Challenges EPA’s rule-making process

WASHINGTON, D.C. – (May 5, 2011) – Kentucky Energy and Environment Secretary Len Peters today told a congressional committee meeting in Washington, D.C. that he is deeply troubled by the federal Environmental Protection Agency’s (EPA) refusal to talk with states and listen to suggestions regarding the issuance of Clean Water Act 402 permits sought by coal companies.

            In his testimony before the House Committee on Transportation and Infrastructure Subcommittee on Water Resources and Environment, Sec. Peters said Kentucky intervened in support of the Kentucky Coal Association in its lawsuit against the EPA because the administration of Governor Steve Beshear believes the EPA’s actions for the past year are arbitrary, requiring Kentucky’s regulators to adhere to permitting conditions that have not been promulgated in line with the Federal Administrative Procedures Act. Sec. Peters told the panel his attempts to bring a resolution to issues with EPA Administrator Lisa Jackson have been disappointing.

            “People on my staff and I have been in ongoing discussions with our regional EPA administrator attempting to resolve the issues to the satisfaction of all parties – the EPA, state, the regulated community and the citizens of Kentucky,” Sec. Peters said. “Unfortunately, I am not highly optimistic that such a resolution will occur, especially in light of a recent meeting with Region IV EPA. Indications are that these earnest discussions to arrive at a resolution are not being accepted by EPA headquarters. I am very disappointed that EPA Administrator Jackson can be so dismissive of such an important issue.”

            Sec. Peters went on to tell the subcommittee that it is Kentucky’s contention that the EPA has, for more than a year, unlawfully reviewed and objected to Clean Water Act 402 permits proposed for coal mining operations in six Appalachian states, including Kentucky, for compliance with an un-promulgated water quality standard. “Incredibly, these EPA objections were for permits that my staff drafted in accordance to standards that EPA had, prior to April 1, 2010, supported,” said Peters.

            The impact of the EPA ruling-making process, according to Peters, is that 21 permits are being held up by the EPA and dozens more face the same fate. The federal agency has used guidance that EPA itself says is not legally binding, as the basis to object to proposed CWA 402 permits. In so doing, EPA has made these objections without any timetable requirement to act upon those objections and without any judicial recourse by affected parties.

            In October 2010, the Beshear administration joined with the Kentucky Coal Association in a lawsuit against EPA, challenging the agency’s arbitrary rules, guidance and oversight regarding coal mining permits under the Clean Water Act. That action is pending in federal court in Washington, D.C.  “Kentucky state government works hard to balance our need to mine coal and the stewardship of our environment,” said Gov. Beshear.  “Sec. Peters’ testimony today made clear that the EPA.’s arbitrary actions make our job more difficult, and harm Kentucky’s economy.”

Published: April 7, 2011

A federal appeals court today heard arguments over whether an environmental group can sue over U.S. EPA’s failure to intervene to prevent the construction of three power plants in Kentucky.

The Sierra Club and Valley Watch filed a citizen suit against EPA in 2009 alleging that it was required to act because at the time the plants were approved, Kentucky’s state implementation plan for the agency’s permitting program had not been updated in accordance with national standards (Greemwire, Nov. 11, 2009).

The three proposed plants are the Kentucky NewGas Synthetic Natural Gas Production Plant, the Cash Creek Coal-Gasification Station and the J.K. Smith Generating Station. Since the suit was filed, the Smith plant’s operators have withdrawn from the permitting process.

It’s not clear based on the argument which way the three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit will rule.

It’s possible the court could conclude that EPA is required to do something in such circumstances but has the option of making a conscious decision not to stop a project from going ahead.

Under the Kentucky regulations, proposed plants that would emit nitrogen oxides would still not be considered “major emitting facilities” as part of the permitting process, despite EPA National Ambient Air Quality standards stating that they should be.

The regulations have since been updated and were approved by EPA in a final rule that went into effect in October 2010. The concerns raised by the Sierra Club were also reflected in the permits Kentucky issued for the two plants that are still due to be constructed.

Chief Judge David Sentelle appeared concerned about how courts should insert themselves into the process if EPA opted not to act.

