Published July 31, 2012
| Associated Press
CHARLESTON, W.Va. – 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 in a lawsuit filed by a coal mining industry coalition against the EPA and Administrator Lisa Jackson. The judge said the EPA infringed on the authority given to state regulators by federal clean water and surface mining acts.
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.
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.
"It is now time to get miners back to work by allowing the state permitting agencies to do their jobs," the association said in a statement.
West Virginia Environmental Protection Secretary Randy 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"We knew when this first draft guidance document came out that it was wrong, that it was an illegally promulgated document," Huffman said.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."
In 2011, aides for then-Gov. Joe Manchin filed a similar lawsuit targeting EPA policies adopted since President Barack Obama took office that are designed to limit the practice of burying streams under excess rock removed while extracting coal at mines.
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.
West Virginia's lawsuit was consolidated with the National Mining Association's complaint.
Manchin, now a U.S. senator, 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," he said. "Looking ahead, I will work to make sure the EPA understands that it needs to work as an ally, not an adversary."
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.
Huffman said 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.
"That gives you an idea of how much the process was slowed down by what EPA was doing," he said.
Huffman said he fully expects EPA to continue reviewing permit applications and "that's not a problem."
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."
A message left with the EPA wasn't immediately returned.