Breaking news in concerning coal permitting and enforcement in our neighboring state of Kentucky: Four environmental organizations are filing a formal petition asking the U.S. Environmental Protection Agency to take over the state’s National Pollution Discharge Elimination System (NPDES) program.
The petition, which I’ve posted online here, alleges a “complete breakdown” of Kentucky’s implementation and enforcement of the Clean Water Act permitting program. In particular, the petition alleges:
… The state’s capitulation to the coal industry and its complete failure to prevent widespread contamination of state waters by pollution from coal mining operations leaves EPA no choice but to withdraw its approval of the program.
The petition cites the Kentucky Division of Water’s own figures showing 1,200 miles in the Upper Kentucky River watershed, nearly 490 miles in the Upper Cumberland River watershed, and 780 miles in the Big Sandy/Little Sandy/Tygarts Creek watershed as impaired with coal mining as a suspected source. But, the petition alleges this nearly 2,500 miles of impaired streams in the coalfields of eastern Kentucky “seriously underestimates” the scope of actual stream impairment.
The petition outlines these major problems:
* New testing by the U.S. EPA which revealed toxic pollution levels downstream from Kentucky mining operations that greatly exceeded legal limits.
* Kentucky’s failure to limit coal mining’s selenium discharges, “despite overwhelming and incontrovertible evidence of mining’s harm to Kentucky’s river and streams from selenium pollution.”
* Kentucky has not enforced its narrative water quality criteria for conductivity, “despite overwhelming scientific evidence that this pollutant is causing widespread biological impairment in streams.”
* Most coal mines in Kentucky are covered under a blanket “general permit” rather than site-specific water pollution permits, a system that is “inadequate to detect and prevent violations of water quality standards.” For example, for mines with existing permits, Kentucky’s Division of Water only requires mine operators to take a single “grab sample” of their discharges once in five years. According to the petition:
This testing is usually insufficient to demonstrate that there is no reasonable potential for violations. And even when tests do show that there is reasonable potential, KYDOW misapplies EPA guidance on that issue and ignores the potential. In every case, KYDOW wrongly concludes that no future monitoring is required and no permit limits are necessary.
* Even when Kentucky does consider issuing individual permits for mining operations, it only analyzes discharges for compliance with acute water quality criteria, not chronic criteria.
* Kentucky has only evaluated and assigned Total Maximum Daily Loads (TMDLs) for 51 impaired streams, while 2,000 other impaired streams have no TMDLs.
* Kentucky is not requiring NPDES permits for bond forfeiture and AML sites, so they are not setting enforceable pollution limits at those sites.
Among the other interesting points made in the petition:
One site where toxicity testing showed problems was downstream from the Guy Cove reclamation study site — recently touted in a Kentucky newspaper article — suggesting that efforts to rebuild a stream there haven’t worked as well as researchers hoped.
And, Kentucky has just four NPDES permit writers to manage 2,353 permits, or about 588 permits each. By contrast, West Virginia has 15 NPDES permit writers who manage 1,266 mining permits, or about 84 permits each.
I’ve asked for comments from Kentucky officials and from the state’s mining industry, but haven’t heard back from those folks yet.
The petition was filed by the Appalachian Center for the Economy and the Environment, the Sierra Club, Public Justice and Kentuckians for the Commonwealth.
We’ve written before on Coal Tattoo about selenium problems in Kentucky, and, of course, a similar petition for an EPA takeover was filed concerning the water pollution program at the West Virginia Department of Environmental Protection.