He asked the environmental groups’ attorney, Robert Ukeiley, whether if EPA simply decided it didn’t wish to intervene, “wouldn’t that be the end of the game?”

Sentelle also noted that other statutes that impose mandatory duties on government agencies sometimes contain a “laundry list” of options for courts to consider. The Clean Air Act does not offer courts any guidance on that point, he added.

EPA maintains that the Clean Air Act gives it discretion on whether to intervene in such matters. The provision of the Clean AIr Act that authorizes citizen suits clearly states that actions can only be brought when the agency fails to act under any provision of the act “which is not discretionary,” the agency’s lawyers noted in their brief.

The U.S. district court judge who handled the case agreed and dismissed the complaint.

The agency also maintains that the issue is largely moot because Kentucky updated its state implementation plan and the Smith plant is no longer part of the process.

Addressing the merits, Justice Department attorney John Arbab said a phrase in the Clean Air Act stating that the EPA administrator should intervene “as necessary” gives the agency the option not to get involved.

Sentelle disputed that point.

“It doesn’t necessarily mean there’s no mandatory duty,” he said.

The case argued today focuses on one of several grounds on which environmentalists have challenged the construction of the plants (Greenwire, June 17, 2010).

Watch this YouTube and see the results. :

http://www.youtube.com/watch?v=cwL457B6fGw&feature=player_embedded

Senators McConnell and Paul Join Together to Protect Kentucky Coal Jobs
Kentucky Senators introduce legislation to address 404 permits

Washington, DC – U.S. Senate Republican Leader Mitch McConnell and Senator Rand Paul introduced legislation Thursday to protect Kentucky’s coal miners from an overreaching Environmental Protection Agency (EPA) and its war on coal. Coal is a vital sector of Kentucky’s economy. More than 200,000 jobs in the state depend on it, including the jobs of approximately 18,000 coal miners, and half the country’s electricity comes from coal.

Senators McConnell, Paul and Jim Inhofe (R-OK), ranking Republican on the Senate Environment and Public Works Committee, introduced the Mining Jobs Protection Act in the U.S. Senate. The legislation would tell the EPA to “use it or lose it” when deciding whether to invoke its veto authority of a 404 permit within a reasonable time frame, giving permit applicants the certainty they need to do business. Mines are required to obtain 404 permits from the EPA to operate.

The bill would ensure that all 404 permits move forward to be either approved or rejected, so applicants aren’t left in limbo unsure how to act. The bill also ensures that the EPA cannot use its veto retroactively.

“The EPA has turned the permitting process, which is already cumbersome, into a back-door means of shutting down coal mines,” Senator McConnell said. “The thousands of Kentuckians who work in coal mining or have jobs that are dependent on it are in jeopardy. Other industries besides coal are at risk, too: I’ve heard from farmers, realtors, the transportation industry and others who also need permits from the EPA to continue their business. Our legislation ensures that what the EPA did in West Virginia will not happen in Kentucky. Attacking an industry so important to Kentucky would put people out of work, impede job growth, and increase energy prices.”

“The out-of-control EPA is already costing the people of Kentucky jobs and their war on coal could cost us even more,” Senator Paul said. “President Obama is on record saying he wants to ‘bankrupt’ the coal industry, that’s why Senator McConnell and I are working to end this abuse by the EPA, and stop the Obama administration from killing jobs in Kentucky and other coal-producing states by trying to regulate away our means to make a living and drive up our electric bills.”

The McConnell/Paul legislation will be referred to the Senate Environment and Public Works Committee for consideration.

####

 State of Play: The next battle over EPA’s greenhouse gas regulations could be on the House floor.
 

“The Environmental Protection Agency and the Obama administration have decided basically just because they have the ability to decide as the executive branch that they want to put the American economy in a straight-jacket … with these greenhouse gas regulations,” said Rep. Joe Barton (R-Texas).

Barton and his colleagues took turns assailing Jackson as she warned the committee against passing legislation from Rep. Fred Upton (R-Mich.) and Ed Whitfield (R-Ky.) to upend EPA climate rules.

