EPA Mine Water-Pollution Guidelines Thrown Out

Charleston Gazette
31 July 2012
By Ken Ward Jr.

Read the ruling: http://blogs.wvgazette.com/coaltattoo/

CHARLESTON, W.Va. -- Dealing another blow to the Obama administration's crackdown on mountaintop removal, a federal judge on Tuesday threw out new federal guidance that aimed to reduce water pollution from Appalachian coal mining operations.

U.S. District Judge Reggie B. Walton ruled that the U.S. Environmental Protection Agency overstepped its authority under federal water protection and strip mining laws when it issued the water quality guidance.

Walton also found that EPA Administrator Lisa P. Jackson "infringed on the authority" of state regulators to govern their own pollution permit and water quality standard programs.

The guidance in question aimed for tougher permit application reviews, including more detailed studies of whether mining impacts can be avoided or reduced, new testing of potential toxic impacts of mining discharges, and recommended limits on increases in pollution-related electrical conductivity, a crucial measure of water quality.

Walton concluded, though, that the EPA has "only a limited role" in such matters once states obtain federal permission to run their own water pollution permitting agencies. It is beyond the EPA's authority to demand specific toxic-impact tests, and agency officials wrongly were treating the purported "guidance" as binding on state permitting agencies, Walton said.

In a 34-page decision, Walton also noted the obvious: that it is unlikely his decision will end the growing debate over mountaintop removal's impact on the environment and public health, or on the future of coal in the region.

"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," the judge wrote.

The much-anticipated ruling is the third courtroom loss so far this year for the EPA on an issue related to mountaintop removal.

In January, Walton threw out the EPA's plans to work with other agencies to more closely scrutinize certain mining-related water pollution permits for valley fill waste piles. And in March, U.S. District Judge Amy Berman Jackson, also in the District of Columbia, overturned the EPA's veto of the largest mountaintop removal permit in West Virginia history. The EPA is appealing Jackson's ruling.

The National Mining Association, one of the groups that challenged the EPA guidance, praised Walton's decision, saying it "has truly given coal miners and coal mining communities their 'day in court.'

"As we have always maintained, [the] EPA has engaged in an unlawful overreach in its attempt to commandeer the permitting responsibilities the law places with other state and federal agencies," the mining association said.

Sen. Joe Manchin, who as governor also sued the EPA over the mining guidance, said the ruling marks "a great day for West Virginia.

"I'm pleased and gratified to hear that the federal court has ruled in favor of our state, the miners who work here, and the people who depend on coal for their livelihoods," said Manchin, D-W.Va.

Gov. Earl Ray Tomblin said the ruling shows that the state Department of Environmental Protection "knows what's best for West Virginia, not the federal government."

However, in another decision released Tuesday, the state Environmental Quality Board reaffirmed its own earlier ruling that the DEP wrongly did not require some of the sorts of water quality limits that the EPA's guidance recommended be included in mining permits.

Another important mountaintop removal case is pending before U.S. District Judge Robert C. Chambers in Huntington, over a permit sought by Alpha Natural Resources from the U.S. Army Corps of Engineers. That ruling is expected any day.

EPA spokeswoman Alisha Johnson said the agency is reviewing Tuesday's court ruling, but will "continue to protect public health and water quality for Appalachian communities under the law."

At a congressional field hearing in Ohio earlier in the day, EPA officials had defended their mining policies.

"Let me be clear -- [the] EPA has not established a 'moratorium' on coal mining," said Shawn Garvin, administrator for the agency's Philadelphia region, which includes West Virginia. "We can find ways to both mine and also protect our environment."

The EPA disputed recent West Virginia DEP statements that federal reviews play a large role in a backlog of water pollution permit decisions by the state. The EPA said it has taken action that could block state issuance of mining water pollution permits only five times out of more than 280 draft permits it reviewed between July 2011 and June 2012.

Emma Cheuse, an Earthjustice lawyer who represented citizen groups in the case, said the decision shows that the EPA needs to move forward to actually write binding regulations -- not advisory guidance of the type Walton struck down -- "to prevent the harm caused by mountaintop removal mining."

"There is an overwhelming scientific consensus," Cheuse said, "that pollution from this type of mining -- and its waste disposal -- devastates Appalachian streams."

Most recently, a new peer-reviewed study by scientists at Duke and Baylor universities warned that mountaintop removal is damaging water quality as far as four to six times farther downstream than valley fill waste piles themselves extend. Other studies published over the past five years have continued to report that residents who live near mountaintop removal mining operations face greater risks of serious health problems, including cancer and birth defects.

Mining industry officials and coalfield politicians have, for more than three years, criticized the Obama administration's mining policies, arguing that the administration is out to eliminate all coal mining.

During the first three years of the administration, coal-mining jobs in West Virginia and across the region actually increased.

Since the start of 2012, however, operators have announced hundreds of layoffs, as coal producers were hit hard by a mild winter, the mining-out of the best-quality reserves, competition from Wyoming and Illinois, extremely low natural gas prices and new limits on toxic pollution from coal-fired power plants.

While statewide coal employment is a fraction of what it was decades ago, in some coal counties, mining jobs are the only option that pays well, and mining operations are significant contributors to the economy through spin-off jobs and tax revenues.

At the same time, federal government projections estimate continued declines in Appalachian coal production, and in coal's share of electricity generation, regardless of any new environmental rules. Few politicians or business leaders focus on plans for dealing with the impact of those trends.

Reach Ken Ward Jr. at kw...@wvgazette.com or 304-348-1702.