Governor Beshear sides with polluters

The Kentucky Coal Association (KCA) on Monday sued the EPA after the federal agency rejected state officials' approval of 11 water discharge permits for failing to protect water quality. Beshear ordered the state to join in the action on behalf of coal companies.

Bill Bissett, KCA director, in an oft-repeated message, said the EPA has an "agenda to end coal mining in Kentucky," He wants to make sure the EPA is enforcing the Clean Water Act for environmental and not political reasons.

The plaintiffs asked the U.S. District Court in Pikeville to issue an injunction barring the EPA from further enforcement until interim rules the EPA applied to block those 11 permits are finalized or rejected.

Those interim standards, issued in April, set limits for stream conductivity – a general measure of the contaminants in a stream. The EPA found that conductivity levels above 500 µS/cm means the stream is in poor health and stream life is dying.

Many streams already impacted by mining have conductivity levels far in excess of this maximum. Rick Handsoe, for example, has measured conductivity in streams near his home in Floyd County in excess of 1900 ¨S/cm – the highest his meter will read.

If the state considers the cumulative impact of pollution discharges in a stream – which it is required to do by law but doesn't – that would mean no more pollution should be allowed into those streams until they recover.

The EPA also found that state officials failed to analyze the impact of the discharges on water quality and set pollution limits too high.

Beshear called the EPA's action "arbitrary and unreasonable."

The EPA noted that Kentucky's own data shows that coal mining is heavily damaging water resources in eastern Kentucky – data that Beshear has ignored in continuing to issue permits that add to accumulated pollution levels. A recent state study indicated that 82% of waters in the Big Sandy River basin are "impaired," mostly from surface mining.

The struggle between the EPA and state officials mirrors a similar case in which KFTC and the Sierra Club challenged a water pollution permit issued to Cambrian Coal in April. A state administrative hearing officer last month agreed with our claims that the mining operation would likely degrade water quality and that state officials had not done enough to prevent this. He blocked further mining.

But last week Kentucky Energy Cabinet Secretary Len Peters overruled this order and allowed the pollution to resume.

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