“Chairman Upton’s bill would, in its own words, ‘repeal’ the scientific finding regarding greenhouse gas emissions,” Jackson warned. “Politicians overruling scientists on a scientific question – that would become part of this committee’s legacy.”

All this action despite the fact Jackson wasn’t on the GOP’s original witness list.

Rep. Bobby Rush (D-Ill.) said Democrats “had to kick and scream and scratch” to get Jackson invited, despite Republicans’ insistence that she would be appearing at hearings so often she’d need her own parking space on Capitol Hill.

Whitfield spokesman Robert Sumner said the original purpose of the hearing was to “hear directly from job creators and state leaders who are affected by the regulatory efforts of the EPA — something on which Administrator Jackson may have views that the committee ought to hear.”
Republicans say the agency’s climate rules will cause devastating job losses across the economy, and argued that EPA was under no obligation to issue those rules in the first place.

Jackson cited the 2007 U.S. Supreme Court determination in Massachusetts v. EPA, which gave EPA the authority to regulate greenhouse gases if it determined the emissions endangered public health and welfare. EPA affirmed in 2009 that the gases do indeed pose a threat. But that wasn’t enough to satisfy some Republicans.

“I would submit to you that the language in Massachusetts v. EPA does not say that the EPA has the power to start regulating CO2,” said Rep. Lee Terry (R-Neb.). “The issue here is whether or not this administration is grabbing power without … Congressional approval,” he added.
Read more: http://www.politico.com/news/stories/0211/49187.html#ixzz1DUkudXLN
]]> http://kycoalblog.org/2011/02/09/gop-epa-fight-lives-up-to-hype/feed/ 0 kentuckycoal http://kycoalblog.org/2011/02/03/office-of-surface-mining-director-joe-pizarchik-shouts-to-the-ap/ http://kycoalblog.org/2011/02/03/office-of-surface-mining-director-joe-pizarchik-shouts-to-the-ap/#comments Thu, 03 Feb 2011 22:11:56 +0000 kentuckycoal http://kycoalblog.wordpress.com/?p=502 ]]>  

United States Department of the Interior

OFFICE OF SURFACE MINING

RECLAMATION AND ENFORCEMENT

Washington, D.C. 20240

Dear editors and publishers,

I am forced to take issue with an Associated Press article that appeared last week about a rule that the Office of Surface Mining Reclamation and Enforcement (OSM) is preparing to better protect streams from the adverse effects of surface coal mining (“New Rules Would Cut Thousands of Coal Jobs,” January 26, 2011). The article claims that the rule “would trim coal production to the point that an estimated 7,000 of the nation’s 80,600 coal mining jobs would be lost.”

With great respect, this misrepresents the facts. The document to which the article refers is the first working draft of part of what could become the preliminary Draft Environmental Impact Statement. OSM has shared the working draft with state agencies that are cooperating with OSM by providing comments as OSM considers further development of the rule. OSM’s mission is to strike a balance between protecting the environment while assuring that the coal supply essential to the Nation’s energy needs is maintained.

The purpose of preparing an Environmental Impact Statement (EIS) is to inform OSM — and, in turn, the public — about the best way to accomplish this balance. As required by law, OSM will consider in the EIS a reasonable range of alternatives, which may vary from not revising the rule at all, to alternatives that may greatly restrict the way that surface coal mining is conducted. The alternative cited in the article is one of several being considered, and the potential job impacts cited in the article relate to only one of the options that the Draft EIS will evaluate.

Again, the “Environmental Impact Statement” referenced in the article is a very early working draft document. The data in the document is a work in progress, and the data is not complete. The data and the analyses have not been validated and are subject to additional review by the agency. OSM has not adopted the numbers in this working draft document.

OSM has shared this very preliminary document with its state and Federal partners in a spirit of openness and transparency, but at this point, OSM has not made a final decision as to what changes will be in the proposed rule. The proposed rule that OSM intends to publish later this year will fully consider the importance of coal as an essential energy resource for this nation, as well as protect our valuable streams, and help ensure solid, well-paying jobs for the citizens of Appalachia and other coal-producing regions.

Sincerely,

Joe Pizarchik

Director, Office of Surface Mining Reclamation and Enforcement

Washington, D.C.