Defining the EPA’s Water Quality Standards and Permitting Authority

We represented the Kentucky Coal Association (KCA) when the Environmental Protection Agency attempted to implement a final guidance that enabled blockage of Clean Water Act permits for coal mining operations.

The EPA issued final guidance in July 2011 which directed its field offices to object to state-issued permits in certain ecoregions in Appalachia (particularly Eastern Kentucky and West Virginia) unless they contained a “reasonable potential analysis” prior to permit issuance (even if the mine was new and therefore no site-specific data upon which to base an RPA was available) and/or numerical conductivity limits, which allowed EPA to block permits for virtually all new or expanded surface coal mines in Eastern Kentucky or West Virginia.  We represented the KCA in arguing that the EPA had exceeded its authority in issuing the final guidance because it went beyond their oversight as outlined in the Clean Water Act and the Surface Mining Control and Reclamation Act.  We also alleged that the EPA’s final guidance infringed upon the states’ authority to enact and monitor their own water quality standards.

Our case was transferred to the U.S. District Court in Washington, D.C., where the KCA became a co-plaintiff along with the National Mining Association, the Commonwealth of Kentucky, the state of West Virginia, and the city of Pikeville (Ky.).  Working in coordination with other plaintiff counsel, we prepared extensive briefs, including researching and addressing Kentucky-specific requirements related to water conductivity standards.  We also participated in oral arguments during a hearing, demonstrating that the power to set water quality standards is delegated to the states and that the EPA did not follow the formal rulemaking process to attempt to implement a federal standard.

After hearing oral arguments, the judge ruled that EPA’s reliance upon the final guidance to object to and thereby block the issuance of individual Clean Water Act permits for new or expanded surface coal mines in Eastern Kentucky and West Virginia was unjustified and unlawful.  Unfortunately, EPA continues to refuse to issue the permits at issue in direct contravention of the court’s order.  The case is now on appeal before the U.S. Circuit Court of the District of Columbia.

Learn more about this case in the article: Judge Sides With Coal Industry Against EPA