EPA to probe Kentucky mining

Federal regulators are investigating whether coal operators in Kentucky have been allowed to illegally bury streams with strip mine waste.

Late last month, the U.S. Environmental Protection Agency launched a probe into permits for mountaintop removal mining valley fills, agency records show.

"EPA is concerned that permitting requirements applicable to the federal Clean Water Act are not being adhered to by the coal mining industry in Kentucky," wrote Thomas C. Welborn, acting deputy director of water management for EPA's Region 5 office in Atlanta.

"The objective of EPA is not to unduly punish the industry, but rather to insure that oversight and enforcement authorities are implemented in an equitable and consistent manner across industry sectors and throughout the Appalachian region," Welborn wrote in a Feb. 28 letter to Carl E. Campbell, commissioner of the Kentucky Department for Surface Mining Reclamation and Enforcement.

While EPA Region 5 oversees environmental regulation in Kentucky, the federal agency's Region 3 office in Kentucky polices industry in West Virginia.

In West Virginia, coal operators have complained repeatedly that mining companies in other coal states are not being subjected to the same scrutiny as they are here.

Welborn said there is a "common misconception among the industry about its obligations under" the federal Clean Water Act.

Some operators in Kentucky believed they did not need a "dredge-and-file" permit for their valley fills because they had received separate strip mine permits from the state, Welborn said. Other companies believed that any fills affecting watersheds that drained less than 250 acres did not need permits, he said.

"Neither of these positions is accurate, and may subject some mining companies to enforcement actions under the [Clean Water Act] authority," Welborn said.

In his letter, Welborn mentioned that valley fills have received a lot of attention because of the federal court lawsuit in West Virginia over mountaintop removal regulation.

Welborn did not mention that last year, Chief U.S. District Judge Charles H. Haden II banned all valley fills in perennial and intermittent streams.

In his ruling, Haden also said that fills may not be authorized under the "dredge-and-fill" permits, and must go through more rigorous pollution discharge permit reviews.

Lawyers for Gov. Cecil Underwood and the coal industry are appealing Haden's ruling to the 4th U.S. Circuit Court of Appeals. The ruling has been suspended pending resolution of the appeal.

Editor:

A March 10, 2000, story on EPA’s probe on Kentucky’s mountaintop removal mining program indicates that EPA feels that streams are destroyed illegally if the mine operators are not getting a Clean Water Act permit. The state’s strip mining permit is not good enough.

How lucky the streams in West Virginia, Virginia, and Pennsylvania are! They are destroyed only after a Clean Water Act permit is issued, while their poor relations in Kentucky are destroyed with only a state strip mining permit. Hats off to EPA for making sure all the right forms are filled out and that the streams are destroyed properly.

Documents that we received under the Freedom of Information Act say that EPA, along with the Army Corps of Engineers and the Office of Surface Mining, are trying to establish that the stream buffer regulation and the Clean Water Act "dredge and fill" regulation are the same thing.

But the Office of Surface Mining was not saying that when they established their regulations. In fact they went out of their way to distinguish between their regulations and the "dredge and fill" permit 404 program. And that was only in relation to wetlands. For streams, OSM mentioned nothing but their own regulations--which offer more protection than does the "dredge and fill" program. Now the agencies want to rewrite history and the regulations.

When will the agencies use the environmental laws to protect the environment instead of always looking for loopholes?