EPA Mine Water-Pollution Guidelines Thrown Out
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
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
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
"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
"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,
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
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
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
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
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
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.