A federal court on Tuesday set aside controversial U.S. Environmental Protection Agency water quality guidance for coal mines in Appalachia, saying the agency went too far.
The EPA overstepped its statutory authority under the Clean Water Act and the Surface Mining Control and Reclamation Act, wrote Judge Reggie B. Walton of the U.S. District Court for the District of Columbia in his decision.
The EPA issued interim guidance in April 2010 that, among other actions, set a recommended maximum level of 500 microSiemens per centimeter for conductivity — salinity, essentially — in streams below coal mine discharges in Appalachia.
The guidance was based on a growing body of science on stream health below surface mining operations, EPA Administrator Lisa P. Jackson said on issuing the interim guidance.
Very few valley fills would be able to meet that standard, Jackson said.
Strong reactions followed. The state Department of Environmental Protection didn't like having its authority usurped. The coal industry saw the guidance as specifically designed to end mountaintop mining.
The agency issued final guidance in July 2010, and lawsuits filed by West Virginia, Kentucky and others were consolidated under this case, the National Mining Association v. Jackson, in District Court.
The court is not unmindful of the need to balance environmental and economic interests, Walton wrote in his decision, but the question before it was simply about the legality of the guidance.
"Today's decision has truly given coal miners and coal mining communities their ‘day in court' and has affirmed NMA's longstanding belief that EPA overreached its authority in its virtual moratorium on Eastern coal mining permits and denied those operations the protections provided for under the law," NMA President and CEO Hal Quinn said in a media release.
Vernon Haltom, of Coal River Mountain Watch, said, "Because the science is clear on what we need to do to protect our waters, we hope that today's court decision does not weaken EPA's resolve to protect us from mountaintop removal, which is increasingly linked to deadly human health problems."
State DEP Secretary Randy Huffman said it was really the only conclusion the court could draw.
"That's how blatantly wrong we felt EPA was from the beginning," Huffman said.
In 1982, the EPA gave the state of West Virginia the authority to issue water pollution discharges for coal mines, Huffman said. Thirty years later, the agency "stopped trusting" the state and reviewed every permit itself.
That, he said, has created an increasingly large backlog.
"I normally used to run 250 to 300 permit applications in the queue. It's up to about 700 now," he said.
"They don't comment on every permit, they don't object to every permit, but we have to send them up there and they have 30 days to look at them, and our guys get caught up in the grinding negotiations over what should be in a permit," he said.
What happens next, Huffman said, will be up to the agency.
"I still cannot simply issue these permits. I still have to send them to EPA. What EPA will do with them, I can't predict. They could say, ‘We're not going to look at them anymore,' or they might not change anything," he said.
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