Rules that U.S. agency infringed on authority given to state regulators by federal mining laws
By John Raby
Associated Press
CHARLESTON, W.Va. (AP) — The Environmental Protection Agency overstepped its powers by setting up water-quality criteria for coal mining operations in Appalachia, a federal judge ruled Tuesday.
U.S. District Judge Reggie B. Walton in Washington ruled that the EPA infringed on the authority given to state regulators by federal clean- water and surface-mining laws. A coal mining industry coalition sued the EPA and Administrator Lisa Jackson, and the lawsuit was joined by West Virginia and Kentucky.
The ruling represents the latest setback to the Obama administration’s attempts to crack down on mountaintop removal coal mining.
Last year, the EPA revised standards issued in April 2010 by tightening guidelines on the practice of dumping waste from surface mine blasting into Appalachian valley waterways. Critics say that practice destroys the environment. The mining industry defends it as an efficient way to produce cheap power and employ thousands in well-paying jobs.
The EPA had written that the fundamental premise of its new guidelines was that “no discharge of dredged or fill material may be permitted” under any of three conditions: if the nation’s waters would be “significantly degraded"; if it causes or contributes to violations of a state’s water quality standard; or “if a practicable alternative exists that is less damaging to the aquatic environment.”
The National Mining Association, one of the plaintiffs, denounced the guidelines as a “jobs destroyer” and hailed Walton’s decision as a way to get miners back to work “by allowing the state permitting agencies to do their jobs.”
“This is really the sort of ax that has fallen on EPA’s entire guidance regime with respect to coal permits,” said Luke Popovich, a spokesman for the association.
Last year, Walton sided with the National Mining Association in its challenge of a 2009 decision in which the EPA and the U.S. Army Corps of Engineers agreed to coordinate reviews of backlogged permit applications for waste disposal at Appalachia mountaintop mining operations that raised serious environmental concerns.
And in March, another federal judge declared valid water pollution permits that the EPA had revoked for one of West Virginia’s largest mountaintop removal coal mines. The U.S. Army Corps of Engineers had issued the permits for the 2,300-acre Spruce No. 1 mine in Logan County.
A message left with the EPA wasn’t immediately returned.
Cindy Rank, chair of the West Virginia Highlands Conservancy’s Mining Committee, said Tuesday’s decision “continues to put us living in Appalachia in the unconscionable position of having to document our own communities’ sickness, disease and other unexplained health impacts as reasons to finally stop the devastating practice of mountaintop removal coal mining.”
Even Walton recognized the dilemma, saying the court “is not unappreciative of the viable interests asserted by all parties to this litigation.”
“How to best strike a balance between, on the one hand, the need to preserve the verdant landscapes and natural resources of Appalachia and, on the other hand, the economic role that coal mining plays in the region is not, however, a question for the Court to decide,” he wrote.
U.S. Sen. Joe Manchin, who had filed a similar lawsuit against the EPA when he was West Virginia governor, called it “a great day for West Virginia.”
“I remain hopeful that this court decision will put us on the path of getting the permits that we need to provide energy and jobs not just for West Virginia, but for this entire country,” the Democrat said. “Looking ahead, I will work to make sure the EPA understands that it needs to work as an ally, not an adversary.”
Kentucky Gov. Steve Beshear, a Democrat, called the ruling “a victory for coal miners who have seen mines close and their jobs put in jeopardy due, in part, to the actions of the federal EPA.”
Beshear said the regulations had essentially halted three dozen pending coal permits in Kentucky. West Virginia Environmental Protection Secretary Randy Huffman said that prior to EPA’s most recent guidelines, West Virginia was issuing up to 400 mining permits per year. But that trickled to about 100 in 2011 and nearly 700 additional permits are in limbo.
Huffman commended the judge “for doing the right and obvious thing.”
“We knew when this first draft guidance document came out that it was wrong, that it was an illegally promulgated document,” Huffman said. “We had no doubt we were going to win from the very beginning. We’re not down here high-fiving one another. We knew that there was no other decision to be made.”
Huffman said he fully expects EPA to continue reviewing permit applications and “that’s not a problem.”
