews violated the Administrative Procedure Act (APA), because it was issued without undergoing public notice and comment, but was still being treated by the agency as a binding rule. Prior to the court’s ruling, however, EPA issued “final” guidance on Appalachian coal mine permitting, and this guidance was not addressed by the court’s order. In light of this change, the D.C. court ordered the parties to submit new complaints and briefing on the issue of whether the “final” guidance likewise violated the APA. Final briefs on these issues are currently due on May 4, 2012, meaning that the court could hear arguments in early summer, 2012, with a final decision likely before the end of the year.
Under the Clean Water Act, Kentucky has authority to issue discharge permits, known as Kentucky Pollutant Discharge Elimination System or “KPDES” permits, subject to review by EPA. The Act permits EPA to review such permits before they are issued, and to object to individual permits that do not meet EPA’s standards. Unless and until EPA’s objections are satisfied, Clean Water Act discharge permits cannot be issued.
The coal mine permit guidance requires EPA and the Army Corps of Engineers to engage in “enhanced” permit review of applications for Clean Water Act discharge permits and Clean Water Act Section 404 “dredge and fill” permits for new or expanded surface mining operations in Kentucky and other Appalachian states. (The April guidance applied in Pennsylvania, Ohio, Kentucky, Tennessee, West Virginia, and Virginia; the July guidance purports to apply only in Kentucky and West Virginia). The July 2011 guidance states that EPA regional offices should object to permits where the expected discharges will have a conductivity of between 300 and 500 micro-siemens per centimeter. Although technically a measure of water’s ability to conduct electricity, conductivity is used as a surrogate for various solid pollutants in a wastewater discharge. It is expected that few, if any, Appalachian surface mines could meet the conductivity standard established by EPA’s guidance. Industry groups have also raised serious questions concerning the science behind EPA’s chosen conductivity “benchmark.” Moreover, although the guidance purports to apply only to surface mines and only in a select few states, there is widespread concern that the principles in the guidance will ultimately be applied to underground mines, and even other industries, and will be expanded to apply in other coal mining states.
As a result of EPA’s implementation of the guidance, the agency has objected to every individual KPDES permit the Kentucky Division of Water has attempted to issue to a new or expanded surface mine since April 1, 2010. To date, this has resulted in the issuance of 40 such permits being indefinitely delayed. Although many surface and underground mines continue to qualify for coverage under the state’s Coal General KPDES permit, new or expanded mining operations requiring individual permit coverage have been completely unable to proceed. Given the major significance of EPA’s permitting guidance, we will continue to track the progress of this litigation in the Environmental Letter.
To view a complete PDF of the March/April 2012 issue of the Environmental Letter, click HERE.