Times Staff Report
August 7, 2012
FRANKFORT — A July 31 federal court ruling that favored states’ rights in a legal dispute between the federal EPA and some coal mining states, including Kentucky, will have little effect on how the Commonwealth handles water quality permitting of its mining operations, state officials said last week.
On Thursday, Kentucky Department for Environmental Protection Commissioner Bruce Scott told the Interim Joint Committee on Natural Resources and Environment that the ruling—which Scott said the courts basically affirmed “as a violation of the federal Administrative Procedures Act”—will not affect how Kentucky approaches wastewater discharge permitting of coal mine operations under the Clean Water Act 402 permitting program.
“It has always been our determination that the existing rules have never changed,” said Scott.
The ruling vacated the EPA’s “guidance” or policy recommendations regarding water quality permitting of coal mining operations. The guidance, issued in 2010, set recommended levels for salinity in streams located below coal discharges. Kentucky and other states filed suit against the EPA in reaction to the guidance, citing due process concerns.
“The legal genesis (behind the lawsuit) is … the guidance was being used as if it were a regulation without having gone through the regulatory adoption process,” said Scott.
The July 31 ruling also makes it clear that the states, not the EPA, are responsible to for water quality standards “as a first resort,” said Scott, effectively rebalancing the federal-state relationship in implementing the wastewater discharge permits under the 402 program. Scott said it is likely that the EPA will appeal those parts of the ruling to the U.S. District Court of Appeals.
In Kentucky, Scott said there are currently 36 individual water quality permits pending for coal mine operations that are held up due to objections by the federal EPA. Scott said it is unknown how those permit objections will be handled in light of the court ruling.
Committee Co-Chair Rep. Jim Gooch, D-Providence, noted that the 36 permits objected to by the EPA were never denied by the agency. The EPA objected to the permits being issued at all, he stated.
“If they were turned down at least they could make…a lawsuit or whatever, but it doesn’t seem in this day and time, in this country, that it’s right to deny someone the ability to work and also deny them their due process. They (the EPA) are just holding these things,” said Gooch.
Due to changes made decades ago under the federal Clean Water Act, Scott said the EPA is not under a legal obligation to respond to its objection to the 36 permits.
Scott said he has advocated for years that the federal EPA follow a timeline for making final action.