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Coal industry sues EPA, Corps of Engineers over permit crackdown

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CHARLESTON, W.Va. -- Coal industry lawyers on Tuesday sued the U.S. Environmental Protection Agency and the Army Corps of Engineers to try to slow down the Obama administration's efforts to more strictly regulate mountaintop removal mining.

The National Mining Association filed suit in federal court in Washington, D.C., over EPA's more detailed review of mining permit applications and a new set of recommended water quality guidelines for surface coal mining in Appalachia.

In the 42-page complaint, the association alleges EPA's permit reviews were an effort to "rob" other agencies of their regulatory role and charges that EPA Administrator Lisa P. Jackson ignored requirements for public involvement when she issued the new water pollution guidelines.

"NMA members' efforts to navigate this unlawful process and obtain reasonable and predictable permit terms have been unsuccessful, leaving us no choice but to challenge the EPA and Corps policy in court," said NMA President Hal Quinn. "Detailed agency guidance is not a valid substitute for lawful rulemaking based on public notice and comment."

EPA spokesman Brendan Gilfillan said the agency is reviewing the coal industry lawsuit.

"EPA's mining guidance is fully consistent with the law and the best available science and will help ensure that Americans living in coal country don't have to choose between a healthy environment for their families and the jobs they need to support them," Gilfillan said in a prepared statement.

While the coal industry favors mountaintop removal's efficiency, and local political leaders praise the jobs provided, there is a growing scientific consensus that the practice is causing widespread and irreversible damage to the region's forests, water quality and communities.

Shortly after taking office, the Obama administration announced it was taking "unprecedented steps" to reduce the environmental impacts of mountaintop removal.

EPA began much more rigorous reviews of valley fill permit applications being considered by the Corps of Engineers and threatened to exercise its Clean Water Act authority to block those permits if it believed the impacts were too great.

In its suit, the mining association alleges this process "adds significant additional time to the corps regulatory review" and is "dramatically altering timelines" for companies to receive new mining permits.

Industry lawyers also complain that, without public involvement, EPA wrongly put into place a detailed tool that grades the potential impacts of permits to help agency officials determine which mining permits need more rigorous reviews.

This April, EPA also announced a new guidance for its regional offices in reviewing water pollution permits for mining projects being considered for issuance by state agencies like West Virginia's Department of Environmental Protection. The new guidance calls for much tougher review, and perhaps rejection of permits, based on the potential to increase the electrical conductivity of streams, which is a stronger measure of many harmful pollutants from mining and has been linked to damage of aquatic life.

EPA made its guidance effective immediately on an interim basis, but is also conducting an eight-month public comment period and subjecting the scientific reports the guidance is based upon to peer review.

In its suit, the mining association said the guidance constitutes a rulemaking that should have gone through a public comment before it was put into effect.

The suit asks for a court order to block the more detailed EPA permit reviews and the agency's conductivity guidance.

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


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