FRANKFORT — State lawmakers roundly criticized the U.S. Environmental Protection Agency on Thursday as two legislative panels approved different measures to shield Kentucky coal mining from federal pollution rules.
"The EPA don't understand mining," House Natural Resources and Environment Chairman Jim Gooch, D-Providence, said at his committee's hearing. "We're trying to say to those folks, we don't want them having ultimate say or control."
Lawmakers acknowledged that it's unclear what legal weight their measures would carry beyond "sending a message" to Washington. Federal law usually trumps state law, especially regarding environmental protection and interstate commerce. But lawmakers said they're trying to make a point for states' rights.
"We hope it goes to the Supreme Court so we can go argue our case there," said Rep. Keith Hall, D-Phelps, who is in the coal-mining business. "As a member who owns 1,200 acres, when I have intrusion by the federal government that tells me what I can and cannot do with my own property ... I call that a taking."
Gooch's committee unanimously approved his House Bill 421, which would exempt coal mining from the federal Clean Water Act and other EPA regulation if the coal is used inside Kentucky and does not cross state lines. The lone critic at the hearing, environmental lawyer Tom FitzGerald, told lawmakers that about 20 percent of the sediment produced by coal mining goes into rivers that flow outside Kentucky's borders.
The Senate Natural Resources and Energy Committee later unanimously approved Senate Joint Resolution 99, which declares that Kentucky should be a "sanctuary state" for the coal industry, free from "the overreaching regulatory power" of the EPA. The state Energy and Environment Cabinet would be authorized to regulate mining on their own.
The resolution's sponsor, committee chairman Brandon Smith, R-Hazard, dropped a provision that instructed the state Energy and Environment Cabinet to issue mining permits denied by the EPA because of water pollution concerns.
The resolution would be enacted law if the Senate and House passed it, although it wouldn't go onto the statute books.
Once reasonable, the EPA now is pressuring its field inspectors to write as many citations as possible, regardless of their validity, Smith said.
"These guys want you to write. They don't care about details," Smith said. "All they want to see is stacks of tickets."
Spokeswomen for the EPA in Washington, D.C., and the agency's Atlanta field office did not return calls seeking a response.
The state Energy and Environment Cabinet had asked Smith by letter to postpone action on his resolution until it could review the measure and gauge its fiscal impact on the agency, cabinet spokesman Dick Brown said. The cabinet expects to have comments ready next week, Brown said.
Both measures are backed by the coal industry, said David Gooch, president of Kentucky Coal Operators and Associates. David Gooch told the committees that federal rules for water quality are being used unfairly to harass coal operators.
In particular, coal operators are unhappy about recent EPA standards on conductivity, which measures the amount of dissolved minerals in waterways around mine operations. They say the standards can be impossible to meet. Other factors, such as salting a road in winter, can raise conductivity levels in nearby streams, they say.
"The EPA — these are not elected officials," David Gooch said. "They are career bureaucrats who sit in their ivory tower in Washington, D.C., and decide what the science should be."
FitzGerald, director of the Kentucky Resources Council, said he sympathizes with frustrated coal operators who face more aggressive environmental regulation. But the regulators were too lax before; they're not too strong now, he said.
"The EPA for the better part of the last 20 years was not able to enforce the rules and be sure that the Clean Water Act was being enforced," FitzGerald said. "I think the EPA is acting well within the science. What we need to do is focus our efforts on better mine engineering and managing the spoil materials in ways that lower the introduction of sulfates and other pollutants."