EPA asked to rescind Kentucky NPDES Authority

KFTC along with the Sierra Club, Public Justice and the Appalachian Center for the Economy and the Environment asked the U.S. EPA today to rescind the state of Kentucky's authority to enforce the pollution discharge permitting program under the Clean Water Act.

The request was based on the state's widespread failure to protect the waters of the commonwealth, especially in coal mining areas.

"Citizens know when the companies violate the law here, but they've stopped reporting it because they know the agency won't do anything to enforce the law," said Rick Handshoe, a Floyd County resident and KFTC member. "It feels like the state has lost control of what happens here. It's the coal companies that run the law of the land around here, not the Kentucky Division of Water (DOW)."

There is a growing preponderance of data that shows the poor quality of Kentucky's waterways:

• nearly 2,500 miles of streams already fail to meet water quality standards;
• coal mining is the identified or "suspected" pollution source for much of this;
• numerous additional miles of streams are being polluted as a result of DOW's lax or sometimes non-existent water standards and pollution permit requirements;
• the DOW has regularly issued permits that fail to address key pollutants associated with coal mining and known to be harmful. such as toxic selenium and aluminum. In most cases DOW requires almost no water testing to actually determine whether or not the water is being contaminated.
• The cumulative pollution level in a stream is currently not considered when setting limits for specific mining operations. As a result the toxicity of downstream waters in recent testing was between 3 and 55 times higher than state standards.

"The problem is much more widespread and more serious than the state admits. We found high conductivity downstream from almost every mine site we tested," said Tim Guilfoile, deputy director of the Sierra Club's Water Sentinels program, which has done extensive water testing in Kentucky. High conductivity is an indicator of badly polluted water. Water with elevated conductivity may not support aquatic life.

The state also is giving inadequate emphasis to water quality programs, as evidenced by the chronic underfunding of the Division of Water. For example, only four permit writers develop and review more than 2,300 permits.

The petition asks the EPA to take over primary responsibility for enforcing the permitting program, known as the National Pollutant Discharge Elimination System (NPDES). The state currently has authority, granted to it by EPA, for enforcing this program – one of the key components of the federal Clean Water Act. But Kentucky's water program has completely failed to prevent the widespread contamination of state waters by coal mining.

A copy of the petition is here.