Coal industry, Beshear administration sue EPA over coal mining permits

Claim federal agency illegally blocking state-issued mine permits

dhjalmarson@herald-leader.comOctober 19, 2010 

Gov. Steve Beshear's administration and coal industry representatives have sued the U.S. Environmental Protection Agency over coal mining permits.

The Kentucky Coal Association, in a complaint filed Monday in U.S. District Court in Pikeville, said the EPA's blocking of state-issued permits over water pollution standards put forth in an April memo amount to the executive branch taking legislative action and an improper deviation from the Clean Water Act of 1977.

Blocking state-issued permits is part of an "illegal agenda to end coal mining in Kentucky," Kentucky Coal Association president Bill Bissett said in an e-mail to the state Legislative Research Commission. "This EPA continues to act without any consideration for the law, so it is our hope that the federal court system will find that the EPA's actions are being made based on political ideology alone, with no connection to actually protecting the environment."

The governor of West Virginia filed a similar suit this month.

Beshear directed the Kentucky Energy and Environment Cabinet, part of which enforces the Clean Water Act and other environmental protection laws and part of which permits and regulates coal mining, to join the industry lawsuit.

"Kentucky can and does mine coal while at the same time protecting Kentucky's environment," Beshear said in a news release. "However, 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."

According to federal Department of Energy numbers, Kentucky coal production dropped by about 11 percent from 2008 to 2009, and the number of mine employees dropped by less than 1 percent. That corresponded with a 14 percent increase in the price of Kentucky coal on the open market, according to the Department of Energy.

Tom FitzGerald, executive director of the Kentucky Resources Council, called Beshear's move "disappointing and unseemly" and said the EPA is "well within its rights."

The EPA delegates to state officials the responsibility of protecting Kentucky's streams.

"By their own admission, they have failed to do so," FitzGerald said.

In the April memo, the EPA adopted standards of conductivity — a measure of dissolved minerals and salts — in water discharged from coal mines. The agency used the standards to block 11 state-issued mining permits in Harlan, Bell, Pike, Floyd and Knott counties because of poor water quality in the region. The EPA approved 30 permits just before adopting the standards, Beshear's office said.

The EPA has said that surface coal mining has so damaged the environment of Central Appalachia that regulations are needed to limit the practice. The agency, as well as the Army Corps of Engineers and the Department of the Interior, have taken other steps to regulate mining, such as ending the use of the Nationwide Permit 21— a less stringent water pollution permit — in Kentucky, Pennsylvania, Ohio, West Virginia, Virginia and Tennessee.

The Sierra Club and other environmental groups have petitioned the EPA to take over coal mine permitting, saying the state doesn't do an adequate job of protecting water. This month, three groups, including Kentuckians for the Commonwealth, announced that they intend to sue Kentucky's two largest surface mine companies, ICG and Frasure Creek, over water testing and documentation problems.

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