The Kentucky Coal Association has sued EPA, alleging that the agency’s permitting requirements for mountaintop mining, which were announced in April 2010, are arbitrary and capricious and violate the Administrative Procedure Act (APA) and Clean Water Act. Ky. Coal Ass’n v. EPA, No. N/A (E.D. Ky filed 10/18/10). The requirements were incorporated in an April 1, 2010, memorandum titled “Detailed Guidance: Improving EPA Review of Appalachian Surface Coal Mining Operations Under the Clean Water Act, National Environmental Policy Act, and the Environmental Justice Executive Order.” Under the memorandum, mining companies cannot exceed a maximum conductivity level of 500 microsiemens per centimeter—a level of salinity intended to protect 95 percent of aquatic life and freshwater streams in Central Appalachia.

The complaint alleges that the memorandum’s requirements are based on the faulty premise that high levels of conductivity are a primary cause of harm to water quality and aquatic life. According to the complaint, the agency’s conclusion is based on a small number of studies, some of which have not been peer reviewed. Plaintiffs argue that the memorandum is an attempt by EPA to establish new water quality standards without complying with the APA. They seek an injunction blocking the EPA guidance.